The High Court dismissed a negligence claim arising from a 1996 collision between a car and a 13-year-old riding a home-made go-cart near his family home. Mr Justice Michael Peart said the evidence left two plausible accounts of how the collision happened, and the plaintiff had not proved negligence on the balance of probabilities.
The judgment, delivered on 9 November 2005, concerned an accident on 11 July 1996. The plaintiff said the driver swerved around potholes, crossed onto the wrong side of the road and struck him in the widened entrance to the driveway. The defendant, who was 17 and had been driving for only a few weeks, said the boy came out onto the road and hit the front of his car.
The judge accepted that the car’s front bumper struck the plaintiff’s right leg. He relied in part on an orthopaedic surgeon’s evidence that the fractures were consistent with a direct impact, rather than the leg being run over by a wheel. The court also found that the plaintiff was lying at or on the grass verge after the collision, preferring the evidence of his parents over the defendant’s account that he was on the road.
Those findings did not establish where the impact took place. The judge said the plaintiff could have been thrown towards the verge after a collision in the driveway entrance, or could have come further onto the road and been sent back towards the verge when struck. There was no expert evidence showing which account was more probable. Gardaí had not been called to examine the scene, so there was no contemporaneous record of marks, debris or the car’s position.
The court declined to rely on the evidence of the plaintiff’s brother and a friend, who were children at the time and testified about nine years later. The judge considered their recollections unreliable, including because photographs and other evidence cast doubt on whether they could have seen the impact from where they said they were sitting. He found no excessive speed by the defendant and said he could not conclude that the driving was negligent.
The judge stressed that he did not disbelieve the plaintiff’s honest recollection. But the evidence supported only a possibility that the accident happened as the plaintiff described; the defendant’s account was also plausible. With negligence not proved to the required standard, the court dismissed the claim.