THE HIGH COURT
									1994 No. 7924p

BETWEEN

JOHN JOSEPH O'TOOLE
									PLAINTIFF
AND
PETER O'HALLORAN, NUALA PRENDERGAST, HUGH BROWN,
MAURICE CURRAN, THE COUNTY COUNCIL FOR THE COUNTY
OF GALWAY AND MOTOR INSURERS BUREAU OF IRELAND
									DEFENDANTS

Judgment of Mr. Justice Kinlen delivered the 5th day of February, 1998.

	The Plaintiff was a fish factory worker residing at Kilkerrin, Connemara, in the County of Galway.  The First named Defendant was the owner of a motor vehicle bearing registration numbers and letters 87G 3531 which said motor vehicle was driven by his son, the late Joseph O'Halloran, with his consent and in which said motor vehicle the Plaintiff was a rear seat passenger.  The Second named Defendant is sued in her capacity as nominee of the late Joseph O'Halloran.  The Third and Fourth named Defendants are the legal personal representatives of John McCambridge, deceased, but they have not been served with these proceedings.  They were the blatantly innocent parties in this appalling crash.  On the 19th June, 1994, the Plaintiff was travelling with three other youths in the aforementioned vehicle when it was involved in a collision with the late Mr. McCambridge's vehicle at Recess, Connemara, County Galway.  It is the main road from Clifden to Galway.  The car in which the Plaintiff was driving was coming around a bend on its left side of the road when for some reason it went across to its incorrect side.  Mr. McCambridge's car was right in front of it.  Mr. McCambridge was at most two feet out from the verge on his side of the road.  That measurement applies to both his front and rear wheels.  There was a horrific collision between the two vehicles who must have had a combined speed of at least 100 miles per hour.  The cars were inextricably enmeshed, one with the other.  The three people in Mr. McCambridge's car were killed outright.  On the fifth day of the hearing, the Plaintiff's case was settled and the only issue remaining for this Court was the liability.  The accident occurred entirely on the late Mr. O'Halloran's incorrect side of the road.  There has been no case made against the late Mr. McCambridge.  The Galway County Council like many other local authorities always take photographs and examine the scenes after accidents in which an allegation might be made regarding the causation of the accident.  Thus in this case we have photographs that were taken the very next day of the road by representatives of the Galway County Council.  From these photographs it is clear that on the left hand side of the road, from Mr. O'Halloran's point of view, there was a high hedge and then a drain followed by rough ground strewn with stones and then on the tarmacadam surface there are chippings which had obviously been brushed in there and which extends for roughly two feet.  It does not seem to exceed that figure although in several places it would appear to be less.  Some of the engineers estimated that the chippings were only six to ten inches out.  However, from the photographs it is clear that they do not form a clear line.  There were three people in the Honda and four people in the Ford Sierra.  The Plaintiff was in the Ford Sierra.  It could safely go around this bend, three feet or three feet five inches out from its left hand side and the car coming from the Clifden direction would hug the bend as it certainly appears the late Mr. McCambridge was doing.  There were suggestions that his vehicle moved after the impact.  There were no signs on the road of such movements and anyway it does not appear that any such movement was material to the question of negligence.  This was a summer's evening and it was a big wide long bend.  The Plaintiff has no recollection of the accident.  He had appallingly serious injuries and had amnesia for about ten days after the accident.
      	There can be no real complaint about the roadway.  A number of engineers gave evidence and it would appear that 3500 vehicles would have travelled in the direction of the Ford Sierra on the left hand side of the road per annum and that there was never any accident or any complaint about the roadway.  A garda barracks is situated within half a mile of this accident site.  
	The case against the County Council is basically threefold.  Firstly, it is alleged that the chippings were out on the roadway and contributed to this accident.  Secondly, there were no warning signs or notices alerting drivers to these chippings and thirdly, that there were no road markings.  There had apparently been a white line in the centre of this road but after it was resurfaced the while line had not yet been restored.  
