THE SUPREME COURT
252/01
Murray J
Hardiman J.
Geoghegan J.
LIAM ROTHWELL
Plaintiff
and

THE MOTOR INSURERS BUREAU OF IRELAND
Defendant

JUDGMENT of Mr. Justice Hardiman delivered the 24th day of February, 2003., [Nem Diss].
	On the 6th November, 1995 the plaintiff was involved in an accident while driving his BMW motorcar on the public road near a place called Daly’s Cross, Co. Limerick.  He says the accident was caused by a spillage of oil on to the road which made it slippy and caused him to lose control over his car, leave the correct carriageway, and strike an oncoming vehicle.  The specific cause of the accident was pleaded as follows in the Statement of Claim:-
“… A vehicle the owner and/or user of which remains unidentified and/or untraced was driven on the public highway at or near Daly’s Cross in the County of Limerick in such a manner that oil was caused to leak and/or to spill on to the carriageway giving rise to a dangerous and slippery surface”.

	On that basis, it is alleged:-
“The said collision and the plaintiff’s said personal injuries loss damage and expense were caused as a result of the negligence and breach of duty including breach of statutory duty of the owner and/or user of the aforementioned vehicle (which said owner and/or user remain unidentified and/or untraced)”.

	The defendant has sued pursuant to the provisions of an agreement dated the 21st December, 1998 and made between the Minister for the Environment on the one part and the defendant on the other (“The MIBI Agreement”). 

The evidence.
	The relevant evidence is that of Garda Laing who came to the scene of the accident and of an engineer, Mr. Buckley.  

	Garda Laing said that he attended the scene and found both vehicles stationery on the plaintiff’s incorrect side.  He saw that there was oil on the roadway, on the left hand carriageway as one goes towards Annagh.  He said that this oil was a slick about 50ft long.  It had a tinge of “red and bluey colour of oil on the roadway, maybe diesel oil…. it wasn’t motor oil anyhow”. He said he noticed no smell from the substance and concluded that “it wasn’t petrol”.  He could not say whether it was a non motor oil. He did not check as to whether there was any other oil spilled beyond the 50ft length of the slick he observed.  He agreed that it might have spread to some limited extent through “the flow of the land or whatever”.

	The engineer, Mr. Buckley, said he was a consulting automotive engineer and assessor and was an associate of the Institute of Automobile Engineer Assessors.  He was retained by the Plaintiff on the opening day of the trial to listen to the evidence and to use his expertise in relation to motor vehicles and how they operate for the assistance of the Court.  He was asked to assume that the substance on the road was petrol or diesel.  He recalled that the substance was blue and red, which he said indicated that the substance had been mixed with water.  He was categorical that the substance was not engine oil, in which case it would be black.  He said his enquiries had given him dimensions of about 50ft by 10ft for the slick on the road. He said this did not assist quantifying the quantity of oil involved because a small amount of oil once mixed with water would spread over the dimensions in question.  He said “…. Piecing this together, you are probably talking in the region of a couple of pints of oil, rather than large quantities”.

	On the assumption that there was no oil other than the slick in the location he believed “We are talking about a single spill”.  He believed the source of the spill to be a lorry or truck because “in a car you have got a long nozzle going down to a lower tank so you don’t get spills out of that…”.   In a “lorry diesel tank” on the other hand “there is no neck of any significance in these tanks and they would carry anything up to 100 gallons of diesel”.   He then said:-
	“To get a single spill of fluid, it is potentially possible, I think if the diesel cap were left off with the slushing of the vehicle going on the road, you would get a spill.  Why would you get a single spill then, as against a continuous spill?  Well it would be a sudden movement of the vehicle or an acceleration or braking which would cause the movement of fuel.  You may not get that in any other point on the road, you may have to brake at that point for some particular reason and it can spill out”.

	He then agreed that the tank would require to be quite full for this to happen and, more significantly, that it would be necessary for the cap to be left off.  He agreed that this hypothesis would not occur if the correct cap were fitted and was on properly.  Accordingly, he said:-
“So it would have to be a couple of things like:  incorrect cap, which fell off, the correct cap that was not put on properly or the correct cap that was taken unknown to the driver”.

