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. In this case the Applicant seeks, inter alia, by way of Judicial Review, an Order quashing a decision of the Motor Insurers Bureau of Ireland made on Monday, the 14th August, 1995, refusing the Applicant's claim from an ex gratia award under the 1964 agreement between the Bureau and the Minister for Local Government. The relevant provisions are contained in Note 8 to the agreement and are as follows:-

2. The history of the matter may be summarised as follows:-

3. On the 3rd October, 1986 the Applicant, then aged 20, suffered severe personal injuries following a motorcycle accident, the details of which are set out later. In accordance with the terms of the agreement between the Minister for Local Government and the Motor Insurers Bureau of Ireland, Applicant applied for an ex gratia payment to the Bureau. This was refused by the Bureau on the 11th day of May, 1989. The Applicant instituted proceedings to have that decision quashed and on the 4th February, 1992 Costello P. quashed the Order refusing the Applicant an ex gratia payment.

4. The Applicant re-applied and was again refused by decision of the Bureau dated 14th day of August 1995.

5. The material on which the decision was based was contained in the submissions of the Applicant and the handling office and the supporting documentation.

6. The Applicant says that in the early morning of the 3rd October, 1986, he was driving his motorcycle registration number VZS 825, along Stradbrook Road, Blackrock, in the County of Dublin to his home at "Solace", Killiney Hill Road, Killiney, in the County of Dublin. He was driving at 30 miles per hour. He came to a roundabout on the said road and he slowed down looking to his right, ready to yield right of way to traffic coming from his right on the said roundabout. As there was no traffic coming, he continued onto the roundabout and commenced turning to his left when a motorcar, which was also travelling along Stradbrook Road, overtook him on his left, crossed his intended line of travel causing him to swerve to try and avoid it. In so swerving he struck the roundabout. His only recollection of the car is that it was a red car. He says and believes that the said car did not stop at the scene of the accident, although the circumstances of the accident were such that the driver of the same must have been aware that it has occurred.

7. In her Affidavit Ms Ryan says that on Friday the 3rd October, 1986 at approximately 2.30 a.m. she was walking with John Carroll. They had walked along Abbey Road, passed a roundabout at the junction of Abbey Road, Monkstown Avenue and Stradbrook Road and continued along an unnamed road. They were walking along the right-hand side of the said road as one walks towards an unnamed road and were near the entrance to Rockford Park. She says that she heard a the sound of skidding and then the sound of a crash. She was approximately a couple of yards from the roundabout at this time. Her view of the roundabout was impeded, in that the road rises towards the roundabout and the view of the roundabout itself is impeded by a wall to the side of the roundabout and by a traffic island in front of the roundabout.

8. She says that she was asked by Ban Garda Carmel Roberts to make a statement and that she did so on the 14th November, 1986. In the said statement she said that she did not see or hear any traffic in the area prior to hearing the sound of the crash and that this is indeed correct. She says she did not hear the Applicant's motorcycle nor did she see the same prior to the crash. If there had been a motorcar on the scene, she believes that having regard to the distance which she had travelled from the roundabout, she would not have heard the same prior to the accident. Upon looking around after the accident, she would not have seen the same due to the sloping nature of the ground and the obstructions to her vision, which she has mentioned.

9. John Carroll made a statement to Ban Garda Carmel Roberts. He said that on the 3rd October, 1986, at about 3 a.m. he was walking near the entrance to Rockford Park having passed the roundabout at the junction of Abbey Road, Stradbrook Road, Monkstown Avenue and an unnamed road. He was with Anne Marie Ryan. He suddenly heard a bang which came from the direction of the roundabout. He turned around and he could see that there was something on the ground. Both of them went up to the roundabout. When he got there he saw a youth lying on the ground and he was groaning. There was a motorcycle lying there too. It looked like the motorcycle had hit the pole and he was thrown off it. Anne Marie spoke to him for a few seconds, then she went and called the ambulance. The ambulance arrived about 10 or 15 minutes later. The two ambulance men came over to him and were asking him questions which he couldn't really answer. He thought that they got the Applicant's name out of him, one of the ambulance men took his helmet off and the Applicant was able to tell them where he had been. The Gardaí arrived then. He remembers the Applicant being lifted onto a stretcher on his back and being placed in the ambulance.

10. In his report of the 9th November, 1988, Dr. Corry, a Consultant Psychiatrist, says that he saw the Applicant in connection with suggestions that he omitted to tell details concerning an accident in which he was involved to a member of the Garda Siochana. Dr. Corry says that the Applicant was admitted to St. Michael's Hospital and on the diagnosis of his spinal injury was transferred within hours to the National Medical Rehabilitation Centre on Rochestown Avenue. He had lost consciousness and his first memory some seven to eight hours later was having the traction rods inserted.

