Supreme Court allows appeal dismissing negligence claim due to failure to prove causation of injuries.

THE SUPREME COURT

APPEAL NO. 239/2004

Geoghegan J.

Finnegan J.

Clarke J.

BETWEEN

PATRICK ROGERS

PLAINTIFF/RESPONDENT

and

THE MOTOR INSURERS’ BUREAU OF IRELAND

DEFENDANT/APPELLANT

Judgment of Mr Justice Finnegan delivered on the 31st day of March 2009

The respondent issued a plenary summons on the 21st October 1998 claiming damages for personal injury, loss and damage

sustained by him owing to the negligence and breach of duty of a driver of a motor vehicle who remains unidentified and

untraced. The action was heard over five days commencing on the 21st October 2003. The learned trial judge delivered

judgment on the 5th December 2003 in which he held for the respondent and awarded him damages as follows:-

Pain and suffering to-date €72,000

Pain and suffering in the future €40,000

Agreed special damages €8,700

___________

€120,700

The respondent was awarded the costs of the action when taxed and ascertained. The appellant appeals the finding of the

learned trial judge on liability.

The evidence

The respondent gave evidence that he was born on the 4th November 1945. At the relevant time he was employed in the

Landscape and Public Gardens Section of Dundalk UDC and had been so employed for the previous twenty years. His

work involved the planting and maintenance of grass areas and flower beds and in that capacity he had been involved in

laying out and planting flower beds and shrubbery on the Newry Road leading from Dundalk including a flower bed in front

of the Maxol service station. His home was at Dowdall’s Hill which is situate north of the Maxol service station and off the

opposite side of the road. On the 26th May 1996 he walked to the Listoo Arms licensed premises which did not necessitate

him crossing the Newry Road. He arrived at 8.45 p.m. and remained there until 9.30 p.m. during which time he drank two

pints of Guinness. He met Ms Rose Waters by arrangement and they went together to Harry Duffy’s Bar which is on the

opposite side of a continuation of the Newry Road, that is on the same side as the Maxol service station, at a distance of six

hundred yards to the south of the Maxol service station. There was a party in Harry Duffy’s because the bar was closing

down. He had some cocktail sausages and sandwiches and had five or at most six further pints of Guinness. Normally on a

night out he would have five to six pints of Guinness. Ms Waters left the bar around midnight and he remained on until 1.30

a.m. He walked along the footpath of the same side and towards the Maxol service station. The footpath on that side of the

road is intermittently separated from the carriageway by a grass verge or planted area. At the service station the forecourt of

the service station joins directly onto the footpath and between the footpath and the carriageway there is a planted area

enclosed in part within a kerb and in another part by a slightly higher wall some eighteen inches in height. He recalled

passing the Listoo Arms where he greeted Mr Hackett, but at that point his memory ceased and his next memory was

waking up in hospital. He regained some memory later: as he was passing the forecourt of the Maxol service station he saw

“lights coming flying at me and I couldn’t get out of the way”. This was a car which came from the north and into the

Maxol service station. It was a long time after the accident before he recalled the lights of a car coming towards him,

approximately three years. He gave this account to Dr Séan Murphy on the 6th October 1999 and to Mr Jack Phillips on the

14th October 2000. He still has no recollection of events after seeing the lights. He also gave this account to Dr Maguire. In

his confused state shortly after the injury and while in hospital he did give accounts of having been struck by a small green

sand lorry owned by “Phillips” and by a red van.

In cross-examination the respondent said that he had nothing whatsoever to drink in the hour and a half that he remained in

Harry Duffy’s Bar after Ms Waters left. He was initially uncertain how far he had progressed towards home when he saw

the car, but three or four years after the event he remembered that he was at the Maxol service station. He agreed that in

September 1996 he informed his surgeon Ursula Mulcahy that he had absolutely no recollection of what happened to him

and that his last memory was of being in Harry Duffy’s pub. On the 3rd November 2001 he saw his neurosurgeon Mr

Pigeon who recorded that the respondent had no recollection of the events. The respondent was satisfied that he was not

drunk.

Rose Waters gave evidence. Normally on a night out the respondent would have five pints. She had never seen him affected

badly by drink. He was never stone drunk and always able to look after himself. She attended at the Louth Hospital shortly

after he was taken there by ambulance. He was later taken to Beaumont Hospital and she saw him after he came out from

surgery. She visited him again two days later and a conversation took place. Evidence of the same was allowed by the

learned trial judge as evidence of what the respondent said but not as to the truth of what he said. The respondent told her

that “he got a bat”. In cross-examination she agreed that at some point on the evening in question the respondent had got

sick and that his face was black. His shoes were covered in mud and there was mud on his trousers. He was not in that

condition when she left him.

The respondent’s sister Ms Betty Rogers gave evidence. They lived together in the family home. She had never seen him

come home incapable from the effects of drink. On the morning of the 27th May 1996 she found him lying on his back at

the back door of the family home at approximately 11.30 a.m. He was unconscious. There was no sign of injury. She

arranged for the ambulance to take him to the Louth Hospital. While he was in Beaumont Hospital he told her that he got “a

bat of a small sand truck”. He was still confused at the time. In cross-examination she said that her belief was that he had

fallen at the back door. She recovered his clothes from Beaumont Hospital and they included his wallet with money and his

watch and it was clear that he had not been robbed.

