John Joseph O'Toole (plaintiff) v Peter O'Halloran, Nuala Prendergast, Hugh Brown, Maurice Curran, the County Council for the County of Galway and the Motor Insurers Bureau of Ireland (defendants).

Negligence - Personal injuries - Road traffic accident - Plaintiff passenger in vehicle - Whether accident caused by negligence of driver of plaintiff's car - Whether presence of loose chippings on roadway had contributed to accident - Whether local authority had been negligent in not clearing loose chippings.

The High Court (before Mr Justice Kinlen); judgment delivered 5 February 1998.

The onus is on a party advancing a theory as to how an accident occurred, to prove that theory as a matter of probability.

Mr Justice Kinlen, in the High Court, so held in dismissing a case against a local authority because he was satisfied that the occurrence of the road traffic accident the subject matter of the proceedings had not been contributed to by the presence of loose chippings on the road.

R. A. M. Robins SC, Paul Gallagher SC and Marcus Daly BL for the plaintiff; Garrett Cooney SC, Paul Gilligan SC and Gerard Keys BL for the first, second and sixth defendants; Fergus O'Hagan SC and Padraic O'Higgins SC for the fifth defendant.

Mr Justice Kinlen said that the first defendant was the owner of a motor vehicle driven by his son, Joseph O'Halloran, in which the plaintiff had been a passenger. Joseph O'Halloran had been killed in the accident the subject of the proceedings and the second defendant was sued in her capacity as nominee of the deceased. The third and fourth defendants were the legal representatives of the deceased driver of the second vehicle involved in the crash, a Mr McCambridge, although they had not been served with the proceedings.

Outlining the circumstances of the accident, Mr Justice Kinlen said that the plaintiff had been travelling in a car on the main road from Clifden to Galway. While coming around a bend on the left side of the road, the car went across to the incorrect side and collided with Mr McCambridge's car. No case had been made against Mr O'Halloran and the plaintiff's case had been settled so that the only issue remaining for the court was liability.

The plaintiff had no recollection of the accident and all those travelling in Mr McCambridge's car had been killed. The case against the fifth defendant was that firstly, there were loose chippings on the road which had contributed to the accident; secondly, there were no warning signs or notices alerting drivers to these chippings; and thirdly, there were no road markings. In relation to the second and third points. Mr Justice Kinlen said that the late Mr O'Halloran was a native of this area and on the evidence passed that road many times every week. In addition the accident had occurred on a bright summer day, so there would have been no problem in seeing the chippings and the presence or absence of a white line in the particular circumstances of this accident was of no relevance to Mr O'Halloran's ability to see the bend.

Mr Justice Kinlen said that first and second defendants and the fifth defendant had adduced expert evidence on whether the presence of loose chippings could have contributed to the accident. The expert called on behalf of the first and second defendant was of the view that the left rear tyre of the car in which the plaintiff had been travelling went in on loose chippings on the left hand side of the road, as a result of which the driver lost control and slued across the road into the path of the oncoming car. The fifth defendant adduced evidence that the car crossed to the other side of the road as a result of over-steering. It was argued by the fifth defendant that since there were no marks in the gravel and no marks on the road, the vehicle had not gone sideways at all. There was some dispute between the parties as to what speed either of the vehicles had been travelling at.

Evidence was given that the late Mr O'Halloran's blood alcohol level was over the legal limit. Mr Justice Kinlen said that the engineer called on behalf of the first and second defendants seemed to have based his theory concerning a wheel going in on the chippings on one set of photographs taken after the accident which showed a distinct disturbance of the chippings. However, Mr Justice Kinlen was satisfied that there had been a great deal of disturbance on that side of the road after the accident as all the traffic had to pass over there because the other side was blocked and that there were many innocent explanations for the disturbance shown in the photographs.

Mr Justice Kinlen said that the onus was on the first and second defendants to prove as a probability that the chippings had contributed to the accident. However, Mr Justice Kinlen said that there was a weight of evidence to the contrary of this theory. Mr Justice Kinlen was satisfied that the vehicle in which the plaintiff had been travelling, came around the bend at an excessive speed and that because the driver was affected by alcohol and possibly because he had four passengers in his car and maladjusted tyres, there was an over-steer which resulted in the accident. While a local authority had a duty to make sure that a carriageway was clear, Mr Justice Kinlen was not satisfied that the existence of loose chippings on the roadside had contributed to the accident.

Solicitors: Brian Lynch & Associates (Galway) for the plaintiff; MacDermot & Allen (Galway) for the first, second and sixth defendants; William B. Glynn (Galway) for the fifth defendant.