Deirdre Hayes (plaintiff/ respondent) v The Minister for Finance (defendant/appellant)
Tort - Negligence - Duty of care - Standard of care - Whether gardaí negligent in high speed pursuit of motorcyclist - Whether liable for damages for personal injury to motorcycle pillion passenger.
The Supreme Court (Mr Justice Hardiman, Mr Justice Kearns, Mr Justice Finnegan); judgment delivered on February 23rd, 2007
A Garda decision, in the performance of their duty to detect and prevent crime, to pursue a suspected criminal could not be seen as being in breach of any duty to those being pursued, in circumstances where the Garda belief was both objectively reasonable and held bona fide. The relevant test to justify the commencement of a pursuit is one whereby the gardaí should have reasonable grounds for doing so. There was no breach of duty which the occupants of the Garda vehicle owed, either to the driver of the motorcycle, or to the pillion passenger, in the particular circumstances of this case, even if the plaintiff was deemed to be no more than an involuntary participant in events.
The Supreme Court so held in dismissing the plaintiff's claim and allowing the appeal.
Michael McMahon SC and David Sutton SC for the plaintiff/ respondent; Brian Murray SC, Pádraig McCartan SC, and Michael Howard SC for the defendant/appellant.
Mr Justice Kearns, delivering the judgment of the court, commenced by outlining the background to the case. The plaintiff was a young woman who suffered multiple severe personal injuries in a road traffic accident which occurred in August, 1994, in Tipperary. On that occasion the plaintiff was a pillion passenger on a motorcycle driven by her then boyfriend, Ian Lynch, when, at a bend in the road, the motorcycle crossed a continuous white line on to its incorrect side.
At that time a motor car was coming in the opposite direction. There was a forceful impact and both the motorcycle driver and pillion passenger were thrown some considerable distance beyond the car. The driver of the car in no way caused or contributed to the accident. No claim of any sort was brought against the driver, but the defendant/appellant was sued because it is alleged that the motorbike driven by Ian Lynch was at the time being chased at high speed by a Garda vehicle "which caused the motorcyclist to go out of control and to panic as a result of being chased, being followed and being pursued" so that it was alleged that the accident complained of was caused or contributed to by the negligence and breach of statutory duty of the defendant, its servants or agents. The matter came on for hearing in the High Court (Finlay Geoghegan, J) and at the conclusion of the hearing the trial judge concluded that the cause of the speed at which the motorbike was being driven was the pursuit of the bike by the Garda vehicle.
Mr Justice Kearns first set out the background circumstances which culminated in the accident before considering the judgment of the trial judge in more detail. On the evening in question Garda Meehan and Sergeant Dempsey, had set up a radar speed check on the Urlingford-Cashel road. They were sitting in a patrol car about a mile and a half outside Urlingford. They first heard and then saw a motorbike approaching at speed from Urlingford. Garda Dempsey noted the speed of the motorbike on the radar gun to be 80 miles per hour. The motorcycle did not stop at the speed check and in fact increased his speed. Garda Meehan turned the patrol car and followed the motorbike. While this was happening, Sergeant Dempsey radioed back to the communications control centre in Thurles seeking assistance and stating that the bike had failed to stop. They were informed that a Garda presence would come to Horse and Jockey which was some six or seven miles down the road. Sergeant Dempsey also radioed ahead to Cashel for the purpose of setting up a road-block or check-point there. In evidence Garda Meehan stated it took them some time to get the bike back into view again because they had started from a stationary position. The motorcycle had anything up to half a mile of a start on the Garda vehicle. While pursuing the bike, the Garda vehicle at no stage caught up with it. In evidence, Garda Meehan stated she had no idea who was on the bike, beyond noting there were two people who had helmets and black leather clothing. No Garda presence came to Horse and Jockey, but a Garda road-block was set up on the Dublin side of Cashel. However, Garda Meehan stated that the motorcycle swerved to the right of the Garda patrol car which constituted the road-block, driving completely on the incorrect side of the roadway for that purpose, then swerved back onto its correct side of the main roadway through Cashel. As it passed the road-block the pillion passenger was observed to throw both hands in the air, suggesting to the pursuing gardaí that the pillion passenger wanted at that point to get off the bike. The Garda vehicle followed in the same manner and pursued the motorcycle through the town of Cashel, though it never got close enough to permit the gardaí to identify the registration number of the bike. Shortly after leaving Cashel, the gardaí lost sight of the motorbike because their car came in behind an articulated truck and they were unable to overtake the truck for quite some distance. They eventually succeeded in overtaking it and they caught sight of the tail light of the bike going around a corner at a time when the bike was about one mile ahead of them. Not long after that, they came around a left hand bend and observed that the motorcycle had crashed into the front of a vehicle travelling from the opposite direction.