Harry Duffy gave evidence. He confirmed that the respondent was at the closing-down party of his licensed premises. He

remembered the respondent partaking of cocktail sausages and sandwiches. He let the respondent out from the licensed

premises at about 2 a.m. or 2.10 a.m. He had never seen the respondent incapable of walking home although he has known

him for more than ten years. On the night in question he was capable of walking home on his own.

A statement of Mr Hackett, the proprietor of the Listoo Arms, was admitted. At about 2.30 a.m. he was walking on the

Newry Road towards Dundalk and at the Newry Bridge, and not at the Listoo Arms, he saw the respondent walking on the

footpath on the opposite side of the road, that is on the same side as the Maxol service station, and in the direction of the

Maxol service station. In his statement he said:-

“I would imagine that he had a few pints in him but he was making his way slowly.”

A statement of Pádraig Grey was admitted. Between 2.50 a.m. to 3.10 a.m. he was with Tina McCaffrey near the Listoo

Arms for some ten to fifteen minutes thumbing a lift. They got a lift and some time later walked back as far as the Maxol

service station where they saw a man lying on the side of the footpath. His whole body was stretched out on the road.

There is a Renault garage across the road from the Maxol service station and a car was parked there and a number of

persons were present including a Mr McEvoy, a Mr Nardone, Ms Ashling Lee and another girl. He pointed out a man lying

on the road to the others and they all went over to him. Mr Nardone and Mr McEvoy tried to get the man up and the man

told them to f…off. They left him where he was. About ten minutes later another car stopped and a man exited the same

and took the man in off the road and put him sitting against the wall surrounding the flower bed at the service station. There

was no blood on the man but he was all dirty. The man had not been on the road when he was thumbing a lift earlier that

morning.

Stephen O’Connor gave evidence that he left his employment at the Carrickdale Hotel at about 5 a.m. and travelled to

Dundalk. At the Maxol service station he saw the respondent lying on the road from his waist down; his upper body was on

the flower bed. Together with Fiona Murphy he went across to the man to see if he was alright. There was no blood. He

was concerned that his legs would be run over by a lorry or a car. They took him to the forecourt of the service station. He

was mumbling. They left him beside the petrol pumps lying flat on his back on the ground. The respondent could not have

been caused injury by being lifted. They placed him gently on his back on the forecourt. Had he though that the respondent

was injured he would have called for an ambulance. He thought he was drunk. In cross-examination he said that the

respondent was not sitting against the wall when he found him and was nowhere near the wall. The respondent told them to

f…off. He saw no sign of injury to the respondent. There was muck on the respondent’s shoes and trousers, particularly at

the bottoms of the legs. The respondent was unable to support himself on his legs. There was no smell of drink from the

respondent but he presumed that the respondent had had too much to drink. The witness was shown a photograph of the

respondent lying on the forecourt close to the pumps and confirmed that that was the position in which he had left him.

Thomas Kirk gave evidence that he was the manager of filling stations in Dundalk, including the Renault filling station

situate across the road from the Maxol service station. He arrived at the Renault filling station at approximately 5 a.m. on the

morning of the 27th May 1996. He saw a man lying in the forecourt of the Maxol service station. He took a photograph of

him. This was at approximately 5.30 a.m. He tried to rouse the respondent. He saw no sign of injury. His face was clean.

He was about to ring an ambulance when Mr McGahan arrived on the scene with Mr Conlon. They put the respondent into

a newspaper delivery lorry. He would not think that they injured him in so doing as they were very careful. They drove

away very slowly. In cross-examination he said that while he did not know the respondent by name he recognised him as a

neighbour. His impression at the time was that the respondent was drunk. He was not asleep as such and was mumbling.

Robert McGahan gave evidence. He was delivering newspapers. He arrived at the Maxol service station at about 5.30 a.m.

He drove in. Colm Condon recognised the respondent. He tried to wake the respondent. The respondent was not a normal

drunk and was obviously in some distress. His shoes and trousers were mucky and there was dirt on his face due, he

thought, to diesel and oil stains on the ground. He and Mr Conlon gently lifted the respondent into the rear of the truck. The

manoeuvre could not have caused a head injury. They put four bales of newspapers in front of him so that he could not fall

out. They travelled at about five miles per hour to the respondent’s house. The respondent was holding out one of his arms

as if it was sore. When he was being lifted the respondent told them to f…off. The respondent was a very funny colour. He

and Mr Conlon carried the respondent to the front of his house and put him against the wall and rang the door bell and

knocked at the door but received no answer. They then lifted the respondent around to the back door of the house. The

witness said that he has a certificate in first-aid and knew what not to do. He knew not to leave a drunk man lying flat down

but to leave him sitting up in case he should get sick and choke. He then went home. In cross-examination the witness said

that if one were to walk through the flower bed one would get mud on one’s shoes at that time. He thought the respondent

must have fallen. The respondent was in some distress other than just being drunk. On the trip to the respondent’s house he

had made some deliveries and in that time he realised that the respondent’s condition had deteriorated and that he had wet

his clothes and vomited. There were Guinness stains around the respondent’s mouth when he first went over to him. The

respondent was a funny colour and seemed to be yellow. There was a strong smell of Guinness from the respondent and

insofar as the witness was concerned he was stone drunk. He got the respondent to his house at 5.55 a.m.

