The Gazette 1973

UNREPORTED IRISH CASES

was that of a competitor. Mr. McDermott braked as soon as he saw the obstruction, but because of the muddy downhill road the braking was not effective, and, believing that he could not pull up before he would get to the two parked cars, he released the brake and directed his car into the ditch at the right hand side of the road. The car overturned and Mr. McComiskey was injured. Mr. Justice Henchy said that when Mr. McDermott purchased this car in'England it had attached to the instrument facia a notice to the effect that passengers travelled in the car at their own risk. Mr. McDermott had not bothered to remove the notice. Mr. McComis- key was present when the car was bought by Mr. McDermott and consequently knew of the notice. The only reference made to it before the accident was on one occasion when Mr. McDermott jokingly said to Mr. McComiskey that unless he removed the notice no one would sit in the car. Mr. McComiskey denied in evidence that he took the notice seriously when he travelled as a passenger in the car, and Mr. McDermott, although his defence for- mally pleaded that Mr. McComiskey had waived his right to sue, failed to state in evidence that he was relying on the notice when he carried Mr. McComiskey as a passenger. Mr. Justice Henchy said that Mr. McComiskey said in evidence that he disregarded that, and Mr. McDer- mott failed to assert that he intended or expected Mr. McCommiskey to treat the notice as a binding or effec- tive one. In these circumstances he considered the jury's verdict that the plaintiff had waived his right to sue to be unsupported by evidence and to be therefore in- valid. On the question of negligence he said he would up- hold the jury's evrdict of no negligence. He said he considered that the duty of care owed by Mr. McDer- mott to Mr. McComiskey was to drive as carefully as a reasonably careful, competitive rally driver would be expected to drive in the prevailing circumstances. He said the jury's answer in the negative could not be disturbed unless it could be said to be unreasonable. He was unable to say that it was. Mr. Justice Griffin agreed with the judgment, and Mr. Justice Walsh, in a dissenting judgment, said that he would order a new trial on the issue of Mr. McDer- mott's negligence and Mr. McComiskey's negligence, and, if the matter should arise, the apportionment of fault. Rowdyism in dance-hall area can be factor in refusal of licence The Supreme Court ruled yesterday that a Circuit Court judge was bound to take into consideration the unruly character and offensive condict of some people who arrived into Clondalkin, Co. Dublin, on the occa- sion of dances in the local Castaways Club, when he was considering an application for a public dance hall licence. The Court, in a reserved judgment, was deciding on a case stated from Judge Wellwood on the issue of whether such evidence was admissable in an appeal The appeal was dismissed with costs. {The Irish Times, 27 July 1973.)

Motor-Rally navigator's appeal fails In a reserved judgment yesterday, the Supreme Court, Dublin, dismissed an appeal by a Co. Longford man, who had sued the driver of a car which was taking part in a motor rally, while he was acting as navigator in the same car. Alan McComiskey, of Longford, brought an action in the High Court against John McDermott, of Nutley Park, Dublin, in which he claimed damages for per- sonal injuries arising out of an accident when the car, in which he claimed he was travelling as a passenger on 25 October 1968, at Carrigower, Co. Wicklow, crashed and overturned. It was stated that Mr. McComiskey, who was a medical student at the time, had lost the last two inches of his left ring finger, and it was claimed that this was a matter of grave seriousness to him in his profession. Judgment was given in the High Court against Mr. McComiskey, when the jury held that his claim was defeated because he had impliedly agreed to waive his legal right in respect of any negligence of Mr. McDer- mott causing injury to him. The jury also held that Mr. McDermott was not negligent. From those findings, Mr. McComiskey ap- pealed to the Supreme Court. Mr. Justice Henchy, delivering the majority judg- ment of the Supreme Court, said that in October, 1968, Mr. McComiskey and Mr. McDermott were students in U.C.D. Their common interest was motor- cars and, more particularly, the sport of motor rallying. In a rally each car was manned by a team consisting of a driver and a navigator whose task was to guide the driver by reference to a map and to act as time- keeper. They decided to enter as a team in a rally for novices that was being held on the night of 25 October 1968 by the Dublin University Motor Club. Mr. McDermott had been rallying for three years, but this was only Mr. McComiskey's second rally. They were to compete in Mr. McDermott's car. Mr. McDermott was to be the driver and Mr. McComiskey, with the help of a special lamp, a half-inch road map and a com- pass, was to be the navigator. They started off from Kilmacanogue, Co. Wicklow, on what was a dark, wet night. The cars moved off at one-minute intervals, and were expected to pass 35 checkpoints. To cover the route, of which the teams were informed only shortly before starting, without in- curring penalties, the drivers would have to maintain an average speed of 35 miles an hour. Mr. McComiskey and Mr. McDermott had negoti- ated four checkpoints without incurring penalties when they found themselves on a narrow secondary road in the Wicklow hills. Mr. McComiskey advised Mr. McDermott that in a matter of seconds they would arrive at the fifth checkpoint. Just then they came to a sharp lefth-hand bend. Mr. McDermott said that when he came around the bend he saw, about 45 yards downhill ahead, two cars blocking the road. It transpired later that this was the next checkpoint, and one of the cars, which was not blocking the road, was that of an official who was checking the competitors' cars as they arrived there, and the other car, which was causing the obstruction,