Furey v. Suckau [2000] IEHC 60 (14th July, 2000)

Judgment delivered by Judge Aindrias O Caoimh on the 14th day of July 2000 1. The Plaintiff’s claim arises out of an accident on the 8th of May 1998, on the main Roscommon to Athlone Road, near the Hodson Bay Hotel. The Plaintiff is the widow of the late James Furey of 43 Aisling Lawn, Ballincollig, Cork, who died at the time of the road traffic accident, which is the subject matter of these proceedings. The deceased James Furey was the Sergeant in the Defence Forces and on the day of the accident. He was returning from Donegal where he had partaken in the Army Orienteering Championships. At the time of the accident he was driving a new Ford Astra motor car and had in his company, two colleagues from the Defence Forces, who were badly injured in the accident and who have no recollection of the accident. The Plaintiff’s case is that the accident occurred solely on the deceased’s side of the road and relies upon circumstantial evidence in support of her claim that the Defendant was guilty of negligence on the occasion as a result of which James Fury was killed. Such debris as existed from the accident was to be found on the deceased’s side of the road. The deceased’s vehicle ended up at the entrance to the road leading to the Hodson Bay Hotel and it is quite clear that the position at which it ended up was not the point of impact. At the same time the Defendant’s vehicle which was a camper van was swung around on the road and ended up facing in the opposite direction from whence it had come. The Defendants contention is that at all times he was stationary in the middle of the road with a view to turning into the side road leading down to the Hodson Bay Hotel when the vehicle driven by the deceased struck his vehicle head on at high speed. 2. The width of the road in question at the entrance to the Hodson Bay Hotel was 23 feet 2 inches excluding the hard shoulders which on the left hand side facing Athlone was nine foot in width and on the right hand side was six foot in width. After the accident the Gardai were called and Garda Dominic Rafferty, who was stationed in Athlone at the time, arrived at the scene sometime after 3 o’clock in the afternoon, having received a report at 3.10 p.m. in the afternoon of the accident in question. Garda Rafferty found the camper van facing towards Athlone and he found that the deceased’s motor car had two rear wheels up on the grass margin and was facing out towards the main Athlone Roscommon road. Garda Rafferty stated in evidence that on the main route he found no debris, glass or anything to suggest where the accident had happened but on the Hodson Bay road, that is the side road leading from the main road, he found that there was glass and debris on the road. Garda Rafferty also observed some scrape marks on the road but stated that he could not say whether they were there as a result of the accident itself or had been there prior to the accident. The car was damaged to it front and at it’s side and the camper van was damaged to the front, largely on the left hand side as one faces the vehicle. That is to say it was mostly inside the left chassis rail on the vehicles driver side, where it is a left hand drive vehicle.. 3. Garda Rafferty stated that he found nothing on the Defendant’s side of the road to indicate that the accident had happened on that side of the road. Most of the debris which he saw was inside the white line of the side road leading from the Hodson Bay Hotel towards the grass margin. The speed limit on the main road is sixty miles per hour. The road was wet when the Gardai were leaving Athlone to go to the scene of the accident and it was raining but when they arrived at the scene it had stopped raining. The Gardai travelled a distance of five miles to the scene of the accident. It was agreed by Garda Rafferty that there would be a blind spot about two hundred yards back from the scene of the accident from the perspective of the deceased Mr Furey. However, it was agreed that when he would get to a point of approximately two hundred yards from the intersection with Hodson Bay Hotel, that he would have had a view of any car turning right into the Hodson Bay Hotel. It was agreed by Garda Rafferty that the particular turning point is an area that would have to be approached with a degree of caution. Garda Rafferty accepted that as a the matter of probability the Defendant’s camper van was spun around in the impact to end up in the position in which he found it. 4. Garda Rafferty spoke to the front seat passenger in the car driven by the deceased Mr Furey. The passenger was Mr Sam Hayes. However, he could remember nothing of the incident. There were two rear seat passengers in the car, but the garda was unable to ascertain their recollection because they were badly injured in the accident in question. Garda Rafferty also observed some oil spillage on the road way at the scene of the accident. This he observed at the entrance of the road leading to the Hodson Bay Hotel at a point approximately