Sergeant Piper gave evidence. He investigated the circumstances of the injury to the respondent. Initially he considered that

there were three possibilities as to the cause of the respondent’s injury: a road traffic accident, an assault or a fall. Counsel

for the respondent invited him to speculate on the cause and to recount hearsay but the witness was careful to distinguish

fact from speculation. As a result of his investigation he ruled out the possibility of an assault. As to the other possibilities it

is important to have regard to exactly what he did say. He discussed the respondent’s injuries with Dr. Nanera a Registrar at

Beaumont Hospital on the 7th June 1996. He was told that there were two skull fractures and as a result formed the opinion

that Mr Rogers would have had to fall twice. He considered it was possible that the injuries were sustained arising out of the

manner in which the respondent was carried into the Maxol service station and put down but there was no evidence that the

injury was received in this way. There was no forensic evidence to support the possibility of a road traffic accident. He then

said:-

“In the knowledge of what Ms McCaffrey will say in evidence in relation to the activity of a car with a certain

person driving that car, I have reached the conclusion that it is probable that the particular car and in the

way in which it was driven may have had something to do with Mr Rogers injuries…I held the view that the

incident occurred on the thoroughfare and I cannot offer any evidence in relation to that.”

He recounted exchanges with the respondent. He met him from time to time after the accident and every time the

respondent could not recall what had happened to him. He met the respondent on the 12th February 1997 and he still had

no recollection of what had happened to him. He again met him on the 13th June 1997 when the respondent informed him

that his memory was coming back slowly and that he could then recall that he was hit by a red coloured vehicle in the

forecourt of the Statoil garage. That vehicle came in from the Northern direction into the forecourt. That was the first

indication he had that the accident did not happen on the roadway. In the early stage of the investigation he had been

informed by Ms Betty Rogers that the respondent had stated that he was hit by a green sand truck. When the respondent

had been returned to the Louth County Hospital in June 1996 the witness had spoken with him. The respondent was

confused but said that he could remember a green sand truck belonging to “Phillips”. At an interview on the 21st July 1996

the respondent had no recollection of the matter but could see “flashes of a red coloured van”.

A statement taken from Martina McCaffey was admitted on consent. The statement was taken on the 4th June 1996 and

Sergeant Piper read the same. Very early on the morning of the 27th May 1996 she walked along the Newry Road with

Pádraig Grey. They were thumbing a lift. They sat on a wall half way between the Listoo Arms and the Maxol service

station. The statement continued:

“We were there for about twenty minutes. Alan Toner drove out past me. He shouted at me and then spun around on the

road and headed straight back up the town…He was driving a black greenish car…I did not see anything happen on the

road. I did not see anyone lying on the road.”

They then got a lift towards Jonesborough, but the car broke down and they walked back to Dundalk a distance of

approximately two miles. At the Maxol service station she saw Mr Nardone and Mr Cooney and Ashling Lee. She saw a car

stop and two young men get out of the same. They lifted something into the Statoil Garage. At the Statoil garage she saw

the respondent lying on his back. He was stuttering. She did not see any injury. She continued:-

“The two fellas that got out of the car just threw him there. I thought he was just drunk.”

There was a discussion with Sergeant Piper about the possibility of a car performing a U turn on the carriageway while

travelling at some speed. His view was that at a slow speed it was possible but that at a faster speed a handbrake turn would

be necessary: the alternative was that a car would have to drive on to the forecourt of the Renault filling station or at the

Maxol service station. He had examined the roadway on the 28th May 1996. Had a handbrake turn been executed he would

have expected then to find tyre marks but did not find any. Alan Toner was well known to the Gardai for his driving

exploits. He had interviewed Mr Toner who proved unco-operative. Taking account of Martina McCaffrey’s statement the

events concerning Mr Toner at the Maxol service station occurred around 3 a.m. Ms McCaffrey and Mr Lee are acquainted

with Mr Toner. He was then asked:-

“Q. Put it this way, as a matter not the criminal responsibility that you could prove but as a matter of

probability?

A. I can offer no evidence that he (Mr Toner) was involved.”

He was asked if he was satisfied that the respondent was hit by a car and he answered that it is probable but that he could

offer no evidence of contact with the car. He was then asked:-

“Q. But do you think it is probable that he was hit by a car and probable the prime suspect is Alan Toner?

A. If the car is – well, it will depend on Ms McCaffrey I think judge. If the car turns into to be Mr Toner’s car which

turned into the Statoil now the Maxol filling station he has to be a prime suspect.”

