The Supreme Court yesterday ordered a new trial of an action taken by the widow of a detective garda who was killed in a road accident almost 10 years ago.
Det Garda Paul Cranny died, and Mr Robert Kelly, of Beaumont Road, Beaumont, Dublin, was seriously injured when the vehicle in which they were travelling was involved in a crash on the Howth Road, Dublin, on February 5th, 1989.
The car, a reconstructed blue Mini Minor described in the High Court as a "hybrid", was the only vehicle involved.
Mr Cranny's widow, Patricia, of Kilbarrack Road, Sutton, Dublin, subsequently issued proceedings against Mr Kelly and the Motor Insurers' Bureau of Ireland. In his High Court judgment Mr Justice Lavan said he was satisfied he could not, on the balance of probabilities, determine who was driving the car at the time of the accident.
The High Court decision was appealed to the Supreme Court. Delivering judgment in the appeal yesterday, Mr Justice Murphy said both parties had accepted that neither Mr Cranny nor Mr Kelly was insured to drive the vehicle. To succeed in her action, the onus was on Mrs Cranny to establish, firstly, that the vehicle was driven by Mr Kelly and, secondly, that it was being driven negligently.
If she succeeded on those issues, then the MIBI, to escape liability, needed to prove, on the balance of probabilities, that the passenger knew or ought to have known that the driver was not insured.
Mr Justice Murphy said that, having regard to the lapse of time since the tragic accident, it would be desirable to avoid a further trial. "But it does seem to me that this is unavoidable," he said.
He said it was by no means clear that the trial judge would have resolved the issue of the driver in favour of Mrs Cranny and his ultimate judgment suggested this would not have been the case.
The Chief Justice, Mr Justice Hamilton, and Mr Justice Keane said they agreed with the judgment.