an inch or two from the stop line. 5. Garda David Healy, a Public Service Vehicle Inspector inspected the vehicles which had been involved in this collision on the 12th of May 1998. He examined the Opel Astra car driven by Mr Furey and this he stated was a 1998 registered vehicle only a few months old at the time. He found the impact damage to the vehicle consisted mainly of front right hand side, which is the driver’s side, and the damage extended rearwards, which meant that the entire frontal section had basically been crushed in the impact. He found that the impact to the vehicle was basically to the right front corner of the vehicle. The damage extended back towards the rear passenger section. The Opel Astra car was a number of weeks old and had been registered in Cork in 1998 and had a very low mileage. He found no defects with the vehicle whatsoever which would indicate a mechanical problem was the cause of the accident. He examined the Defendant’s camper van which had 24,000 kilometres on the clock. It was a vehicle which was nine foot four inches in width, twenty one foot three inches in length and had a height of nine foot three inches. The camper van was a left hand drive vehicle and the impact was from the passenger side of the vehicle across to the driver’s side, that is to say that the impact happened on the driver’s right hand side which would be the passenger’s side of the vehicle. The impact was from the left extending across to right hand side. The impact on the Opel Astra was from the right hand side across towards the left hand side. In effect the damage to the motor car was from the driver’s corner in the front going straight behind to the rear passenger on the passengers side in that particular direction. Garda Healy expressed the opinion that the camper van was across the road way and was struck by the Astra at an angle which would be consistent with the damage that he found on both vehicles. From the damage he expressed the view that it was not a head-on crash; it was an angled impact where the camper van was at one angle and the Astra was immobilised in a straight forward position when the vehicles collided. Garda Healy expressed the view that the camper van was at an angle with the Astra car going straight ahead. He expressed a view that the Astra car was turning away from the point of impact before the impact occurred. Items inside the camper van were thrown forward in the impact. He expressed the view that it may have been travelling very slowly at the time of the accident. Garda Healy expressed the opinion that the Opel Astra vehicle was involved in a high speed impact and that the speed of the Astra Car at the point of impact was sixty miles per hour. With regard to the Hymer camper van, Garda Healy found that eighty percent of the frontal section was extensively damaged. He found the right chassis, inner valence, engine and gear box mounting were all driven rearwards. The bumper, bonnet, right front suspension, steering and breaking systems were damaged. The right hand side headlamp and windscreen were badly damaged. The dash and upper double bunk beds were driven through the front windscreen. The front seats were also damaged. The inner cab displayed impact damage with a cooker, fridge and sink unit displaced and driven forwards. Garda Healy expressed the opinion that the Astra car was trying to avoid the accident at the very last point in time before the impact. He expressed the opinion that the momentum of the Astra car would actually have put it in that position in the roadway following the accident. Garda Healy expressed the opinion that the accident occurred at a point when the Hymer van was across the centre line of the roadway on its incorrect side of the road, on the basis that there was no debris found on the centre of the road and this he stated would indicate that the impact happened on the Astra’s side of the road. He expressed the opinion that the passenger front wheel would have being definitely across the white line of the road way in any event. He expressed the view that it was at least the front wheel on the passenger side of the vehicle that was across the white line. He expressed the opinion that this was about three feet. Garda Healy conceded that the position of the glass and debris as found following the accident did not indicate the point where the accident occurred but indicated the force of the impact where the momentum of the Astra actually carried that debris to the position on the roadway. Garda Healy expressed the opinion that if the camper van was struck on its correct side of the roadway that it would not have travelled across the entire width of the carriage way on Mr Furey’s side, if the impact happened on Mr Suckau’s side of the road. Insofar as he expressed an opinion that the camper van may have been moving at five to ten miles per hour, he related this to the angle of the camper van at the point of impact. 