Supreme Court allows appeal and orders retrial due to trial judge's errors on delay and conflicting evidence.

THE SUPREME COURT

[Appeal No: 181/2009]

Denham C.J.

McKechnie J.

Clarke J.

Between/

Paul Doyle

Plaintiff/Appellant

and

Catherine Banville

Defendant/Respondent

Judgment of Mr. Justice Clarke delivered the 1st May, 2012.

1. Introduction

1.1 The circumstances surrounding motor accidents are often quite difficult to establish. The court may, to a greater or lesser extent,

have available to it the recollections of participants or independent bystanders. There may, again to a greater or lesser extent, be

forensic or expert evidence which can assist in the task of piecing together what actually occurred. In many cases in which damages

are claimed for negligence arising out of a motor accident, the real issue on liability between the parties will turn on the view which

the trial court ultimately takes as to how the accident occurred. There may, in some cases, also be legal questions as to the extent

of the liability of various parties even after those facts have been determined on the balance of probability. However, in very many

cases it is the facts, and often a very detailed examination of them, on which the question of liability turns. This case is one such.

1.2 On the 14th October, 2000 the plaintiff/appellant ("Mr. Doyle") was involved in a most unfortunate accident at the village of

Kilrane in Co. Wexford as a result of which he has been rendered a paraplegic. While the defendant is named in these proceedings as

Catherine Banville, as a result of unhappy circumstances relating to her marriage, she is now known as Catherine O'Rourke (her name

before marriage) and I therefore propose referring to her as Ms. O'Rourke.

1.3 The broad outline of the events which led to the unfortunate accident are not in dispute. On the day in question Mr. Doyle was

travelling on his 100cc motorcycle behind Ms. O'Rourke's motor car as they both approached the village of Kilrane from the same

direction. In the centre of the village there is a slightly staggered cross junction. At some point either a little before or just at that

junction an incident occurred which led Mr. Doyle to cross onto his wrong side of the road and come into collision with a car travelling

in the opposite direction which was driven by a Ms. Caroline Doyle and had in it as a passenger a Ms. Helen Power, a sister of Caroline

Doyle. As the result of the incident Mr. Doyle suffered the significant injuries to which I have referred.

1.4 While it will be necessary to refer in somewhat more detail to the evidence in due course, in broad terms the competing accounts

of the accident contended for on behalf of the parties were as follows. Mr. Doyle asserted that, as Ms. O'Rourke was virtually at the

junction in question, she braked hard having, apparently it was suggested, made a last minute decision to turn to the left. On Mr.

Doyle's case it was that manoeuvre by Ms. O'Rourke which caused him to lose control and cross onto the wrong side of the road thus

leading to his impact with the oncoming car. On Ms. O'Rourke's case Mr. Doyle was simply travelling behind her as she approached the

junction. She asserted that she indicated to turn left some 100 metres from the junction and slowed down through the gears to

enable her to execute that turn. On her case Mr. Doyle simply emerged from behind her car as she was engaged in executing the

turn. Against that background it is clear that the case turned on an analysis of events that occurred in a split second.

1.5 The case went to trial on a modular basis with liability being tried first. The trial judge (Lavan J.) came to the view that no

negligence had been established against Ms. O'Rourke and, in so doing, largely based his findings on credibility. Against that decision

Mr. Doyle appeals to this Court. Before dealing with the precise issues which arise on this appeal it is, perhaps, appropriate to address

the general principles by reference to which this Court should analyse the determination of the Court below in a case such as this and

indeed the manner in which a trial court should address the issues which arise in such cases. While there was only a limited difference

between counsel on this question same was, nonetheless, the subject of some discussion during the hearing.

2. The Law – General Principles

2.1 The starting point for any consideration of the law in this area has to be the decision of this Court in Hay v. O'Grady [1992] 1 I.R.

210, where the judgment of the Court was given by McCarthy J. Placing reliance on the fact that an appellate court does not have

the benefit of seeing and hearing witnesses or observing the manner in which evidence was given or the demeanour of those giving it,

McCarthy J. came to the view that, if findings of fact made by a trial judge were supported by credible evidence, this Court was

bound by them however voluminous and weighty any contrary evidence might seem. It is clear, therefore, that it is no function of an

appellate court such as this to re-weigh the balancing exercise which any trial judge is required to do when sitting without a jury for

the purposes of determining the facts. I do not understand either party to suggest that this Court should depart, in any way, from

the principles outlined in Hay v. O'Grady.

