BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. These proceedings arise out of a tragic accident which occurred on 28th October, 1994 on the main Galway to Barna road when a large stone shattered the windscreen of the car which was being driven by the Plaintiff's husband, Kevin Fitzpatrick, in the direction of Barna and hit Mr. Fitzpatrick on the head. As a result of the injuries he received, Mr. Fitzpatrick died two days later, on 30th October, 1994, in Beaumont Hospital. The Plaintiff brings these proceedings on her own behalf and on behalf of the other dependants of the deceased as defined in Section 47 of the Civil Liability Act, 1961, including her five infant children who now range in age from fifteen down to seven. She alleges that the stone was violently propelled from between the rear twin wheels on the right hand side of the first Defendant's lorry, which was being driven by the first Defendant in the direction of Galway, due to the negligence and breach of duty of the first Defendant. In the alternative, she alleges that the stone was violently propelled by or from a lorry being driven by an untraced or unidentified driver and due to the negligence of that driver.

2. The crucial question on the issue of liability is where did the stone come from. On this question I have heard the evidence of five witnesses who were at or in the vicinity of the locus when the accident occurred. I have also had the benefit of forensic evidence and evidence from a number of technical experts.

3. The Plaintiff was a front seat passenger in her husband's car, a silver coloured Ford Sierra, at the time of the accident and three of her children were back seat passengers. They were travelling from the Galway direction in the direction of Barna where they were to pick up the other two children of the family at 5.30 p.m. They were on time for the rendevous. The Plaintiff testified that as they were driving along towards the junction of the main road, the Barna Road, and Cappagh Road, which is to the right off the Barna Road as one is approaching Barna, she remembers hearing a very heavy truck coming out of the junction and working up through the gears and driving in their direction, that is to say, in the Galway direction. As the truck passed, them the windscreen shattered and glass came into the car. Momentarily, she turned back to look at the children to see if they were alright. She felt the car beginning to veer to the left and when she looked out she saw that the car was heading in the direction of a block wall. She grabbed the steering wheel off her husband and pulled it to the right to take the car away from its left-hand veer. Her husband's arms fell off the wheel and when she looked at his face she realised he was severely injured and unconscious. Having turned the steering wheel to the right, she saw a car, a BMW in front of her coming towards her. She turned the steering wheel to the left again. Eventually she succeeded in stopping the car by pulling up the hand brake and putting it into neutral. The car stopped slightly over the white line beyond the junction. The Plaintiff leaped out of the car and ran to the driver's door. When she opened the door a large stone fell out at her feet. The position of the car and the Plaintiff on the road was impeding traffic coming from the Barna direction. A car coming from that direction stopped suddenly and a lorry travelling behind it, which was owned by Iggy Madden Transport and was being driven by Padraic O'Hare, had to take evasive action by going onto its wrong side of the road. The lorry came to a halt directly in front of Mr. Fitzpatrick's car, breaking a head-lamp on it. The Plaintiff testified that when she jumped out of the car to go to her husband's assistance, she could hear the lorry which had passed them going in the Galway direction with what she described as "a terrible rattly sound". On the Plaintiff's timing of events, the accident happened around

4. The Plaintiff's evidence was very significant in several aspects. Firstly, she was able to identify the point on the road at which the stone had impacted with the windscreen by reference to a block wall to her left. Her recollection was that the point of impact was very much at the Galway end of that block wall. That point is just under 100 metres to the east of the centre line of the Cappagh Road/Barna Road junction. Secondly, while she did not see the lorry which passed them at the time of impact coming out of the Cappagh Road junction, she was emphatic that she heard it coming out of the junction and working up through its gears and revving on the main road. When Garda Liam Kelly, the investigating Garda, interviewed the Plaintiff in the Casualty Department of University College Hospital, Galway, about an hour after the accident, the Plaintiff told him and he noted that the lorry had "pulled out of Cappagh road" . Thirdly, the Plaintiff's evidence was that the BMW, which was coming in her direction after the windscreen shattered, had been driven out of the Cappagh Road junction. She was conscious that the driver of the BMW had seen her coming towards him on his side of the road and that he had taken evasive action: as she put it, he "neatly tucked himself into a lay-by area on the left-hand side". When Garda Kelly interviewed the Plaintiff in the Casualty Department in University College Hospital she told him that she just missed hitting an orange BMW after the impact. I found the Plaintiff's account of the accident to be clear and coherent and, because it was in general consistent with what she told Garda Kelly within an hour of the accident, to be accurate and reliable.

5. Following the accident, the Gardai broadcast appeals for witnesses through the national and local media. In view of what the Plaintiff had told Garda Kelly, they specifically appealed to the driver of the BMW to come forward.

6. The driver of the orange BMW was Michael Pender. He heard of the appeal for witnesses on Tuesday, 1st November, 1994, when he returned to work after the bank holiday weekend. He contacted the Gardai and, as a result of that contact, the first Defendant was identified as the driver of a lorry which was in the vicinity of the Cappagh Road/Barna Road junction on Friday, 28th October, 1994 at around 5.30 p.m., the time of the accident.