	The Court can easily deal with the second and third points.  The late Mr. O'Halloran was a native of this area and on the evidence passed this road many times each week.  The accident occurred on a bright day near mid-summer so there was no problem in seeing the chippings and the presence or absence of a white line in the particular circumstances were of no relevance to the ability of Mr. O'Halloran to cope with this bend.  The gardai's sketch shows that the late Mr. O'Halloran's vehicle was one foot eight inches from the right grass verge.  The left hand verge was eleven feet ten inches from the left rear of the Sierra and the front left of the Sierra was fifteen feet three inches from the left hand side.  In other words the Sierra was at an angle but it was a head-on collision.  The other vehicle was fifteen feet from the right verge of the roadway from its front and the right rear of the vehicle was fourteen feet seven inches from its right hand verge.  The sergeant who took the measurements estimated that the road at the point of impact was twenty feet four inches.  It was dry when the gardai arrived but there had been showers earlier.  The sergeant estimated that the maximum the chippings would protrude onto the carriageway would be fifteen inches.  However, opposite the accident site they were more diffuse.  However, he says that there was considerable disturbance at that particular side of the roadway.  It was the only side that the vehicles could get through and one of the gardai's duties was to try and get the vehicles in single file on either way to relieve the congestion of the traffic.  Also a lot of the people were standing on that particular side of the road and because of the camber of the roadway there was considerable disturbances in the chippings and they would have varied from anything from one foot to two feet.  He agrees that the chippings do come out onto the roadway opposite the point of impact and that this would have been mainly, he would say, as a result of the disturbance subsequent to the accident.
	The four young men in the car driven by the late Mr. O'Halloran had stopped at a premises known as Peacocks for about an hour and had at least two pints each and a meal.  A Mr. Boyce arrived on the scene and gave heroic assistance.  He noticed the chippings and felt they had been scattered due to the sweeping effect of passing traffic that put it there in the first place.  He looked for skid marks but there were none.  Both vehicles were so embedded in each other that he did not think either had time to even touch the brake.  Mr. O'Halloran had almost come out of the bend and Mr. McCambridge had not actually reached the corner at the time of impact.  This Court is satisfied that there was very little rotation of the vehicles after the impact because there was very little overlap.  Because they hit head-on they remained virtually in the same position after the accident.  Both vehicles were in good condition.  
	This was not a particularly difficult bend.  It was a sweeping right hand bend with a road running downhill.  The downhill fall varies between one and forty and one and twenty.  The bend itself is super-elevated which means that the outside of the bend is higher than the inside of the bend and that there is a fall from the inside of the bend and that was measured at between one and thirteen and one and sixteen.  Dr. Woods, an expert called on behalf of the O'Halloran's vehicle, said there were five different alternative ways in which he envisaged this accident could have happened.  Firstly, that the Ford Sierra rounded the bend in a normal way but wholly on its incorrect side and that it collided fully head-on with the Honda, being of course on its correct side.
	Secondly, the Sierra rounded the bend again on its incorrect side but did not hit the Honda Accord fully head-on but had an off set so that they did not fully overlap one another.  Thirdly, the Sierra came around the bend on its correct side but that the Honda approached on its incorrect side and that they both swerved the Honda Accord to its left and the Sierra to its right.  Fourthly, that the Honda Accord came along and approached the accident bend on its correct side, the Sierra initially rounded the bend on its correct side and the driver proceeded of his own volition and swerved to the right.  The final alternative was that the Sierra rounded the bend on its correct side of the road but in the course of rounding the bend the driver lost control of the Sierra which flew to its right out of control and into the path of the Honda Accord which was approaching on its correct side.  Dr. Woods purported to eliminate all of the above alternatives and came to the conclusion that the final one was the only one applicable.  In his view the cause of the accident were the loose chippings.  He does not accept that the photographs taken the next day present the true picture as he feels the chippings would have been disturbed by the activity of pedestrians and motorcars and ambulances and fire brigades.  He felt that they must disturb the area and that this would alter the scene.  This is a significant portion of his evidence.  The expert on the other side is a Dr. Jordan and he disagrees with Dr. Woods.  Dr. Woods does not accept that the combined speed of the two cars would be anything like 120 to 140 miles per hour.  He blamed the presence of the chippings and the lack of a yellow line on the side and the absence of a centre white line.  The Court has already held that the absence of the yellow lines on the left beside a grass verge and of a centre white line would not have made any difference to the deceased driver of the Ford Sierra who lived in the area and was very familiar with the road.  
	There is no doubt that in the guidelines there is a duty on a local authority to remove surplus chippings before removing traffic control and where necessary to re-sweep and to ensure that all the loose chippings are removed before removing road signs.
	The County Council produced several experienced engineers all of whom basically exonerated the chippings along the edge of the road.  I do not mean in any way to ignore their evidence which I have reread carefully but the chief expert for the local authority was Dr. Jordan.  
