The Supreme Court has refused a bid by the Motor Insurers Bureau of Ireland to have dismissed a claim brought against it over the death of a young Cork man whose body was found at the side of the road.
The three-judge court’s rejection of the MIBI’s appeal on grounds including its lenghty delay means the parents and sister of Kieran O’Flynn (19) may proceed with their action against it and others over his death on the night of August 7th 1999.
Mr Justice Nicholas Kearns said this case and several other decisions showed the Supreme Court’s “ever increasing reluctance” to condone such procedural delays.
Kieran O’Flynn’s body was found on the road near his home in Mallow, Co Cork, and there is a dispute over the
circumstances of his death. It is believed he died as a result of being struck by a car but there is a dispute over what car and what driver was responsible.
The family claim they expected Kieran to join the family joinery business which, at the time of his death, employed 19 people. It is claimed Eamon O’Flynn, his father, lost interest in the business after his son’s death and it later closed.
The family’s claim is for damages for nervous shock and loss of earnings related to the expected involvement of Kieran in the family business.
Delivering the Supreme Court’s judgment, Mr Justice Kearns, with whom Ms Justice Susan Denham and Mr Justice Adrian Hardiman agreed, said the family had sued Padraig Buckley and David Walsh, the drivers of separate motor vehicles alleged to have collided with Mr O’Flynn, plus the MIBI.
It is claimed Mr Walsh (who was insured) collided with Mr O’Flynn, who was lying on the roadway, sometime after Mr Buckley, driving a car owned by Aidan Horan, had come into contact with him. The MIBI was a defendant for two reasons - because Mr Buckley was not insured to drive Mr Horan’s vehicle and because Mr Buckley has pleaded Mr O’Flynn was dead prior to Mr Buckley arriving at the scene having been hit by an unidentified and untraced driver.
In preliminary claims, the MIBI argued its agreement to compensate victims of accidents involving uninsured drivers did not allow it to be sued in the same proceedings in relation to an identified but uninsured offending driver and also in relation to an offending motorist neither identified nor traced.
Mr Justice Kearns said the case was unusual in involving a combination of insured and uninsured drivers and the possible involvement of an untraced driver.
He said the family were perfectly entitled to join the MIBI but the difficulty was it was wearing two different hats in the case.
That difficulty could be overcome by the High Court, either prior to trial or at the trial, directing those two issues be separately determined in the one trial, he said. It would be “superflous and absurd” to require the family to institute a second set of proceedings on the untraced motorist possibility.
The judge ruled the MIBI’s four-year delay in bringing its application to dismiss also disentitled it to the relief sought. The family’s lawyers made it clear in 2000 they were seeking to attach blame for the accident not just to two identified drivers, one of whom was uninsured, but had also flagged the possibility, however remote, a further identified driver may also have been involved, he said. The MIBI had been represented by three different insurance companies and two different sets of solicitors over four years before bringing its application.