2.2 It does need to be recalled that the context in which the issues which came to be decided in Hay v. O'Grady were before the

Supreme Court was the then recent abolition of jury trials in most personal injury actions brought about by s.1 of the Courts Act,

1988. There was a well established jurisprudence as to the circumstances in which it was possible for an appellate court to review

and, if appropriate, overturn, what amounted to factual decisions by juries. This Court, in Hay v. O'Grady, was concerned with

whether there had been any change to that position brought about by the move to trial by judge sitting alone. As noted by McCarthy

J. the established jurisprudence in respect of jury trials was that issues of fact and the inferences to be drawn from the facts as

found should not be disturbed by this Court if there was evidence to support such findings and inferences. The position, in respect of

a trial by a judge alone, deriving from Hay v. O'Grady is somewhat different in that it is clear that this Court may, at least in certain

circumstances, be in a position to review an inference of fact drawn by a trial judge (at least where such inference does not depend

on oral evidence or recollection of fact and where the trial judge had an opportunity to assess the relevant witness(es)). It is also

important to note that McCarthy J., at p.218, emphasised the importance of a clear statement by the trial judge of his findings of

primary fact, the inferences to be drawn, and the conclusion that follows.

2.3 In addition it does need to be said that there are other consequences of the move to trial by judge alone. Any party to any

litigation is entitled to a sufficient ruling or judgment so as to enable that party to know why the party concerned won or lost. Where

a jury decides facts, an appellate court will only have the submissions and evidence of the parties, the judge's direction and the

answers given by the jury to the questions submitted to them, to go on. Where a judge decides the facts there will be a judgment or

ruling whether orally given immediately after the trial, or in writing after a period. To that end it is important that the judgment

engages with the key elements of the case made by both sides and explains why one or other side is preferred. Where, as here, a

case turns on very minute questions of fact as to the precise way in which the accident in question occurred, then clearly the

judgment must analyse the case made for the competing versions of those facts and come to a reasoned conclusion as to why one

version of those facts is to be preferred. The obligation of the trial judge, as identified by McCarthy J. in Hay v. O'Grady, to set out

conclusions of fact in clear terms needs to be seen against that background.

2.4 In saying that, however, it does need to be emphasised that the obligation of the trial judge is to analyse the broad case made

on both sides. To borrow a phrase from a different area of jurisprudence it is no function of this Court (nor is it appropriate for parties

appealing to this Court) to engage in a rummaging through the undergrowth of the evidence tendered or arguments made in the trial

court to find some tangential piece of evidence or argument which, it might be argued, was not adequately addressed in the court's

ruling. The obligation of the court is simply to address, in whatever terms may be appropriate on the facts and issues of the case in

question, the competing arguments of both sides.

2.5 In addition there may be cases where the court has nothing more to go on but the demeanour of the witnesses and where there

will be little more to be said than that the court found one set of witnesses as being more credible than another. However where, as

in a case such as this, there are factors surrounding the accident in question on which the parties lay emphasis for their argument as

to which of two competing accounts should be accepted, then the court must, of course, address at least the broad drift of the

argument on both sides so that the parties may know why the court came to its conclusions.

2.6 Sometimes the points made may concern reasons why a particular witness or witnesses are not to be treated as credible either

because of an assertion that the witness is not being truthful or simply because it is said that the witness is mistaken. In many

cases, and this again is one, there may be expert engineering evidence tendered which may, to a greater or lesser extent, dependant

on the facts of the case, prove to be of assistance in attempting to reconstruct the circumstances in which the accident occurred.

Sometimes there may be significant forensic findings which, when coupled with expert engineering evidence, lead to a clear picture

from which the court can readily ascertain the likely sequence of events leading to the accident in question. On other occasions, and

this case falls into this bracket, it is more likely that the expert evidence has to be seen in conjunction with eye witness accounts

and may, in that context, be of some assistance to the court in assessing the likelihood of such eyewitness accounts being correct.

