Supreme Court dismisses claim against Gardaí for negligence in chasing motorcyclist, ruling no causal link to accident.

THE SUPREME COURT

Hardiman J.

Kearns J.

Finnegan J.

Appeal Number [124/04]

BETWEEN

DEIRDRE HAYES

PLAINTIFF/RESPONDENT

AND

THE MINISTER FOR FINANCE

DEFENDANT/APPELLANT

JUDGMENT of Mr. Justice Kearns delivered the 23rd day of February, 2007

The plaintiff is a young woman who suffered multiple severe personal injuries in a road traffic accident which occurred on the 6th day

of August, 1994 at or near Kilfeakle in the County of Tipperary. The accident occurred shortly before 9 p.m. when road and weather

conditions were perfect. On that occasion the plaintiff was a pillion passenger on a 500 cc motorcycle driven by her then boyfriend

Ian Lynch when at a bend in the road the motorcycle crossed a continuous white line on to its incorrect side. There was at that time

a motor car driven by Mr. James Kearns which was coming in the opposite direction. Mr. Kearns observed that the motorcycle was

approaching at speed and was out on the white line. He slowed and pulled into the left at the entrance to a farm house and was all

but stopped when the motorcycle hit the front of his car. This was a forceful impact and both the motor cycle driver and pillion

passenger were thrown some considerable distance beyond the car. It is quite clear that the driving of Mr. Kearns in no way caused

or contributed to either the accident or injuries sustained by either the driver of the motorcycle or the plaintiff pillion passenger.

No claim of any sort was brought against Mr. Kearns, but the defendant/appellant was sued because it is alleged that the motorbike

driven by Ian Lynch was at the time being chased at high speed by a garda vehicle “which caused the motorcyclist to go out of

control and to panic as a result of being chased, being followed and being pursued” so that it is alleged that the accident complained

of was caused or contributed to by the negligence and breach of statutory duty of the defendant, his servants or agents.

The matter came on for hearing in the High Court (Finlay Geoghegan, J.) sitting in Limerick, and at the conclusion of the hearing the

learned trial judge in an ex tempore judgment concluded that the cause of the speed at which the motorbike was being driven at the

time of the accident was the pursuit of the bike by the garda vehicle.

Before considering the judgment of the learned trial judge in more detail, it is necessary to set out the background circumstances

which culminated in the accident at Kilfeakle.

On the evening in question, two members of the Thurles Garda Station, Garda Anne Meehan and Sergeant (then Garda) Michael

Dempsey, had set up a radar speed check on the Urlingford-Cashel road. They were sitting in an Opel Vectra standard issue patrol car

about a mile and a half outside Urlingford and facing towards Urlingford. The vehicle was in plain view of traffic coming from Urlingford

once that traffic crested a hill. Garda Meehan was sitting behind the wheel of the patrol car and Sergeant Dempsey had the radar gun

in his hand. They first heard and then saw a motorbike approaching at speed from Urlingford. Garda Dempsey noted the speed of the

motorbike on the radar gun to be 80 miles per hour. The motorcycle did not stop at the speed check and in fact increased his speed.

Garda Meehan turned the patrol car and followed the motorbike. While this was happening, Sergeant Dempsey radioed back to the

communications control centre in Thurles seeking assistance and stating that the bike had failed to stop. They were informed that a

garda presence would come to Horse and Jockey which was some six or seven miles down the road. Sergeant Dempsey also radioed

ahead to Cashel for the purpose of setting up a road-block or check-point there. In evidence Garda Meehan stated it took them some

time to get the bike back into view again because they had started from a stationary position. The motorcycle had anything up to

half a mile of a start on the garda vehicle. The blue flashing light was operating on the garda vehicle, but the siren was inoperative at

the time. While pursuing the bike, the garda vehicle at no stage caught up with it. In evidence, Garda Meehan stated she had no idea

who was on the bike, beyond noting there were two people who had helmets and black leather clothing. They had received no

information to suggest that those on the motorcycle had been involved in any criminal conduct, though Garda Meehan stated in

evidence that her “gut instinct” was that some serious crime might have taken place and that it was highly unusual for a speeding

vehicle not to stop at a speed trap.

No garda presence came to Horse and Jockey, but a garda road-block was set up on the Dublin side of Cashel. However, Garda

Meehan stated that the motorcycle swerved to the right of the garda patrol car which constituted the road-block, driving completely

on the incorrect side of the roadway for that purpose, then swerved back onto its correct side of the main roadway through Cashel.

As it passed the road-block the pillion passenger was observed to throw both hands in the air, suggesting to the pursuing gardaí that

the pillion passenger wanted at that point to get off the bike.