He was then asked “That happens?” and relied “Yes.  So that would be on that scenario”.   He went on to discuss, and to effectively dismiss, the possibility of a leak from the hoses of an oil tanker.  He concluded:-
“So I would suggest the probability is a spill from a diesel tank would be the most likely explanation…. everything else seems to give you a longer spread or a greater quantity and the vehicle having to be stopped”.
	In cross-examination he agreed that it was common for fuel depot staff to fill the tank and put the top back on.  He agreed that that might be hard for the driver to observe – it would appear to be on but it might not be on fully.  He said that the question of whether this would give rise to a single leak or spills or a number of them would “all depend on the severity of the acceleration and the amount of fuel in the tank at the time.  Also the gradient of the road”.  There were, he agreed, a lot of imponderables. 

	In further cross-examination he agreed that there were a number of other industrial compounds capable of accounting for the slick, including “other industrial petroleum products that might not be used for driving vehicles”.  He said that kerosene would be another thing that would give you the same effect.  Kerosene would, in being transported on the road, be in a bulk tank container.   His evidence, however, assumed that the substance was petrol or diesel. 

	He agreed that if tanker were stopped for some time in a particular place there might be a drip from it.  These drips could accumulate and their movement then would depend on the gradient.  This hypothesis required not only a leak, but the tanker to be stopped and he wondered why it would stop at that particular point.  This, he said “has to be considered, it is just thrown into the pot”.  He also agreed that a spill might happen if somebody was trying to pour fuel into a vehicle which had run out of it, without a funnel.

High Court Findings.
	The learned High Court judge held as follows in relation to the source of the oil:-
“While the origin of this spillage is unknown, I have had the benefit of evidence from Mr. Edmund Buckley, a motor assessor and I accept his evidence as being expert evidence on the topic.  I accept his evidence that the spillage itself was probably quite small, being limited to a couple of pints, and that, because it was an isolated patch of oil, it is most unlikely that it was caused by any form of leakage, for example, from an oil tanker.  As the whole basis of the plaintiff’s claim is that the spillage was caused by a person and a vehicle unknown, I can only make a finding on the balance of probabilities of the evidence before me.  I think the most likely and probable cause of this spillage was a truck or lorry on which the cap or cover of the fuel tank was either missing, defective or not properly fitted.  In such circumstances, particularly if the cap were missing and the tank was reasonably full, a spillage such as this could easily take place if there was a sudden movement by the vehicle, such as a sudden braking”.

	The learned trial judge then held that that state of fact could occur either with or without negligence on the part of the driver of the vehicle.  He said:-
“In the present case, there is no way of knowing what happened.  There was evidence which enabled the Court to find on a balance of probability that the spillage was caused from the fuel tank of a lorry or truck, but there is no evidence whatever as to why that spillage occurred, and in particular as to the circumstances in which the cap of the fuel tank either was missing or defective.

The plaintiff has urged that this is a case of res ipsa loquitur.  I cannot accept this submission, because as I have sought to show, there may be circumstances in which a spillage of this nature occurs without any fault whatever on the part of the driver”.

	The learned trial judge then observed that if the defendant had been known and identified there was sufficient evidence to shift the onus to him “to show that the spillage had occurred under circumstances which did not constitute negligence on his part”.  As it was, however:-
“The plaintiff is in the position that he does not know what happened and could not know what happened.  He has been able to satisfy the Court that the probability is that this accident was caused by a fuel spillage, and there certainly are circumstances in which this could constitute negligent driving on the part of the driver of the vehicle from which the spillage occurred.  Beyond that the plaintiff cannot go.  Of course, unlike the ordinary case, there is also no way in which the defendant can know what happened, and therefore the defendant is unable to produce any explanation which might excuse liability, and therein lies the real difficulty of this case”.

	The learned trial judge then resolved this difficulty in favour of the plaintiff by holding that it would be “quite wrong and quite contrary to the intention and purpose of the agreement that a plaintiff should be put in a position that he will not receive compensation if he cannot prove that the driver could have no defence, where he would not to have this burden of proof if the identity of the driver or vehicle were known”.