The extent to which the trial court is influenced by the credibility of eye witness accounts, forensic evidence or expert engineering

evidence is largely a matter for the trial judge in the assessment of that evidence. The trial judge should, however, address the main

arguments put forward by the competing parties as to how the relevant accident actually occurred by reference to such evidence of

the categories to which I have referred as the parties choose to place reliance on.

2.7 Finally, before moving on to the specific issues which arise in this appeal, it is also important to note that part of the function of

an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge

reached a conclusion as to the facts. It is important to distinguish between a case where there is such an error, on the one hand,

and a case where the trial judge simply was called on to prefer one piece of evidence to another and does so for a stated and

credible reason. In the latter case it is no function of this Court to seek to second guess the trial judge's view.

2.8 I have addressed these general principles largely because there was something of a debate between counsel as to the proper

approach of this Court in analysing the way in which the trial judge reached his conclusions in this case. Having made those general

observations I propose to turn to the grounds of appeal put forward on behalf of Mr. Doyle.

3. The Grounds of Appeal

3.1 In written submissions Counsel for Mr. Doyle put forward detailed grounds of appeal. It is said that:-

(i) The trial judge erred in law by relying on the absence of a timely complaint

(ii) The trial judge erred in law in attaching weight to the opinion of An Garda Síochána

(iii) The trial judge erred in law in failing to weigh the conflicting evidence and reach a conclusion thereon

(iv) The trial judge erred in law in failing to address the inconsistencies between the statement provided by the defendant

to An Garda Síochána and the evidence which she gave in court

(v) The trial judge erred in law in failing to consider the extent of which even if he accepted the defendant's account the

defendant had been negligent and in breach of duty

(vi) The trial judge erred in law in failing to draw an inference from the failure of the defendant/respondent to adduce

expert evidence

3.2 It should also be noted that it was accepted on behalf of Mr. Doyle, in the written submissions filed, that he had been driving too

close to Ms. O'Rourke's car and that Ms. Doyle was entirely blameless for the accident.

3.3 In oral argument and without abandoning any of the points made in the written submissions, counsel on behalf of Mr. Doyle

concentrated on three points. The first was the point concerning the reliance placed by the trial judge on the absence of an early

complaint. The second point was the suggestion that the trial judge had failed to properly weigh up the conflicting evidence and

reach a conclusion thereon. The third point was, perhaps, a particular aspect of the second, in which attention was drawn to what

was said to be an inconsistency in the judgment of the trial judges in apparently accepting both the evidence of Ms. Doyle and also

the evidence of an independent bystander being a Mr. Pierce Walsh when, it was argued, there was an important difference between

the accounts given by both of those witnesses.

3.4 It seems to me that counsel was correct in emphasising those issues. Insofar as the other issues are concerned the question

concerning what was said to have been the attaching of weight by the trial judge to the opinion of An Garda Síochána does not seem

to me to be a proper interpretation of the trial judge's judgment. The trial judge heard evidence from the garda in question to the

effect that, at all material times, the gardaí did not regard Ms. O'Rourke as anything other than a witness. However, no statements

were made to An Garda Síochána at or around the time of the accident from which it might be inferred that Ms. O'Rourke was at fault.

In circumstances to which I will return Mr. Doyle did not make a statement at any time. The position of An Garda Síochána is,

therefore, in truth, directly linked to the point raised on behalf of Mr. Doyle concerning the trial judge's comments on the absence of

an early complaint and it is more appropriate to deal with it under that heading.

3.5 Insofar as it was said that the trial judge failed to address what was said to be inconsistencies between the statement provided

by Ms. O'Rourke to An Garda Síochána and the evidence which she gave in court, it seems to me that that argument was really part

of the general complaint made on behalf of Mr. Doyle to the effect that the trial judge is said to have failed to adequately weigh up

the conflicting evidence and reach a conclusion. While there may be cases where an inference can be drawn from a failure to call

evidence of fact (see for example Doran v. Cosgrove & anor (unreported, Supreme Court, 12th November, 1999, Keane J.)), it is not

clear that an equivalent inference can properly be drawn from a failure to call expert evidence. Of course, if a defendant fails to lead

contradictory expert testimony to that led by a plaintiff, the court will proceed on the basis that the plaintiff's expert view went

uncontradicted. However, in the light of the concessions made by the engineer called on behalf of Mr. Doyle under cross-examination,

it does not seem to me that the failure of Ms. O'Rourke to call her own expert evidence is of any relevance in this case. For reasons

which I hope will become obvious I propose dealing with the general point concerning the weighing up of the evidence first.