7. Mr. Pender is a director of Kenny Developments Limited, a company involved in the construction industry in the Galway area. He is a qualified engineering technician. In October 1994, Kenny Developments Limited was in the course of developing a residential estate, comprising 137 sites, now known as Ros Ard, on the right-hand side of the Cappagh Road as one goes in a northerly direction along the Cappagh Road. The distance from the entrance to the Ros Ard estate on the Cappagh Road to the junction of the Cappagh Road and the Barna Road was 275 metres. Kenny Developments Limited was installing the roads and services on the estate and developing some of the individual sites. Other sites were being developed by small builders. For instance, sites 34 and 35 were being developed by Gerry Brennan. On the evening of 28th October, 1994, Mr. Pender had business at the Ros Ard estate. His evidence was that he was driving a company car - an orange BMW - and he arrived at the Ros Ard estate at between 5 p.m. and 5.30 p.m. but his recollection was that it was closer to 5.30 p.m. At the entrance to the estate on the Cappagh Road, he met a rigid flat bed lorry exiting from the estate, which he subsequently recollected was owned by the first Defendant. The lorry was exiting from the estate and was half way across the Cappagh Road making a left turn. He had to stop to let the lorry go by. The lorry headed south down the Cappagh Road to the junction with the Barna Road. Mr. Pender then drove into the Ros Ard estate. He drove in a distance of about 15 to 20 metres. He stopped for about 5 seconds and he then came out of the estate and went straight down the Cappagh Road to the junction with the Barna Road. He estimated that it took him thirty five seconds, plus or minus a few seconds, to drive down the Cappagh Road. As he drove down he did not see the lorry ahead of him but he knew it had gone ahead. He saw no other vehicle. On the Cappagh Road, about 40 metres back from the junction, he could see in both directions - in the Barna direction and the Galway direction. There was no vehicle coming from the right, that it to say, from the Barna direction. At the junction he stopped for two or three seconds. He was turning left in the direction of Galway. There was no traffic coming from his right. When he had completed the turn left, he became aware of a Ford Sierra about 100 metres from him, coming in his direction. Its windscreen was shattered and there was sizeable hole in it in line with the driver's seat. It appeared to be moving off its side of the road. It continued to come across. Mr. Pender felt that a collision between his car and the Sierra was inevitable. He pulled the steering wheel sharply to the left near the old Cappagh Road junction, where he had quite a bit of room to manoeuvre. The Sierra moved to its own side of the road. A collision was narrowly avoided. Mr. Pender then drove on along the main road for approximately a further 280 metres and then turned off to the left along the Ballymoneen Road to the site office of Kenny Developments Limited. He was in a hurry because he had the payroll with him. He only became aware of the accident when he returned to work on Tuesday and heard of the Garda appeal. He identified the lorry he had met at the entrance to the Ros Ard estate as the first Defendant's lorry to the Gardai.

8. The accuracy of Mr. Pender's recollection was challenged, as to what he saw and could have seen on the Barna Road and on the Cappagh Road and as to his timings. Mr. Pender's timings were estimated and, in my view, must be accepted as such. Subject to that qualification, I found his recollection to be accurate and reliable.

9. Mr. O'Hare, who was driving the Iggy Madden Transport lorry, was travelling from Spiddal to Galway. He testified that, while there were a number of cars travelling in front of him, he did not see any lorry travelling in front of him on his journey from Spiddal towards the junction of the Cappagh Road and the Barna Road. As he was approaching that junction, he saw a car stopped on his right-hand side and a woman at the driver's open door waving frantically. The car in front of him braked suddenly. He applied his brakes but the road was wet and the lorry started skidding. He released the brakes and moved to the right-hand side and avoided colliding with the car in front of him. He stopped just in front of the Sierra. While the evidence establishes that coming from the Barna direction towards the Cappagh Road junction there is a gradient, and that a lorry which has been stopped or slowed down before the gradient would have to be put through its gears to take the gradient, there is no basis on which one could infer from the evidence that the working up through the gears and the revving which the Plaintiff heard at the time of the impact was the Iggy Madden Transport lorry taking that gradient.