The garda vehicle followed in the same manner and pursued the motorcycle through the town of Cashel, though it never got close

enough to permit the gardaí to identify the registration number of the bike. At the end of the town the motorcycle made a right turn

and then a left turn onto the Tipperary/Limerick road. Mr Lynch and the plaintiff had earlier travelled on the bike from Limerick to

Kilkenny and always intended to take this route when returning to Limerick. Once the bike went out on to the Tipperary road Garda

Dempsey radioed ahead for a check-point to be set up at the next town which was Tipperary.

Shortly after leaving Cashel, the gardaí lost sight of the motorbike because their car came in behind an articulated truck and they

were unable to overtake the truck for quite some distance. They eventually succeeded in overtaking it and, coming out of Golden and

from an elevated position, they caught sight of the tail light of the bike going around a corner at a time when the bike was about one

mile ahead of them. Not long after that, they came around a left hand bend and observed that the motorcycle had crashed into the

front of a vehicle travelling from the opposite direction.

It seems clear from the evidence that the road deteriorated significantly once the vehicles left Cashel. The vehicles were no longer on

a major road, but rather on a minor road. The only evidence as to the speed of the garda vehicle on the Tipperary side of Cashel was

that given by Sergeant Dempsey, who stated that the maximum speed of the garda vehicle would have been 50 miles per hour. He

stated that the road was twisty and windy and was not a road upon which one could travel safely at speed. The gardaí gave

evidence that they were content to tail the vehicle at this stage as they knew a road block would await the motor cycle at

Tipperary.

Having heard the various witnesses, the learned trial judge made the following findings of fact:-

1) “That the motorcycle passed the initial speed trap at 80 miles per hour

2) That both gardaí were then sitting inside the car and that no signal was given to the bike to stop

3) That the gardaí had not received any information on the radio of any crime committed in the area

4) That having turned to commence the pursuit of the motorcycle, the garda members realised very quickly that the bike

was increasing speed and attempting to drive away from them.”

The learned trial judged also separately found the following facts:-

1) “The gardaí followed the bike for the purpose of apprehending the driver of the bike

2) That it very quickly became clear to the gardaí that the bike was not going to stop and was increasing speed

3) As the bike increased speed, the garda car increased speed and continued in pursuit of the bike and drove at speeds

of at least 100 miles per hour on the Urlingford – Cashel stretch of the road

4) That the gardaí started approximately one mile behind the bike and got to within 50 and 200 yards of the bike when

coming into Cashel

5) That the garda car pursued the bike through Cashel by driving as the bike had done on the hard shoulder on the far

side of the oncoming lane, circling a garda patrol car which was stopped on the oncoming lane and returning to its correct

side of the road as they went down the town of Cashel

6) That the garda car must have been within approximately 150 yards of the bike as the bike turned at the top of Cashel,

first right and then immediately left onto the Tipperary road. The undisputed evidence of Garda McDonnell, the garda from

Cashel, is that one needed to be within this distance to have visibility of a bike going on to the Tipperary road.

7) That the garda car pursued the bike in visible proximity for approximately one mile out of Cashel on the Tipperary road

towards Golden.

8) That the garda car was continuing to pursue the bike after Cashel but was held up by traffic between Cashel and

Golden.

9) That the garda car was sighted by Mr Lynch as he left Cashel, and he was aware that the garda car was pursuing him

on the road out of Cashel.

10) That the garda car was visible to the Plaintiff as a pillion passenger at one further point on the road after Golden.

11) That throughout the chase or pursuit, the garda car had its blue light flashing and headlights on.

12) That the garda car arrived one to one-and-a-half minutes after the accident occurred.”

These primary findings of fact are not challenged by the appellant in this appeal. The appellant’s case is that there was no breach of

any duty of care by the appellant towards the plaintiff and that incorrect inferences were drawn from the primary findings of fact by

the learned trial judge.

Having heard the evidence in the case the trial judge decided that the issues she had to resolve were:-

“(1) Was the chase or pursuit being given by the Garda to Mr Lynch's bike the cause of the speed at which he was

travelling at the time of the accident?

(2) If so, were the Garda in breach of a duty of care which they owed to the Plaintiff in undertaking or pursuing this

chase or pursuit?”

In relation to the first of these questions, the learned trial judge concluded that “a cause of the speed at which the bike was being

driven at the time of the accident was the pursuit of the bike by the garda car.”

In relation to the second question, the learned trial judge concluded as follows:-

“On the facts of this case, the offence of which the gardaí were aware, even on their account of what happened as the

bike passed them, was a traffic offence. There is no evidence of any more serious offence. On those facts I have

concluded that the gardaí in commencing a pursuit of a bike which was already passing them on the main Dublin-Cork road

already travelling at 80 miles an hour and continuing that pursuit which included the gardaí driving on the Dublin-Cork road

at a speed of 100 miles an hour was in breach of duty of care which they owed, inter alia, to the plaintiff as the pillion

passenger. I further conclude that the driving of the car in the manner which it is acknowledged as was done through the

town of Cashel and the continued pursuit out the narrow Tipperary road was also in breach of the duty of care owed. For

these reasons I find the defendant liable to the plaintiff in these proceedings.”