4. Was there a failure on the part of the trial judge to weigh up the conflicting evidence?

4.1 As pointed out earlier in this judgment a trial judge in a case such as this is required to form an overall view as to how the

accident in question occurred by weighing up all relevant evidence be it eye witness, forensic or expert. The fact that the trial judge

does not address each and every possible point that might have been canvassed, however tangentially, in the course of the evidence

or argument is not a legitimate basis for maintaining an appeal in this Court. It must be recalled that most traffic accidents occur in a

split second against the background of the fact that many of those who may either be involved in, or observe, the incident will have

had no prior warning.

4.2 All courts are familiar with the fact that motorists responding to an emerging incident have a reaction time before the effects of

any decision as to how to deal with the incident is put into effect. But it is equally true that persons whose attention is drawn to a

sudden event, by noticing an incident, also have a reaction time before they can properly concentrate, and thus accurately recollect,

the events as they unfold. As an illustration it is worth noting that the broad evidence in this case suggests that, as both Mr. Doyle

and Ms. O'Rourke approached the village, they were travelling at approximately 25 mph which equates to 36 ft. per second. Thus

vehicles at that speed would travel 20 feet in just over half a second. Attempting to place emphasis on a minute analysis of precisely

where various vehicles were at the time when eye witnesses now recall having first noticed them is undoubtedly a factor which either

party is entitled to explore. However, such question may ultimately be a matter which the trial judge legitimately considers to be of

only limited assistance most especially in respect of witnesses who are not directly involved in the relevant accident or who have no

particular reason to anticipate any form of incident and thus direct their concentrated attention on the events.

4.3 With the exception of one point to which I will shortly turn it does not seem to me that any of the issues raised on behalf of Mr.

Doyle under this general heading amount to a legitimate criticism of the way in which the trial judge analysed the facts of the case.

The one point which does require further analysis is the specific ground, urged in oral argument, to which reference has already been

made, and which concerns an alleged inconsistency in the trial judge's conclusions. I, therefore, turn to that point.

5. Was there an inconsistency in the Trial Judge's conclusions?

5.1 In order to understand this point it is necessary to restate some of the evidence at the trial and to set out why that evidence

might be considered important to the trial judge's conclusions. As already pointed out the competing accounts of the accident

involved an assertion on the part of Mr. Doyle that, while he might have to bear some responsibility for being too close to Ms.

O'Rourke's car, nonetheless the primary cause of the accident was the sudden braking by Ms. O'Rourke as she was in or just at the

junction. Given that there was no credible suggestion of any reason, other than a belated decision to turn left, as to why Ms.

O'Rourke might have braked suddenly, it follows that Mr. Doyle's account is really only consistent with the incident concerned starting

at, or at a minimum very close to, the left hand turn which Ms. O'Rourke ultimately executed. A possible problem with that theory of

how the accident occurred stemmed from the location where Mr. Doyle on the ground and Ms. Doyle's car ultimately ended up after

the accident. All of the evidence suggested that the finishing point of Ms. Doyle's car together with Mr. Doyle as he lay on the ground

and indeed his motor cycle from which he had become detached, was at a point opposite a gate which is to be found on Ms. Doyle's

side of the road but which is, on any view, some distance before the left hand turn which Ms. O'Rourke intended to execute (viewed

from the perspective of both Mr. Doyle and Ms. O'Rourke as they approached the junction). Ms. Doyle gave evidence which suggested

that Ms. Doyle's car had stopped, or virtually stopped, prior to impact so that Mr. Doyle would have slid into Ms. Doyle's car at more

or less the point where all ended up post-accident. If that was so then it would be difficult to see how whatever incident led to Mr.