10. Teresa Broderick, a nurse in University College Hospital, lived in the Woodfield Estate, an estate to the left off the Cappagh Road, in October 1994. At about 5 p.m. on 28th October, 1994, she left Galway city centre to return home. She was driving along the Barna Road. As she was driving along between the Ballymoneen Road junction and the Cappagh Road junction and was thinking of indicating to turn right at the Cappagh Road junction, she became aware of a car in front of her which she remembered as being a white car. She was driving between 20 and 30 miles per hour in a slow steady stream of traffic. As to the traffic coming from the Barna direction, she recollects a car, then a lorry, then another car and she also recollects an articulated lorry in the distance coming from Barna. She testified that as the lorry (in the car-lorry-car sequence) passed her by, she saw a cloud of dust in the air over the trailer of the lorry. That lorry seemed to her to have come along the main road. The car in front, the white car, went out of control. It swerved to the left, then to the right, then straightened up and swerved to the right again and then came to a halt. She turned right onto the Cappagh Road. Thinking that the driver of the white car had a fit or a heart attack, she returned to the scene to see whether she could help. The car was at a standstill and the Plaintiff was coming around to the driver's door. All Ms. Broderick could recollect about the lorry was that its trailer was empty and that she had a clear vision across it of the Cappagh Road junction. She did not remember Mr. Pender's orange BMW. The Iggy Madden Transport lorry was in her memory but she could not say when. She recollected that another truck passed by which was smaller and was certainly not an articulated truck. Like the Plaintiff, Ms. Broderick associated Mr. Fitzpatrick's car going out of control with a lorry having passed that car going in the Galway direction. Where Ms. Broderick's account differs from the Plaintiff's is that to Ms. Broderick that lorry seemed to have come along the main road, not out of the Cappagh Road junction. Ms. Broderick rendered assistance to Mr. Fitzpatrick at the scene and she acknowledged that the events leading up to the accident were overshadowed by the accident and its aftermath. She acknowledged that she was not good on distances. Her recollection of the colour of the Sierra was faulty. In general, I consider that the Plaintiff's recollection of the incident is more accurate than Ms. Broderick's and this is understandable as the Plaintiff was centrally involved and acutely conscious of what was occurring.

11. In October 1994, the first Defendant was a self-employed haulier. He delivered concrete blocks for Roadstone Province Limited from its premises at Two-Mile-Ditch on the Tuam Road in Galway to various building estates and other locations in the Galway area. He used his Volvo FL10 lorry to make the deliveries. The lorry had four axles, one under the cab carrying a wheel on each side, one at the front of the trailer carrying a wheel on each side and two at the rear of the trailer, each of which carried twin wheels on each side. It was a rigid truck and it was fitted with a hoist to facilitate loading and unloading blocks. There were three sets of mesh creels on either side of the trailer.

12. On the afternoon of 28th October, 1994, the first Defendant delivered a consignment of concrete blocks to the Ros Ard estate. He was not aware of anything untoward having happened on that journey or coming back until he was contacted by the Gardaí on 1st November, 1994. On 2nd November, 1994, he went to the Garda Station to be interviewed and he made the lorry available to the Gardaí and he also made available the tachograph chart from the lorry.

13. Before outlining the testimony of the first Defendant, I propose considering the evidence afforded by the tachograph chart, which was analysed in the context of the statement given by the first Defendant to the Gardai by Dr. Séan McDermott, a forensic scientist employed by the Forensic Science Laboratory of the Department of Justice, with which evidence the first Defendant did not take issue. The tachograph revealed that the lorry was stationary between 5.15 p.m. and 5.30 p.m. on 28th October, 1994. The inference drawn by Dr. McDermott from this, which undoubtedly is the correct inference, was that that period corresponded with the period when the first Defendant was unloading the consignment of blocks at the Ros Ard estate. At 5.30 p.m. the lorry was driven approximately 200 metres and then it stopped for eighteen seconds. The inference which was drawn from this was that the 200 metres represented the distance from the site at which the lorry was unloaded to the Cappagh Road entrance of the Ros Ard estate. Again, that would appear to be the correct inference to be drawn. The lorry was then started again and proceeded to accelerate to 22 miles per hour and then it braked to 10 miles per hour, whereupon it accelerated again and over a distance of 1,100 metres reached a maximum speed of 45 miles per hour before braking to 15 miles per hour. Dr. McDermott's analysis of this information, which is undoubtedly correct, was that, having stopped for eighteen seconds at the entrance to the Ros Ard estate, the lorry proceeded on its journey down the Cappagh Road and achieved a maximum speed of 22 miles per hour on the Cappagh Road. It did not stop at the junction with the Barna Road but merely slowed down to 10 miles per hour. Having turned the corner on to the main road it was driven for over a kilometre, achieving a maximum speed of 45 miles before slowing down to 15 miles per hour and turning right towards Brooklawn on its journey back into Galway. The evidence establishes that at the time there was a "yield" sign at the junction and there was a 30 mile per hour speed limit in force on the main road. The evidence afforded by the tachograph chart suggests that the first Defendant was in a hurry when he left the Ros Ard estate. Although the first Defendant denied this, I have no doubt on the evidence that he was in a hurry to make one final delivery before close of business. It is probable, I think, that in his hurry he did not put up all the creels and that his lorry was "rattling" at speed.