The issue on appeal.
	Although the grounds of appeal raises a considerable number of issues, it appears that the single net issue emerges from the passages just cited.  The plaintiff can show that the accident was caused by a fuel spillage.  The judge has held, and there is no cross-appeal, that this does not give rise to an inference of negligence on the basis of res ipsa loquitur, but may be accounted for either with or without negligence.  The plaintiff cannot go further.  Is this sufficient in law to ground a finding of liability against the defendant?   It was accepted by both sides in the High Court that any liability of the defendant would arise from Clause 6 of the bureau’s agreement with the Minister:-
“In the case of an accident occurring after the 31st December, 1988 the liability of the Motor Insurers Bureau of Ireland shall extend to the payment of compensation for the personal injury or death of any person caused by the negligent driving of a vehicle in a public place, where the owner or user of the vehicle remains unidentified or untraced”.

Decision on the above.
	Pursuant to Clause 6 of the agreement, negligence in the driving of the unidentified vehicle by the unidentified person must be established as a conditioned precedent to the Bureau’s liability.   Both at the trial and on appeal submissions were made to the scope of the term “driving”, whether it extended to improperly securing a fuel tank cap, and whether it had the same meaning in the agreement as it has in the Road Traffic Acts.  None of these issues, however, seem to me to be central to the principal question in this case:  is there evidence of negligence? 

	The learned trial judge has held that the causation of the accident is one which may have arisen with, or without, negligence.  Neither party can go any further than that.  The onus of proof in general is upon the plaintiff, and negligence is amongst the things he must prove.  Accordingly it follows that, based on the learned trial judge’s findings of fact, the plaintiff must lose the case unless his deficiency in direct evidence is compensated by some presumption or rule of law that might operate in his favour.   

	At the trial, the plaintiff’s counsel relied on the phrase res ipsa loquitur as supplying this deficiency.

	The phrase res ipsa loquitur seemed to have to come into currency from a chance remark by a judge during the hearing of a case in 1863.  In Byrne v. Boadle (1863) 2 H & C 722, a barrel of flour had fallen from a window above the defendant’s shop.  The case as reported was an appeal against a non-suit.  The defendant submitted that there was no evidence of negligence “unless the occurrence is of itself the evidence of negligence”.  Pollock C.B. said that “There are certain cases of which it may be said res ipsa loquitur and this seems to be one of them….”.  Giving judgment he said:-
“The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case can a presumption of negligence arise from the fact of an accident”.

	This, certainly, is a very modest beginning for a rule on which so much reliance is commonly placed.  

	Shortly after that case, the Court of Exchequer Chamber gave judgment in the well known case of Scott v. London and St. Katherine Dock Company [1861 – 73] AERR 46.   The very short judgment in that case is often cited as the locus classicus of res ipsa loquitur, though the term is not mentioned in it.

	In Hanrahan v. Merck Sharp and Dohme [1998] ILRM 629 Henchy J., with whom the other members of the Court agreed said this:-
“The ordinary rule is that a person who alleges a particular tort must in order to succeed prove…. all the necessary ingredients of that tort and it is not for the defendant’s to disprove anything.  Such exceptions as have been allowed that general rule seem to be confined to cases where a particular element of the tort lies or is deemed to lie pre-eminently within the defendants knowledge in which case the onus of proof as to that matter passes to the defendant.  Thus, in the tort of negligence, where damage has been caused to the plaintiff in circumstances in which such damage would not usually be caused without negligence on the part of the defendant, the rule of res ipsa loquitur will allow the act relied on to be evidence of negligence in the absence of proof by the defendant that it has occurred without want of due care on his part.  The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to rely on the fact that it would be palpably unfair to require a plaintiff to prove something which is beyond his reach and which is peculiarly within the range of the defendant’s capacity of proof”.

The learned judge went on to say:-
“There are of course difficulties facing the plaintiffs in regard to proof of [certain] matters particularly as to the question of causation, but mere difficulty of proof does not call for a shifting of the onus of proof… The onus of disproof rests on the defendant only when the Act or default complained of is such that it would be fundamentally unjust to require the plaintiff to prove a positive averment when the particular circumstances show that fairness and justice call for disproof by the defendant”.

