A man alleged to have agreed with a driver that the latter should drive a car at speed so a photo of the speedometer registering maximum speed could be taken and posted on a website has lost a damages action for injuries he sustained after the car crashed.
The High Court yesterday dismissed Alan Anderson's claim arising from leg injuries sustained after the car in which he was a passenger crashed at 80/90 mph after doing speeds over 120mph.
President of the High Court Mr Justice Joseph Finnegan accepted evidence of car driver Brian Cooke that Mr Anderson had agreed on November 18th, 2001, to take the photo. The court was told both young men were car enthusiasts and and that Mr Anderson had made 6,016 postings to websites relating to "Boy Racers" from March 2002 until April last.
In a reserved judgment yesterday on proceedings brought by Mr Anderson (26), Maypark Lane, Co Waterford, against Mr Cooke and his father Thomas Cooke, owner of the vehicle, both Pinewood Avenue, Hillview, Waterford, the judge was satisfied that Mr Anderson and Brian Cooke had agreed between themselves that Brian Cooke should drive the car at speed along the Port Road in Waterford so that Mr Anderson could photograph the speedometer recording the car's speed.
The judge said the photo showed the speedometer at 125 mph. He also accepted that Mr Anderson had removed his seatbelt to take the photo on the first run the men took when that speed was reached. On the second run, when the same speed was not reached and the car crashed, the judge was not satisfied the defendants had established Mr Anderson was not wearing his seatbelt. An ambulance man at the scene of the crash had recorded Mr Anderson was wearing a seatbelt.
He also noted that skid marks on the Port Road stretched for 230ft to the pole the car hit.
In the circumstances of the case, the judge said it was not possible to determine the duty of care owned by Brian Cooke to Mr Anderson given their "illegal enterprise".
He said the denial of relief to Mr Anderson was not based on the illegal character of the activity but rather on the character and incidents of the enterprise upon which they were engaged and to "the hazards which were necessarily inherent in its execution". Because he was unable to determine what duty, if any, was owed by Mr Cooke to the plaintiff, the claim must fail.
But if the joint enterprise was that the car should be driven at 70 mph in a 60mph zone, the court might well be in a position to establish the standard of care owed by a driver to a passenger.
Each case must turn on its own circumstances. In this case, he was unable to determine the duty of care, if any, owed to the plaintiff in order to determine if there was a breach of that duty.
The judge added he was inclined to make no order for costs in the case but would adjourn the matter until July 13th.