14. The evidence of the first Defendant was that he remembers driving up Cappagh Road on the evening in question. He had a delivery of blocks for Gerry Brennan. The relevant site numbers were shown on the sales docket. He enquired at the site office and someone pointed him in the direction of the sites. He went down in that direction and asked somebody else who pointed to the sites. He obviously identified the right sites although the particulars on the sales docket were, apparently, incorrect. In any event, he reversed the lorry in off the Estate Road towards the middle of the foundation raft, that is to say, the concrete slab of the house being constructed on the sites. He reversed in because the hoist or crane was mounted on the back of the lorry. He lowered the creels and extended the crane and deposited the blocks on the raft. When he was finished he brought the crane back and he put the creels up. He proceeded to the edge of the estate, that is to say the entrance to Ros Ard estate from the Cappagh Road near Kenny's site office, where he stopped. He got out and checked between the tyres on the twin wheels on the two rear axles on either side of the lorry. There was nothing stuck between the tyres. After checking the tyres, when he was leaving the estate and going on to the Cappagh Road he put on his parking lights. He drove down to the junction with the main road and then turned left and proceeded along the main road, turning right at Brooklawn, heading for Merchant's Road and finally to the premises of Roadstone Province Limited at Two-Mile-Ditch. He heard no unusual sound from the lorry while he was driving on the estate road. He heard no unusual noise from the lorry while driving along the Cappagh Road. He did not feel anything unusual about the lorry as he drove. He would have been aware of the noise of a trapped stone. There was nothing unusual which required to him to stop. If had heard or felt anything unusual he would have pulled in to investigate.

15. The stone which shattered the windscreen of Mr. Fitzpatrick's car and injured him on the head was produced in Court. It was a large granite stone which weighed fourteen pounds. It was roughly wedge shaped, being nine inches long and, at its widest point, six inches in width. The stone was examined by Dr. McDermott in the Forensic Science Laboratory. He found that it was blood stained and had particles of glass adhering. One side of the stone was coloured a strong black colour and the other side had a slightly black appearance. On analysis, Dr. McDermott found that the black material on the side which had a strong black colour was rubber. His conclusion in relation to the black material on the side which had a slightly black appearance was that the black substance also appeared to be rubber. His findings were consistent with the stone having been "sandwiched" between the tyres of twin wheels of a lorry.

16. The evidence established that the material which had been used in the construction of the estate road on the Ros Ard estate, which by 1994 had not been tarmacked, was imported limestone, the upper layers comprising no material substantially larger than three inch broken limestone. However, the evidence also established that the land mass to the west of Galway City, which includes the Ros Ard estate, geologically is dominated by granite. The dry stone walls which, in the past, have been a feature of the landscape in this area are predominantly granite. The underlying rock is granite and stones, rocks and boulders of granite are dug up in the course of building works on land in this region.

17. It is common case that at the time of the accident the gap between the tyres on the twin wheels on the two rear-most axles of the trailer of the first Defendant's lorry on the right-hand side was 5 inches wide, that is to say, 5 inches at the outside edge of each tyre. However, the gap narrowed to 2.8 inches wide as one went in towards the axle. All of the technical experts agreed that the stone which went through the windscreen of Mr. Fitzpatrick's car could have become wedged or "sandwiched" in the five inch gap between those tyres.

18. Even applying a probative standard based on probability, the evidence of the technical experts could neither prove nor disprove that the stone which went through the window at Mr. Fitzpatrick's car was expelled from the gap between the twin wheels on the rear axles of the first Defendant's lorry. Mr. Michael O'Halloran, the engineer called on behalf of the Plaintiff, expressed the opinion that the overwhelming probability is that the stone was propelled forward from the rear-most right-hand side twin wheels of the first Defendant's lorry. That opinion was predicated on a number of assumptions, namely, that the stone was lodged between the wheels of the lorry and that the lorry was in the vicinity of Mr. Fitzpatrick's Sierra. It was also predicated on the assumption that the lorry was doing 25 miles per hour and the Sierra was doing 30 miles per hour and that the stone was projected at an angle of seven degrees to the centre line of the lorry. His thesis was that, on the basis of all of those assumptions, the trajectory of a stone so propelled would have been consistent with what actually happened. In other words, the stone would have impacted with the windscreen at the point at which the windscreen was in fact shattered and would have struck the late Mr. Fitzpatrick on his head. Mr. O'Halloran also opined that the nature of the hole in the windscreen indicated that the stone went through it at a very high velocity. However, in his view, the minimum speed at which the lorry could have expelled the stone was not calculable.

19. Mr. John Mooney, the consulting engineer who testified on behalf of the first Defendant, while accepting that the stone could have lodged in the space between the tyres, expressed the view that it would have taken considerable force to drive the stone in. Moreover, while he accepted that the first Defendant might have come in contact with the stone while he was driving onto the foundation raft of the sites to which he was making the delivery of blocks, he was of the view that it was unlikely that the stone could have been driven in out of sight either by contact with the hard clay around the raft or by contact with the broken stone on the Estate Road. In his view, it would have taken the dynamic effect of the revolution of the wheel on Cappagh Road, a tarmacked road, to drive in a stone of that size between the tyres. While the stone was being driven in, the driver would have been conscious of the presence of the stone: he would have felt the noise, the vibration and the bounce of the lorry. Moreover, if it had been driven in by such force, one would have expected the stone to be damaged, which was not the case except for some minor scraping, and one would have expected to see strips of tarmac on the stone, which were not evident. The inference to be drawn from this portion of Mr. Mooney's evidence was that it was not probable that the stone was lodged between the tyres of the first Defendant's truck or, at any rate, that it was not likely that it was lodged there unbeknownst to the first Defendant.

