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GAZETTE
JULY/AUGUST 1990
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
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
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
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