The High Court has dismissed a woman’s negligence action against the driver of a car from which a passenger threw an egg that struck her in the eye, causing her to lose the sight of the eye and later have it removed.
In a judgment delivered on 13 November 2013, Mr Justice Kevin Cross found that the driver knew or ought to have known eggs were in the back of the car and that passengers were handling them. He also found that the driver knew the rear passenger window was at least partly open. But the judge concluded there was no evidence the driver knew, or ought to have known, that a passenger might throw an egg at pedestrians.
The incident happened on 26 March 2008, as the plaintiff walked with two friends along the old Bray Road. The judgment says D.M., a backseat passenger, threw the egg, which hit her in the eye. The plaintiff underwent surgery, but the eye was later removed and replaced with an artificial eye. The judge recorded that she continued to suffer pain, psychological trauma and physical disability.
The judge accepted that the driver and his friends had agreed to buy eggs for “egging”, and that their later conduct showed their intended targets were not limited to the house where they had hoped to attend a party. He also accepted that the driver knew eggs were in the car and that passengers were playing with them. The evidence did not establish that the driver had been told, or should have known, that pedestrians might be targeted.
The plaintiff argued that the driver was directly liable for failing to control his vehicle and passengers. Her counsel submitted that he should have ordered the passengers to put the eggs away, raised the window, stopped the car or made the passengers get out. The defendant argued that the passenger’s act was an assault for which he was not liable, and that the incident happened too quickly to foresee.
The judge said a driver must take reasonable care to prevent a passenger’s negligent use of a car when that conduct is known or ought to be foreseen. He held that the driver was not required, on the evidence, to take the steps proposed by the plaintiff. Expecting him to do so would impose too high a standard of care.
The court found no breach of the duty of care and dismissed the action. The judgment does not record an award of damages or any further order.