20. Mr. John Mooney also advanced the theory that, if the stone had been picked up on the Ros Ard estate, it could not have been expelled while the lorry was doing a speed of less than 22 miles per hour on the Barna Road. The basis of this theory is that the tachograph chart shows that the lorry achieved a maximum speed of 22 miles per hour on the Cappagh Road over a stretch of 275 metres. The stone was not thrown out on the Cappagh Road and therefore, so the theory goes, it could not have been thrown out at a speed less than 22 miles per hour on the main road. Mr. Mooney then went on to illustrate that the lorry, on the basis of the tachograph chart record, did not achieve a speed of 22 miles per hour at any relevant point on its journey along the main road. Given that it accelerated from 10 miles per hour to 45 miles per hour over 1,100 metres, having travelled 100 metres from the junction, it would have only achieved a speed of 16.5 miles per hour and having travelled 150 metres, it would have only achieved a speed of 19 miles per hour. Even having travelled 215 metres from the junction - the limit of the sight distance from the junction towards Galway - it would not have achieved a speed of 22 miles per hour. In fact it would not have achieved a speed of 22 miles per hour until it was within 27 metres of the Ballymoneen Road junction. Assuming that the stone impacted with the windscreen of Mr. Fitzpatrick's car somewhere between 100 metres and 150 metres back from the Cappagh Road junction, which, in my view, is a tenable assumption on the evidence, Mr. Mooney's proposition was that the stone could not have been expelled from the gap between the tyres on the rear wheels of the first Defendant's lorry because, on the basis of his theory, the evidence from the tachograph chart establishes that the lorry had not achieved a speed in excess of 22 miles per hour.

21. Unlike Mr. O'Halloran, who was prepared to concede that the "slewing" of the rear wheels, when the lorry was turning left onto the main road at the Cappagh Road junction, could have hastened the exit of the stone to an indeterminate degree and that the "slewing" would have assisted the stone to work its way out, Mr. Mooney expressed the opinion that the "slewing" going around the corner would have had no effect and would not have assisted the stone to exit. On the contrary, his view was that in the slowing down and cornering process more weight would have been exerted on the rear tyres on the right-hand side of the lorry, thus securing the stone and, in any event, he concluded from the fact that the point of impact was over 100 metres from the corner that the "slewing" had no effect. He did acknowledge, however, that if the stone was wedged between the tyres, the process and timing of its expulsion was not an exact science.

22. Mr. Stephen Mooney, another consulting engineer who testified on behalf of the first Defendant, was also of the opinion that the stone could have become wedged in the 5 inch gap between the rear tyres of the lorry but that it would have required considerable force to do this because the gap was narrowing. In relation to the speed at which the stone, if it were wedged in the gap, might be expelled, his view was that this could not be readily calculated on the basis of the fundamental laws of mechanics. However, he agreed with the proposition that a speed in excess of 22 miles per hour would have been required to expel the stone, this proposition being premised on the assumption that the stone was in situ when the lorry was coming down the Cappagh Road, where it achieved a maximum speed of 22 miles per hour but failed to eject the stone. Indeed, I understood Mr. O'Halloran to agree to that proposition at first, although he did seek to resile from it somewhat at a later stage. Mr. Stephen Mooney was also of the view that the impact of the lorry rounding the corner at the junction would not have affected the stone if it was in situ.

23. In broad terms, the scientific and technical data and theory advanced by Mr. O'Halloran, in my view, did not justify his generalisation that the overwhelming probability is that the stone was propelled from the rear-most right-hand twin wheels of the first Defendant's lorry. In fact, on my reading of his detailed evidence, it can be put no further than that, given a certain set of assumptions, the stone could have been expelled from the gap in the twin wheels of the first Defendant's lorry. On the other hand, Mr. John Mooney's proposition that the first Defendant's lorry could not have been the source of the projectile, based on his theory that the stone could not be ejected at a speed less than 22 miles per hour and the lorry never achieved that speed at any relevant point along the main road, in my view, does not stand up against the eye-witness and forensic evidence which points to the lorry as the only source of the projectile. Moreover, one cannot ignore the welter of imponderables which the technical evidence has highlighted. What was the configuration of the stone within the gap between the tyres as the lorry came down the Cappagh Road? If and to what extent did that configuration change during the journey down the Cappagh Road? What was the effect of the lorry negotiating a 45 degree bend on the Cappagh Road and the 90 degree corner at the junction - a question on which there is a conflict of evidence? Was the configuration of the stone within the gap altered during the journey along the main road and, if so, how and where?