	The first passage cited above has been the subject of academic criticism on the basis that it departs from the classic formulation of the res ipsa loquitur rule.  But it appears to me to be authoritative unless and until specifically considered in a case where its reversal is sought.  In any event, it appears accurately to state circumstances in which, and the basis on which, the onus of proof may shift in civil litigation. As the learned trial judge approached the present case, that is an issue separate from whether the circumstances are those of res ipsa loquitur.

	It appears to me that the judgment in Hanrahan, requires not merely that a matter in respect of which the onus is to shift is within the exclusive knowledge of the defendant, but also that it is “ peculiarly within the range of the defendant’s capacity of proof”.   That is not the position here.  As the learned trial judge clearly and succinctly held, neither party could go further:  the matter was not within the knowledge, exclusive or otherwise, of either of them.    This might apply whether the defendant was the MIBI or an individual driver.

Nature of the Agreement.
	The learned trial judge, however, held that the purpose of the MIBI agreement is to ensure compensation where no other compensation is available.  It would be wrong, he held, to deny the plaintiff compensation “if he cannot prove that the driver could have no defence, where he would not have to have this burden of proof if the identity of the driver or vehicle were known”.

	Here I regret that I cannot follow the decision of the learned trial judge.  Negligence in the driving of the unknown vehicle by the untraced driver is a condition precedent to the liability of the defendant.  There is no proof of negligence and (as I have held) the onus of proof in this regard is not shifted.  If it is unjust that the plaintiff should carry an onus of proof which, practically speaking, he cannot discharge, it would be equally unjust that the defendant should do so.  The agreement provides for the circumstances in which, alone, liability is to be attributed to the defendant for the negligence of an unknown person.   In the absence of proved causative negligence on the part of that person, the defendant has no liability.  The Agreement does not, in my view, identify the Bureau with the unknown person at any stage prior to demonstration that the conditions precedent to its liability have been met.   There is no difficulty or ambiguity in the terms of the Agreement to justify looking outside it for aids to its construction.

	Where proof of some proposition is insufficient, that will enure to the disadvantage of the party on whom the onus of proof lies.   In my view, this is the plaintiff.  There is simply a failure of proof, unremedied by any presumption or shifting of the onus of proof.

No need to prove negligence?
	On the hearing of this appeal, the plaintiff submitted that it was not necessary to prove negligence at all.  It was sufficient to show that there was “damage to property or personal injury caused by an unidentified vehicle”.   

	The basis of this submission was that the 1988 agreement between the Motor Insurers Bureau of Ireland and the Minister was those parties joint attempt to implement the second Council Directive of the 13th December, 1983 on the approximation of laws relating to insurance against civil liability in respect of the use of motor vehicles.  This document, it said, provided inter alia:-
“Each Member State set up or authorise a body with the task of providing compensation, or at least up to the limits of the insurance obligation for damaged property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph (i) had not been satisfied”.

	It was further submitted that this obligation was directly enforceable against the MIBI, because it was an emanation of the State.   

	A similar but not identical contention was unsuccessful in the United Kingdom in White v. MIB [2001] 2 Common Market Law Reports 1.   But it is unnecessary to consider it further in the present case because the case was not pleaded or advanced on that basis in the High Court, where the plaintiff preferred to rely on res ipsa loquitur.  I would only observe that, if the plaintiff’s alternative contention were correct it would have the consequence that a plaintiff injured by an unknown or uninsured vehicle would be relieved of the necessity to prove negligence, while that obligation would continue to be imposed on a plaintiff suing an identified and insured defendant. 

Status of certain findings of the learned trial judge.
	Another significant part of the plaintiff’s submissions was based on an attempt to elide the differences between primary findings of fact and inferences.  He goes on to suggest that certain conclusions of the learned trial judge which appear to be inferences are in truth primary findings of fact, or must be treated as such, so that they are binding on this Court.   

	Again, I do not think that this line of argument properly arises in the case.  As appears from the preceding parts of this judgment, I have accepted all the relevant findings of the learned trial judge and dealt with the matter on that basis.   This is the basis most favourable to the plaintiff.
 
	I would allow the appeal and dismiss the plaintiff’s claim.