Doyle going on to the wrong side of the road could have occurred at or in the immediate vicinity of the left hand turn which Ms.

O'Rourke intended to take. On the contrary the incident would necessarily have occurred some way short of the junction so as to

allow Mr. Doyle to come off his motor cycle, travel across the road into Ms. Doyle's oncoming and virtually stopped car and still be at

a point where he had not reached the junction itself.

5.2 It does also need to be noted that the case was somewhat complicated in its conduct by the fact that it proved necessary to

accommodate witnesses somewhat out of the turn in which they might normally have been expected to have been called. That is no

criticism of any of the parties or the trial judge for all were simply trying to deal with legitimate personal difficulties which the

witnesses concerned encountered. In that context it is appropriate to note that Mr. Pierce Walsh gave evidence very late in the day

and introduced, for the first time, (and indeed after Mr. Doyle's engineer had finished his evidence) the possibility that Mr. Doyle may

have been dragged along the roadway for some 20 to 30 feet by Ms. Doyle's car before it came to a halt. If that evidence were to be

accepted it would provide a possible explanation as to how Mr. Doyle could have ended up where he did notwithstanding the incident

which led to his coming off his motor cycle happening at or in close proximity to the relevant junction. The trial judge did not, of

course, have to accept Mr. Walsh's evidence. Indeed Mr. Walsh was cross-examined on the basis that his recollection was not

correct and that there were inconsistencies between the account which he gave in evidence and a statement which he had made to

An Garda Síochána at the time of the accident.

5.3 However, it is clear that there was a significant difference between the evidence of Mr. Walsh and that of Ms. Doyle on what

turns out to be an important aspect of the case being whether Ms. Doyle's car was largely stationary by the time Mr. Doyle slid into

it, or whether it was still moving to the extent that Mr. Doyle was dragged back in the direction from which he had come for some 20

to 30 feet. For the reasons which I have sought to analyse that distinction was an important one. Unfortunately, the trial judge, in

the course of his ruling, stated in terms (in respect of the evidence of both Ms. Doyle and Mr. Walsh) that they were "too important

and independent witnesses in this case and I accept their evidence in full". Given that the two witnesses had differed on a point that

was of some significant moment in the case, there can be little doubt that the trial judge was in error in accepting the evidence of

both in full. For the reasons which I have already analysed that was not a mere tangential error but one which related to a point of

some significance in the case. It does also need to be noted that the trial judge did find that Ms. Doyle "did not drag the plaintiff any

distance". It might be said that that finding indicates that the trial judge did, in reality, accept the evidence of Ms. Doyle and reject

the evidence of Mr. Walsh on the point in question. However, the problem remains that that finding too is inconsistent with the

acceptance by the trial judge of Mr. Walsh's evidence. When all issues of fact in cases such as this were determined by juries it was

not, of course, open to this Court to analyse the precise reasoning by which a jury came to its conclusions of fact. The situation is

now different. While there are, as I have set out, limitations on the extent to which it is appropriate for this Court to seek to second

guess the view which a trial judge takes of the evidence on the facts, nonetheless where there is a clear error in respect of an

important fact which has the potential to materially effect the result of the case, this Court can and should intervene. That there

was an error on this point was not disputed by counsel on behalf of Ms. O'Rourke.

5.4 However, it was said by counsel on behalf of Ms. O'Rourke that the trial judge had, when Mr. Walsh was under cross-examination,

appeared to be unhappy with suggestions being made by counsel to the effect that Mr. Walsh's evidence ought not be accepted. In

that context it is suggested by counsel that it may be that the trial judge was anxious to ensure that Mr. Walsh was not criticised as

to his evidence in the judgment. Whether that is a correct characterisation of what happened does not seem to me to be relevant. If,

in truth, the trial judge came to the view that Mr. Walsh, while doing the best he could, was mistaken, then however gently it was

put, the trial judge had an obligation to say so, at least in sufficient terms that would allow a reasonable person reading the judgment

to understand that the trial judge preferred Ms. Doyle's account to Mr. Walsh's on the point on which they differed. I will return to

the consequences of that error when I have dealt with the other significant point in the case being the issues which arise out of the

trial judge's reliance on the undoubted late complaint. I turn to that issue.