In cross-examination the witness was asked if there was anything to suggest that the respondent was the victim of a hit-and-

run and he answered that there was not but that it would be a suspicion. Had it been a hit-and-run he would have expected

further injuries. There was no forensic evidence of any collision between the respondent and a motor vehicle. A forensic

examination had been carried out of the respondent’s clothing. There was no damage to the clothing. His belief was that the

mud on the respondent’s shoes and clothing came from one of two flower beds, one the flower beds before he reached the

Maxol filling station and one at the filling station. He assumed that the respondent had walked through a flower bed. He

described the high point of the wall at the flower bed as three bricks on the flat and one brick on edge in height, at most one

and a half feet. The wall did not run the full length of the flower bed. He agreed that on the evidence of the statements

which he took the respondent was moved eight times. On considering the statements his view was that the most likely cause

of the injury was a fall but he had no evidence of this. His view then was that the respondent may have fallen in the

shrubbery, struck his head and in the other movements being taken from the road into the forecourt he may have received a

second impact. Mr Toner was subject to police supervision and internal intelligence but he was unable to link him to a black

greenish car as described by Ms McCaffrey.

The witness agreed that if the accident had occurred at the time that Mr Grey and MsCaffrey were thumbing a lift they and

the people in the car with Mr Toner would know if he was involved. If Mr Toner had struck the respondent at that time it is

unlikely that he would, as was Ms McCaffrey’s evidence, stop and exchange words with persons in the immediate vicinity.

Mr Grey and Ms McCaffrey were forty two feet away from where the respondent was found and had an uninterrupted

view of the area. If the respondent was struck where he was found the car responsible would have had to cross the wall at

the flower bed to strike him: he did not infer that the car came into the filling station and hit the respondent. For the

respondent to be thrown by impact over the wall would have required a serious blow. The learned trial judge asked a

question at this point:-

“Q. Therefore the likelihood is, if he was struck, he must have been either inside in the bed somewhere, in the

forecourt or on foot on the actual carriageway itself. And you would have found marks?

A. We would have. However I did not look for wheel tracks in the flower bed as if the injuries were caused by a road

traffic accident I assumed this would have been on the road and not in the forecourt.”

Mr Pigeon, Consultant Neurosurgeon, gave evidence. At Beaumont Hospital skull X-rays showed that the respondent had

sustained bilateral tempo-parietal skull fractures. It is possible that the fracture was one fracture going right over the head. At

that time the respondent had no recall. He explained a difficulty with scans of this section of the skull in that if the image is

oblique, as a result of the thickness of the skull, it could appear as two fractures. A significant force would be required to

cause the injury and it could be caused from being hit by a car or by falling. He could not say whether one or two impacts

were required to cause the injury. There was bruising to the respondent’s hip and a laceration to his right hand. A person

suffering from pre-traumatic amnesia not uncommonly gets flashbacks in which they recall moments of things that happened

prior to the injury. While these may not be entirely correct there can be some foundation in reality. In cross-examination the

witness said that the respondent had complained of forgetfulness and that normally recovery from this would continue over

eighteen months at which time a final state of recovery would be reached: I do not understand this evidence as referring to

traumatic amnesia pre or post trauma, but as a reference to forgetfulness a not unusual result of a head injury and of which

the respondent complained.

Martina O’Connor-McEnroe, a clinical neurologist, gave evidence. She had nothing to say in relation to the respondent’s

partial recall.

Dr. James Maguire a consultant psychiatrist gave evidence. In his opinion it is possible to have fleeting memories of trauma

and events prior to entering an unconscious state. The changes in description of a car given by the respondent could be a

garbled memory. The statements made are not definitively correct statements and it is not possible to draw a definitive

inference from the same but you could say that they would suggest that he was struck as he perceived it. If the recollections

are changing all of the time they would be less reliable. All that can be said of the statements by the respondent is that that

his recollection of trauma is a memory of being on a footpath and seeing lights. That is a subjective memory and, while it is

possible for him to have that memory, it is not possible to tell if it is correct. The respondent’s recall after fourteen months

could be genuine or not: without some objective account to corroborate it, it is not possible to say. There is a consistency in

the account of lights. An account which is consistent is more likely to be accurate than one which is constantly changing.

Statements made in a delirious state are unreliable.

That concluded the respondent’s case.

For the respondent three witnesses were called: Ashling Lee, Dr. Declan Gilsenan and Professor Jack Phillips a Consultant

Neurosurgeon. Ms Lee said that on the 27th May 1996 near the Maxol service station she saw Mr Nardone and Mr

McEvoy arrive. She saw the respondent lying in the flower beds in front of the service station, the lower part of his body

was on the road and the upper part on the flower bed. She asked the respondent was he OK. She could not really hear his

response but he was moaning and appeared to be in pain. About five minutes later she saw him being moved by two men,

one to each side of the respondent. He was kind of walking himself. They let him go and he fell to his knees and landed on

his elbows. She saw no blood or any other sign of injury on the respondent. He was left in that position on his elbows and

knees. She saw Thomas Kirk and Colm Conlon go to the respondent in a jeep. She did not recall seeing Mr McGahan. She

accepted that Mr Conlon took great care in dealing with the respondent.