11. Dr. Corry says that during the early days and weeks following the accident, the Applicant was interviewed on two occasions by a Ban Gardaí (sic) and that it appeared that he proceeded to tell her the truth about the details of the accident; in particular relating to the car that caused the accident. Dr. Corry says that it appears that because Mr Sheils was suffering from post-concussional retrograde amnesia which related to some 18 hours before the accident, that details concerning the actual accident itself would be sketchy and have a number of omissions. Dr. Corry says that after some two months in the National Medical Rehabilitation Centre, the Applicant's memory deficits cleared and the details omitted, relating to the accident, came to mind. At the date of the report the Applicant was confined to a wheelchair with complete paralysis of his legs and partial paralysis of his upper limbs, in particular his left. He suffered from incontinence of both bowel and bladder and had sexual dysfunctioning. It was his opinion that the obstructions that are being placed between the Applicant and due compensation from the Motorist Insurance Bureau, were to his knowledge unfounded as the said omissions were part of the Applicant's clinical picture at that particular time. The report is signed Michael Corry, Consultant Psychiatrist. In his Affidavit he says that he is satisfied that for a period of some two months following the accident the Applicant suffered from post concussional retrograde amnesia relating to some 18 hours before the accident, and that for this reason details concerning the actual accident would be sketchy. After the period of some two months the memory deficits cleared. He said that in his opinion omissions of details of the accident are part of the clinical picture of the Applicant at the time the statements were taken.

12. In his Affidavit Mr Sheils says that he is the father of the Applicant. He says that on the morning of the 3rd October, 1986, as a result of a telephone call from St. Michael's Hospital he attended at the said hospital with his wife, Bridget Sheils. At the hospital he was taken to a small room where the Applicant was lying with a nurse in attendance. He was drifting in and out of consciousness and the Deponent's wife continued to talk to him. The Applicant replied from time to time and his replies were rambling and disjointed. In the course of his replies he did mention a red car from time to time. The Deponent says that he was so concerned about the Applicant's physical condition that the significance or otherwise of the reference to a red car did not, at the time, strike him. As a result of a conversation with the ambulance driver who had taken the Applicant to hospital, he was then of the belief that there had been no other vehicle involved in the accident.

13. Mrs Bridget Shiels in her Affidavit says that she is the mother of the Applicant and that on the 3rd of October, 1986, as a result of a telephone call, she went to St. Michael's Hospital with her husband. The Applicant was lying in a small room with a nurse in attendance and was drifting in and out of consciousness and she tried to talk to him. She told him that he was in hospital and that he had come off his bike. He responded to her but his conversation was disjointed and rambling. In the course of the said conversation he mentioned several times that there had been a red car. She had previously spoken to the ambulance driver who had taken the Applicant to hospital and he had told her that there was no other vehicle involved in the accident and, as a result, she did not attach any particular significance to the references to a red car. She says that she has spoken to the Applicant on numerous occasions since and he informed her that he had no recollection of the conversation in question.

14. This is a survey of the area, a traffic survey, a survey of car patterns and a comparison of car patterns with motorcycle patterns and a study of the perception of over-taking vehicles by a motorcyclist. The tenor of this report is to be corroborative of the Plaintiff's account. Furthermore, there is a photograph, number 8, which shows a pedestrian's view from the entrance to Rockford Park and purports to demonstate that from this point the view to the accident locus is blocked by new houses. At the time of the accident the presence of a six-foot high wall would have blocked the view of the entire roundabout apart from the exits to Abbey

15. Road and the new road. (This is in reference to the evidence of Anne Marie Ryan).

16. Mr Fleming's report deals with his contact with Anne Marie Ryan who came to the office to discuss the accident, and she told him that because the bend in the road and the high wall adjacent to the pavement that they were walking on, once they were approximately 50 yards down the road, they could not see back to the roundabout. When they were approximately 100 yards down the road they heard the sounds of a crash. She was not certain as to exactly what had happened and waited for a few moments before going to investigate with John Carroll. She cannot remember hearing any other vehicles in the area at the time. She does not remember hearing the sound of an engine accelerating away. When they arrived at the scene of the accident, they found that the Plaintiff was lying on the ground in the vicinity of a number of small metal poles. The motorcyclist was conscious but was complaining that he was suffocating. As far as she can remember there was no smell of drink off his breath. He didn't talk as though he had consumed any alcohol. Some time after phoning for the ambulance and the Gardaí, Anne Marie and the security guard went down to the scene of the accident. The Plaintiff was very confused with regard to what had happened. When he asked him first time where he was coming from, he told him that he was coming from the Northside of Dublin, he then told them that he was coming from work. He then told them that it was his intention to travel home via Abbey Road. He was very shocked and was more concerned about getting the helmet off him. The report then talks about a discussion with Mr Redmond who was the security man. At the time of the accident, he was on security duty at the entrance to the Premier Dairies depot, he couldn't remember the date of the accident. The first he heard that something was wrong was when a girl knocked on the hut where he was stationed. He didn't hear any sounds prior to the impact. There was then a description of the locus and measurements and photographs.