6. The Lateness of the Complaint

There is no doubt that the first contact which Ms. O'Rourke received concerning a possible claim on the part of Mr. Doyle came over

two years after the accident. It is also clear that the long delay in making any complaint and, indeed, commencing the proceedings,

was a factor which influenced the trial judge. At p.7 of the transcript of the ruling of the trial judge delivered on the 12th March,

2009, and having referred to the fact that Mr. Doyle was severely injured and is now a paraplegic, the following was stated:-

"He gave an explanation as to why proceedings were not issued against the defendant until June, 2003 which raises a

substantial doubt in the mind of the Court".

6.2 From that passage from the ruling of the trial judge it seems clear that delay was a significant factor which influenced the trial

judge's view on credibility.

6.3 Against that background counsel on behalf of Mr. Doyle made two arguments. First, it was said that that approach was in conflict

with the decision of this Court in Mannix v. Pluck [1975] I.R. 169. On that basis it was said that the relevant delay was not a factor

that could properly, as a matter of law, be taken into account at all.

6.4 As a fall back position it was argued that, even to the extent that it was appropriate for the trial judge to take delay into

account, the trial judge had not addressed the explanations given by Mr. Doyle for the delay in question. In evidence Mr. Doyle had

indicated that he was in rehabilitation for a significant period after the accident, that a member of his family had instructed, while he

was in rehabilitation, a firm of solicitors to progress a possible claim against Ms. O'Rourke on his behalf but that the solicitors

concerned, for reasons unknown to him, appeared to do very little about it and that the matter was not progressed until he changed

to his current solicitors. In addition, so far as the facts are concerned, it should be noted that, for obvious reasons, Mr. Doyle was

not interviewed by the gardaí on the day of the accident. There was evidence, to which I will shortly refer, of a telephone

conversation between the investigating garda and Mr. Doyle which appears to have taken place some considerable time after the

accident although probably within the six month time period within which any proceedings under the Road Traffic Acts would need to

have been commenced.

6.5 Counsel argues that against that factual background, and in circumstances where the trial judge did not make any findings of fact

which would dispute the accuracy of the account given by Mr. Doyle, any delay was not open to an inference adverse to Mr. Doyle's

account of the accident. I propose dealing first with the legal question.

6.6 At p.173 of his judgment in Mannix v. Pluck, O'Dalaigh C.J. (who spoke for the majority) said the following:-

"The general rule as I understand is (sic) that opinions in so far as they are based on no evidence, or illegal evidence,

are worthless and equally are to be rejected, where founded on legal evidence, as tending to usurp the functions of the

tribunal whose province alone it is to draw conclusions of law and fact: Carter v. Boehm [1766] 3 Burr. 1905; North

Cheshire & Manchester Brewery Co. v. Manchester Brewery Co.[1899] A.C. 83 at p.85."

6.7 The case concerned a trial of a personal injury action which, at that time, was conducted before a jury. Counsel for the

defendant, in making closing submissions to the jury, had invited the jury to infer that the only proper inference or conclusion to

reach from the delay in that case was that the relevant plaintiff did not think much of his chances and that, perhaps, his advisers

also thought that he had a weak case. It would appear that the trial judge had told the jury that they were free to consider counsel's

submissions and give same whatever weight they thought proper.

6.8 Having regard to the fact that evidence by a party or his advisers as to whether it was felt that the party concerned had a

strong or weak case would not be admissible in the ordinary way it followed that the jury could not be asked to draw an inference as

to whether the plaintiff in the case concerned felt he had a weak case.

6.9 Counsel for Ms. O'Rourke sought to distinguish Mannix v. Pluck from the facts of this case by suggesting that the issue with which

the trial judge was involved here stemmed from the assertion that Mr. Doyle could not even have regarded Ms. O'Rourke as a "party

involved" by reason of the fact that no complaint of any sort to any authority was made.

