The Gazette 1990

GAZETTE

JULY/AUGUST 1990

about 50m.p.h. with full headlights on. Suddenly, from the left hand side, eight to ten cattle darted across his path. Although he immediately applied his brakes, a collision occurred in which one Friesian calf was killed. Counsel referred to section 2(1) of the Animals Act 1985, and submitted that there was no evidence that the defendant had not taken reason- able care. Counsel for the plaintiff further submitted that as there had been no reported decision either in the Circuit or High Court on the Animals Act, 1985 he was obliged to refer to an article by Gerard J. Needham in the Gazette of the I nco r po r a t ed Law Soc i e ty of Ireland, July/August 1988 at page 171 dealing with the only reported case on the matter by District Justice Patrick F. Brennan in District No. 3 (1988 6ILT NS 245) who held that Section 2 (1) of the 1985 Act created a res ipsa loquitur presumption and who stated: " Wh e r e a p l a i n t i ff gives evidence that his motor vehicle collided with animals straying on the highway and is able to i den t i fy the owner of the animals, then there is a prima facie case to be answered by the l andowner to rebut the presumption of negligence on his part. The burden on the landowner is, of course, not one of strict liability, but it would be necessary for him to prove that he exercised reasonable care that he maintained his gates and fences in stock proof condition and had taken all reasonable steps to ensure that his stock did not stray on the public highway. In such an example the burden should shift from the plaintiff because of the impossibility in many situations of the plaintiff ascertaining the conditions of the landowner's fences which knowledge is peculiar to the landowner". Johnson J said that District Justice Brennan was absolutely correct in his view of the law. The 1985 Act had brought about a long overdue change in the law. Cattle properly managed could not wander on the road and therefore the burden of proof shifted in this case to the defendant to show that he took reasonable care of his

a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying on to a public road was thereby abolished. Johnson J said that this was an action taken by a motorist who, at about 10pm on 25 June 1987 at Tullybrack in the Coun ty of Monaghan, had collided with a Friesian calf. The animal was killed and the plaintiff's motor vehicle was seriously damaged. The de f endant claimed t hat the accident was caused by the negli- gence or contributory negligence of the plaintiff. Counsel for the p l a i n t i ff submitted that, while he had not specifically pleaded the doctrine of res ipsa loquitur, he was entitled to rely on the doctrine provided his pleadings were adequate and the facts proved showed the doctrine to be applicable. This was strenuously opposed by counsel for the defendant but Johnson J was sa t i s f i ed t hat the p l a i n t i f f 's submissions were correct and that the law had been well stated by Griffin J in Mullen -v- Quinnsworth Ltd (Irish Times Law Report 28 May 1990) when he had said that the doctrine did not have to be pleaded before a plaintiff might rely on it. If the facts pleaded and the facts proved showed that the doctrine was applicable that was sufficient. The appellant in evidence stated that he was driving along the main Castleblayney/Monaghan road at

O N U S OF PROOF OF S T R A Y I NG C A T T LE IN ROAD A C C I D E NT The recent case of O'Reilly -v- Lavelle, The Irish Times Law Report, Ju ly 2, 1990 has impo r t ant implications for the owner of animals straying on a public road. In O'Reilly, Johnson J held that the doctrine of res ipsa loquitur (the thing speaks for itself) does not have to be specifically pleaded before a plaintiff may rely on it, if the facts pleaded and the facts proved show that the doctrine is applicable to the case. Where a plaintiff gives evidence that his motor vehicle collided with animals straying on the highway and is able to identify the owner of the animals, there is a prima facie case to be answered by the owner to rebut the presumption of negli- gence created by section 2(1) of the Animals Act 1985. Johnson J so held in allowing an appeal from the decision of Judge Sheehy who, in the Circuit Court in Castleblayney, Co. Monaghan, had dismissed the plaintiff's claim on the grounds that the plaintiff had failed to discharge the onus of proof and that the doctrine of res ipsa loquitur could not be relied upon in that it had not been specifically pleaded. Section 2(1) of the Animals Act, 1985 provides that so much of the rules of the Common Law relating to liability for negligence as excludes or restricts the duty which

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