17. This details his conversation with Garda Roberts of Blackrock Garda Station, who investigated the accident. At the scene of the accident Ban Garda Roberts asked the motorcyclist what had happened. He had no recollection of the accident and couldn't tell them what had happened. He didn't know where he was coming from or where he was going to. She advised that he wasn't coherent at the scene of the accident. She discussed the matter with him subsequently and at no stage could he remember anything about the accident. The matter was not investigated as a hit and run by the Gardaí, it wasn't reported to them at any stage as a hit and run. There was no debris, broken glass or otherwise at the scene of the accident. In her opinion there was no evidence whatsoever to suggest the involvement of another vehicle.

18. The Applicant challenges the decision of the Respondent on the basis that no reasonable body could have reached the conclusion on the above evidence. The duty of the Court in these cases is clear. It is not the function of the Court to second-guess the conclusions of the Bureau nor to act as a Court of Appeal. It will only interfere with the decision of the Tribunal if it could not have been reasonably arrived at or on the basis of some lack of constitutional or natural justice in arriving at the decision. It is well settled law, that, at least when required to do so for the purpose of a decision in the High Court on the question of Judicial Review, there is a duty on the Respondent to give reasons for his decision. In the case State (Creedon -v- Criminal Injuries Compensation Tribunal (1989) ILRM 104 Finlay C.J. said at page 108:-

19. In the present case the decision of the Respondent was communicated in the letter dated 21st August, 1995, which reads as follows:-

20. That, in effect, merely states that the Applicant had not satisfied the Respondent to the requisite extent, but does not contain reasons for the decision. The Respondent furthermore supplied the Applicant with the minutes of the meeting at which the decision was taken, and presumably, relied on that documentation to show reasons for its decision. It was open to the Respondent to give the reasons in other form than the letter and the minutes of the meeting. The Statement of Opposition does not put that matter any further beyond saying that the application was considered on its merits and that the Respondent acted in a bona fide manner. Nor does the Affidavit sworn on behalf of the Respondent put the matter much further beyond saying that Application was considered and refused on its merits.

21. The minutes of the meeting at which the decision was made do not disclose the reasons for the decision. They do, however, disclose a number of possible bases on which the decision might have been arrived at. One of those possibilities was that a number of the members at the meeting felt strongly that the evidence pointed to total negligence on the part of Mr Sheils. In view of the fact that the Applicant's version of the events, a finding on the basis that even if there was a car present that the accident was due solely to the negligence of the Applicant is, in my view, quite irrational and flies in the teeth of the evidence. Indeed, even the handling office report did not purport to make that case. It said that there was no evidence to make a judgment of contributory negligence on the part of the Applicant. The other possible basis of the decision appearing from the minutes was that the evidence of Dr. Corry, the Psychiatrist, was unconvincing. [At least one of the members was under the misapprehension that the doctor had not seen or interviewed the Applicant.]

22. The expert opinion of Dr Corry was unchallenged in the proceedings even though it was open to the handling office to obtain a psychiatric medical report of their own. In my view, it flies in the face of reason not to accept the uncontradicted and unchallenged expert medical opinion for no apparent reason. The observation contained in the minutes that "memory recovery could involve an element of reconstruction of events" is irrelevant to these proceedings unless it can be shown to be a reasonable possibility in the instant case. There was no such evidence.

23. The rejection or the acceptance or otherwise of the report of Wood and Associates was exclusively a matter for the Respondent, but the non-acceptance of that evidence would not in itself be a reason for not accepting the Plaintiff's claim.

24. If there were other reasons on which the Respondent did not accept the Applicant's claim, based as it was on sworn and uncontradicted evidence, those reasons should have been stated. In circumstances where the explanation is unclear, in my view it would normally be correct of the Court to send the matter back to the relevant tribunal or Respondent to have the matter clarified as was done in the case of Hurley -v- Motor Insurers Bureau of Ireland and Liam O'Donnell & Others, Notice Parties by Carroll J. 1993 ILRM page 886. In this case I do not think that that would be appropriate since I have dealt with what appear from the minutes of the meeting to be the possible reasons for the decision.

25. Mr Connolly in the course of his argument suggested possible reasons for arriving at their decision. However, those reasons do not appear either in the minutes or the letter. Accordingly, the Applicant is entitled to succeed. I will discuss the form of Order with Counsel.