	We had scientific evidence that the blood alcohol of the deceased, Joseph O'Halloran, was blood alcohol 162 mg. per 100 ml; and the urine alcohol result was 206 mg. per 100 ml.  The appropriate legal maxim at the time of the accident for blood was 100 mg. per 100 ml. and for urine was 135 mg. per 100 ml..  The main witness for the local authority was Dr. Marcus Jordan.  He is a chartered and mechanical engineer, a member of the Institute of Engineers of Ireland and the Institute of Mechanical Engineers.  He has a primary degree in mechanical engineering and a doctorate in the theory of Impact Dynamics (both from University College Dublin).  He also is a member of various other organisations.  He is a member of the royal academy of medicine in Ireland for work on impact bio-mechanics.  The main issue between the two experts is whether or not the chippings caused this accident.  The allegation is made by the Defendants against the local authority and the onus is on those who allege it to prove it as a matter of probability.  Dr. Woods was of the view that the left rear tyre of the Sierra went in on chippings on the left hand side of the road as you come from Galway and travel possibly ten yards on those chippings as a result of which the driver lost control and slued across the road into the on-coming Honda.  Dr. Jordan totally disagreed with that theory.  He does not accept the evidence of a car sluing to the right hand side insofar as it was caused by lack of traction or side cornering ability by running in on the chippings.  While the Sierra was nearly a head-on collision (and indeed all the evidence supports that view), Dr. Jordan takes the view that the combined speed of the two vehicles was at least in excess of 120 miles per hour and probably greater than that.  He would put the speed of the Honda at 65 miles per hour and the speed of the Sierra in excess of 70 miles per hour.  He does not accept Dr. Woods' assessment that the Sierra was doing 62 miles per hour (and Dr. Woods refused to accept that it could be doing 63 miles per hour).  Dr. Jordan takes the view that the minimum speed was in excess of 65 miles per hour and the actual speed was closer to 75 miles per hour.  He accepts that this bend could be taken in a good car with good tyres probably in excess of 80 miles per hour but once you load the car with four large people there is a dynamic effect which changes the handling of the car considerably.  Dr. Jordan makes much of the fact that one of the tyres is different to the others.  He says that the real problem was that because of his in-wheel side force, he over-steered.  It is a simple over-steer problem.  It has nothing to do with rolling stones.  Over-steering is due to tyre performance, speed and the load of the car.  He believes this was a simple classical over-steer.  What happened was the Ford Sierra came around the bend properly on its own side of the road, went into an over-steer and collided with McCambridge.  It was unfortunate that McCambridge's car was there at the time.  

	"You changed the dynamics to such an extent that first of all you raise the centre of gravity and you move the centre of gravity of the entire thing back towards the back of the car and that is because the occupant compartment is slightly back in the car.  So what you do is you bring the centre of gravity back towards the rear of a car.  Doing that requires an increase in pressure in the back tyres of something like a Ford Sierra to compensate for the difference in the dynamics of the vehicle.  It is for this reason and this reason alone that the manuals for this particular car recommends 46 lb. per square inch in the rear wheels when you carry over three people and not 26 lb. per square inch which is what the tyres carry on the normal one driver or one occupant situation.  In other words if you have four people in this car you are required to have 46 lb. per square inch in the rear tyres.  If you do not have the 46 lb. per square inch you get the over-steering effect.  It is simple, it is in all the handbooks, all the engineering handbooks, all data books on tyres.  It is well-known."

	Dr. Jordan does not accept that there was any slide of the back wheel.  The right hand side wheels, because it is going around a right handed turn, almost leaves the surface of the road and you have got a two wheel vehicle and that digs in and it comes straight across the road.  That is two wheels steering back and front and because of the dynamics of the car, in another words the centre of gravity having been moved back, you get the lateral cornering force from the front left tyre causing a rotation around that way......  so the car turns tighter.  It does not spin.  He took the view, since there were no marks in the gravel and no marks on the road, that the vehicle did not go sideways at all.  It had full traction.  He says that unfortunately most of its weight was on the left hand side as it went around the bend and it caused a massive over-steer.  He gives detailed evidence including that of Yaw Marks to confirm his theory.  Dr. Jordan accepts that he has no criticism of the roadway proper.  However, he puts the speed higher than Dr. Woods and takes into consideration the number of the people in the car, the weight factor which heightens the centre of gravity as we have seen, he believes that one of the reason that the vehicle was out of control was that there was two high cornerings, having regard to the load.  If you have four people in the car you must go slower around a bend than if there was a single person in the car.  The centre of gravity will be considerably different in those two situations.  Dr. Jordan calculated the weight of the four men in the Sierra and found it gave a 35 increase in weight.  This changes the dynamics completely and utterly.  In his view all four tyres had to be on the roadway proper.  Dr. Jordan considered that the late Mr. McCambridge would have seen the Sierra coming around the bend with plenty of room for himself to go round the turn between it and his left hand side of the road and then suddenly the over-steer.  It happens when you are nearly out of the turn once the actual car had bottomed out on its left side.  So it is coming out of the turn that it happened and then it comes across.  Dr. Jordan disagrees fundamentally with Dr. Woods.  He basically agrees that the Sierra was on its correct side of the road but he would say that if it went near the chippings or if it went on the chippings the accident would not have happened.  Both experts agree that the overall sight view is 117 yards.  The engineer who was responsible for the resurfacing of the road says that it is not really a good idea to sweep the road immediately after the surface is put on as it may damage the surface.  It should have time to settle.  Also, the stones would be signals to road users and would slow them down.  However, an issue in this case, the Court is satisfied that about 10 days after the work was done and well before this accident that the road was swept.  It is also satisfied that roughly 350,000 cars travel from the Galway to Clifden direction and the same number went in the opposite direction per annum.