Relevant legal considerations

The State no longer enjoys immunity from tortious liability in this jurisdiction. That historic anomaly was removed in the case of the

negligent driving of a mechanically propelled vehicle belonging to the State by Section 170 of the Road Traffic Act, 1933 which was

replaced by Section 116 of the Road Traffic Act, 1961 and later by Section 59 of the Civil Liability Act, 1961 which provides:-

“ 1) Where a wrong is committed by the use of a mechanically propelled vehicle belonging to the State, the Minister for

Finance shall be liable to an action for damages in respect of damage resulting from the wrong in like manner as if the

Minister for Finance were the owner of the vehicle, and the person using the vehicle shall, for the purposes of such

liability, be deemed to be the servant of the Minister for Finance in so far as such person was acting in the course of his

duty or employment.”

There was no dispute between the parties at trial or on the hearing of this appeal as to the existence of a duty of care on the part of

the driver of a police vehicle to other road users, including a driver who may have been guilty of some sort of criminal behaviour and

in respect of whom a pursuit is undertaken. In this regard counsel for the plaintiff in opening the case at trial suggested that the

relevant duty of care was that outlined in the decision of the Court of Appeal in Marshall v. Osmond and another [1983] 1 QB 1034 in

which Sir John Donaldson M.R described the duty owed by a police officer in pursuit of a suspect in the following terms at p. 1038:-

“I think that the duty owed by a police officer to the suspect is, as Mr. Spokes, on behalf of the plaintiff, has contended,

the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in all the

circumstances. The vital words in that proposition of law are 'in all the circumstances', and of course one of the

circumstances was that the plaintiff bore all the appearance of having been somebody engaged in a criminal activity for

which there was a power of arrest.”

Counsel also made references to various provisions of the Garda Síochána Code which, while not imposing any strict legal liability on

the gardaí, were relied upon as being indicative of the nature of the duty of care. The provisions contained at par 35.39 (2) and (3)

of the Code are particularly relevant to the facts of this case and provide:-

“Chasing escaping vehicles:

a) The responsibility for undertaking a chase rests with the driver of the garda vehicle, unless the order is given by

a radio message. The driver is also responsible for deciding whether the pursued car is to be tailed or an attempt

made to stop it. The whole responsibility is with the driver alone and he is not to be interfered with in any way or

urged to higher speed by anyone. A chase at speed is only justified where it is really important to arrest the

occupants of the pursued car. A minor crime, traffic offence, or even the sighting of a stolen car, does not justify a

chase at speed.

Stopping escaping vehicles:

a) Stopping should only be adopted as a last resort. Usually it is better to tail the suspect in the hope that he will

be held up by traffic, run out of petrol or make a mistake, which will enable an arrest to be made. It is preferable to

let a criminal escape rather than risk death or injury to innocent people.

b) Stopping obviously involves risk to both vehicles and their occupants. If real need arises this risk must be

accepted, but it is essential that the right place and moment should be chosen so that no one else is endangered.

Here again, it is a question of the skill and discretion of the driver.

c) Where a member of the Garda Síochána is pursuing a vehicle and he suspects with reasonable cause that an

offence under Section 8 of the Criminal Law Act, 1976 or any offence under the said Act has been, or is being or is

about to be committed, he may require the driver to stop, and may use reasonable force in order to compel him to

comply with such requirement, and such force may include the placing of a barrier or other device in the path of the

vehicle.

This paragraph (c) does not affect the generality of the sub-section and is not to be construed as giving a blanket

permission to deal similarly with all offences or crimes.”

In the course of the appeal before this Court, further reference was made in course of submissions to a number of Canadian decisions

which dealt with police pursuits, notably Doern v. Phillips Estate (1994) 2 B.C.L.R. (3d) 349 and Noel v. Botkin and others (1995) 9

B.C.L.R. (3d) 21 British Columbia Supreme Court.

In the first of these cases, the Supreme Court of British Columbia reviewed a number of Canadian decisions before concluding (at p

17):-

“It is apparent from a review of these authorities that Canadian courts have been reluctant to find negligence on the part

of police officers in the lawful discharge of their duties. Nevertheless, the authorities also demonstrate that each case

must be examined according to the circumstances of the case”.

On the following page, the standard or duty of care was elaborated in the following manner:-

“Based on the authorities provided, there is little doubt that the standard of care to which a police officer will be held is

that of a reasonable police officer, acting reasonably and within the statutory powers imposed upon him or her, according

to the circumstances of the case. In this case, it is necessary to consider whether the pursuit policy, which constituted a

self- imposed standard of care, was followed. The police pursuit policy was obviously carefully and thoughtfully crafted. It

was designed to assist officers and in the conduct of the activity that put them at more risk of harm than any of their

other duties. Although the policy does not, in itself, constitute the standard of care, compliance with the policy, in my

view, is a very important factor to consider in determining whether the standard of care has been met.”