Mr Justice Kearns said that the trial judge made primary findings of fact which were not challenged by the appellant in this appeal. The appellant's case was that there was no breach of any duty of care by the appellant towards the plaintiff and that incorrect inferences were drawn from the primary findings of fact by the trial judge. Having heard the evidence in the case the trial judge decided that the issues she had to resolve were:
"(1) Was the pursuit being given by the Garda to Mr Lynch's bike the cause of the speed at which he was travelling at the time of the accident? (2) If so, were the gardaí in breach of a duty of care which they owed to the plaintiff in undertaking or pursuing this chase or pursuit?"
In relation to the first of these questions, the trial judge concluded that a cause of the speed at which the bike was being driven at the time of the accident was the pursuit of the bike by the Garda car. In relation to the second question, the trial judge concluded as follows:
"On the facts of this case, the offence of which the gardaí were aware, even on their account of what happened as the bike passed them, was a traffic offence. There is no evidence of any more serious offence. On those facts I have concluded that the gardaí in commencing a pursuit of a bike which was already passing them on the main Dublin-Cork road already travelling at 80 miles an hour and continuing that pursuit which included the gardaí driving on the Dublin-Cork road at a speed of 100 miles an hour was in breach of duty of care which they owed, inter alia, to the plaintiff as the pillion passenger. I further conclude that the driving of the car in the manner which it is acknowledged as was done through the town of Cashel and the continued pursuit out the narrow Tipperary road was also in breach of the duty of care owed. For these reasons I find the defendant liable to the plaintiff in these proceedings."
Mr Justice Kearns then turned to the relevant legal considerations. The State no longer enjoys immunity from tortuous liability in this jurisdiction. Mr Justice Kearns said that there was no dispute between the parties at trial or on the hearing of the appeal as to the existence of a duty of care on the part of the driver of a police vehicle to other road users, including a driver who may have been guilty of some sort of criminal behaviour and in respect of whom a pursuit is undertaken. Reference had been made to the Garda Síochána Code which, while not imposing any strict legal liability on the gardaí, was relied upon as being indicative of the nature of the duty of care. Mr Justice Kearns said that the provisions contained of the Code at paragraph 35.39(2) and (3) which were relevant to the facts of the case provide:
"Chasing escaping vehicles:
a) The responsibility for undertaking a chase rests with the driver of the Garda vehicle, unless the order is given by a radio message . . . A chase at speed is only justified where it is really important to arrest the occupants of the pursued car. A minor crime, traffic offence, or even the sighting of a stolen car, does not justify a chase at speed.
"Stopping escaping vehicles:
a) Stopping should only be adopted as a last resort. Usually it is better to tail the suspect in the hope that he will be held up by traffic, run out of petrol or make a mistake, which will enable an arrest to be made. It is preferable to let a criminal escape rather than risk death or injury to innocent people.
c) Where a member of the Garda Síochána is pursuing a vehicle and he suspects with reasonable cause that an offence under Section 8 of the Criminal Law Act, 1976 or any offence under the said Act has been, or is being or is about to be committed, he may require the driver to stop, and may use reasonable force in order to compel him to comply with such requirement, and such force may include the placing of a barrier or other device in the path of the vehicle.
Mr Justice Kearns stated that the essence of the dispute was whether, in the particular circumstances of this case, there was a breach of duty of care, and if so, was it causative of the plaintiff's injuries. Counsel for the appellant, argued that the gardaí had a duty to uphold the law and to deal with infringements, be they speeding offences or other more serious transgressions. He submitted that they were perfectly justified in commencing the pursuit of a motor cycle which had passed them at 80 miles per hour and which accelerated away from the speed trap. There were objectively reasonable grounds for suspecting that some serious offence had been committed. They had not driven at or sufficiently close to the motorcycle to cause the accident complained of. He further argued that the nature of the pursuit after Cashel was quite different from that which had preceded it. At no stage was there any evidence that the Garda vehicle had then travelled in excess of 50 miles per hour. Furthermore, Mr Lynch, while he believed the Garda car was still in pursuit, never saw it again from the time he left Cashel until the accident occurred some 9.6 miles beyond Cashel. The Garda vehicle was well behind at that stage and that was evident from the fact that it took one and a half minutes for the Garda vehicle to arrive on the scene of the accident. He submitted that this section of the pursuit was quite different because the gardaí, having set up a road-block at Tipperary, were content to remain behind the motorcycle and had no intention of doing anything which would cause danger to either the driver or the pillion passenger, nor did they do so.
Alternatively, if the gardaí were to be found negligent in these circumstances, counsel for the appellant submitted that the driving of Mr Lynch at the time of the accident constituted a novus actus interveniens of such a degree as to absolve the appellant from all blame.
Counsel for the respondent submitted that the gardaí, once they had set up the roadblocks, should have desisted from any attempt to maintain a pursuit which had as its goal the apprehension of the motor cyclist.