6. The opinion of Garda Healy was that the Astra struck the camper van, basically on the chassis rail and the chassis rail, being the strongest part of the camper van, caused it to spin around. The angle at which the camper van was struck was the cause of it to spin around. 7. Garda Rafferty was recalled to give evidence in relation to scrape marks which he had observed on the roadway following the accident. He said that the point from the scrape marks to the position in which the Astra car was the distance of thirty seven feet. He was unable to say the length of the scrapes themselves. He examined two scrape marks close to the yellow line, that was in the broken yellow line marking the beginning of the hard shoulder. The remainder of the scrapes were away from the broken line to the right of it. The witness was unable to say how far out into the carriage way the scrapes went. 8. Evidence was given on behalf of the Plaintiff by Mr David Algar, who is a Consultant Engineer, and motor assessor. He examined both the Hymer Van and the Astra motor car on separate days in Athlone. He took various photographs which illustrated the damage to the two vehicles. In relation to the Astra car, it was practically new with less than 3,000 miles on the clock. He said the engine and transmission and all of the ancillary suspension, particularly the offside front wheel, were driven severely back into the bulkhead. He stated that the driver’s airbag actually deployed and the seat belts on the front seats activated a pretensioner and they were pulling the occupant back into the seat . The severity or the impact caused the bulkhead to collapse to such a degree in the foot-well area of the driver’s compartment, at to cause the unfortunate death of the driver of the vehicle. He expressed the opinion that the collapse of the bulkhead caused score marks on the road surface or hard surface. He also expressed the view that oil would have run from the transmission, probably the drive shaft, and break fluid may have escaped. He stated that the damage to the undercarriage which would have been almost instantaneous with the collapse of the front end would have had to leave scratch marks or score marks of some description. However, this witness did not attend the scene of the accident. He said one would expect to find oil immediately on the initial point of impact on the roadway. On the examination of the two vehicles concerned, he found that the wheels of the Astra motor car were more or less in a straight head on opposition. The Hymer motor vehicle and the Astra motor vehicle were in good condition and were partially new at the time of the accident. The front wheels of the Hymer van were turned somewhat to the right or offside. He found on inspection that the steering rack on this vehicle had split in two from the impact in the accident. From this he concluded that the angles of the wheels were as at the point of impact in the accident concerned. The Witness concluded that the angle of the car to the van was between thirty and forty five degrees at the point of impact. The witness indicated that the first time that he became aware of the scrape marks or was asked to give an opinion as to how the accident occurred was on the occasion he gave evidence to the Court. Furthermore in so far as he addressed his mind to scrape marks on the road he did not do so at any time prior to the date of the hearing in the Court. He expressed the opinion that the marks on the road surface would have come from the Astra and not from the camper van. 9. Mr Matt O’Malley, an Engineer from Cork, gave evidence on behalf of the Plaintiff. He inspected the scene of the accident on the 12th of March 1999. The scene was pointed out to him by members of the Garda Siochana on the occasion. He prepared a map for the Court. However, the map does not reflect the situation at the time of the accident as fresh road markings were made sometime subsequent to the accident and prior to this witness examining the scene. The witness pointed out from the position at which the camper van was alleged to have been at the time of the accident, that the driver would have in view in excess of four hundred yards in the Roscommon direction and furthermore a car coming from that direction would have had a similar view of the van as it would stand stationary in the middle of the road in the direction of Roscommon. In reference to the scrape marks pointed out to him on the road, this witness expressed the opinion that the impact occurred quite near the yellow line on the road. He expressed the opinion that wherever the camper van was struck it would leave debris at or near the point it was on the road at the moment of impact. Again this witness did not apply his mind to the scrape marks and to the point of impact until the day he gave evidence to this Court. The witness expressed the opinion that the camper van would more likely spin if its angle was greater than thirty degrees to the centre line and its spin would be less if only at fifteen degrees to the centre line on the road. With regard to debris from the camper van, he expressed that the view that some debris would fall at the point of impact. Items would move forward at ten miles an hour. The witness assumed that the camper van was travelling at some ten to fifteen miles per hour at the point of impact. THE EVIDENCE OF THE DEFENDANT 10. Mr Hans Otto Suckau, the Defendant in the proceeding stated that he had experience of driving on the left hand side of the road in 1995 when he travelled up to four weeks in Southern England a distance of 3,000 to 3,300 km. In 1997, he travelled for five weeks through Scotland. He indicated that the distance driven on that occasion was some 4,500 km which he drove. On the 5th of April 1998, he took the shuttle to England and drove to Wales where he stayed for about four weeks and on the fifth week he went to Dublin. 