24. In my view, the evidence as a whole establishes as a matter of probability - and I would go so far as to say a very high degree of probability - that the stone which injured Mr. Fitzpatrick was propelled from the gap between the tyres of the twin wheels on the rear axle of the first Defendant's lorry. The significant facts and the inferences which lead me to this conclusion are as follows:-

25. In the final analysis, the evidence does not point to any other source of the stone other than the first Defendant's lorry.

26. The second question which arises on the issue of liability is whether the Plaintiff has established that the propulsion of the stone from the first Defendant's lorry is attributable to a breach of the duty of care owed by the first Defendant to road users on the main road and, in particular, to Mr. Fitzpatrick. There was little real controversy on this point on principle. It was not disputed that the likelihood of a lorry, such as the first Defendant's lorry, with twin wheels on both rear axles picking up a large stone or a rock on a building estate and subsequently expelling that stone as a dangerous missile was a foreseeable risk, nor was it disputed that, to discharge his duty of care to road users and to other members of the public with whom he might come in contact, the lorry driver in such circumstances should carry out an adequate search for rocks, stones and other debris on leaving the estate. Indeed, the first Defendant's own testimony was that he was acutely conscious of the risk and it was his invariable practice when leaving a building site or a quarry to check the tyres for stones, both in the interests of safety and with regard to his own financial interest of avoiding damaging his tyres.

27. The first Defendant testified that he did a thorough check on the occasion in question. He stopped at the entrance to the Ros Ard estate on the 28th October, 1994 to check the rear wheels before driving on to the Cappagh Road. He described the check he carried out in detail and he re-enacted it for Mr. John Mooney, the Consulting Engineer, in March of this year. The evidence from the tachograph chart was that he had been stationary at the entrance to the Ros Ard estate for eighteen seconds. The re-enactment for Mr. John Mooney, which was timed with a stop watch, took twenty-two to twenty-three seconds. The check which he carried out on the evening of the accident, as described by the first Defendant, was both visual - at dusk and without a torch - and tactile. I find it very hard to believe that the first Defendant could have carried out the check, from the movements and actions he described, in eighteen seconds or even in twenty seconds. In any event, I do not think that even if he had carried out an inspection of the type he described, however long it took, it would have been adequate in the circumstances prevailing at the time - at the edge of a building estate at dusk without adequate light.

28. Garda Anthony McHugh, the public service vehicle inspector called by the Plaintiff, whose opinion was dismissed by the first Defendant as theory, expressed the view that a proper inspection would involve the lorry driver getting out of the cab and walking around the vehicle and checking each of the four double wheels individually by looking around the entire circumference of the wheel. Good practice would then require the lorry driver to get back into the cab and to drive the vehicle forward a half turn to bring the bottom part of the tyre up. He should then get out again and carry out a second inspection to ensure that there had been nothing lodged between the tyre and the road.

29. In my view, whatever check or inspection was carried out by the first Defendant at the Cappagh Road entrance to the Ros Ard estate was not adequate. Indeed, it was conceded by both Mr. John Mooney and Mr. Stephen Mooney that, if the stone was within the space between the tyres when the first Defendant carried out his check and he did not find it, his check was inadequate. I have found that the first Defendant picked up the stone on the Ros Ard estate and it was expelled on the main road. It follows, on the basis of the opinion of the first Defendant's own experts, that the inspection was inadequate.

30. Accordingly, I hold that the first Defendant was negligent and that his negligence caused the death of Mr. Fitzpatrick.

31. Mr. Fitzpatrick was 43 years of age at the date of his death. He was a certified dental technician and he was also a member of the Institute of Maxillo Facial Technicians. The services he provided fell into two categories. First, there was the dental technician side of his practice, which comprised the bulk, probably as much as 85%, of his practice. Secondly, he was a specialist in prosthetics and his work in this area was largely on referrals from plastic surgeons, maxillo facial surgeons and E.N.T. consultants. The evidence establishes that his prosthetics work was of the highest quality, both technically and as regards his management of patients referred to him.

32. Mr. Fitzpatrick had been self-employed from about 1982. For about ten years prior to August 1993 he had lived in the west of Ireland - at first in Ballaghadereen, County Roscommon, and then from 1987 to 1989 in Galway and after that in Ballaghadereen again. Finally, in August 1993 he embarked on a change of direction both in terms of career and family situation. The family took up residence in Galway. Mr. Fitzpatrick started to work from Galway. He saw an opening to develop the prosthetics side of his practice because of the emergence of plastic, maxillo facial and E.N.T. specialities in the hospitals in Galway. In December 1993 he obtained planning permission to erect a dwelling-house at Barna to include "premises for prosthetics practice". The dwelling-house was built and the family were living in it at the time of his death. However, the construction of the premises for the prosthetics practice had not commenced and Mr. Fitzpatrick was working from rooms in Eyre Square in Galway and periodically visiting various towns in County Mayo in connection with the dental side of his practice at the time of his death.

