David Carr v Joao Olas
In this case, a motorcyclist, took a personal injuries claim as a result of an accident where the defendant’s car swerved in traffic, knocking him from his bike and into the path of a second car. However the conduct of the plaintiff in the run up to the accident was extremely relevant in this case and ultimately resulted in his case being dismissed.
The following are extracts from the case:
Mr. Carr (the plaintiff) entered the Leopardstown roundabout at the south-westerly entrance. Shortly afterwards, Mr. Carr had a chance encounter with the first defendant, Joao Olas. Mr. Olas had exited the M50 motorway at junction 14 and he was in the course of travelling home to Foxrock when the incident occurred. There is some dispute as to how exactly the parties came to meet on the roundabout or whether as Mr. Carr claimed and Mr. Olas denied, the former was required to take evasive action as a result of the driving of the latter. What is not in issue is that some form of incident took place.
In the meantime, Mr. Olas had proceeded down theLeopardstown Road. It is common case that there were vehicles both ahead of him and behind him and the traffic was moving at a speed of approximately 40kph. It is not in dispute but that Mr. Carr overtook traffic and caught up with Mr. Olas’s car at a point approximately 190m from the exit point on the roundabout on to this section ofLeopardstown Road. It is also common case that Mr. Carr came alongside Mr. Olas’s vehicle and, keeping his right hand on the steering wheel of the bicycle, gesticulated with his left hand and – according to some witnesses, albeit disputed by Mr. Carr – then banged on the wing mirror and the driver’s window.
It is not disputed but that at this point the vehicle swerved to the right and then back again. Nor is it seriously disputed but that the swerve was the proximate cause of the accident, so that either the motorcyclist was himself forced to swerve and lost control as a result or (as I rather think) the front right hand wheel of the car clipped the front wheel motorcycle, so that the latter spun out of control. At all events, the motorcycle banked sharply at about a 45 degree angle and the motorcyclist and his machine both careered into the passenger side of a motor vehicle, a red Mazda MX5 sports car, driven by the second defendant, Ms. Jennifer Doran which was travelling on the opposite side of the road in the direction of the roundabout. Mr. Carr was thrown into the air and landed head first in the centre of a boxed junction beside the entrance to Tudor Lawns, an access road which leads to a group of houses off theLeopardstown Road. Mr. Carr was knocked unconscious as a result and his body thus lay just inside the outside lane of the two-lane carriageway which was heading in the opposite direction towards theLeopardstown Road.
The Judge said:
It gives me no pleasure at all to reach these conclusions which are adverse to Mr. Carr. It is clear that he was (and is) a diligent and up-standing member of society. The tragic accident and its sad consequences for Mr. Carr came about as a result of a momentary (and doubtless quite uncharacteristic) loss of temper which set in train these most unfortunate events. It is perhaps easy to criticise Mr. Carr for his conduct, but I would rather reserve this task in the first instance to those who can truthfully say that they have never reacted angrily and in a headstrong fashion to some passing slight.
Nevertheless, if one looks beyond this and endeavours objectively to evaluate what happened, I am driven to the conclusion that the accident was the product of an instinctive recoiling of Mr. Olas to the sudden (and inherently dangerous) actions of Mr. Carr. For the reasons I have attempted to set out, I must conclude on the evidence that the swerve was instinctive and not deliberate. Over and above this, there was no evidence of negligence on the part of either Mr. Olas or Ms. Doran.
In these circumstances, I find myself obliged to dismiss the plaintiff’s claim.
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