In Noel v. Botkin, the same court summarised the question to be asked in assessing the conduct of police officers during pursuit is to

enquire:-

“[W]hether they, viewed objectively from the view point of a reasonable police officer, acted reasonably and within the

statutory powers conferred upon them. In considering that question, the Court must take into account that officers will

be expected to perform the duties imposed on them by statute and to comply with policies adopted by the force to which

they belong. A failure to comply with policy will not necessarily constitute negligence, nor will an error in judgment.

Officers are exempted from compliance with certain traffic rules, provided they meet the requirements of Section 118 of

the Motor Vehicle Act. There must be a recognition that officers are required to exercise judgment in balancing the

competing interests of arresting wrongdoers and protecting citizens.”

Reliance was also placed by counsel on behalf of the defendant during the course of the appeal on a decision of the Scottish Court of

Session in Gilfillan v. Barbour (2004) S.C.L.R. 92, in which a careful distinction was drawn between the duty of care owed by a police

officer and the standard of care which that duty imposes. As Lord Reed stated in his judgment (at p 12):-

“The police officer, like any other driver, owes a duty of care to other road users: that much is indisputable. The real

question, however, is not as to the existence of a duty of care, but as to the standard of care which that duty imposes:

something which one might expect to depend on the circumstances. McNair J. appears to have considered that the

standard of care required of the police officer was the same as the standard required of any other driver”

In deeming such reasoning to be questionable, Lord Reed stated:-

“If the ordinary driver breaks the speed limit, that is in itself a material factor in determining whether he has been

negligent. In the case of a police officer, on the other hand, in circumstances in which he is exempted from obeying the

speed limit, no inference of negligence can be drawn from his driving at a speed in excess of the speed limit. The only

question, as it seems to me, is whether it is reasonable for him in the particular circumstances to drive at a given speed,

notwithstanding the risk of possibly injuring another road user. The answer to that question must depend on the

circumstances, in particular those circumstances relevant to the urgency of the police business on which he is engaged,

and those circumstances relevant to the degree of risk which he is taking. For example, in deciding whether it was

reasonable for a police driver to drive at a given speed, and to take the concomitant risks as regards other road users, it

might be relevant to know whether he was in pursuit of an escaping murderer or in pursuit of a motorist with defective

lights; whether he was trying to get an injured man to hospital in time to save his life, or trying to catch a car thief.

There will of course be circumstances where the risk to other road users is so high that it would not be reasonable to

take that risk, however urgent the police business might be.”

He continued as follows at page 14:-

“It also appears to me to be important, in circumstances such as those of the present case, to bear in mind that the

responsibilities of a police officer on mobile patrol can involve making difficult judgments: for example, as to the urgency

of responding to a call and the appropriate speed for him to adopt in doing so, bearing in mind that he has been trained in

driving skills to a higher level than the ordinary driver. Such judgments may have to be made in circumstances where the

potential consequences of excessive delay, or of excessive haste, may be equally grave; and where there may be little

time for reflection upon the choice to be made. It is therefore important, when such a driver is alleged to have been

negligent, for the court to be satisfied that his conduct went beyond a mere error of judgment within the scope of the

proper performance of his duties, and amounted to conduct which can be regarded as negligent. In determining that

question, the court has to consider all the circumstances, including the nature and degree of any emergency involved, in

order to decide whether, in driving as he did, the driver acted reasonably or not.”

In this context, counsel for the defendant drew the attention of the court to the Road Traffic (General and Ordinary Speed Limits)

Regulations, 1994 (S.I. Number 194 of 1992) and the Road Traffic (Special Speed Limits) Regulations, 1994 (S.I. Number 223 of 1994)

whereby vehicles used by the Garda Síochána in the performance of their duties were exempted from the application of the

regulations.

As already indicated there was no real dispute between the parties but that the legal principles elaborated above set out in fair detail

the relevant duty and standard of care. The essence of the dispute, however, was whether, in the particular circumstances of this

case, there was a breach of such duty, and if so, was it causative of the plaintiff’s injuries.

Submissions

In the course of the appeal, Mr. Brian R. Murray S.C., counsel for the defendant, argued that the gardaí had a duty to uphold the law

and to deal with infringements, be they speeding offences or other more serious transgressions. He submitted that in the instant

case, the gardaí had at all times behaved appropriately. They were perfectly justified in commencing the pursuit of a motor cycle

which had passed them at 80 miles per hour and which accelerated away from the speed trap at Urlingford. There were objectively

reasonable grounds for suspecting, either then, and most certainly at a later stage when the motorcycle passed the garda road-block

in Cashel, that some serious offence had been committed. The garda members had radioed ahead to set up appropriate road-blocks.