33. Financially the Plaintiff and her five children were wholly dependant upon Mr. Fitzpatrick and his only source of income was his practice. In quantifying the dependency element of this claim two difficult issues have arisen, namely:-

34. Mr. Fitzpatrick's accounting year was from the 1st August in one year to the 31st July in the following year. His income and expenditure accounts for the four accounting years prior to his death show the following:-

35. During his lifetime, Mr. Fitzpatrick made returns to the Revenue Commissioners for income tax purposes on the basis of the figures referred to at (1) and (2) above. After his death, the Plaintiff made returns to the Revenue Commissioners in respect of income tax due by Mr. Fitzpatrick on the basis of the figures referred to at (3) and (4) above. The figures referred to at (4) above formed the basis of the late Mr. Fitzpatrick's assessment to tax for the year ended 5th April, 1995 and on the basis of an assessment issued on 27th March, 1996, the total charge was £420.45 in respect of P.R.S.I., there being an income tax exemption.

36. The dependency claim was advanced on the basis that for the accounting year ended 31st July, 1994, the profit of £9,109 did not reflect Mr. Fitzpatrick's expenditure on household overheads, family expenditure and other out-goings. On the basis of information supplied by the Plaintiff of actual, albeit largely unvouched, expenditure and an analysis of such records as were available, the Plaintiff's accountant, Ms. Sinead Devine of the firm of Ahern & Company, concluded that actual expenditure in the year ended 31st July, 1994 exceeded what was reflected in the profit of £9,109 by approximately £6,000. In short, the case was advanced on the basis that for the year ended 31st July, 1994, Mr. Fitzpatrick earned £6,000 more than was declared to the Revenue Commissioners.

37. On the evidence I think it is probable that the profit which Mr. Fitzpatrick's practice produced in the accounting year ended 31st July, 1994 was greater by £5,000 to £6,000 than the figure of £9,109 which appears in the income and expenditure account for that year. I have reached this conclusion having regard to the totality of the evidence in relation to Mr. Fitzpatrick's financial commitments at that time, both professional and private, and, as to his private financial commitments, not only his commitments in supporting and maintaining himself, the Plaintiff and the five children, but his commitments in connection with the construction of the house in Barna, which was under construction during this period. If, as I think is probable, Mr. Fitzpatrick's return of income for income tax purposes for the year ended 5th April, 1995 should have been based on a profit from his practice of around £15,000, his net income after tax for that year would have been £12,500, the figure suggested by Mr. Cyril McGinty, the accountant called on behalf of the First Defendant.

38. Mr. Daly, on behalf of the first Defendant, submitted that as matter of public policy the Court should have regard only to the income level reflected in the income tax returns made by or in respect of Mr. Fitzpatrick. Mr. Whelehan, on behalf of the Plaintiff, while conceding that, if Mr. Fitzpatrick had survived, he would have had considerable difficulty in advancing a claim in which the future loss of earnings element was predicated on an income level different from that which had been returned to the Revenue Commissioners historically, submitted that in this claim, which is a representative action on behalf of the dependants of Mr. Fitzpatrick, different considerations apply. During Mr. Fitzpatrick's lifetime his dependants had a lifestyle supported by his actual income. The Court, it was submitted, should find a balance between what was the reality of the situation and the income as declared to the Revenue Commissioners. The Plaintiff and her children would be prejudiced if any other approach was adopted because the loss of support and the lifestyle they enjoyed would not have happened but for the wrongdoing of the first Defendant. The quantification of the dependants' loss should ensure the replacement of the level of support and the lifestyle they were deprived of by Mr. Fitzpatrick's death.

39. Counsel were unable to point to any authority which would assist in the determination of the issue as to the level of income, whether declared income only or declared and undeclared income, upon which the dependants are entitled in law to base their dependency claim. Although not referred to in Counsel's submissions, I note that it is suggested in White on Irish Law of Damages , Volume I, at page 321, that, even in circumstances where a deceased himself would be precluded from recovering in a personal injury action in respect of loss of earnings tainted with illegality, his dependants in their wrongful death action may recover in respect of their loss of dependency for such earnings, their cause of action being separate from that of the deceased, unless the defendant can show knowledge or conduct on the part of the dependants which renders it repugnant to public policy that they should be allowed recover. Moreover, the author suggests that, as each dependant is entitled to a separate award in respect of the injury suffered by that dependant, recovery ought not to be denied to child dependants who are of such an age that their knowledge and conduct must be regarded as being irrelevant.

40. I have found it very difficult to resolve this issue. I can see the merit of the approach advocated by Mr. Whelehan. On the other hand, I am faced with the fact that the Plaintiff, who herself is entitled to the "lion's share" of the dependency claim, has made a declaration to the Revenue Commissioners which she now says is false. I accept that the Plaintiff, when making the declaration, did the best she could in the circumstances then prevailing. I also understand why she has not been able to address outstanding taxation issues while these proceedings are pending. Nonetheless, I have come to the conclusion that public policy considerations preclude me from quantifying the dependency claim on the basis of Mr. Fitzpatrick's declared and undeclared income for the accounting year prior to his untimely death.