11. He described the camper van he was driving on the occasion of the accident the subject of these proceedings as a new camper van which had approximately 20,000 km on the clock. It weighted 3.5 tonnes in weight, 6.8 metres in length and 2.5 metres in width. The camper van was a left-hand vehicle. Mr Suckau stated he was driving on the left hand side of the road when he saw a sign for the Hodson Bay Hotel. He crossed the road and then put on his indicator, crossing from the left hand side towards the middle and stopped at the central line. He stated that as he approached the central line of the roadway at the junction, he applied the brake, he put his car into neutral and kept his foot on the brake as there were two or three on coming cars which he let pass. He stated that the side of his camper van was at an angle to the centre line of the roadway because the vehicle was very large and he stated that you cannot go parallel when you come over from the left hand side, you have to come at an angle. He expressed an opinion that the angle of van was approximately fifteen degrees to the white centre line in the road way, it could have been more. He stated that if more, it would not have been much more. He stated that when he first saw the car driven by the deceased it was approximately 50 metres away from the junction with at least half of the width of the car over the centre line. He estimated the speed of Mr Furey’s car to be 130 to 140 km per hour. From his point the vehicle did not brake or appear to swerve to avoid striking the camper van. He described the car driven by the deceased as being like white missile. He said that the deceased’s car did not alter its path at any time prior to the accident. He stated that at no time did he move the camper van, after he took a stationary position in the middle of the road. He said that he did not move at all from the position he took up in the centre of the road to the point of impact. He expressed his opinion that there was nothing he could have done to avoid the accident. He denied that he had moved out four or five feet over the white line. He further denied that he crossed over the roadway, towards the broken yellow line at the point where the impact occurred. He indicated that the camper van was turned by the impact of the Astra car. The camper van which was facing Roscommon ended up facing in the Athlone direction. He stated that he saw the Astra car turn twice. It then hit the grass margin in the corner of the road that goes into the Hodson Bay Hotel. He stated that the windscreen of the camper van fell out after the camper van had come to a stop having been turned around in the impact. The Defendant stated that prior to the impact maybe two or three cars passed and that he looked to the left again having previously looked down towards the Hodson Bay Hotel and he would always look to the left to see if the road was free before he turned into the Hodson Bay Hotel. It was put to the Defendant, that if he had to look to the left in the Roscommon direction that meant that he was facing in the Hodson Bay direction. He stated that he was facing into the Hodson Bay but only at an angle of fifteen degrees. 12. Mrs Monica Suckau, the wife of the of the Defendant was the front seat passenger on the occasion of the accident. This meant that she was on the right hand side of the camper van , being a left-hand drive vehicle. She stated that as they came towards the Hodson Bay Hotel junction, she saw the sign for the Hodson Bay Hotel and for the camping site and told this to her husband and that he then put on the indicator and they slowly proceeded to the centre line of the road. She said that they stopped at the centre line and that she then saw two or three cars coming from the Roscommon direction passing the camper van. She looked at these cars and she then looked into the Hodson Bay junction direction and as she looked left into the direction of Roscommon, she saw a beige or light coloured car approaching in front. She stated that the camper van was stationary on the centre line. 13. Mrs. Suckau stated that as they came up to the centre line, they stopped for two or three cars coming from the Roscommon direction to pass them and then she looked at the passing cars and she looked into the Hodson Bay junction direction