Patrick Dunne (plainfiff) v Clarke Oil Products Ltd (defendant).

Personal Injuries - Plaintiff driving an oil tanker when it collided with a bus Road narrow and slick from rain - Whether accident caused by worn rear tyres or the plaintiffs own negligence.

The Supreme Court (before Mr Justice O'Flaherty, Mr Justice Blayney and Mr Justice Keane); judgment delivered ex tempore 7 June 1996.

WHERE an oil tanker had collided with a bus there was a conflict as to whether the collision was caused by worn rear tyres on the tanker or by the negligence of the plaintiff, the driver of the oil tanker. Considering the evidence of witnesses as to the nature of the skid marks on the road and the testimony of the plaintiff, the more probable cause was that the plaintiff was driving too fast for the conditions.

The Supreme Court so held in dismissing the plaintiffs appeal from the decision of the High Court rejecting his claim for damages for negligence against his employers, the owners of the oil tanker.

Seamus McKenna SC and Richard N. Kean BL or the plaintiff Harold Whelehan SC and Bernard Barton BL for the defendants.

MR JUSTICE O'FLAHERTY said that this was an appeal brought by the plaintiff from the judgment of the High Court. The plaintiff was employed by the defendants, Clarke Oil Products Ltd, to drive one of their oil tankers. On 24 February 1989 he was driving a twelve thousand litre oil tanker on a very narrow road near Kilcoole, Co Wicklow. The road was 16 feet wide and the tanker was eight feet wide. The plaintiff encountered a stationery CIE bus which the driver, Mr Mullin, had pulled over to the margin of the road when he saw the tanker approaching. The tanker collided with the bus on the plaintiff's incorrect side of the road causing extensive damage to the bus and the lorry and severe injuries to the plaintiff.

The only issue at the trial was whether on the balance of probabilities the collision was caused by four dangerously worn rear tyres on the lorry as alleged by the plaintiff, or by negligent operation of the lorry by the plaintiff, as alleged by the defendant.

Mr Justice O'Flaherty said that the tanker had two front tyres and four rear tyres. One of the rear tyres was bald below the existing legal tread minimum, while the other three were above it. The evidence was that the plaintiff had complained about the condition of the tyres some time before the accident and again on the morning of the accident. Expert witnesses were called by both sides and the plaintiff's engineer advanced the theory that the bald tyre would have the tendency, in the rainy slick conditions of that morning, to cause the tanker to veer out of control and skid to the wrong side of the road.

The defence witness gave an unequivocal opinion that this one bald tyre, in alliance with the other three, although not ideal for this type of truck in such slick conditions, had not caused the accident. The defendant also called a forensic scientist who had examined the oil tanker's tachograph. Mr Justice O'Flaherty said that the tachograph was of critical importance in determining whether the rear wheels had locked just prior to the collision and if they had it would indicate that the bald tyre had caused the back of the tanker to swing or `fishtail' uncontrollably, making it impossible for the plaintiff to avoid colliding with the bus. If they had not locked then it would indicate that only the front wheels had locked and that the loss of control and subsequent accident was due solely to the negligence of the plaintiff. The witness determined that only the front wheels had locked.

Mr Justice O'Flaherty said that the trial judge had accepted the testimony of an independent witness who was a CIE expert and who testified as to the significance of the two 82 feet long skid marks created by the tanker as it crashed into the bus. The skid marks were straight and led directly to the front tyres, a result inconsistent with the fishtailing type skid marks left by locked rear wheels. The tachograph was used in combination with this testimony to determine that in approaching the bend the plaintiff was driving at 32 miles per hour.

In assessing the balance of probabilities, with the onus on the plaintiff, Mr Justice O'Flaherty said that the trial judge has considered first the level of tread on each of the back tyres, then the expert testimony and the evidence of the independent CIE investigator. The trial judge had found that if there was any effect from the bald tyre on the trajectory of the skidding tanker it would be expected that there would be some variation in the skid marks and there was no such variation. On the balance of probability, the trial judge found that the theory supported by the defendant that only the front tyres had locked was more likely to be correct and the plaintiff had not satisfied the burden that the bald tyre was the cause of the accident.

Mr Justice O'Flaherty said that it was submitted by the plaintiff that the trial judge had placed t9o much store on theories of certain witnesses and too little on the direct evidence. The appellant's submission was that he was driving responsibly under the slick conditions that morning and when he applied the brakes as he entered the bend he did not get the result he expected and lost control of the vehicle. Mr Justice O'Flaherty said that these references only pointed to the beginning of the inquiry into discovering what caused the accident and did not provide an answer.

The defendant submitted that the plaintiff was driving too fast for such a narrow winding road still slick from the morning's rain and he should have expected that there would be other large vehicles on the road. He should have known that his brakes were not strong enough to adequately slow him down entering such a bend and that he would not have had enough power to return to the correct side of the road in the short time available to him.

Mr Justice O'Flaherty said that the other possibility was that the tyres were the culprits. However, it seemed the tyres were out of the case after considering the evidence that the rear wheels did not lock and only the front wheels locked creating two straight skid marks 82 feet in length.

Mr Justice O'Flaherty said that the only doubt he had sprang from the plaintiff who was so certain that he lost control of the tanker that morning and special weight was to be given to the evidence of a person who was believed by the trial judge. The missing element, however, was something to knit together his testimony with the calamity he suffered and the gap between what he perceived as he slid out of control and the physical evidence observed at the scene of the accident had not been crossed. The trial judge was, therefore, correct in his finding and Mr Justice O'Flaherty dismissed the appeal, sharing with the trial judge the concern he had for the plaintiff's condition.

MR JUSTICE BLAYNEY and MR JUSTICE KEANE agreed with the judgment of Mr Justice O'Flaherty.

Solicitors: Haughtons (Wicklow) for the plaintiff, O'Rourke Reid & Co (Dublin) for the defendant.