41. The dependency claim was further advanced on the basis that had he lived, the late Mr. Fitzpatrick would have developed the prosthetic side of his practice. He would have constructed the dedicated work premises for which he had planning permission. He would have been able to avail of referrals from the burgeoning plastic surgery, maxillo facial surgery and E.N.T. specialities in Galway. On the basis of projections prepared by Ms. Devine, it was contended that the practice in Galway would have been consolidated by November, 1997 and that it would have produced a profit of £54,386 in the year ended 31st October, 1998, a profit of £56,357 in the year ended 31st October, 1999 and a profit of £58,720 in the year ended 31st October, 2000. Those figures were based on the assumption that thirty six prosthetic cases would have been referred to Mr. Fitzpatrick in each year: twelve each from two plastic surgeons; two from an E.N.T. surgeon and ten from a maxillo facial surgeon.

42. The evidence establishes that the first appointment of a plastic and hand surgeon in Galway was the appointment of Mr. Jack McCann to such a consultancy in University College Hospital in September, 1989. An additional plastic surgeon was appointed to the University College Hospital in 1997. There has been an E.N.T. surgeon in University College Hospital since 1987 and in September 1997 an oral maxillo facial surgeon was also appointed.

43. Mr. McCann, who had been referring cases to Mr. Fitzpatrick for some years prior to his death and who in total had referred five or six cases to him, testified that he would have expected that he would have been referring ten to fifteen cases per year to Mr. Fitzpatrick, mainly nasal and ear reconstructions and cosmetic fingers. However, in the three months prior to 31st March, 1998, Mr. McCann had not referred any patient anywhere for a prosthesis and he had only referred one patient in the year 1997. The explanation for this lack of referrals is that since 1995, University College Hospital has not been in a position to deal with emergency cases and emergency cases have been referred to hospitals in Cork or Dublin. However, Mr. McCann stated that he expected that a full "on-call" service would be resumed in Galway within the next year. Mr. Peter Gormley, was appointed E.N.T. Surgeon at University College Hospital in 1987. He testified that he had referred two patients for prostheses to Mr. Fitzpatrick.

44. Mr. McGinty roundly criticised the profit projections for the years ended 31st October, 1998, 31st October, 1999 and 31st October, 2000 on the basis that they were not rooted in the reality of the historical situation, which is undoubtedly the case. However, the evidence does show that in August 1993 Mr. Fitzpatrick embarked on a career path which was likely to lead to an increase in the profit from his practice. However, the evidence does not support an increase in profit of the order suggested by the projections. In my view, the projections are unrealistic in the light of the evidence.

45. It must be acknowledged that there is an element of speculation involved in measuring the profit which Mr. Fitzpatrick's practice would have been yielding by the end of 1997 and the beginning of 1998 if the career plan he had already embarked on before his death had been implemented, as I believe it probably would have. Taking the evidence as a whole and having particular regard to the level of prosthetic referrals which medical practices in Galway have generated in the recent past, it is difficult to see how the profit from Mr. Fitzpatrick's practice could have increased by more than £7,000 or £8,000 per annum.

46. Mr. Brendan Lynch, Actuary, testified on behalf of the Plaintiff and Mr. Joseph Byrne, Actuary, testified on behalf of the first Defendant. Using the profit from the accounting year ended 31st July, 1994 (£9,109) subject to certain adjustments and providing for the loss of the personal services which Mr. Fitzpatrick had provided in the household and to his family, Mr. Lynch's computation of the capital value of the dependency claim was £201,118, whereas Mr. Byrne's was £178,000. The difference between the two computations is explained by slight divergences in the adjustments of the profit figure, a divergence in the sum attributed for the weekly value of the loss of personal services, to which Mr. Lynch attributed £25 and Mr. Byrne attributed £15, and a divergence as to the age at which the children would cease to be dependent, which Mr. Lynch took to be 22 years of age and Mr. Byrne took to be 21 years of age, both assuming that all five children would avail of third level education. Both actuaries, in my view, adopted a reasonable approach. Having said that, I propose adopting Mr. Lynch's figures as the basis of my award. I do so because it is clear from the evidence that Mr. Fitzpatrick was particularly good with his hands and I think it reasonable to assume that he contributed more to the household in the nature of services than an average husband and father.

47. Using the profit of £9,109 for the accounting year ended 31st July, 1994 as the starting point and on the basis of my assessment of the increase in the profits of the practice, I consider that it appropriate to assume that Mr. Fitzpatrick would have had an income net of tax of around £13,500 per annum by early 1998. Mr. Lynch capitalised the dependency claim at £274,000 on the basis of a net income of £13,489. I propose adopting that figure and reducing it to £260,000 (that is to say, by approximately 5%) to take account of adverse contingencies. On the evidence I am of the view that, given the versatility of Mr. Fitzpatrick's technical skills, the only adverse contingency which has to be taken into account is disability due to ill-health or accident.

48. The special damages are agreed at £7,000 and the dependants are entitled to £7,500 for mental distress. Accordingly, the total award against the first Defendant will be £274,500.