Simon Cowell egged
In the High Court case of Doody –v- Clarke delivered on the 13th November 2013 Mr Justice Kevin Cross dismissed a Claim made by a Pedestrian who lost her eye as a result of “egging” which occurred from the Defendant`s car. This Decision attracted understandable attention in the media at the time, particularly as a result of the devastating injury sustained by the Plaintiff.
On 26th March, 2008, the plaintiff, a midwife, nurse and housewife, was taking an evening walk with two friends down the old Bray Road on the pavement, between her two companions. As she walked, suddenly without any warning, she felt a pain in her eye which caused her to fall towards the ground. The eye was bleeding. It transpired that the plaintiff had been struck in the eye by an egg which had been thrown by D.M. who was a backseat passenger in a motorcar owned by and being driven at the time by the defendant, Niall Clarke.
The plaintiff was taken to the Eye and Ear Hospital where she lost the sight of her eye and despite surgical repair, the eye had to be removed later and an artificial eye inserted. The plaintiff suffered and continues to suffer, pain and significant psychological trauma and physical disability.
Background
Egging can go too far
The defendant was, at the time of the incident, aged 17 and had just recently acquired his vehicle. On the afternoon/evening of 26th March, the plaintiff met up with his girlfriend (S.D.) together with three male pals (C.C., D.M. and P.S.). The defendant’s male friends sat in the rear of the defendant’s vehicle.
The defendant and his companions talked of going to a party that evening and there was speculation among them as to whether they would be admitted to the house and someone of the group mentioned purchasing eggs. Judge Kevin Cross accepted and concluded that all the group, including the defendant, agreed and colluded in the purchase of eggs which they intended to utilise in the activity of “egging”. “Egging” is a form of antisocial behaviour in which the participants throw eggs at intended targets in the manner of snowballs.
Egging
The defendant drove to the Lidl supermarket at Greystones and the defendant purchased a soft drink and the three male passengers purchased three packets of ten eggs and all the friends congregated around the checkout. The group then exited the supermarket and the defendant asked his friends to put the eggs into the boot so they would not “mess” with them. By this, the Judge concluded that the defendant was concerned about any eggs being spilt in his new car.
Subsequently, after leaving a Statoil filling station at least one of the packages of eggs was in the backseat area. There was different testimony suggesting that that package may have been in the back all the time or that someone opened the boot to place the extra egg carton in the car or that somebody pulled the backseat down and fetched the egg carton from the back. The Judge thought it is probable that one of the packages of eggs never made the boot in the first place.
Tort-Law
The Judge noted that the defendant’s girlfriend, S.D. was varnishing or colouring one egg in her hand in the front seat for some time and he found that the defendant would have known and did know of this fact. In addition to S.D., there were two other eggs being handled in the rear seat, one of which was in the possession of C.C. and the other of D.M. C.C. states that at some stage he placed the egg back into the box. The Judge therefore held that the defendant knew or ought to have known that a number of eggs were being passed around and being “played with” by his passengers.
“Nothing short of a tragedy”
As they approached the plaintiff and her two friends, D.M. bent over, lowered the window and threw an egg in the direction of the plaintiff which hit her in the eye causing the catastrophic injury. Subsequent to the accident they then went on in a rampage of “egging” as they were excluded from the party. At various stages through the night they “egged” the house and various guests, some of whom they knew, some of whom they did not know who were going to the party and then indulged in a general melee among themselves and their friends.
The post accident actions of the defendant and his friends may indeed be relevant to show their intended target in “egging” was not restricted to the house at which the party was taking place. Indeed, it is the case that it would have been quite possible for further similar injuries to have been caused by anyone of the later episodes of “egging”.
The Plaintiff’s Case
The plaintiff contended that the defendant was liable in respect of this incident, that he was vicariously liable for the actions of his passenger and also that he was directly liable for the incident due to his failure to properly drive and control his motor vehicle as he was obliged to do so under the Road Traffic Act and at law and in particular he failed to properly control the activities of his passengers.
The Defendant’s Case
The defendant argued that this was a tragic incident for which he expressed regret and his sorrow but it was caused by the wrongful acts of D.M. in an assault for which the defendant was not liable. Furthermore, he claimed that the accident happened very quickly, the defendant having told his passengers not to be “messing” and that it was not foreseeable that eggs would be thrown and that the plaintiff was seeking to create an onerous standard for the defendant.
Evidence
The Judge noted that the defendant had been traced due to excellent detective work. He noted that the defendant’s insurers had repudiated liability and the defendant was defending the matter on his own.
The Law
The Judge stated that whereas the owner of a mechanically propelled vehicle is vicariously liable for the actions of a driver under s. 118 of the Road Traffic Act 1961, he did not find that the owner or driver of the vehicle can as such be vicariously liable for the actions of his passengers. He stated :
High Court, Dublin
“None of the passengers gave evidence as to any conversation about “egging” anybody on the road. This may well be selective amnesia but there is no evidence that the driver was warned or ought to have known that this was a likelihood. I am of the view that it would be unreasonable to import upon him the knowledge that an egg was going to be thrown or might be thrown in the direction of the plaintiff from his car. I am also of the view that in the circumstances to expect the defendant to take any of the actions which (the Plaintiff`s Counsel) suggests would be to impose upon the defendant too high and too onerous a standard of care.”
Had there been any evidence of a discussion of “egging” pedestrians then the Judge would have decided otherwise.
It was with regret that the Judge dismissed the action.
Conclusion.
There can often be an assumption that the more serious the injury suffered by the Plaintiff the more likely it is that the Court will find in favour of the Plaintiff. Regrettably however the Court is bound by the rules of negligence and breach of statutory duty where the defendant must be found at fault for the Plaintiff`s injuries; more particularly that consequences of the defendant`s fault would result in foreseeable injury to the Plaintiff.
In this case the Plaintiff suffered a catastrophic injury but, as she could not establish fault on the part of the driver for properly controlling his passengers, she failed to recover compensation.