	A full day was spent discussing the condition of another bend on the same road at least a mile away from the present scene.
	Because Dr. Jordan has covered several topics which had not been discussed with Dr. Woods, it was agreed that Dr. Woods should be recalled but he was to be restricted to deal with the points that were put to Dr. Jordan that allegedly were not put to him.  It was suggested that Dr. Jordan was making a case which was not supported by any of the other witnesses called by the County Council.  The Court does not accept this submission.  In a case in which there were many photographs, there was a request, before Dr. Woods came back, to produce two more photographs.  
	Both experts were concerned with the position of the front wheels in both vehicles.  However, the vehicles were removed from the scene, one by a loader and the other by being processed along the road and it is very probable that the wheels in the front of both vehicles would have moved during the time of their removal from the scene of the accident to the garage where they were photographed.  Because of the damage, the movement may not have been substantial but undoubtedly there was some movement.  Dr. Woods seems to have read a great deal into the evidence of Mrs. Moloney that the O'Halloran car passed her and returned to its own side some distance before the accident.  The Court does not accept that it has the significance that Dr. Woods puts on it.  We ended up with two photographs taken on the same day by different people.  One was taken by Mr. Duffy and the other by Mr. Morgan.  They are totally at different angles.  Mr. Morgan's photograph shows a very obvious and distinct disturbance of the chippings which are not visible in Mr. Duffy's photographs.  Dr. Woods read a great deal into these photographs, mainly that a left wheel went in on the chippings.  Dr. Woods advanced the theory that these photographs showed that the left rear wheel of Mr. O'Halloran's car went in on these chippings and that caused loss of control.  Dr. Woods' theory seems to be dependent entirely on that photograph.  However, there is no doubt that there was a great deal of disturbance on that side of the road after the accident.  All traffic had to pass on that side of the road because the other side was blocked.  There were fire brigades, ambulance, police cars as well as people who were assisting and people who were merely curious by-standers.  It does not seem to this Court that one can say with any degree of certainty that what Dr. Woods saw and which he alleges are demonstrated by these photographs was in fact caused by the late Mr. O'Halloran at all.  There are many innocent explanations and indeed on Dr. Woods' earlier evidence there would have been a lot of disturbance in this area for the reasons advanced.  The whole of Dr. Woods' theory depends on the left rear wheel of the O'Halloran car going in on the chippings.  The onus is on him to prove that is a probability.  However, for the reasons already advanced, and because of the weight of the other evidence, this court should not, as a matter of probability, hold that Mr. O'Halloran's car did go out of control as a result of his rear wheel going in on the chippings.  Dr. Woods has confirmed, in his evidence, that the whole basis of his theory is that the left rear wheel had to go in on the chippings.  The Court is satisfied that this vehicle came into this bend at an excessive speed and that the driver knew the bend and was affected by alcohol and that because of these factors and the fact that he had four passengers and possibly maladjusted tyres that there was an over-steer which resulted in this terrible accident.  The accident occurred in daylight.  This finding does not exonerate a local authority from making sure that the carriageway is clear and if it is not, that it is suitably sign-posted.  However, the Court is not satisfied, as a matter of probability, that the existence of the loose chippings on the roadside at the accident scene contributed to this accident.  
	I have been referred to two law decisions.  Firstly, there is Danaher -v-  Roscommon County Council which is a seminal decision of the Supreme Court which is cited in both editions of McMahon and Binchy and it is as yet, sadly, not published in any recognised law reports.  It was delivered by the Supreme Court on the 21st December, 1973 and a decision of my own, also unreported, of Sheila Lane -v- the Cork County Council and Peter Peppar and John A. Woods Limited delivered in Cork on the 10th October, 1995.  However, in that latter case the road had been left in such a condition that the public were actually invited to use the gravel surface and did in fact do so and there was also independent evidence from a man who lived near by as to what exactly he heard immediately before and at the collision.  The facts of that case and this case are different.  Accordingly, the Court will enter Judgment for the Plaintiff against the first and second named Defendants.