They had not driven at or sufficiently close to the motorcycle to cause the accident complained of. They had never even come

sufficiently close to the bike in the course of the pursuit to identify its registration number, even when closing to within 150 yards of

the bike when going through Cashel. He further argued that the nature of the pursuit after Cashel was quite different from that which

had preceded it. At no stage was there any evidence that the garda vehicle had then travelled in excess of 50 miles per hour.

Furthermore, Mr. Lynch, while he believed the garda car was still in pursuit, never saw it again from the time he left Cashel until the

accident occurred some 9.6 miles beyond Cashel. The garda vehicle was well behind at that stage and that was evident from the fact

that it took one and a half minutes for the garda vehicle to arrive on the scene of the accident. He submitted that this section of the

pursuit was quite different because the gardaí, having set up a road-block at Tipperary, were content to remain behind the

motorcycle and had no intention of doing anything which would cause danger to either the driver or the pillion passenger, nor did they

do so.

Alternatively, if the gardaí were to be found negligent in these circumstances, Mr Murray submitted that the driving of Mr. Lynch at

the time of the accident constituted a novus actus interveniens of such a degree as to absolve the defendant from all blame. He

cited Conole v. Redbank Oyster Company limited and another [1976] I.R. 191 as authority for the proposition that one must

distinguish between negligence and causative negligence. The only causative negligence in this case was the driving of Mr Lynch: this

was the proximate and sole reason for the accident in the particular circumstances of this case.

He further pointed out that Mr. McMahon S.C., counsel for the plaintiff, had agreed in the course of his submissions, that once the

garda vehicle got caught up behind the juggernaut shortly after leaving Cashel, the distance which then built up between the

motorcyclist and the garda vehicle provided an opportunity in which the motorcyclist, had he so wished, could have stopped and

allowed the pillion passenger to dismount from the motorcycle.

Further and alternatively, Mr. Murray submitted that nothing the garda patrol car had done, or failed to do, had, as a matter of fact,

been causative of the accident. There was nothing in the behaviour of the garda vehicle at any stage which could or should have

caused the driver of the motorcycle to behave as he did behave at the time of the accident itself. The garda vehicle must have been

at least a mile away and out of sight when the collision occurred between Mr. Lynch’s motorcycle and the vehicle driven by Mr.

Kearns.

For the respondent Mr McMahon submitted that the gardaí, once they had set up the roadblocks, should have desisted from any

attempt to maintain a pursuit which had as its goal the apprehension of the motor cyclist. They had no hard information that any

serious crime had been committed by the driver and thus had no right to engage in a chase at speed. It was foreseeable to the gardaí

that the motor cyclist would continue to speed after he left Cashel because it was clear the garda vehicle was continuing to pursue

him on the road to Tipperary.

Decision

The resolution of this matter has been somewhat simplified by the concession on behalf of the appellant that, in the particular

circumstances of this case, the occupants of the garda vehicle did owe a duty of care both to the driver of the motorcycle and to

the plaintiff.

That being so, it is not necessary to carry out the kind of detailed analysis in relation to the existence or otherwise of a duty of care

which was conducted by Fennelly J in Breslin v. Corcoran and the Motor Insurers’ Bureau of Ireland [2003] 2 I.R. 203, though some

consideration of the policy aspects of finding in favour of the existence of a duty have a relevance in this case when it comes to the

question of causation.

In Breslin the first named defendant had left his vehicle unlocked with the keys in the ignition. An unknown person stole the car and,

as a result of his negligent driving, collided with the plaintiff and caused him injury. This Court held in Breslin that, in determining

whether the owner of the vehicle owed any duty to the person ultimately injured, that it was natural to have regard to considerations

of fairness, justice and reasonableness, in addition to the elements of foreseeability and proximity and the judge of fact had to

consider whether it was fair and just to impose liability and to have regard to all the relevant circumstances. The Court further held

that while it was reasonably foreseeable that an unattended motor car would be stolen, it was not reasonably foreseeable that it

would then be driven negligently. The Court thus followed its own decision in Glencar Explorations p.l.c. v Mayo Co. Co. (No.2) [2002]

1 I.R. 84 in which Keane CJ had stated at p.139:-

“There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged

to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously

difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy

considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further

step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a

given scope on the defendant for the benefit of the plaintiff…”

In my opinion any view of the standard of care – as distinct from the duty of care – must turn on the circumstances of the individual

case. In this case that demands a recognition that the gardaí have wide ranging powers under the Road Traffic Acts in relation to the

preservation of law and order and, in particular, safety on the roads. Furthermore, public policy requires that the functions of the

gardaí in this regard are discretionary powers rather than duties. Thus Part IX of the Road Traffic Act, 1961, as amended, includes

the power of arrest without warrant, the right to demand information, the power to stop a vehicle, the power to dispose of a vehicle

temporarily, the power to detain a vehicle, the power of entry and detention of persons. Furthermore, the gardaí also have common

law powers which enable them to require a person to stop, even where there is no evidence or no reasonable suspicion of a crime

having been committed.

