Quinlivan v Motor Insurers' Bureau of Ireland (Unapproved)

She was clearly injured and quite shocked in the immediate aftermath of the accident, getting out of the car and collapsing onto the ground.� Other people arrived at the scene, who gave evidence, and Ms. Quinlivan, in oral evidence, said that as she was assisted by one of the witnesses after the accident, she �could see all rainbows on the road�.� She was unable to state where this rainbow effect was on the road, other than she saw it.�

Three witnesses who were driving their own vehicles arrived at the scene of the accident shortly thereafter and gave evidence in the High Court.� These were John Kirwan, Martin Daly and Adrian Deegan.� The first to arrive was Mr. Kirwan who was travelling in the same direction as the plaintiff.� His evidence was that when he got out of his car, he noticed oil on the road but he was unable to say how big the oil patch was because he did not remember, nor did he identify where precisely it was located.� This evidence is noted by the judge in his judgment.�

In cross-examination, it was put to Mr. Fogarty that the evidence of the investigating garda would be that the diesel was located not in the plaintiff�s lane but on the opposite lane and if that was correct, the presence of diesel could be discounted as having any involvement in the circumstances of the accident.� Mr. Fogarty agreed with that proposition and further with the suggestion that if that were correct, the obvious explanation for the accident was driver error.

��However even if it had, the judge said that there was no evidence to support a finding that the alleged diesel spill was caused by the negligent use of a vehicle.� He summarised the evidence of some of the witnesses including Mr. Daly, Mr. Deegan and Mr. Kirwan, as I have noted above.���

The court referred to a number of authorities to which I will come shortly, which he considered supported the court�s approach of vigilant scrutiny of and appropriate scepticism towards the claim.� He said that this approach was required, not because of any dishonesty on the part of a plaintiff, but rather human nature being such that accounts tend to become unwittingly adjusted, citing the views of O�Donnell J. (as he then was) in that regard in Rosbeg Partners v LK Shields Solicitors [2018] 2 IR 811 at 822 - 823.