Wednesday 19 December 2018

Car driven by woman involved in fatal crash which killed her four friends 'had flat tyre before crash', trial hears

Dayna Kearney has denied two charges relating to the deaths of her friends Chermaine Carroll, Aisling Middleton, Gemma Nolan and Niamh Doyle
Dayna Kearney has denied two charges relating to the deaths of her friends Chermaine Carroll, Aisling Middleton, Gemma Nolan and Niamh Doyle
Andrew Phelan

Andrew Phelan

THE car driven by a woman accused of causing the deaths of her four friends had a flat tyre shortly before the fatal crash, a jury has heard.

A vehicle inspector said one of the tyres on Dayna Kearney’s VW Polo had a slow leak or puncture and probably went flat over a short distance on its “final journey”.

An engineer called by the defence said he felt there had to have been “some injury” to the tyre before the car went out of control. Once it did, he said, Ms Kearney would not have been able to correct it. Another tyre might have blown, he said, and "you can't rule anything out."

Ms Kearney (23) is on trial at Kildare Circuit Court charged with dangerous driving causing the death of her friends in the accident.

Aisling Middleton (19) from Athy, Gemma Nolan (19), Chermaine Carroll (20) and Niamh Doyle (19), from Carlow, were all killed "almost instantly" in the crash on the N78 at Burtown, near Athy, on January 6, 2015.

The five were returning from ice-skating in Kilkenny when the car veered across the road and crashed passenger-side on into an oncoming VW Transporter van coming.

Ms Kearney, a student from Crossneen, Carlow has pleaded not guilty to the charge, and also denies knowingly driving a dangerously defective vehicle.

She herself was badly injured in the accident.

It is the prosecution’s case that although her car was in sound mechanical condition and the tyres all had good tread, “some were not at the correct inflated level” and this along with the heavy load in the car caused it to swerve out of control.

Today, Garda PSV inspector Tony O’Halloran said he checked the pressure on the tyres in an examination the next morning. The front passenger side tyre had 14lb of pressure, and the rear driver’s side tyre had no pressure, while both the front driver’s side and rear passenger’s side tyres were burst.

These burst tyres had been cut in the accident so their prior condition could not be determined.

Although the rear driver’s side tyre had no air in it, it had not disintegrated so he was concerned about the state of the tyre and what had happened to it prior to the accident.

Gda O’Halloran said the correct tyre pressure for a loaded VW was 35lb on the rear and 32lb on the front. The industry recommended a maximum six year life for tyres and the tyre in question was made in 2009 but within that.

It was also within the legal minimum tyre tread.

Gda O’Halloran noted that the centre of the tyre had greater depth than the edges, which could happen when tyres are run under-inflated. Under-inflation affected the stability of a vehicle, particularly when cornering, he said.

He found a slow leak in the tyre’s side wall, which took around two and a half hours to go down, unloaded.

He found the tyre in poor overall condition with signs of distress, wear and deterioration as a result of under-inflation, overloading, poor maintenance and incorrect storage.

There was no blow out to the tyre, or catastrophic incident resulting from air loss as a result of the slow leak, he found.

Between the flat rear right tyre and the soft front left, his opinion was the car lost stability, lost directional control and “yawed” or slid across the road and into the VW Transporter van.

He believed the rear right tyre had gone flat over the course of the journey before the accident, but he could not say when it started to go flat. It had not driven very far on the flat because when this is done a tyre “shreds very quickly,” he said.

In this case, the tyre had not even broken away from the rim so the it had broken down very recently and the car was driven a very short distance on the flat.

In cross-examination, he agreed with Roderick O’Hanlon SC, defending, that the brakes and steering had been in good condition and the indications were that everyone in the car was wearing seatbelts. All airbags had been deployed.

He said the deflation probably happened some time after the car left Kilkenny, because if it happened earlier the driver would not have driven on it.

The inference was that the flat would have been sustained on the car’s “last journey.”

Mr O’Hanlon put it to him that if someone had looked at the tyre the previous day they would not have observed anything.

Gda O’Halloran said this was “subjective.”

Counsel said the damage was on the inside of the tyre and not something an ordinary driver would see.

“Every driver has a responsibility in respect of the vehicle they drive,” Gda O’Halloran replied.

Counsel put it to Gda O’Halloran that a defence engineer had found the cats eye studs on the road to be 50pc higher than the recommended level.

He put it to Gda O’Halloran that whatever caused the car to go off driving straight, once that happened, the vehicle becomes uncontrollable, arising from what happened to the tyre in the course of the journey.

Gda O’Halloran agreed.

The driver would have had no forewarning that a tyre was deteriorating other than the performance of the car during the journey, counsel said.

The accused had had one tyre replaced and it appeared to have been done properly, Gda O’Halloran said.

Mr O'Hanlon read from the Done Deal ad for the car, which described it as a “nice little Polo,” saying “all the tyres are good” and with NCT valid until April 2015.

The NCT disc reflected this and the gardai had acknowledged that the disc appeared to be valid. On an NCT test, the condition of the tyres would have become readily apparent.