Dr. Declan Gilsenan, a pathologist, gave evidence. He had reviewed the documentation in the case including all medical

reports. He was asked what in his view was the probable cause of the respondent’s head injury. He described the injury as a

bilateral fracture of the temporal bones and a secondary fracture to the base of the skull. This was based on an examination

of the hospital x-ray report. His opinion was that the probable cause of the injury was an impact of the head on some solid

flat surface. A blow from an instrument such as a hammer would cause a more localised fracture. Basal fractures are caused

by a general impact to the skull usually from falling backwards on the head. Because a skull depends for keeping its shape

on its structural integrity such a fracture is usually in a slightly more remote area from the point of impact. If the respondent

had been struck by a car and thrown up in the air and landed on his head, while this could cause the injury in fact sustained,

he would expect extensive injuries below the neck. In his opinion the probable cause of the injury is a fall. The concrete and

kerbs in the area are surfaces capable of causing the injury if he fell backwards and impacted his head. The witness found it

difficult to accept that someone could suffer an impact to the head from a car without impact to the rest of their body.

Because of the absence of significant injury below the neck, the injury was more likely to be a backwards fall on to the head

rather than a road traffic accident. If the impact was a sliding impact he would expect abrasions but if the fall is straight and

non-sliding he would not expect much other than perhaps very slight abrasions and perhaps within the hair.

Professor Phillips, Consultant Neurosurgeon, gave evidence. On the respondent’s reporting to him he assumed in his report

that there had been a road traffic accident. However he did not know how the injuries were sustained. The injuries are

consistent with trauma and could have been sustained in a road traffic accident. If it had been a road traffic accident he

would have expected to see joint injuries or on-going injuries and multiple abrasions. An isolated head injury would be

unusual.

Mr Pigeon, Consultant Neurosurgeon, was recalled on behalf of the respondent. He was asked were the injuries which he

found in the respondent consistent with an injury from being struck by a car. He responded as follows:-

“Yes. I am not saying that they necessarily were caused by being struck by a car but they are quite consistent

with being struck by a car.”

In a road traffic accident one could sustain a head injury from direct impact with the car or upon being thrown to the ground

as a result of being struck by the car.

That concludes the evidence given. It is necessary to say that the evidence throughout tended to be discursive and in

summarising the same I have attempted to concentrate on statements of fact within the knowledge of the witness and

opinions of witnesses based on such facts.

The Law

Appeals to the Supreme Court are by way of re-hearing: Rules of the Superior Courts 1986 Order 58 Rule 1. The nature of

such an appeal was explained by McCarthy J. in Hay v O’Grady [1992] I.R. 210 as follows:-

“This does not mean that the Supreme Court re-hears oral evidence but, rather arguments based upon the

findings of fact, including arguments that the findings are unsupported by evidence, itself a question of law.

Although the jurisdiction confirmed by Article 34, s.4, sub-s.3 is, save as there expressed and already

instanced, unlimited, the Court has, in effect, limited its jurisdiction in the manner detailed in the succession

of cases cited in the course of argument.

The role of this court, in my view, may be stated as follows:-

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as the trial judge who

hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of

those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by

those findings, however voluminous and apparently, weighty the testimony against them. The truth is not the

monopoly of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge

to draw inferences of fact (see the judgment of

Holmes L.J. in “The Gairloch,” The S.S. Aberdeen Glenline Steamship Co. v Macken [1899] 2 I.R. 1 cited by

O’Higgins C.J. in The People (Director of Public

Prosecutions) v Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the

demeanour of a witness in giving evidence will,

itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court

should be slow to substitute its own inference of

fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial

judge. In the drawing of inferences from

circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.

4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper

inference – in a case of this kind, was there negligence? I

leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the

facts found in either on the inferences drawn by the

trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is

established to the satisfaction of the appellate court

that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charge was

erroneous, an order will be varied accordingly.

5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings

of primary fact, the inferences to be drawn, and

the conclusion that follows.”

The passage cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v Madden from “The Gairloch” is

as follows:-

“When a judge after trying a case upon viva voce evidence comes to a conclusion regarding a specific and definite

matter of fact, his finding ought not to be reversed by a court that has not the same opportunity of seeing and hearing the

witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice. The same

rule does not apply, at least in the same degree, where the conclusion is an inference of fact. It often happens, as in the

present instance, that the decisive finding is a deduction from facts hardly disputed or easily ascertained. In such a case

the appellate tribunal is in as good a position for arriving at a correct conclusion as the judge appealed from, and it

would be an undue restriction on the functions of the former if it were to hold itself bound by what has been found by the

latter. Of course the view of the judge who tried the case is of the greatest weight, and for my own part I would only

depart from it with much hesitation when, as here, we have not been furnished with a report or note of the judgment

appealed from.”