In the course of his judgment in (Director of Public Prosecutions (Stratford) v. Fagan [1994] 3 I.R. 265), Blayney J. examined the

duties of the gardaí and referred to the dicta of Lord Parker C.J. in Rice v. Connolly [1966] 2 Q.B. 414 at p 419:-

“It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which

appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There

is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further

include the duty to detect crime and to bring an offender to justice.”

He further stated:-

“It is clear from these statements in regard to the duties of the police at common law that part of the duties of the

gardaí are to detect and prevent crime. It follows in my opinion that if, in order adequately to detect and prevent crime,

they find it necessary to require motorists to stop, the common law gives them full power to do so.”

In support of this argument, Blayney J. remarked that Section 109 (1) of the Road Traffic Act, 1961 requiring a motorist to stop does

not actually give an express power to the gardaí; rather it obliges the motorist to stop when required to do so by a member of the

gardaí but says nothing about the circumstances in which the gardaí have the power to stop a motorist. This is consistent with the

existence of a common law power to stop motorists. Indeed, this power exists for practical reasons to allow gardaí to carry out their

duties effectively and expeditiously without being concerned with the legality of their actions or that the performance of their

functions may carry sanctions which in turn might deter them from their duties. Nonetheless the court stressed in Fagan’s case that

these powers must be exercised bona fide and not in a capricious or arbitrary manner. I am satisfied that the silence in the legislation

as regards the police power to pursue a motorist is confirmatory of a common law power to do so and that those powers must by

implication include the power to operate random checks, erect road blocks and stop or pursue offending motorists.

Indeed in recent years the Oireachtas has seen fit to increase the penalties for dangerous driving and speeding. The gardaí have a

clear obligation to ensure that these laws are upheld and to detect, prevent or stop any breaches thereof. In complying with these

obligations it is obvious that the gardaí may owe different standards of care in a pursuit situation depending on the particular

circumstances. For example, if there are good grounds for believing the perpetrator of a recent murder or bank robbery is attempting

an escape, the standard of the duty owed to such a person may obviously be less than in the case of a trivial offender, particularly if

the surrounding circumstances create particular risks in continuing the pursuit.

Turning to the facts of the instant case, Garda Meehan stated clearly that in all her eight years she had never seen anyone fail to

stop at a speed check. Similar evidence was given by Sergeant Dempsey. The failure of the motorcyclist to stop outside Urlingford led

those gardaí to form a suspicion that some sort of criminal activity had, or was, taking place so that the decision to pursue or tail the

motorcyclist in the performance of their duty to detect and prevent crime can not, in my view, be seen as being in breach of any

duty to those on the motor bike, notably in circumstances where the garda belief was both objectively reasonable and held bona fide.

There is no allegation or evidence whatsoever of mala fides on their part in this case. I think therefore that Mr Murray is correct in

describing the relevant test to justify the commencement of a pursuit as being one whereby the gardaí should have reasonable

grounds for doing so and not one whereby as a precondition they should first have a report on the car radio of the commission of a

crime before taking action. It would be a very unsatisfactory state of affairs to hold that the gardaí should have refrained from tailing

or pursuing the speeding motorcycle when they knew it was not going to stop and notably when the driver of the motorcycle, who

was already travelling well in excess of the speed limit, accelerated away from the speed trap. To so hold would be to condone a

state of affairs whereby a reckless driver might evade justice altogether by simply driving more erratically or dangerously than when

first observed.

I also believe the learned trial judge was in error in her inference that the pursuit was one seamless unitary process from Urlingford to

Kilfeakle. It seems to me the circumstances changed more than once during the pursuit, so that the 28 mile chase divides into

separate sections. The first section was that between Urlingford and Cashel. During that stretch both vehicles achieved speeds in

excess of 100 miles per hour. Nonetheless, the pursuing garda vehicle never got sufficiently close to identify the registration number

of the motorcycle. Nor had the gardaí any reason at that stage to believe that the driver and pillion passenger were acting other than

by way of joint venture.

In and through Cashel, however, rather different circumstances obtained. Firstly, on reaching the road block, the pillion passenger

threw up her hands in a gesture which conveyed to the pursuing gardaí that she wanted to get off the bike. It seems to me that

once the pursuing gardaí observed this behaviour the circumstances altered to some degree (with a corresponding elevation of the

standard of care) because the gesture conveyed to the occupants of the pursuing vehicle that the pillion passenger might not be, or

at any rate might no longer be, part of any joint venture. The gesture was also given at a time when the motorbike and pursuing

gardaí were about to pass through the main street of Cashel, where it might reasonably be expected there might be large numbers of

pedestrians, bicycles or other traffic. In such circumstances, it is not difficult to conclude that a different standard of care should

prevail for as long as those two considerations remained relevant. However, the critical point is that the accident did not happen in

Cashel but at a point ten miles from there.

