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UNREPORTED IRISH CASES
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,
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.
The appeal was dismissed with costs.
{The Irish Times,
27 July 1973.)
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