This appeal revolves around inferences drawn by the learned trial judge from primary facts. There are relatively few cases

in which the Supreme Court has had reason to deal in detail with the third proposition enunciated in Hay v O’Grady. The

People (Director of Public Prosecutions) v Madden is one and in that case inferences drawn by the Special Criminal Court

from facts found were upheld, and in the case of one of the applicants, Bernard Lynch, the court upheld the inference

where it was a possible though not an inevitable one. In Royal Bank of Ireland Limited v O’Rourke [1962] I.R. 159 at 170

the Supreme Court on one issue would have been prepared to allow the appeal on the principle laid down in “The

Gairloch” but in fact did not do so, but allowed the appeal on that issue on other grounds. In J.M. & G.M. v An Bórd

Úchtála [1988] I.L.R.M. 203 at 205 the Supreme Court dealt with inferences as follows:-

“Secondly, there are secondary or inferred facts. These are facts which do not follow directly from an assessment or

evaluation of the credibility of the witnesses or the weight to be attached to their evidence, but derived from inferences

drawn from the primary facts. Once the primary facts had been established viva voce, their consequences or implications

for the purpose of the matters in issue must be found by a process of deduction from the facts found or admitted, rather

than by an assessment of the witnesses or the weight or the correctness of their evidence. In regard to such secondary

facts, the advantage of the High Court judge who saw and heard the witnesses is of such minor importance that this court

will feel free to draw its own inferences if it considers that the inferences drawn by the judge in the High Court were not

correct. Such secondary facts include all matters which are evaluative of the primary facts.”

Clause 6 of the Motor Insurers Bureau of Ireland agreement 1988 provides that:-

“In the case of an accident occurring on or after the 31st day of December 1988, the liability of the Motor

Insurers Bureau of Ireland shall extend to the payment of compensation for the personal injury or death of any

person caused by the negligent driving of a vehicle in a public place, where the owner or user of the vehicle

remains unidentified or untraced.”

Rothwell v Motor Insurers Bureau of Ireland [2003] I I.R. 268 concerned such a claim against the Bureau. The plaintiff

lost control of his motor car and collided with an oncoming vehicle. It emerged that the accident was caused by the existence

of an oil spillage on the road. The plaintiff was unable to establish who had been responsible for the spillage and accordingly

instituted proceedings against the Bureau. In the High Court it was held that the plaintiff was entitled to succeed, and that it

would be contrary to the intention and purpose of the agreement of 1988 to deny relief to a plaintiff in the circumstances of

the accident. It is unnecessary for a plaintiff in such circumstances to prove that the untraced driver could have no defence

since he would not have had to discharge this burden of proof had the identity of the driver of the vehicle been known. The

court however held that the doctrine of res ipsa loquitur did not apply as there were circumstances in which the spillage

could reasonably have occurred without negligence on the part of the unidentified or untraced driver.

On appeal to the Supreme Court it was held that the agreement of 1998 did not identify the Bureau with an unknown or

untraced driver prior to the conditions precedent to its liability being met. Negligence in driving is a condition precedent to a

finding of liability on the part of the Bureau pursuant to Clause 6 of the agreement. Difficulty of proof did not call for a

shifting of the onus of proof to the Bureau. The onus of proof would not shift unless the act or default complained of was

peculiarly within the range of the Bureau’s capacity of proof. The appeal was allowed. Hardiman J. stated the issue on the

appeal as follows:-

“The plaintiff can show that the accident was caused by a fuel spillage. The judge has held, and there is no cross-appeal,

that this does not give rise to an inference of negligence on the basis of res ipsa loquitur, but may be accounted for either

with or without negligence. The plaintiff cannot go further. Is this sufficient in law to ground a finding of liability

against the defendant?

The plaintiff relied on res ipsa loquitur - in short that the circumstances themselves amounted to evidence of negligence.

Hardiman J. referred to Hanrahan v Merck Sharp & Dohme [1988] I.L.R.M. 629 at 634 where Henchy J. said:-

“The ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove…all the necessary

ingredients of that tort and it is not for the defendant to disprove anything. Such exceptions as have been allowed to that

general rule seen to be confined to cases where a particular element of the tort lies or is deemed to lie pre-eminently

within the defendant’s knowledge, in which case, the onus of proof as to that matter passes to the defendant. Thus in the

tort of negligence, where damage has been caused to the plaintiff in circumstances in which such damage would not

usually be caused without negligence on the part of the defendant, the rule of res ipsa loquitur will allow the act relied on

to be evidence of negligence in the absence of proof by the defendant that it has occurred without want of due care on his

part. The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to rely on the fact

that it would be palpably unfair to require the plaintiff to prove something which is beyond his reach and which is

peculiarly within range of the defendant’s capacity of proof.

Henchy J. went on to say at p.635:-

There are of course difficulties facing the plaintiff in regard to proof of matters particularly as to the question

of causation, but mere difficulty of proof does not call for a shifting of the onus of proof…the onus of disproof

rests on the defendant only when the act or default complained of is such that it would be fundamentally unjust

to require the plaintiff to prove a positive averment when the particular circumstances show that fairness and

justice call for disproof by the defendant.”