It seems to me that a completely different set of circumstances came into being when the vehicles left Cashel. Firstly, the nature of

the road was different and did not lend itself to excessive speed, at least in so far as the garda vehicle was concerned. Secondly, the

occupants of the garda vehicle were aware that a road block had been set up ahead in Tipperary and were content to sit in behind

the motorcycle, rather than to attempt to stop it in any particular way themselves. Thirdly, the garda vehicle became trapped behind

an articulated vehicle for some time, so that when the garda vehicle came upon the scene of the accident some 9.6 miles outside

Cashel, the accident had already occurred some one and a half minutes beforehand. Whatever about the speed of the motorcycle

immediately before the accident, the evidence at trial was that the garda vehicle never exceeded 50 miles per hour along this stretch

of roadway. Unless one took the view, which I do not take, that the gardaí in the following vehicle should have opted out of any

further interest in these events by halting their car, I do not believe there was any breach of duty which the occupants of the garda

vehicle owed, either to the driver of the motorcycle, or to the pillion passenger, over these last few miles, even if the plaintiff is

deemed to be no more than an involuntary participant in events at that stage.

Even if it had been negligent on the part of the gardaí to follow the motor bike towards Tipperary, the question would still have to be

addressed as to whether the driving of Mr Lynch at or near the scene of the accident constituted a novus actus interveniens such as

would have exonerated the appellant’s agents in any event. The following passage in McMahon and Binchy, Irish Law of Torts, 3rd

Ed., (Dublin, 2000) (at p 77) is useful in considering the kind of actions which may amount to a novus actus interveniens by a third

party (who in this instance would be Mr Lynch):-

“From the case law we may state the following propositions with some degree of confidence:

1) If the third party’s act is wholly unforeseeable then the original defendant will not be liable

2) If the third party’s act is intended by the original wrongdoer, or is as good as programmed by him, or if it is an

inevitable response to the defendant’s act or is very likely, then the original defendant is still considered to be the

operative cause in law. The third party’s intervention in these circumstances is not a novus actus which will break

the chain of causation between the plaintiff’s damage and the defendant’s conduct. This is even more obviously

true where the intervening event is not a voluntary act at all: where A pushes B against C.

3) If the third party’s action is foreseeable (though not probable or likely) then the courts will look especially closely

at the nature of the intervenor’s act in addressing this problem. If the intervenor’s act is criminal or reckless in the

subjective sense, then it is likely to be considered as a novus actus. Similarly if the third party’s act is intentional.

…if the intervenor’s act, however, is merely careless, negligent, or perhaps even grossly negligent, it may not be

considered sufficiently strong to break the chain of causation between the original defendant and the plaintiff’s

injury, although much will depend on the facts of the case. In Crowley v. AIB and O’Flynn and Others [1988] ILRM

225 we have seen that a negligent omission by the third party was deemed sufficient to break the chain and relieve

the defendant.”

The authors go on to suggest that the courts in recent times are more likely to settle for a ‘multiple cause’ finding and apportion

losses between concurrent wrongdoers. Thus at p. 78 the authors state:-

“All this means is that the courts are less likely to find that a novus actus is the sole cause of the plaintiff’s injury

nowadays. It is only in very extreme cases that the nature of the third party’s act will break the chain completely

between the defendant’s original conduct and the plaintiff’s damage.”

In my view this is an extreme case. It is true to say that the motorcyclist asserted a belief that he was still being pursued by the

garda vehicle as he left Cashel. Even if that was his initial belief, he must have known that the garda vehicle, which had been caught

up behind the articulated truck which presumably he himself had overtaken, was nowhere near him as he came to Kilfeakle. He was

not being driven at, intimidated or menaced by the garda vehicle in any way whatsoever. Indeed after a pursuit distance of 28 miles it

would be difficult to surmise that Mr Lynch could have been in a ‘panicked’ condition, if indeed he ever was in the first place. As we

know the garda vehicle was behind by perhaps more than a mile at the stage when the accident occurred. Did the garda vehicle in

those circumstances cause or make any real contribution to what happened at the bend in the roadway? It seems to me that any

sensible application of the principles laid down in Conole v. Redbank Oyster Company [1976] I.R. 191 must lead to the conclusion that

the effective negligence leading to the accident was that of the motorcyclist. As Henchy J stated in the course of his judgment in

Conole (at p 197):-

“However, as far as the negligence that resulted in the drownings is concerned, any such default by Fairway would have

been merely a causa sine qua non and not a causa causans.

In terms of legal causation, there was only one act of negligence in this case: it was the defendants’ act of putting to

sea in a boat which they knew to be unseaworthy and which was overloaded with unsupervised young people. Once the

defendants are shown to have been aware of the danger involved in that act, they are no more entitled to shed any part

of their responsibility on to Fairway, on the ground that Fairway supplied an unseaworthy boat, than they would be

entitled to saddle another person with part of the liability of the unseaworthiness of which they had knowledge had been

caused by an earlier act done by that other person, e.g. a negligent collusion or a malicious injury caused by him.