and as she looked left in the direction of Roscommon she saw a beige or light coloured car approaching them. She observed this car to be driven straight towards them in a straight line without making a sound. She stated that this car collided with the front of the camper van and came towards them like a flash. She stated that her husband usually handles the camper van in a certain way such that they are angled. In other words they are at an angle with the camper van when they approach the centre of the road and she said that on the occasion in question the right hand side of the camper van was touching the middle and just at the middle line. She estimated the speed of the Astra car to be between 120 and 140 k.p.h (that would a speed of up to eighty five miles per hour). She stated that in the impact the camper van was turned around and she observed the Astra motor car being turned three times at incredible speed. The witness stated as they were driving in the direction of the Hodson Bay Hotel they observed a sign on the main road. She drew her husband’s attention to the Hodson Bay sign. When they saw the Hodson Bay sign, they knew they were on the correct road and Mr Suckau put on his indicator and slowly they approached the centre line. Mrs Suckau said that she only observed Mr Furey’s car for a very short period of time prior to the impact in this case. It is important to note that this witness, in common with her husband, stated that she turned towards the left when she observed the Furey car. 14. Evidence was given by Mr Tom O’Brien, a Charterer Engineer and graduate of the University College Dublin. On the day following the accident, he was asked to go and meet a Mr Campbell, together with Mr Sackau and Mrs Sackau at the scene of the accident. He stated that no interpreter was present at the time. He prepared a map and photographs for the Court and the evidence was given in relation to this map and photographs. He did not himself observe any fresh scrape marks on the roadway. He was looking for signs but he said that the fire brigade had scattered sand on the road and then brushed it up. He said he did not see the scrape marks on the day following the accident. There was no pronounced or obvious fresh mark visible to him at the time. However, as stated previously, sand had been scattered on the road and it had apparently being put as a precautionary measure against an oil spill. He stated in evidence that what was given to him at the time was an account of the accident on the day following the accident which was entirely consistent with the evidence given by Mr and Mrs Suckau in Court. He accepted that in an offset collision the vehicles wanted have been caused to rotate. The relative movement of the vehicles after the impact shows the momentum involved. He stated that the extent of the rotation depends on the road conditions at the time. If it was wet there would be greater rotation. Having regard to the fact that both vehicles ended up some considerable distance from the point of impact this indicated considerable speed at the point of the impact. Furthermore he indicated that the Hymer van was pushed back a distance of fifty five feet in the impact. With regard to the damage done to the Hymer van, this was caused to its strongest point at the front bumper where extensive damage was done. Mr O’Brien expressed the opinion that the speed of the Astra car was well above sixty miles per hour at the point of impact and he understood that there were no brake marks at the time. Mr O’Brien excluded the possibility that the impact may have occurred in the area of the broken yellow line on Mr Furey’s correct side of the road. One difficulty he had with this theory was the angle between the two vehicles. He said that had the accident occurred at this point, the left hand corner of the Hymer would have been struck. However, it had not being struck and was not damaged in the accident. Mr O’Brien expressed the opinion that he would have expected some mud towards the centre line as a result of having been dislodged in the impact. He expressed the opinion that passing traffic may have obliterated such mud or debris. He said there was no evidence from the Garda referring to mud at any part of the scene. With regard to the visibility available to Mr Suckau driving the van, he said that at eighty five miles an hour, the car driven by Mr Furey would cover the distance of three hundred and fifty to four hundred yards in a time between nine and ten seconds. If the speed of the vehicle was seventy miles an hour, it would travel the distance between eleven and twelve seconds, closer to twelve seconds; at sixty miles an hour the time taken would be between thirteen and fourteen seconds. Mr O’Brien expressed the opinion that the dampness on the road would first of all reduce the braking capacity of the vehicle and secondly it would increase the likelihood of movement of both vehicles after the initial impact. With regard to debris, Mr O’Brien expressed the opinion that as the two vehicles engage or