6.10 There can be no doubt that the underlying principle identified in Mannix v. Pluck represents the common law position. It is not

open to a party to give evidence as to the strength or weakness of that party's case; less still could such a party's legal adviser give

evidence to like effect. Indeed, in that context it is appropriate to refer to the position that now pertains by virtue of s.8 of the Civil

Liability and Courts Act, 2004 which deals with the circumstances where a letter of claim is not sent within two months from the date

of the cause of action in a personal injury action (which in the context of the section includes the date of knowledge where later). In

such circumstances, s.8(1)(a) allows the court to draw such inferences from the failure as appear proper. Counsel for Mr. Doyle

suggested that that section was intended to modify the effect of Mannix v. Pluck in relation to such cases. The section does not

apply to the facts of this case which predated the legislation in question.

6.11 It does seem that the trial judge did draw an adverse inference from the failure of Mr. Doyle to commence proceedings in early

course in a manner which Mannix v. Pluck says is impermissible. It seems clear that much of the trial judge's view on the credibility of

Mr. Doyle's evidence (which was a significant factor both in the case as argued and in the trial judge's reasoning) stemmed from that

inference. On that basis alone it seems to me that this Court would necessarily have to find that the trial judge was in error.

6.12 There may, of course, be some cases where, in the light of all the circumstances, the conduct of a party subsequent to an

incident (including accounts given of the incident or omissions from such accounts) can legitimately be taken into account in

assessing the credibility of evidence subsequently tendered by the party concerned. However, the height of the contention that is

made in that regard on behalf of Ms. O'Rourke on this appeal is that the gardaí did not even regard Ms. O'Rourke as a party concerned

with the accident notwithstanding that there had been a telephone conversation between the investigating garda and Mr. Doyle.

6.13 The evidence in respect of this telephone conversation was extremely brief. The garda in question had made no note of it. In the

absence of any real evidence as to what transpired between the garda in question and Mr. Doyle it is impossible to assess the

context in which that conversation took place and, therefore, it follows that no inference adverse to Mr. Doyle should be drawn. In

addition the learned trial judge did not deal with the explanation given for the fact that no warning letter to Ms. O'Rourke issued until

a late stage. On the face of it Mr. Doyle's explanation was capable of being accepted. In the absence of the rejection of that

explanation for some logical reason it is difficult to see how the trial judge could have reached the inference which he did.

6.14 I am satisfied that the trial judge was in error in drawing an inference from the failure to commence proceedings in a timely

fashion and also, and perhaps equally importantly, in failing to adequately examine the explanation which Mr. Doyle gave for no

complaint having been communicated to Ms. O'Rourke at an earlier stage.

6.15 It is next necessary to turn to the consequences of both that error and the previous error identified in accepting as correct the

conflicting accounts of Ms. Doyle and Mr. Walsh.

7. The Consequences

7.1 It is clear from the ruling of the trial judge that both matters were of significance. The question of delay was not necessarily a

significant issue in the case, but it is clear that the trial judge placed significant weight on it, and it, therefore, must be treated as

being, in itself, significant. For the reasons already analysed I am more than satisfied that the conflict between Ms. Doyle and Mr.

Walsh as to whether Ms. Doyle's car was actually stopped at the time of impact (or nearly so) was also a matter of significance. It

follows that this Court has identified two errors in the ruling of the trial judge, both of which relate to significant matters in the

context of the narrow issues on which liability in this case turns. In the circumstances it seems to me that the only proper course of

action to adopt is to direct a retrial.

7.2 In that regard it is appropriate that I record that I cannot agree with the submission of counsel for Ms. O'Rourke which suggested

that there was no point in directing a retrial because Mr. Doyle's case was bound to fail. Doubtless the same issues as to credibility

argued on all sides are again likely to be canvassed at a retrial. However, it does not appear to me that it could safely be concluded

that Mr. Doyle might not persuade the trial judge at a retrial that his account of how this accident occurred is correct. I should also

comment that I agree with counsel for Mr. Doyle that this is not the sort of case where this Court could safely reach its own

conclusions. It is not clear that, in the absence of the errors which I have identified, Mr. Doyle would have succeeded.

8. Conclusions

8.1 For those reasons it seems to me that the proper course of action is to allow the appeal and to direct that there be a retrial of

the liability issue between Mr. Doyle and Ms. O'Rourke.