The direct and proximate cause of this accident was the decision of the defendants, acting through Mr. Hugman, to put

to sea with passengers when they had a clear warning that the boat was unfit for the task. The defendants were the

sole initiators of the causative negligence.”

The distinction between a causa sine qua non and a causa causans was further addressed by this court in Kenny v M.I.B.

(Unreported, Supreme Court, 3 April, 1995) in circumstances where a negligent truck driver caused injury to a child who had been

thrown from the open back of a truck which then rolled over him. In the course of his judgment Blayney J stated (at p. 3):-

“While there is undoubtedly a close connection, as the learned trial judge found, between the plaintiff’s being thrown from

off the truck and his injury, in my view it was no more than the causa sine qua non. The plaintiff would not have received

his injury had he not been thrown off the truck, but the causa causans was the back wheel of the truck going over him.

And this was made very clear by the evidence of the plaintiff’s surgeon…”

Thus if there had been some want of care in the present case in continuing to follow the motor bike towards Tipperary, I am

nonetheless firmly of the view that it was not causative of the plaintiff’s injuries, nor did it contribute to them in any material way.

Putting it another way, the driving of the garda vehicle may have been a causa sine qua non but the causa causans of the plaintiff’s

injuries was Mr Lynch’s driving at the bend at Kilfeakle.

Nonetheless, given that the plaintiff in this case may well have been completely blameless (despite allegations of contributory

negligence raised against her), it is worth considering whether policy considerations should encourage this Court to relax the

requirements of establishing causation for that reason. In the instant case that would mean that the Court would have to infer that

the mere fact of the garda pursuit is of itself and without more to be regarded as having made a material contribution to the plaintiff’s

injuries. However, I think that would be a hazardous and dangerous course to adopt not least because there are in this case policy

considerations of an even more compelling nature which require that the gardaí be permitted to carry out their discretionary powers in

upholding the law without undue fear or apprehension of sanctions for so doing. A high premium is placed on road safety in modern

Ireland where there is an unacceptable level of road deaths many of which are caused by speeding. To hinder the gardaí in their

efforts to prevent such offences by unduly relaxing the requirement to establish causation would offend those “just and reasonable”

considerations to which Keane CJ adverted when considering the duty of care in Glencar Explorations p.l.c. v Mayo County Council

(No 2) [2003] 1I.R.84.

I find I must disagree with the inferences drawn by the learned trial judge in answering the questions posed for resolution at the end

of the case. Indeed the form of the question is based on the assumption that the chase was one seamless and unchanging sequence

from start to finish, an inference which in my view was mistaken having regard to the evidence. For the reasons already stated, I

believe the standard of the duty of care varied at different points in this sequence and that there was no breach of that duty on the

part of the appellant’s agents which was legally or factually causative of the accident at Kilfeakle. In this context it is important to

note that Mr Lynch had always intended taking the Cashel/Tipperary road for the purpose of returning to Limerick from where he and

his girlfriend had earlier travelled, so that there was no question of being forced to take the particular route by any garda action.

I am satisfied that the plaintiff’s injuries were caused entirely as a result of the reckless driving of Mr. Lynch. This recklessness was all

the greater as he knew his girlfriend, who was a regular traveller on the bike with him, was pregnant at the time. He exposed his

passenger to shocking danger and so admitted at the trial. It is not at all surprising that in the aftermath of the accident the plaintiff

was heard to repeatedly state “I’ll kill him” in reference to Mr. Lynch. It emerged in evidence that Mr. Lynch had no insurance for his

driving of the motorcycle, had been stopped on a previous occasion for having no insurance and also had a false number plate on the

bike. It also was mentioned at the trial that he was subsequently convicted of various offences under the Road Traffic Act, 1961

arising from this incident. The significance of these matters lies only in demonstrating that Mr. Lynch had a motive of his own to

accelerate away from the speed trap at Urlingford. It must be borne in mind also that Mr Lynch was already significantly in excess of

the maximum speed limit and putting his pillion passenger at risk when first seen by the gardaí at Urlingford. In my opinion the only

unbroken and seamless thread in this entire saga was the utter recklessness of Mr Lynch in his driving of the motor cycle on the

evening in question. The proximate and immediate cause of the plaintiff’s injuries was the fact that at a bend marked by a continuous

white line Mr. Lynch went totally onto his incorrect side of the road into a head-on collision with an approaching vehicle.

It is a tragic situation given that the plaintiff that the plaintiff, who at the time was only 20 years of age, was in the early stage of a

pregnancy and suffered a miscarriage and other extremely serious injuries in this accident.

In my view however the appeal must succeed and it follows that the plaintiff’s claim must be dismissed.