Hardiman J. having considered the foregoing passages from Hanrahan v Merck Sharp & Dohme went on to say at page

275:-

“It appears to me that the judgment in Hanrahan v Merck Sharp & Dohme requires not merely that a matter

in respect of which the onus is to shift is within the exclusive knowledge of the defendant, but also that it is

‘peculiarly within the range of the defendant’s capacity of proof’. That is not the position here. As the trial

judge clearly and succinctly held, neither party could go further, the matter was not within the knowledge,

exclusive or otherwise, of either of them.”

Accordingly the onus is on a claimant against the Bureau to prove negligence.

The Supreme Court in Rothwell v Motor Insurers’ Bureau of Ireland rejected the submission that it was not necessary to

prove negligence at all in a claim against the Bureau. The onus is on the respondent here to satisfy the court of the

following:-

1. That he sustained his injuries as a result of being struck by a motor vehicle the owner or user of which is unidentified or

untraced.

2. That the owner or user was negligent.

The legal burden of proof in all civil cases lies upon the person who asserts the affirmative on each issue in the case. If at

the completion of the evidence the burden has not been discharged the decision must go against the party on whom the

burden lay. To find for the plaintiff in an action such as the present the judge must be satisfied on the evidence that a

particular fact or state of affairs is more likely to have occurred than not. If he is not so satisfied then he must find that the

burden has not been discharged.

In Cosgrove v Ryan [2008] I.E.S.C. 2 the issue was whether the trial judge was correct in finding that the appellant had not

established as a matter of probability that the accident was caused by the negligence of the E.S.B. In the course of his

judgment Geoghegan J. said:-

“Although the onus of proof is always on a plaintiff to prove negligence the requirements of that proof may vary. It would

seem that those requirements would not be high where a dangerous substance such as electricity or gas is involved.

Indeed quite apart from any special principles relating to dangerous things a plaintiff in a negligence action does not

have to negative every possibility of absence of negligence. This does not mean that in answer to the plaintiff’s claim the

defendant may not demonstrate that he was in no way to blame. In the 21st edition of Salmond and Heuston on the Law of

Torts, the learned editors under the heading ‘The Proof of Negligence’ at op.240 say the following:-

‘It is not necessary for the plaintiff to show that the defendant must be found guilty of negligence, or

to eliminate every conceivable possibility by which the accident may have been caused without

negligence on the defendant’s part.’”

The standard of proof in civil proceedings is on the balance of probabilities. If at the conclusion of the evidence the

probabilities are equal then the required standard of proof has not been achieved. There is no burden on the defendant to

prove a negative: an exception is where res ipsa loquitur applies and the proper inference to draw from the proven facts is

that the defendant (in this case the unidentified or untraced owner of user) was negligent.

Findings of fact made and inferences drawn by the learned trial judge

The learned trial judge made findings of fact or drew inferences as follows:-

1. The respondent consumed seven pints of Guinness up to midnight and did not drink thereafter.

2. As a result of that consumption he was not mentally or physically impaired.

3. The respondent left Harry’s bar at 1.30 a.m.

4. On the evidence of Mr Hackett the respondent was making his way slowly along the footpath at Dundalk Bridge.

5. The respondent continued to progress as described by Mr Hackett until he reached the Maxol service station. This would

not have been possible for the respondent to do had he sustained

his injury before reaching the Maxol service station.

6. The respondent was walking on the public footpath in or about the middle of the same.

7. The respondent saw lights coming towards him and his next memory is of being an in-patient in Louth County Hospital;

he recovered this memory some three years after the accident and

gave this account to Dr. Séan Murphy on the 6th October 1999 and later to Dr. Murphy and Mr Phillips.

8. The respondent was next seen by Pádraig Grey, Ashling Lee, Garry Nordone, Stephen O’Connor and others some time

about 5 a.m. on the morning of the 27th May lying partly on the

carriageway and partly on the flower bed at the Maxol service station.

9. It is unlikely that the respondent, a gardener who had assisted in laying out the particular grass areas and flower bed

would walk into or across the flower bed.

10. On his route the respondent passed other areas where the footpath was bounded by flower beds, grass borders and

shrubbery on both sides.

11. The respondent suffered his injury at or near the location where he was first seen by Mr O’Connor and Ms Lee.

12. On the balance of probabilities the injuries were caused by the respondent being struck by a mechanically propelled

vehicle which was driven on the footpath in a negligent manner.

Discussion

The findings of fact made and inferences drawn by the learned trial judge caused me some difficulty having carefully

reviewed the transcript. It is difficult to find support in the evidence for some findings and justification for some of the

inferences drawn.

The learned trial judge found that the respondent was not physically or mentally impaired by drink. There was evidence of

the amount of drink consumed. Mr Hackett saw the respondent across the road and was conscious that he had drink taken.

It is difficult to see how from this evidence it could be either found or inferred that the respondent was not, to some extent

at least, physically impaired as there must have been something in his appearance, his bearing or his gait to enable Mr

Hackett to conclude as he did. There is no doubt on the evidence that the respondent is habituated to drink but clearly there

were signs of his having taken drink. He was walking slowly. Some affectation by drink can be inferred from the foregoing.

However the respondent was not “stone drunk”. He did not present to Mr Duffy or friends to whom he spoke outside Harry

Duffy’s bar as being a danger to himself and incapable of making his way home. These are factors to be considered in

weighing the evidence as a whole.

There was evidence, which if accepted would put the time at which the respondent left Harry Duffy’s bar at 2 .15

approximately rather than at 1.30 as he himself gave in evidence and as the learned trial judge accepted. I consider it

appropriate to give the respondent the benefit of that later time. However at 3 a.m. he was not seen by any of the witnesses

who were in the vicinity of the Maxol service station and who could be expected to see him. The distance between Harry

Duffy’s bar and the Maxol service station was given in engineering evidence as six hundred yards. From the map admitted in

evidence the distance from the bar to the Dundalk Bridge where Mr Hackett passed the respondent is approximately one

hundred and fifty yards. He had not reached the Maxol service station on the evidence by 3 a.m.: the distance in question is

approximately 450 yards. He was not found at the Maxol service station until at the earliest 5 a.m. Where he was or what he

was doing from the time that Mr Hackett saw him on the Dundalk Bridge at approximately 2.30 a.m. until 5 a.m. is a

mystery. The evidence does not admit of the learned trial judge’s inference that the respondent continued walking slowly

from Dundalk Bridge to the Maxol service station approximately four hundred and fifty yards away.

The presence of mud on the respondent’s shoes and trousers is relevant to the learned trial judge’s finding that the

respondent was walking along the centre of the footpath. At some point he deviated from the footpath into a muddy area. I

regard the learned trial judge’s finding that the respondent was more unlikely to have walked into the flower bed in front of

the Maxol service station because he is a gardener and had involvement with that flower bed as conjecture rather than a

legitimate inference from the evidence.

The learned judge accepted as true the respondent’s recovered memory of lights coming towards him. On the medical

evidence he was entitled to find that such recovered memory had occurred. However none of the medical evidence went so

far as to say that such recovered memory is more likely to be true than otherwise.

The medical evidence did not at any point suggest that a motor vehicle accident was more likely than a fall as the cause of

the respondent’s injuries. The absence of significant lower body injuries made a severe impact with a car unlikely. Should a

car brush against him this could have caused him to fall and sustain the injuries. Equally likely however is a fall without any

impact resulting in such injuries. There was no forensic evidence according to Sergeant Piper, who clearly was diligent in his

investigation, that a car was involved. In his evidence Sergeant Piper said that his view as to whether a car was involved or

not would depend on the evidence to be given by Ms McCaffrey. Her evidence related to the driving close to the Maxol

service station by Mr Toner at 3 a.m. some two hours before the respondent was found. Her evidence was that Mr Toner

stopped to speak to her and Sergeant Piper agreed that it would be unlikely that Mr Toner would do so had he just been

involved in an accident. The learned trial judge quite correctly discounted the evidence of Sergeant Piper relating to Mr

Toner. Miss McCaffrey’s evidence from the respondent’s point of view is at best neutral on the cause of his injuries.

I can find no evidence to support the learned trial judge’s inference that the respondent was struck by a car while on the

footpath adjacent to the forecourt of the Maxol service station, and by that impact was thrown across the low wall

surrounding flower bed. The medical evidence is clear that such an impact would probably result in injuries other than those

in fact sustained by the respondent.

The fact that the respondent was found partially on the road and partially on the flower bed would justify an inference that

the respondent was not on the footpath inside the wall surrounding the flower bed, that is an inference contrary to that made

by the learned trial judge.

The learned trial judge found, and was entitled to find, that the apparent drunken state of the respondent while on the flower

bed and on the forecourt and his truculent response to offers of assistance, which was out of character, was attributable to

his injuries and not to drink. This, however, cannot counter the clear evidence of the amount of alcohol consumed from

which this court can infer that the respondent was not cold sober at relevant times.

My conclusion is that on the evidence adduced at the trial the injuries sustained by the respondent may have been sustained

as a result of impact with a motor vehicle and, if so, more likely by a fall resulting from a motor vehicle brushing against him

rather than direct impact. Equally, however, they may have been caused by a fall, however precipitated, without any

involvement of a motor car. The bruise to the hip and the laceration to the hand do not point to one cause or the other. The

mud does not lead to a probability of impact with a car rather than to a fall. There is an unexplained time gap between 3

a.m. and 5 a.m. Where did the respondent sustain his injury? How did he sustain his injury? When did he sustain his injury?

These questions are all unanswered by the evidence. It is not permissible to resort to conjuncture to answer these questions.

Resort to res ipsa loquitur does not provide any answer. Consequently the applicant has failed to establish causation as a

matter of probability. His claim must fail. I would allow the appeal.

I have considerable sympathy for the respondent. That he is decent and honest clearly comes across from the transcript and

the learned trial judge was so satisfied. This notwithstanding, it remains the case that he has failed to overcome the

evidential problems which he faced in bringing this claim. The evidential deficit cannot be overcome by conjuncture. I am

happy to be able to record that the respondent made a remarkable and virtually full recovery.

Rogers v The Motor Insurers’ Bureau of Ireland