“I believe motorists have a certain responsibility for their vehicles,” Gda O’Halloran said, adding that for the first time a driver to first become aware of a fault when it yawed across a road into an oncoming van “is not the sort of warning I would want to wait for.”

He said when one tyre was replaced was a good opportunity to have them all examined.

“Don’t take the word of an ad for a 2001 car,” he said.

Garda Paul Monaghan, an accident investigator, said he had been furnished with the defence engineer’s report. The higher cat’s eyes mentioned would be “more noticeable to drive over,” he said.

He said if there was a slow puncture going down gradually,  it would have gone down fully overnight.

Mr O’Hanlon asked him if an under-inflated tyre went over the cat’s eyes, could the effect on controlling the car become more significant.

Gda Monaghan could not estimate “how much of an oversteer that would induce.”

The prosecution then closed its case.

John Hayes, chartered engineer, gave evidence for the defence.

For his inspection, he had gone to the scene with Ms Kearney, saying although it was difficult, he felt it was necessary for her to be there.

He was trying to figure out what caused the car to go out of control when he went back and noticed the cats’ eyes were particularly high prior to the scuff mark on the road.

He measured them and there was a “significant elevation.”

He examined the car separately and said the slow puncture appeared to have happened on the final journey and the driver might not even notice while driving on a straight stretch.

The risk of damage to a deflated tyre from the particular cats eyes was significantly greater, he said. He was “not surprised” there was no evidence of impact with them as he was only looking at what was there.

Mr O’Hanlon asked him if he had formed an opinion as to what caused the car to “yaw” and go into a skid.

“I felt there had to be some injury to the tyre that had occurred within a short period prior to the event,” he said. “The difficulty is there is no real evidence to show what that injury is.”

Looking at the tyre with the slow puncture in isolation was “maybe not the solution,” he said.

They should be looking at the damage to the rear passenger side tyre as a possible contributor, he added.

“Maybe it could have blown, that possibility should have been explored,” he said. “You can’t rule anything out.”

He said reaction times did not vary much between older and younger drivers.

Mr Hayes said it could not be ruled out that the deflation of the front near side tyre, which had low pressure, could have been caused by the collision.

In cross-examination, Mr Hayes told Daniel Boland BL, prosecuting, that once Ms Kearney lost directional control she would have had “no ability” to correct it.

“Even someone who had done an advanced driving course would have been unlikely to correct it,” he said.

Mr Boland put it to him that it was a universal rule that drivers kept the air pressure in their tyres checked.

“I am 64 and I never realised until I investigated this accident how important it was to check,” he said.

 In the afternoon, Mr O’Hanlon said the defence had no more witnesses and both he and Mr Boland, for the prosecution, delivered their closing speeches.

Mr Boland told the jury they had to leave sympathy out of their deliberations.

“Behind me are four families who have suffered the loss of a beloved daughter,” he said.

The jury might also feel sympathy for Ms Kearney, he said, but they had to approach the case “coolly and coldly”

It was “somewhat unusual” that most of the facts were not in dispute. There were no issues of drink or speed or problems with the brakes, he said, and the case was reduced to two things: Ms Kearney’s driving of the car on the night and the condition of the car and its tyres.

It was a fundamental duty of every driver to keep their car on the correct side of the road, he said, and the passenger in the van Mariusz Wawrzos had given evidence that Ms Kearney’s car went from left to right two to three times and went across the road.

Everyone had a duty to drive a car with properly inflated tyres, he said.

“Here we have an inexperienced driver on a provisional licence driving a car on a full load...and when the car started to veer, she wasn’t able to control it and the car then went onto the incorrect side of the road with very sad and tragic results for everybody involved in this case,” Mr Boland said.

In relation to the second charge, he said “you cannot divorce the car from the tyres.” They were a fundamental part of the car and “if the tyres are defective, the car has to be defective.”

Mr O’Hanlon told the jury in his speech Ms Kearney enjoyed an ongoing presumption of innocence, she did not have to prove anything and the burden of proof started and rested with the prosecution.

The nature of driving did not seem to be a feature, he said. She was entitled to rely on the car’s NCT cert. The slow puncture was not something Ms Kearney could or should have been aware of because it was not present before the accident, Mr O’Hanlon said.

The danger created by it was created in the course of the journey and the car had gone out of control even while it was driven at a safe speed.

“What we say happened here is a road traffic accident,” he said. “That is what it was, an accident. It was not a case of Dayna Kearney driving dangerously, in a manner than somebody watching would look at it and say, ‘that driver is out of control, something should be done about the way she is driving’.”

There was no evidence that the slow puncture was a pre-existing condition or that Ms Kearney had any knowledge that it had commenced in the course of the journey.

All the evidence seemed to suggest that Ms Kearney was taking reasonable care of her her car but on the day of the accident, damage occurred which caused the car to go out of control. If, having considered all the evidence it did not go beyond that, the jury should return not guilty verdicts, he said.

Judge Eoin Garavan told the jury to return tomorrow, when he will deliver his charge, instructing them on the legal principles involved before they retire to consider verdicts.

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