They had no hard information that any serious crime had been committed by the driver and thus had no right to engage in a chase at speed. It was foreseeable to the gardaí that the motor cyclist would continue to speed after he left Cashel because it was clear the Garda vehicle was continuing to pursue him on the road to Tipperary. Mr Justice Kearns stated that the resolution of the matter had been somewhat simplified by the concession on behalf of the appellant that, in the particular circumstances of this case, the occupants of the Garda vehicle did owe a duty of care both to the driver of the motorcycle and to the plaintiff. The court referred to Breslin v. Corcoran and the Motor Insurers' Bureau of Ireland 2 IR 203 and Glencar Explorations p.l.c. v Mayo Co Co (No.2) 1 IR 84.
Mr Justice Kearns stated that in his opinion any view of the standard of care - as distinct from the duty of care - must turn on the circumstances of the individual case. In this case that demands a recognition that the gardaí have wide-ranging powers under the Road Traffic Acts in relation to the preservation of law and order and, in particular, safety on the roads. Mr Justice Kearns stated that he was satisfied that the silence in the legislation as regards the police power to pursue a motorist is confirmatory of a common law power to do so and that those powers must by implication include the power to operate random checks, erect road blocks and stop or pursue offending motorists.
The failure of the motorcyclist to stop outside Urlingford led the gardaí to form a suspicion that some sort of criminal activity had, or was, taking place so that the decision to pursue or tail the motorcyclist in the performance of their duty to detect and prevent crime could not be seen as being in breach of any duty to those on the motor bike, notably in circumstances where the Garda belief was both objectively reasonable and held bona fide. The relevant test to justify the commencement of a pursuit as being one whereby the gardaí should have reasonable grounds for doing so and not one whereby as a precondition they should first have a report on the car radio of the commission of a crime before taking action. It would be a very unsatisfactory state of affairs to hold that the gardaí should have refrained from tailing or pursuing the speeding motorcycle when they knew it was not going to stop and notably when the driver of the motorcycle, who was already travelling well in excess of the speed limit, accelerated away from the speed trap. To so hold would be to condone a state of affairs whereby a reckless driver might evade justice altogether by simply driving more erratically or dangerously than when first observed.
Mr Justice Kearns held that trial judge was in error in her inference that the pursuit was one seamless unitary process from Urlingford to Kilfeakle. The circumstances changed more than once during the pursuit, so that the 28-mile chase divided into separate sections. On reaching the road block, the pillion passenger threw up her hands in a gesture which conveyed to the pursuing gardaí that she wanted to get off the bike.
Once the pursuing gardaí observed this behaviour the circumstances altered to some degree - with a corresponding elevation of the standard of care - because the gesture conveyed to the occupants of the pursuing vehicle that the pillion passenger might not be, or at any rate might no longer be, part of any joint venture.
A completely different set of circumstances came into being when the vehicles left Cashel. Firstly, the nature of the road was different and did not lend itself to excessive speed, at least in so far as the Garda vehicle was concerned. Secondly, the occupants of the Garda vehicle were aware that a roadblock had been set up ahead in Tipperary and were content to sit in behind the motorcycle, rather than to attempt to stop it in any particular way themselves. Thirdly, the Garda vehicle became trapped behind an articulated vehicle for some time, so that when the Garda vehicle came upon the scene of the accident some 9.6 miles outside Cashel, the accident had already occurred some one and a half minutes beforehand. There was no breach of duty which the occupants of the Garda vehicle owed, either to the driver of the motorcycle, or to the pillion passenger, over the last few miles, even if the plaintiff was deemed to be no more than an involuntary participant in events at that stage.
Mr Justice Kearns held that that an application of the principles laid down in Conole v. Redbank Oyster Company IR 191 must lead to the conclusion that the effective negligence leading to the accident was that of the motorcyclist.
Nonetheless, given that the plaintiff in this case may well have been completely blameless, it was worth considering whether policy considerations should encourage the court to relax the requirements of establishing causation for that reason. Mr Justice Kearns stated that that would be a hazardous and dangerous course to adopt not least because there are in this case policy considerations of an even more compelling nature which require that the gardaí be permitted to carry out their discretionary powers in upholding the law without undue fear or apprehension of sanctions for so doing. Mr Justice Kearns held that the chase was not one seamless and unchanging sequence from start to finish.
The standard of the duty of care varied at different points in the sequence and there was no breach of that duty on the part of the appellant's agents which was legally or factually causative of the accident at Kilfeakle.
Mr Justice Kearns was satisfied that the plaintiff's injuries were caused entirely as a result of the reckless driving of Mr Lynch. He exposed his passenger to shocking danger and so admitted at the trial. The appeal must succeed and it followed that the plaintiff's claim must be dismissed.
Mr Justice Hardiman and Mr Justice Finnegan concurred with the judgment of Mr Justice Kearns.
Solicitors: McMahon O'Brien Downes (Limerick) for the plaintiff/respondent; Chief State Solicitors Office for the defendant/appellant
Kieran O'Callaghan, barrister