mesh that the debris is between the two vehicles but when they disengage the debris will fall or spray in the direction in which the vehicles are moving including that of the spinning action of the vehicles. Mr O’Brien stated that when he examined the scene on the day following the accident that the whole side of the road had been cleared up and that there was no debris on Mr Suckau carriage way but that it was right across the other carriage way. Mr O’Brien indicated that he would normally have expected to find some debris in the centre of the road in the event of an accident having occurred there. CONCLUSIONS 15. This particular case presents difficulty in so far as the only witnesses to the accident have given evidence to this Court and these are the Defendant and his wife, Mr and Mrs Suckau. The Plaintiff’s case is dependent on upon extrinsic evidence and theories of various engineers and members of the An Garda Siochana. What appears to be abundantly clear from this case is that a major contributing factor to the accident was the excessive speed of the car being driven by the deceased. On the other hand what is difficult to understand is the fact that the Defendant did not see the deceased’s car until a very short interval of time before the impact in circumstances where the visibility would have enabled him to see the car for a distance of three hundred and fifty to four hundred yards back in the direction of Roscommon and furthermore where the time taken to travel the distance to the point of impact would be the best part of ten seconds. I am struck by the fact that both the Defendant and his wife refer to looking left in the direction of the oncoming car, this suggests essentially that the camper van was very much at an angle to the road centre and not parallel to the white line in the middle of the road. I am prepared to accept that the camper van was in a stationery position at the time of the impact. Mr Suckau has indicated that it was his practice to position his vehicle at an angle to the white line or centre in the circumstances where he would turn right in view of the size of the vehicle. I fail to understand the necessity to do this. I have had particular regard to the evidence of the Public Service Vehicle Inspector in this case. He has expressed the opinion that the Defendant’s vehicle was some way over the white line at the point of impact. This he says may have been of a margin of 3 feet relating to part of the Defendant’s vehicle. I reject as improbable the suggestions made on behalf of the Plaintiff that the impact in question occurred somewhere near the yellow line, that is the line dividing the main carriage way from the hard shoulder on the side of the road which was occupied by the car driven by Mr Furey. I am of the opinion had that had that been the case that the damage to the vehicle would not have being at the angle in which it did occur and furthermore the damage would essentially have been to the left hand side or wing of the Defendant’s vehicle. I conclude that the absence of debris in the centre of the road is essentially due to the fact that the two vehicles in question were new and therefore would not have carried much in the way of mud which might otherwise be present in vehicles and furthermore the roadway had being cleaned up following the accident by members of the fire service, and in addition mud may have been scattered by traffic. Much of the debris was carried forward in the impact having regard to the relative speed of the car as opposed to the the camper van which I conclude was in a stationary position on the road. I conclude however, that insofar as the camper van was at an angle to the white line, the portion of the vehicle which would be on the passengers side of the road would have been over the white line and at the centre of the road and occupying a portion of at least three feet of the carriage way on which the vehicle being driven by Mr Furey was travelling. On this basis I conclude, that the essential liability for the accident must rest with the deceased. However, I believe that some liability which I conclude should be at the level of twenty percent should rest with the Defendant on the basis of negligence which I ascribe to him in failing to position his vehicle in the correct position on the road. I am also of the opinion that the angle of the vehicle was in excess of the fifteen percent alleged having regard to the fact that if it was only at that angle with reference to looking to the left to see down the Roscommon road would not be the correct description of the direction which the driver of the vehicle would have been looking at the time as opposed to looking right down into the junction of the road to the Hodson Bay Hotel. At the outset of this case, it was indicated by Counsel for the Plaintiff that the damages had being agreed in this case in the sum of £247,000.00 and I will hear Counsel in relation to the appropriate Order to be made in light of my findings. © 2000 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII