Capacity
Cases
Heaphy v. Heaphy
[2004] IEHC 5 (15 January 2004) Peart J
It is necessary at the outset to describe the historical facts which form the background to the dispute between these two brothers, and which has led to the institution of these proceedings. These facts are set out clearly in the Statement of Claim delivered by the Plaintiff on 16th October 2002 and can be summarised as follows:
In 1974 Plaintiff incorporated the company, and was the majority shareholder. Subsequently the company purchased two hotels in Dublin namely the Glencourt Hotel and the Elmar Hotel, both in Lower Gardner Street. It would appear that a sum of IR£100,000 was borrowed from Bank of Ireland in order to purchase these premises, and that this borrowing was the subject of a charge in favour of Bank of Ireland against the company.
About 12 years later, in 1986, the plaintiff left Ireland in order to pursue business interests abroad. He alleges that before he left he entered into an oral agreement with his brother, the Defendant, whereby the Defendant would run the bed and breakfast business being conducted at each hotel. The Defendant was to use two trading companies for the purpose of running those bed and breakfast businesses, namely Gembridge Taverns Limited (hereinafter referred to as “Gembridge”) in respect of the business of the Glencourt Hotel, and Laurello Limited (hereinafter referred to as “Laurello”) in respect of the business of the Elmar Hotel…….
The defendant in his replying affidavit makes the point that the plaintiff’s claim in reality, is a claim, which if the facts are proven, is a claim which could be brought only by the company, now in liquidation, because the damage suffered is in fact damage suffered by the company, i.e. by the fraudulent sale of two of its assets, namely the hotels. He also contends in his affidavit that such a claim to damages by the company cannot, by law, give rise to a personal claim by a shareholder of the company, arising from any diminution in the value of his shares by reason of any such fraudulent sale of the company’s assets. The liquidator might be able to pursue the matter in the interests of the shareholders, but in his replies to particulars the plaintiff has stated that it is not being alleged that he brings these proceedings with the authority of the liquidator of Springmound.
However, the defendant goes on in his affidavit to state that he is not simply relying on this technical objection to the plaintiff’s claim. Even though he is maintaining that it is a claim which cannot by law succeed, he also disputes factual matters and says that in any event the plaintiff’s claim cannot succeed on the merits either. As an example, he states that the Contract for Sale of each of the hotels in 1986 was in fact signed by the plaintiff. He exhibits one of those contracts, which certainly bears a signature which purports to be that of the plaintiff, but although I am not a handwriting expert, it seems to bear no resemblance to the signature of the plaintiff on his replying affidavit in this motion, or to his signature on a number of letters which have been exhibited by him in that replying affidavit. The defendant of course denies that he executed this contract in the name of the plaintiff, if such is the suggestion being made in these proceedings.
The defendant also refers to the fact that in the sale of the hotels a firm of solicitors represented the company in the sale, and another solicitor represented the purchasers. The defendant also disputes in his affidavit that it was part of any arrangement with the plaintiff that he would arrange for a loan from Hill Samuel which was to be used to pay off the indebtedness to Bank of Ireland as pleaded in the Statement of Claim. He exhibits some correspondence from Bank of Ireland in this regard. The defendant also points to the fact that the plaintiff has stated that he learned of this sale of the properties back in the year 2000, and yet did nothing to prevent the defendant from selling the properties on to two third parties later.
The defendant makes the point also that defending these proceedings is not something he should have to do, given that they must inevitably fail, and deal with matters going back over 16 years.
In his replying affidavit the plaintiff says that after he entered into his agreement with his brother, the defendant, he left him in charge of managing all his affairs and those of the company, including dealing with the property portfolio, banking duties, legal matters and soforth, and including the running of the bed and breakfast business. He says that the only reason 16 years elapsed before doing anything about these matters is that he trusted that his brother would run his affairs in a responsible and trustworthy manner, and that he had no reason to suspect that the hotels had been sold by his brother, and that his brother should not now be permitted to rely on his concealment of what he had done in order to defeat this claim.
He also makes the point to which I have already referred namely that the signature on the contract for sale exhibited by the defendant is not his signature, and that it is not a valid contract. He says that without discovery of documents he cannot say who did in fact sign these documents.
He also states that he never engaged solicitors in relation to the sale of the two hotels as alleged by the defendant, and that he never wrote a letter to Bank of Ireland dated the 9th May 1986 which the defendant has exhibited, and states that same is a forgery. He also denies as alleged by the defendant that he is in bad financial circumstances. He accepts that he has a severe problem now in relation to his retirement since the hotels have been sold, but denies that these proceedings have been commenced out of some financial desperation.
The plaintiff concludes his affidavit by saying that the defendant carried out the transactions involving the sale of the hotels without his knowledge or consent, and that it has been difficult for him to piece together exactly how the defendant perpetrated what he describes as the fraud, since the defendant was in charge of all his affairs during those years, and because of the length of time which has elapsed it is difficult to get the information from any third parties.
Legal Submissions:
Mr Paul Fogarty BL on behalf of the defendant has submitted that the plaintiff has no personal claim against the defendant in respect of a claim which, if there is any merit in it, is a claim to be brought on behalf of the company which is the only entity which can have suffered a loss by reason of the sale of the hotels, if sold at undervalue. He has referred the court to the well-known principles emerging from Foss v. Harbottle (1843) 2 Hare 461, one of which is that only the company can bring proceedings to recover in respect of damage done to the company, and that an individual shareholder had no such right to bring proceedings in respect of loss or damage done to the company. There are of course the four exceptions to the rule in Foss v. Harbottle, and without going into each of those individually, it is clear that none of them apply in these proceedings.
The court has also been referred to the judgments in O’Neill v. Ryan and others (1990) ILRM 140. That decision arose out of a motion brought on behalf of four defendants to dismiss or stay the plaintiff’s action against them, on the basis that it disclosed no reasonable cause of action, because damage alleged to have been caused was damage to a company, which itself was one of the defendants, and not to the plaintiff personally, who claimed that the value of his personal shareholding in that company had been reduced. The court was particularly referred to a passage from the judgment of Blayney J in the Supreme Court at page 569 where that learned judge stated as follows:
“Counsel further submitted that even though the damage was primarily to RyanAir, the plaintiff nonetheless was entitled to sue, but he was unable to point to any authority for this proposition. I am satisfied that there is none. What was being submitted was that a shareholder in a company has a personal action in respect of the reduction in value of his shareholding resulting from damage to the company, against the party who caused such damage. Such a proposition was firmly rejected by the Court of Appeal in England in the Prudential Assurance Company Ltd case to which I have referred earlier.”
Blayney J. went on to quote at some length from that judgment in the Prudential Assurance case, including from page 224 of that judgment as follows:
“A personal action would subvert the rule in Foss v Harbottle and that rule is not merely a tiresome procedural obstacle placed in the path of a shareholder by a legalistic judiciary. The rule is the consequence of the fact that a corporation is a separate legal entity. Other consequences are limited liability and limited rights. The company is liable for its contracts and torts; the shareholder has no such liability The company acquires causes of action for breaches of contract and for torts which damage the company. No cause of action vests in the shareholder. When the shareholder acquires a share he accepts the fact that the value of his investment follows the fortunes of the company, and that he can only exercise his influence over the fortunes of the company by the exercise of his voting rights in general meeting. The law confers on him the right to ensure that the company observes the limitations of its memorandum of association and the right to ensure that other shareholders observe the rule, imposed upon them by the articles of association.”
Blayney J. expressed his opinion that this is a correct statement of the law regarding the status of a shareholder in a company.
Mr Fogarty also submits that the loss if any in this case is the company’s loss, and that it is open to the company to do something about that loss, if it so chooses. He points to the fact that the plaintiff is and was at all times the majority shareholder, but that the liquidator could even now investigate matters if an asset has been fraudulently removed from the company. He submits that the plaintiff could bring this matter to the attention of the liquidator. In addition to these submissions, Mr Fogarty has pointed to the fact that the plaintiff has not in any way attempted to quantify his losses for the purposes of this claim.
Mr Padraic O’Higgins SC, on behalf of the plaintiff, has submitted that one of the bases for the plaintiff’s claim is that a fraud has been committed by the defendant and from which the plaintiff has suffered a loss which is not yet quantified. If the plaintiff is right in what he is alleging, then the defendant has been guilty of a fraud. He referred to the fact that the plaintiff went to England leaving the defendant in charge of his affairs in relation to the two hotels, and when he came back to this country, he discovered that both hotels had been sold without his knowledge or consent. He stated that the plaintiff was trying to launch an investigation into how this came about, and in a situation where the plaintiff, the majority shareholder and director of the company, signed nothing in relation to the sales of the hotels. Mr O’Higgins agrees that this case cannot be within one of the exceptions to the rule in Foss v. Harbottle.
Conclusion:
For what I am sure were at the time god commercial reasons the plaintiff, in 1974, decided to operate his hotel/bed and breakfast business by means of a limited liability company in which he is and was the majority shareholder. Again, for what I am sure seemed good reasons at the time in 1986, the plaintiff entered into an oral agreement with his brother, the defendant, in relation to the running of those hotels during his absence from the country. Nothing was committed to writing.
The fact is that a dispute has now arisen between the parties as to how it has come about that the company has sold two major assets, namely the two hotels, in circumstances where the plaintiff did not know about the sales. The defendant says that he knew all about the sales, and even says that the plaintiff himself signed the contracts for sale. What is clear beyond any doubt in the papers before me is that the plaintiff is alleging that the defendant sold the hotels, and either himself or through somebody else, had contracts for sale of the hotels signed, and conveyances eventually registered.
I cannot decide the factual merits of this claim on this motion, and nor do I have to, in the sense of determining any issue raised in the proceedings themselves. What I have to decide is whether, even if the plaintiff can prove everything he alleges, the plaintiff has any entitlement to recover any loss from the defendant, given that the loss if any which has been suffered, has been suffered by the company, and not by any individual shareholder, such as the plaintiff. Indeed, it could be said that even the company is at a loss only if the assets of the company were sold at undervalue, or if the proceeds of sale of the hotels were not lodged to the company’s bank account.
What is at issue on this application is whether this is an action which is bound to fail. In my view it is such an action, not because I am satisfied that the plaintiff could not under any circumstances prove that something irregular occurred by which the hotels in question were sold without his knowledge, consent or agreement, but because, even if he did succeed in proving everything which he alleges against the defendant, the law, as it stands, and as is well settled by now, does not provide him in his personal capacity as a shareholder with a remedy against the defendant in civil proceedings.
When the plaintiff decided to purchase and operate the hotels through the mechanism of a limited liability company, he ceased to have the same control over his affairs as he would have had if he had dealt with these matters personally. Perhaps that was a deliberate ploy on his behalf. Certainly, if what he has pleaded in relation to the alleged oral agreement with his brother is true, the arrangement has a certain logic and plan to it, and may well have been facilitated by the fact that the hotels were owned by a limited company. But that is neither here nor there as things have turned out. The hotels are no longer in the ownership of the company. It is possible that the company has suffered a loss as a result, but not necessarily so. The company is in liquidation. I am told that it was a court liquidation, and in those circumstances, it should be possible for the plaintiff to make appropriate enquiries of the liquidator if he is still in situ. That liquidator will have operated as an officer of the court, and would have responsibilities to ensure that the assets of the company are ascertained and realised for the benefit of the creditors and shareholders of the company. I would have thought that the liquidator would be very concerned to know if assets of the company had been fraudulently disposed of prior to the liquidation, and would be under an obligation to investigate such a matter if there was thought to be substance to the allegation. He would be fully empowered to launch any necessary investigation in that regard, and if necessary to seek the directions of the court in relation to the examination of any director, shareholder or office holder of the company, or indeed any other person such as a solicitor who handled the sales of the hotels, in order to establish exactly what happened. The plaintiff may have already gone down that route. I do not know, but I suspect that he has not.
The plaintiff’s principal allegation is that his signature to two contracts for sale has been forged, and that his name has been put to those contracts fraudulently. That, if true, would be a criminal offence, which the Fraud Investigation Branch of An Garda Siochana ought to have an interest in investigating. I am told that solicitors represented the Vendor company. That firm presumably was under the impression that it was receiving instructions from a person entitled to speak on behalf of the company and to execute any necessary documents. It is easy enough to appreciate that the firm in question would have assumed that the person who gave instructions to that firm was the person he said he was, and that he was entitled to bind the company in the sale of the hotels. But one’s experience of life tells one that such strange things do happen where things are not necessarily as they might appear to be.
What all this amounts to is that the plaintiff is alleging a fraud against the company. This fraud would of necessity have had to be complex and involving other parties. It is natural that the plaintiff would be concerned about the matter, because inspite of the fact that from a legal standpoint the loss, if any, is a loss to the company and not to any individual shareholder, the plaintiff as he sees it has been done out of assets which he believed would secure his retirement. The loss therefore feels very personal to the plaintiff and he wants to do something about it, even at this late stage.
No matter how much sympathy the court may feel for the plaintiff in the predicament in which he now finds himself, the law on the point at issue on this motion is beyond any dispute. While there is ample authority that the court should exercise sparingly and with great caution its power to strike out a claim or to stay a claim indefinitely on the basis that it discloses no reasonable cause of action, there are times when it must, as in this case, where even if every fact is proven, the law clearly prevents the court from making any award or finding in favour of the plaintiff. The plaintiff as shareholder has no claim in respect of the loss, if any, to the company, and that is an end of the matter. The plaintiff’s investigations will have to take another form.
I do not regard the plaintiff’s claim as frivolous or vexatious, or even an abuse of process in any culpable sense of that word, and I will therefore not make the order in terms of paragraphs 2. Neither will I make the order as sought in paragraph 1 of the Notice of Motion, lest there remain within the Statement of Claim some headings of claim which can be made by the plaintiff personally against the defendant, and which do not involve the assertion of rights that belong to the company.
I will therefore make the order sought in paragraph 3 of the Notice of Motion dated 28th July 2003 striking out so much of the plaintiff’s Statement of Claim delivered the 15th October 2002 as asserts rights on behalf of Springmound (Holdings) Limited.
Murphy v. Roche (No. 2)
[1987] IR 656 Gannon J.
On the 2nd August, 1980, Dermot Murphy attended a dance being held at the premises of the G.A.A. club known as Wolfe Tone na Sionna at Shannon, County Clare. He suffered injuries as a result of a fall which he attributes to negligence on the part of the persons responsible for organising the dance and having the management and care of the premises. He commenced proceedings in the High Court claiming damages for such injuries from the defendants as persons named by him to represent that G.A.A. club and who happen also to be the trustees of the club. He does not attribute personal liability or responsibility for negligence to any one of them.
He and the defendants named are members of the G.A.A. club. The dance was open to the public, and all persons attending it, whether members of the club or not, were charged an admission fee of £1.50. Mr. Murphy paid this charge for admission to the dance on the 2nd August, 1980. The defendants dispute the plaintiff’s claim for damages on grounds,inter alia, that he, being a member of the club, which is an unincorporated association of persons including him, cannot maintain such an action against that club or its representatives. For his part he disputes this and he claims that by paying an admission fee like other members of the public he has a cause of action distinct and distinguishable from any claim as a member of the club.
The President of the High Court directed that a preliminary issue on the point of law raised should be tried before embarking on a trial by jury of the issues of fact relating to liability. Upon that matter being taken to the
Supreme Court it was there directed by order dated the 18th December, 1986, that the following preliminary issue of law be tried in the High Court without evidence and without pleadings namely:”
“Whether the plaintiff, being a member of an unincorporated club, can maintain an action against the representatives of that club in respect of damages alleged to have been suffered by reason of the negligence of the servants or agents of the club in the maintenance and care of the premises, notwithstanding the fact that the accident complained of occurred at a dance to which the plaintiff was admitted only after payment of an admission fee.”
When the matter came before this court for trial of the issue in the absence of evidence it was necessary to obtain agreement on some basic facts by way of mutual admissions. These are as follows:
1. The plaintiff and the defendants, with a substantial number of other persons, are members of Shannon Wolfe Tone G.A.A. club.
2. All members pay an equal annual subscription to the funds of the club to be applied for its general purposes.
3. The club is non-profit making and its objects are entirely social, non-commercial and sporting involving in particular football and hurling in accordance with G.A.A. rules.
4. The election of members and of committees and the duties and functions of management, the collection and application of subscriptions and funds, and the regulation of the affairs of the club are governed by and set out in rules which are stated to be “in the usual form for unincorporated clubs”.
5. The activities, affairs and finances of the club are organised and managed by a committee elected annually by the members from their numbers without remuneration.
6. The property of the club including buildings and playing fields is held in the names of the trustees the three defendants who have no proprietary interest save as nominees only for the club.
7. The money collected for admission to the dance was put into the common funds of the club to be applied with other income including members’ subscriptions to meet the general expenses of the club.
No sources of income other than subscriptions and dance admission charges were disclosed at the hearing, nor was it stated whether or not the club is registered. As no copy of the rules was obtainable I infer that the club is not one required to be registered either under the requirements of the licensing laws relating to intoxicating liquor or the laws relating to friendly and industrial and provident societies. If it were such a club the rules would be obtainable.
The basis on which the plaintiff presents his claim, assuming actionable negligence to be the cause of his injuries, is that the club is a lawful association and an unincorporated body of persons being as such a legal entity which is distinct from and independent of the individual members who make up the club. Such a legal distinction between the collective body and its individual members, Mr. McMahon for the plaintiff contends, corresponds to that which exists between the State and the citizen. Upon that analogy, it is submitted, the individual member of the club can sue and recover damages from the collective body of members for harm sustained by him by the tort or breach of contract committed by the club as such body. As the State owes duties enforceable by legal action to the individual citizen, it was argued, so the totality of members of the club owe the like duties to the individual. The character of the State as a juristic person with concomitant duties to its individual citizens is enunciated in Byrne v. Ireland [1972] I.R. 241. Because the right of citizens to form associations is guaranteed by the Constitution, Mr. McMahon contends this gives recognition to the association of the unincorporated body as a legal entity as distinct from its members. In his carefully presented argument for the plaintiff Mr. McMahon submitted that by the Registration of Clubs Acts the legislature has given to clubs a distinction of legal entity from its individual members of the same nature as that which by the Trades Unions Acts marked the distinction of legal entity between the trade union and its individual members. Much reliance was placed on the content of the opinions expressed in the speeches in the House of Lords in Bonsor v. The Musicians’ Union [1956] A.C. 104 as supporting this submission.
In reply, Mr. Connolly on behalf of the defendants agreed that the club as an unincorporated association of persons is a legal entity but as such, he claimed, it is only co-extensive with the collective body of its members. He argued that a club, to the extent of the totality of its members, may be liable to be sued by a non-member for a wrong done whether in tort or contract by a servant or agent acting within the authority of the club. But, he maintained, the legal proposition that an individual member of an unincorporated club cannot sue his own club is a long established legal principle. The basis for this, he submitted, is that the responsibilities and rights of each of the members and of all of them are equal. This long established legal proposition he argued, has been recognised and accepted by the legislature in the enactments of the Trade Unions Acts and the Registration of Clubs Acts. The analogy with the State is false, he submitted, because the separate legal entity so constituted was created by its individual members to be separated from them for the protection of their pre-existing individual rights. By contrast, he pointed out, the club depends for its existence only upon the rules adopted by the body of its members and any rights and duties are derived only from their adoption. Neither the legal status of an unincorporated body such as a club nor its rules are provided for or governed by statute. In relation to trades unions, according to Mr. Connolly, the contrary is the case. He submitted that the basis for all the speeches in the House of Lords and of Denning L.J. in the Court of Appeal was that the trade union had been given, by legislation, a separate legal entity from the members. In those speeches it was recognised and acknowledged that in the absence of such legislation a member could not maintain an action for damages against his union being an unincorporated association. In relation to the payment by the plaintiff of an admission charge to the dance Mr. Connolly submitted that the collective duties and responsibilities derived from membership of the club could not be changed by such a payment. Even if by such payment the plaintiff came within the legal class of invitee to a part of the club premises he remained nevertheless, by virtue of his membership, in the legal category of invitor. The money payment made by the plaintiff for admission became transferred into the fund in which he was entitled to share so that his essential identity as individual member with the collective membership remained the same, Mr. Connolly submitted.
During the course of argument upon this issue a photocopy of a newspaper report was submitted to me relating to a hearing before me on the 8th May, 1985, of an action by a member of Slade Valley Golf Club named Patrick Nolan against John Fagan and others named as trustees of that club for injuries sustained while in the clubhouse from a gas explosion. During the hearing of that action the case of Prole v. Allen & Others [1950] 1 All E.R. 476 was cited to me. When I enquired if there was any Irish authority I had in mind Lynam v. O’Reilly [1898] 2 I.R. 48 but I could not recall the reference. I do not accept that the newspaper report is a sufficiently adequate or accurate record of what I said. On reference for the purpose of this issue to the court notebook I had in use for the hearing of that action I found a slip of paper on which I had made a note during the hearing as a guide for my decision. I delivered my judgment ex tempore and in doing so reviewed the evidence I had heard and expressed my opinion based upon it but, I believe, more fully than as stated in my own note. That note reads as follows:
“The plaintiff as a member with the defendants of an unincorporated club cannot impose on the defendants or invoke against them any duty in law to the plaintiff by virtue only of such membership distinctive from the legal duties or responsibilities of the plaintiff as a member of such club.
By reason of the legal identification of the plaintiff with the defendants by virtue of their mutual membership of the club the plaintiff cannot maintain the present proceedings against the members of their club or these particular members being the defendants as trustees.
8th May, 1985.”
On the issues of law for my determination on this reference I have had the valuable assistance of the well reasoned and concisely presented arguments of Mr. McMahon and Mr. Connolly. I have also taken time to consider the authorities cited by them in argument. I am not aware of any legislation applicable to the club of which the defendants are representatives which gives it the character of a separate legal person distinct from all or any of its individual members. The action is taken properly as a representative action, and consequently the plaintiff is himself one of the persons so represented. In my opinion this club is a voluntary association of persons having a common or mutual interest not for any financial or commercial gain who have expressed to themselves and to all third parties the terms of their association in their rules. The mere fact of such association does not cast on any one of them liability for actionable wrongs by any other of them. Liability may attach by reason of actions of an agent common to all and acting as such, or by reason of the actions of one of them having the authority in the nature of agency of all. Agency, however, cannot be assumed by reason only of common association and it would have to be established as a fact by any person seeking to rely upon it. The agency, its nature and limitations is to be found in the rules mutually adopted by the members for the purposes of the common interest. It is my opinion that any wrongful action of one member carries vicarious liability for all members to the extent that it corresponds with the common interest; and, to the extent that it is not common to all and is at variance with the rules, the liability remains that only of the individual, subject to express agency, if any. However, if the actions of any member or servant in furtherance of the common interest should occasion actionable damage, the body of members as principals are all equally liable vicariously to the injured party for the entire damage attributable to the harm, but with the right of recourse for indemnity against the wrongdoer. In the absence of express terms no one individual sharing the common interest served by the action of the agent, be he member or servant, can avoid his vicarious liability for the entire damage to the injured party even though contribution might be obtainable under the Civil Liability Act, 1961.
The nature of the actionable wrong upon which the plaintiff founds his claim appears to be the alleged failure of the club to foresee as a reasonable probability the risk of harm to all or any persons including the plaintiff resorting to the dance floor and to take reasonable precautions to protect the plaintiff from such harm. In relation to the existence of this duty I think it matters not whether the person going on to the dance floor was a paying non-member or a non-paying member of the club. The duty of care derives from the nature of the circumstances of the place and its use and the extent to which these, namely, place and circumstances, were under the control of the club. The responsibility for breach of that duty and the liability for the harmful consequences can attach to the club only as a matter of vicarious liability for the wrongful acts or defaults of an agent, whether member or servant. As a member the plaintiff shares equally with the other members the receipts from admission charges and the responsibilities for observing suitable standards of care. These do not change by his contributing to the admission receipts. It seems to me the difference of substance between the paying non-member and the non-paying member is in relation to the matter of taking precautions against risk of harm by control of the circumstances such as suitability of the premises, provision of equipment, supervision of services and staff. By paying for admission the plaintiff did not lose or avoid his share of responsibility in relation to such matters.
Being of opinion as stated above my reply to the questions of law submitted are as follows:
The plaintiff’s action against the representatives of the club for damages for personal injuries alleged to be attributable to negligence in the maintenance and care of the club premises is not (1) maintainable in law by the plaintiff as a member of the club; (2) maintainable in law by the plaintiff being such member and paying to the club a fee for admission to the club’s premises.
O’Brien v McNamee
[1953] IR 86
Davitt P.: Strange as it may seen, the defendant is liable. A child over seven years of age is liable for the torts he commits, provided there is no question of intention involved in the tort and provided that it does not arise out of contract. When the act may or may not be a malicious act, intent may be material. It is then a question whether he wills the
consequences. I
All that is necessary to establish the tort of trespass is that the act should be voluntary.
If a man is sitting on a wall and is pushed so that he falls into someone’s land and therebycommits trespass his act is involuntary and he is not liable in tort; but ifhe is out shooting I and thinks he has a right to be on the particular land, when in fact he has no such right, his I
act is voluntary and he is liable for trespass even though he has no intention of trespassing. It seems to me that if intention is out of the matter, the only question is whether the defendant’s act was voluntary; if it was voluntary, he is liable.
In Stanley v Powell [1891] 1 QB 86, the defendant, when out shooting, fired, and a beater was hit by a ricochet; negligence was negatived on the ground of the act being involuntary. In Clissold v Cratchley [1910] 2 KB 244, the plaintiff had recovered judgment against the defendant. The solicitor for the plaintiff had two offices. The account was paid at the country office, but not to the knowledge of the plaintiff or his solicitor who issued execution. Though there was no intention to do a wrong act, there was a trespass, for the judgment had been satisfied. Accordingly, if the only essential for trespass is that it be
voluntary and no question arises as to whether there is intention or malice, the defendant isliable. There is very little authority, but the textbooks support the liability of an infant insuch a manner. Judgment for plaintiff.
Fleming v Kerry County Council
[1955-56] Ir Jur Rep 71
Maguire CJ: … The trial judge held that [the plaintiff who was aged 9] was capable of contributory negligence but despite objection he asked the jury to say whether in fact she was negligent.
Unquestionably this combination of vehicles being drawn along the public road at a walking pace was tempting to children. In my opinion it is a question for the jury whether the plaintiff in going to play around, catch on to or clamber upon the tar boiler, showed prudence to as great a degree as she could be expected to show it.
For this reason I consider that the learned judge acted properly in leaving the question of contributory negligence to the jury.
In my opinion the appeal fails and ought to be dismissed.
O’Byrne J: I agree. In the case of a person of full age and capacity contributory negligence means a failure to take such precautions for his own safety as might reasonably be expected from a reasonable person placed in the position in which the plaintiff was called upon to act. In such a case, no question arises as to whether the plaintiff is capable of being guilty of contributory negligence.
In the case of a child of tender years there must be some age up to which the child cannot be guilty of contributory negligence. In other words, there is some age up to which a child cannot be expected to take any precautions for his own safety. In cases
where contributory negligence is alleged against a child, it is the duty of the trial judge to rule, in each particular case, whether the plaintiff, having regard to his age and mental development, may properly be expected to take some precautions for his own safety and consequently be capable of being guilty of contributory negligence. Having ruled in the
affirmative, it becomes a question of fact for the jury, on the evidence, to determine :
whether he has fallen short of the standard which might reasonably be expected fromhim having regard to his age and development. In the case of an ordinary adult person the standard is what should be expected from a reasonable person. In the case of a child,
the standard is what may reasonably be expected, having regard to the age and mental development of the child and other circumstances of the case. There may be cases in I which, even in the case of a child, the want of care is so gross that he could not i
reasonably be acquitted of negligence and in such a case it is a matter for the judge to direct the jury on this question. That is not the position in this case, in which, in my view, it was entirely a question for the jury to determine whether the plaintiff fell short of the
standard of care which might properly be expected from her and was, therefore, guilty of contributory negligence.
Flynn v. O’Reilly
[1999] IESC 13; [1999] 1 ILRM 458 Supreme Court
O’Flaherty J.
1. This is an appeal brought on behalf of the infant plaintiff from the judgment and order of the High Court (Smyth J.) sitting in Galway where he tried a personal injuries action brought by Maura Flynn. The action was tried on 30th and 31st October, 1996. The background facts of the accident can be briefly stated. There was a school sports day at St. Colmcille’s National School, Castlegar, Co. Galway on the 21st June, 1990, in a very small field adjacent to the school that measured approximately 64 yards by 33 yards. It was a field that was generally used for hurling and camogie and there was a rule, as far as these sports were concerned, that they should use ground hurling and ground camogie rather than play the ball in the air because there was a low wall and it was undesirable that the ball should go out of bounds so to speak. Mr. Bourke, S.C., has laid some emphasis on that as probably a cause that would lead to the field being somewhat irregular, or cut up or not as smooth as it might be.
2. In any event, on the day in question there were perhaps 90 to 100 pupils taking part in various races that are held on such days, the usual sprints and egg and spoon races and so forth. race which was a running backwards race. But then came along a rather unusual form of The judge came to hold that there were perhaps 15 to 20 in this race mixed between boys and girls. As Maura Flynn, a pupil at the school was going backwards, she said that she felt that her foot got caught on some kind of hole or depression or something in the ground and she fell and she injured not her leg but her left wrist. Miss Flynn was aged about 11 years at the time.
3. She fractured her left wrist. While it did not knit as smoothly as one would have hoped nonetheless she seems to have made a good recovery from the injury and I do not think it would be right to categorise it as a serious or even a significant injury. However, we are not concerned with the injury aspect of the case because the trial judge reached the conclusion that there was no negligence on the part of the school teachers. He took the trouble of going to see the scene of the accident himself and indeed performed an experiment on it. However, he made it clear that that was not going to be evidence in the case.
4. I approach the case by dealing with it thus: the height of the case that the plaintiff mounted in her pleadings, at the trial and indeed on appeal was to say that really this field was somewhat rough and uneven and unsuitable for a backwards running race. Towards the side over, near the wall, it was that much more rough and so forth. Mr. Bourke said that really emerged when the defendant’s witnesses gave evidence. He also says the engineer called on behalf of the plaintiff, Mr. Roche, gave evidence that this was not a suitable venue for a race such as this. Taking, as I say, the plaintiff’s case at its height I am unable to agree that there was any negligence in the case. There must be some risk attached to all forms of sport even the simple games that one might have at such a sports’ day. In a hard-surfaced playground people will come to grief from time to time.
5. That was the very question that was addressed by this Court in the case of Lennon .v. McCarthy , Supreme Court , 13th July, 1996 unreported which is noted in McMahon and Binchy, A Case Book on the Irish Law of Torts at p.182. There the pupil was much the same age as the pupil here and they were engaged in a game of “tig”. The plaintiff was being chased by another pupil in this game of tig and running by a flat fence in a hollow below the yard where a number of trees were growing and there were also some hawthorn bushes. A branch projected out horizontally for seven feet from one of the hawthorn bushes and as they ran along one of the boys pushed the bush and then the plaintiff, in close pursuit, was struck in the eye by the rebounding branch. He sued the manager and the principal of the school for negligence. Ó Dálaigh C.J., for the Court, laid down the standard of care, which was not in doubt, that the duty of the school master is to take such care of his pupil as a careful parent would do for his children. And that when normal healthy children are in the playground it is not necessary that they should be under constant supervision. He went on to say: –
“In effect the Court is being invited to say that a careful father looking into this field would consider it an unsuitable dangerous – -a field for boys of 9 to 10 years of age to play in; that he would, or rather should, foresee that children would be likely to be injured there.
I am wholly unable to accept this view. It is unreal. Its effect would be to proscribe the playing of ordinary simple games like ‘tig’ in the ordinary surroundings of rural Ireland. What happened here was an accident such as is inseparable from life and action and no circumstances exist which would warrant placing responsibility for it on the plaintiff’s school teacher.”
6. This is much the same situation. The history of the field was, everyone agrees, that it was not Wimbledon or Lansdowne Road or Wembley or some place like that, this field was for rather simple games and to adopt the words of Chief Justice Ó Dálaigh it would be unreal to say that a parent would regard this field as dangerous. Indeed the history of the games that had been played and the sports that had been held there did not point to anyone having come to grief in any fashion in the past.
7. The judge in the course of a very careful judgment made a number of findings of fact which are as follows: –
“(1) the race was not run in lanes; (2) the plaintiff was somewhere to the right of her brother in the line up and during the race [in other words he was holding that the plaintiff was not perhaps as far to the margins of the field as she claimed]; (3) the participants were carefully supervised [there is no doubt about that, there were four teachers on duty]; (4) the plaintiff fell but was not seen by Mrs. Ryan to fall – who was running side ways with the participants; (5) I find as a fact and as a matter of probability that the plaintiff was not as far off the centre of the pitch as she thinks and was not on, at or near the periphery of the field, though she was towards it, away from the centre, but not in the position in which she thinks or near the sidewall. Had she been so Mrs. Ryan should and would, for she struck me as a very alert teacher, have seen her fall; (6) the plaintiff says she tripped over something, it was a hole covered with grass of about two inches deep. And that immediately after she fell or before being taken into the school she noticed this.”
8. He went on to hold that it was rather improbable that she might have detected that. He proceeded to say:-
“I find great difficulty in accepting that the plaintiff tripped or got her foot caught in a hole because the motion of running backwards involves a springing movement on the toes and the heels must be raised throughout the running movement.”
9. Well the latter finding is probably the one that is most open to doubt. However, nothing turns on it because even accepting that there was some indentation or some unevenness and accepting that there is some risk attached to people running backwards as opposed to running forwards and that that is more hazardous, nonetheless, do we lay down that that should be forbidden in a way that would prevent children having due freedom to play and engage in sports? We think that would be too strict a rule. It would be to do what the law commands us in assessing negligence not to do, which is to impose standards which are unreasonable having regard to all the circumstances. It would really be to attempt to introduce a rule of absolute liability – which would be to go too far.
10. I do not want to part with the case without saying that the notice of appeal in this case is somewhat deficient though Mr. Bourke fairly enough faced up to this. All that we got were very general grounds of appeal. Counsel for the plaintiff has developed certain aspects of the case and he has done so without objection from Mr. O’Hagan, S.C., and we have been able to deal with them. In future it would be important to try and be as explicit as possible in setting forth the grounds of appeal.
11. I would dismiss the appeal.
Maher (A Minor) v. Board of Management of Presentation Junior School, Mullingar
[2004] IEHC 337
Peart J.
Wayne is now a young boy of about 11 years of age who, almost five years ago at the age of 6, sustained a nasty injury to his right eye in an incident in the classroom of the defendant school, when another boy of the same age, who was sitting at the classroom table opposite Wayne, used a rubber-band as a catapult, while the teacher’s attention was not on him, and propelled his pencil in the direction of Wayne’s face hitting him in the right eye.
Although not discovered until a few days later on examination by an Eye Specialist in Dublin, the fact is that in this incident Wayne suffered a laceration to the cornea and there was evidence of a prolapse into the wound resulting in an irregular pupil. Very fortunately for this young boy, this injury was expertly treated surgically by Mr Donal Brosnahan, and to a large extent there is relatively normal vision with improbable adverse sequelae in the future apart from some watering of the eye which is likely to remain. It is also evident on a close examination of the eye that the pupil itself is somewhat oval or elliptical in shape rather than round or circular, but it is not in my view disfiguring to any great extent when viewed other than closely. I will if necessary deal in more detail with the medical evidence; but it is first necessary to deal with the question of whether the defendant school has been negligent at all. Liability is in issue.
For that purpose I will set out in summary form the relevant evidence which was given to me yesterday.
Having satisfied myself that Wayne understands what it means to take an oath and give sworn evidence, he gave his evidence in a very sincere manner and I completely accept, especially given that this incident occurred almost five years ago – a very long time within a life of only eleven years – that he has given his evidence truthfully as he remembers matters now, and sincerely. Neither did he attempt to distort or exaggerate what might have happened. That is in spite of the fact that in some respects I believe that his recall of this day is not clear, which is understandable, and that in some instances I accept the version of events as given by adult witnesses called for the defendant. If I may be allowed to say so, I believe that Wayne acquitted himself admirably given his age, even under an understanding, yet at times firm, cross-examination, in what for him must have been a very formal and formidable court environment, and over a period of at least one hour, and possibly more.
A summary of the evidence:
Wayne entered first class in this school in September 1999. This is a class of between 25 and 30 children in the charge of a young teacher, Ms. Shaw. The class of 1999 was her third such class in this school. She had finished her teacher training in the summer of 1997, whereupon having spent about eight weeks at a school in Swords, Co. Dublin, she commenced as a teacher in the defendant school in 1997.
The school day starts at about 9.30 and ends at about 3pm. There is a short break taken at about 11.15am during which time the children go out to play for a while and return to the classroom at about 11.15am, whereupon they are allowed to have a small drink and biscuit snack. When that has concluded the children tidy away their lunch boxes, clear their desks, and class resumes until lunchtime.
On this day, Wayne was brought to school as usual by his mother’s sister whose own children are also pupils in the school, but I do not understand any of them to be in Wayne’s class. She also picks him up again at 3pm and brings him back to her own house until about 7.30pm when he is collected from there by his mother after her work. That is what happened on this particular day also.
In the classroom there are three rows of tables, as opposed to individual desks, at which about five pupils sit on each side facing each other. Wayne occupied habitually a seat which was second in from the left of the table closest to the classroom door. He therefore had a classmate on his left, and another to his right, and others further down to his right. Others were seated at the opposite side of the table, including the boy who caused the injury. That person was seated immediately opposite him. Each table appears from the photograph to be about four feet in width, being therefore the distance Wayne was from the boy who caused this injury.
He says that at some time after the short morning break had ended and the class had resumed on this particular day, but before the lunch break, a person whom he believes to be another teacher called Ms. Brennan, who teaches the class just beside and adjoining his classroom (but who the defendants say in fact was a Special Needs teacher, Ms. Fitzsimons) came into the classroom. He would have been a matter of a few feet away from them, being seated near and facing the door. He says that while Ms. Shaw was speaking to this person near the door, he was looking away to his right. He heard the boy opposite him say “Look!”, whereupon he turned back and was immediately hit in his right eye by a pencil which had been propelled towards him by this boy with the aid of a rubber-band which he had in his possession. He said that just before that this boy had been playing with his pencils which he had removed from his pencil case when the other teacher came in.
Wayne says did not shout out or make any noise which drew Ms. Shaw’s attention to what had happened to him. He stated that he was not crying after it happened. It was the classmate sitting just to his left who went up to Ms Shaw after the other teacher left, who told Ms Shaw what had happened. He stated that it was very painful at the time, and that his eye was watery and his vision was blurred. He just remained in his seat holding his hand to his eye. He stated that Ms Shaw came over to him and asked what happened. He told her, but according to his evidence, she did not look into his eye at the time. Her evidence differs in this respect. He also thought that Ms. Brennan was still in the room at this time, but that when she had left, the class continued. He says that he was told to go and see the principal, Sr. Angela, and when he did so, Sr. Angela asked him to open his eye but did not treat him in any way. He says that he went to Sr. Angela on his own.
This is an area of the evidence where I cannot rely on the version of events given by Wayne. That is not because I think he is being untruthful, but having heard the evidence both of Ms Shaw and Sr. Angela, I have no doubt that on the balance of probabilities, their evidence is the more likely to represent what actually happened after the incident. I believe that for an 11 year old to remember back nearly half his life span is an almost impossible task, and that while of course he would remember reasonably clearly the moment of the injury, he could not be expected to recall with exactitude all the other less memorable events in the aftermath of the incident. As I have said and am at pains to stress, this is no criticism of Wayne. He has done his very best to be as exact as possible in his recollection, but where that evidence is disputed by a version of events which seems completely likely, plausible, and probable, I accept the latter.
As it happens, nothing much turns on what exactly happened after the incident, as there is no part of the subsequent events which has been alleged to have contributed in any way to a worsening or indeed improvement of the injury. It is simply what happened up to that point in time which is relevant as far as the issue of liability is concerned. But I believe it to be fair to the defendant and its witnesses that I say what their evidence was in this regard.
Ms Shaw stated that the teacher’s desk and the cupboard in the classroom were not in fact in the position described by Wayne in his evidence. Nothing in particular turns on this, except in so far as it suggests that Wayne’s recall of everything is not completely clear and accurate. She also stated that there was in fact a second door in this classroom which gave access directly from her classroom into the adjoining classroom in which Ms Brennan taught her class. She says that she could recall the day in question, and that during the morning, as was normal, Ms Fitzsimons had come into the classroom in order to take out a number of pupils for some special tuition by way of learning support. It took about ¾ minutes to do this according to Ms. Shaw. After Ms Fitzsimons had departed a boy brought to her attention the fact that Wayne had been hurt. She could not recall exactly which boy reported it to her. She says that she went down to Wayne, and decided to bring Wayne and the other boy who had fired the pencil, to Sr. Angela. She says that she went to the next door classroom and asked Ms Brennan to keep an eye on her class while she went to Sr. Angela. They all went downstairs to Sr. Angela. She wanted her to look at Wayne’s injury and wanted the other boy to receive a reprimand from the Principal. She says that Wayne sat down and was asked to open his eye and it was watering a bit. After the reprimand had been administered to the other boy, all returned to the classroom and resumed their seats as normal. Ms Shaw also says that at 3pm, she waited to tell Wayne’s older sister what had happened. His sister was in the habit of bringing Wayne out of the school to the car in which his aunt was waiting outside.
I should just add that it has been alleged that when Wayne’s aunt had a conversation with Ms. Shaw a few days later after Wayne had been seen at the Eye and Ear Hospital by Mr Brosnahan, Ms Shaw has stated that this other boy was “very hard to mind” and “kind of hyper”. Ms. Shaw has denied ever saying this, and says that it would not even be true, since the boy in question was a normal enough six year old. She also said that if she had a difficult child she would bring him down to Sr. Angela, but that this occasion was the first and only occasion on which she had brought this particular boy to Sr. Angela to be reprimanded.
Ms Fitzsimons also gave evidence briefly and stated that she was what is now known as a Special Needs Teacher, and that some pupils in the school would be identified at the beginning of the year as needing extra tuition, and that she would during the course of a day collect pupils from the different classes and at different times. She would collect them from the classroom, and at the end of the tuition session, would leave them back to their classroom. She said that on these occasions there might be some brief conversation with the teacher – perhaps telling that teacher of some problem or even some breakthrough, with a particular pupil. This would not happen very often according to Ms Fitzsimons. She could not recall any particular incident involving Wayne.
Sr. Angela also gave evidence and I should just set this out briefly. She recalled this day. She recalled looking at his eye when he had been brought down by Ms Shaw, and formed the view that it did not require any medical attention at that time. It was normal procedure for her to contact the parents of any child who was injured, if she deemed it to be necessary, but this injury did not seem to her to be serious. She recalled using a tissue to dry out the eye which was watery, and she then told him to return to class and rest his eye and not to work too hard. She also had a few words with the other boy who had caused the injury. She also stated that this was the first and only time that this boy had been brought to her to be reprimanded.
Sr. Angela also stated that it was against the rules of the school and the classroom for children to bring rubber-bands into school. She stated that parents would be aware of these rules, but I am not exactly clear as to how the rules are communicated to the parents and the children. In any event she says that the rule is that only what is needed in the classroom is allowed, and that if a rubber-band is seen it would be confiscated.
Going back to the evidence adduced by the plaintiff, there was also evidence from Wayne’s mother, and her sister, as well as evidence from Dr Eileen Doyle who is an expert in matters related to school management. She was giving her views on the situation in the classroom on this day and what happened, and that is very relevant evidence as far as the issue of negligence is concerned in this case and I shall return to it in a moment.
I will not detail all the evidence given by Wayne’s mother as most of it relates to the care which Wayne received after she came home that evening and after she brought Wayne to the doctor. She had got a message from her sister after Wayne had been collected to say that he had received an injury but she did not get the impression at that time that it was serious. In fact it came, very understandably, as a tremendous shock, when Mr Brosnahan told her on the following Tuesday that it was a serious eye injury requiring immediate surgery. Mrs Maher reacted as any caring mother or father would on hearing this news and was very upset and stressed. She remained at the hospital with Wayne for the four days he was required to be detained. But she said at some point of her evidence that she had been upset that the school should have rung her to find out how Wayne was, and also that the class did not send a card to him and so on. However, understandable as such feelings are, they are not something which I need to consider as part of my judgment. Mrs Maher also said that after Wayne came back from hospital, she had gone to the school – not for the purpose of making accusations, but just to find out what had happened. She says that she spoke to Ms Shaw and Sr. Angela. Ms Shaw recalls speaking to Mrs Maher but does not recall speaking Wayne’s aunt who said she had called to the school on the Tuesday after the incident and spoke to her at the door of the classroom. That is a conflict of evidence which is both difficult and unnecessary to resolve.
The evidence of Dr Eileen Doyle:
She stated that she had been a teacher, as well as a trainer of teachers, and had significant experience in the management of schools. In relation to the latter she had been on Boards of Management of schools, and had also some involvement at a national level in relation to school management matters.
She confirmed that she was contacted by the plaintiff’s solicitors, and the facts of this case had been outlined to her. She had spoken to Wayne for the first time yesterday. She had been told the facts as they are set forth in the Statement of Claim. She opined that the standard of care in the classroom would vary depending on different circumstances. She also said that there can be some variation between what would be regarded as ideal, and what actually happens in practice in different situations and at different times, and that the younger the child the greater the onus to be vigilant, and that it was essential that there be constant and appropriate supervision of young children. In relation to the dangers posed by a child having a rubber-band, she stated that this was a potentially dangerous object, and that it would be appropriate for the teacher to go down to the child who had it, and remove it quickly.
Dr O’Reilly also expressed the view that the presence of a second teacher in the classroom would make more difficult for the class teacher to be in total control.
Dr O’Reilly was cross-examined by Mr Fox for the defendant. She was able to confirm that the school times of 9.30am until 3pm was normal, including the short morning break and a lunch break. She said that it was a good idea for children to be able to go outside and play during break times, although she mentioned that this was becoming more difficult nowadays because of litigation arising sometimes. She also confirmed that having one teacher in charge of 25-30 children in a class was satisfactory – in fact she said that it was a much smaller ration than in many city schools. She expressed the view that there was nothing problematic or inappropriate about having the teacher’s desk and a cupboard in a class of this kind, even though that would mean that from time to time a teacher’s back would be turned away from the pupils. She also felt that the seating arrangements in this classroom were satisfactory. She was asked if it can happen that another teacher would come into the classroom. She replied that it can be a worry that supervision can be adversely affected by another teacher being in the room, and that if another teacher needs to chat to a teacher, it can normally take place outside the classroom. She was asked specifically if it was normal or usual for a remedial teacher to come into a classroom to take out pupils for tuition, and she stated that the practice varies in this respect, and that in some instances the pupils would leave the class and go to the remedial teacher rather than the reverse. She accepted that it was not an unusual practice for the remedial teacher to call to the classroom in order to collect such pupils, as happened in the present case. She was asked in the particular circumstances of this case how a teacher in a class could be expected to watch each child all of the time, and trainee teachers were often told that they needed eyes in the back of their heads. She was asked how could a teacher have stopped this boy doing what he did with the pencil, and she stated that it could only have been prevented if the teacher had been watching that pupil all of the time.
Conclusions on the issue of liability:
Firstly I am satisfied in relation to the facts of the case that this was normal class of six year olds and that there is no evidence that there was any particular or unusual or special difficulty as far as the known behaviour of these children is concerned. I am sure that they were no better and no worse than any other such group. I am also satisfied from the evidence which I have heard that it was entirely appropriate that one teacher should be in charge of this class. Indeed it is normal for much larger numbers of pupils to be in the charge of a single teacher. There is also no doubt as far as I am concerned that what happened on this morning happened ‘out of the blue’ so to speak, and that the boy in question was not known to be difficult to any special or abnormal extent. Ms.Shaw’s evidence, which I accept, the more so since it is confirmed by Sr. Angela, is that this was the first and only occasion on which she had to have him reprimanded by Sr. Angela. Wayne has given his evidence completely truthfully and honestly and has said that this boy, while the teacher was talking for a short time to another teacher (who, by the way, I accept on the balance of probabilities, must have been Ms. Fitzsimons) simply took a pencil from his pencil case and, using a rubber-band which he had somewhere either on his person or in his pencil case, propelled it into Wayne’s right eye, causing him a serious injury, but one from which luckily he has substantially recovered. I am satisfied that there was no warning that this might happen as far as Ms. Shaw was concerned. Even though it is a school rule that rubber-bands are not to be brought into school, it is not a reasonable imposition on teachers to search thoroughly the pupils of a class to ensure that an object such as a rubber-band is not secreted either in their clothing or in their schoolbags. I am satisfied that this was just something which happened without warning and suddenly while the teacher’s attention was elsewhere.
The question still remains whether what happened could be classified as negligence on the part of the school. It is pleaded in the Statement of Claim in this regard that that the school failed to provide the plaintiff with the means by which to avoid unsupervised contact with the other pupil. I am not quite sure what this is intended to mean. It is also pleaded that the school failed to provide the plaintiff with adequate protection from the pupil, and from assaults on the school premises, failed to any or any adequate precautions for the plaintiff’s safety while in the classroom, and exposing the plaintiff to risk of damage or injury which they knew or ought to have known. There are other pleas in the usual form for cases of this nature, including that there was inadequate training for teachers in school in relation to the supervision of children in the classroom. In my view the evidence does not support these pleas, including the evidence of Dr O’Reilly which I have referred to. I am left with the overall impression that this classroom was conducted in a perfectly normal way, and a way which does not fall short of reasonable standards for such classrooms, and I believe that this is the view of Dr O’Reilly also, who accepted that this teacher would have needed eyes in the back of her head if this incident was to be prevented. She also said that it was not unusual for the remedial teacher to call into the classroom for the purpose of taking out pupils in need of tuition. I am satisfied that while she stated that it was also the practice that pupils would leave the classroom and go to the remedial teacher, it was normal and usual for the reverse to occur. She expressed no actual criticism of that practice happening.
Mr Aidan McGovern SC highlighted the fact that Ms Shaw had not seen the rubber-band in question before this incident took place, even though it is clear that it must have been there. He said that the evidence was that this boy had taken his pencils and the rubber-band out of his pencil case and that she ought to have seen it. She has said that she did not. He submits that therefore that her level of supervision was not adequate in the circumstances of this case, and that had she seen the rubber-band it would have been confiscated and the injury would not have occurred.
Mr Finbarr Fox SC for the defendant on the other hand has submitted that the standard of care to be imposed on a school teacher is the standard of the prudent parent, and that it is a duty to take reasonable care. He says that this was a well behaved class and that the presence of Ms Fitzsimons in the classroom for the time she was there is not relevant. He submitted that the evidence showed that there was no suggestion of misbehaviour in the classroom, and that what happened was simply a sudden act which could not have been anticipated.
Mr McGovern referred the Court to a judgment of Mr Justice McCracken in the Supreme Court in Murphy v. County Wexford VEC, unreported, 29th July 2004, in which at page 5 thereof, where the learned judge states as follows:
“Quite clearly, school authorities are not insurers of the pupils under their care. However, they do owe a duty to those pupils to take reasonable care to ensure to ensure that the pupils do not suffer injury. To do this, some degree of supervision is clearly required. The extent of such supervision will depend on a number of factors, for example, the age of the pupils involved, the location of the places where the pupils congregate, the number of pupils which may be present at any one time, and the general propensity of pupils at that particular school to act dangerously.”
I respectfully agree with this. Mr McGovern however calls these words in aid of his submission that the vigilance required in respect of a class of six year olds is a heightened one given their young age, and that in the case of older children, the degree of supervision required would be somewhat lower. In the present case, I believe one must look at the actual situation in this classroom on this morning. Ms Shaw had been teaching these children for a couple of months by the time this incident occurred. No doubt she had got to know those in her care. She says in particular that the boy who hurt Wayne was a normal child and that she had not had to send him to Sr. Angela to be reprehended on any occasion before or after this incident. One has to ask what Ms Shaw, or the school itself could have done to ensure to any absolute extent that this incident would not occur. I am of the view, as I have said, that in order to provide any additional insurance against such an occurrence, it would be necessary to search each child’s person and schoolbag upon arrival, and that is an unreasonable burden and one not required in my opinion in discharge of the duty of care owed by the school to its pupils.
It goes without saying that there is a duty to be vigilant to an extent that is within the bounds of reasonableness. That involves a measure of supervision appropriate to the needs of any particular situation, and some factors to be taken into account in the passage appear in the judgment of McCracken J above. But for a breach of that duty of care to occur, there must exist in addition to the relationship of proximity (which clearly exists in the case of a school and pupil) the requirement of foreseeability. In the present case that means that before the defendant school can be liable, the Court would have to be satisfied that it is reasonable that Ms Shaw should be expected to anticipate that the moment she turned her back (not literally) on the class in order to have a very short conversation with Ms Fitzsimons at the door of the classroom, it was probable or likely that some behaviour would occur which would cause injury to one or more of the pupils in her charge. I do not believe that the evidence supports the submission that she ought to have foreseen that this might happen. There can of course be situations in any school where the school is well aware of potential dangers, where for example there has been a history of disruptive and even violent behaviour on the part of a pupil or a group of pupils. Bullying would be a case in point. The duty of care on a school in such circumstances would extend to taking appropriate account of these known circumstances when deciding on the appropriate level of supervision in the school, perhaps particularly during break or recreation periods when pupils are outside the more controlled environment of the classroom.
It has been said that the standard of care required in school is that of a prudent parent. The school is said to be ‘in loco parentis’. In other words, the school is expected to be no more and no less vigilant of those in its care than a prudent parent would be in his or her own home. In any normal child, if there be such a creature, there is always a certain propensity for horseplay and high spirits. Indeed, if it were not so, there might be some cause for concern. It is inevitable that in the ordinary rough and tumble that is part and parcel of the daily life of a six year old child, cuts and bruises will occur. I am not equating what happened to Wayne as coming within the category of unblameworthy conduct on the part of his assailant. But I am asking, albeit rhetorically, if it can be reasonably said that if a group of children are playing at home in the garden and a neighbour’s child falls while being chased by the others in a game of ‘tig’ while the supervising parent is in the kitchen boiling a kettle, that parent has been negligent in a way that renders him/her liable in damages for the injury? I do not think such a situation can amount to negligence. Again, I ask rhetorically, is there any reason why if the same situation occurred in school as opposed to at home, the school should be any more liable if there is supervision provided which reasonably meets the needs of the particular situation? I think not.
It is perfectly understandable that a parent of an injured child should wish to seek redress for the injury on his behalf. But it must be remembered that simply because an injury takes place in a school does not mean that the school management or any individual teacher has been negligent. Negligence must be established, and in this case I find no such evidence.
It is with great regret as far as the plaintiff is concerned that I must find that the case of negligence against the defendant school has not been proven, and in those circumstances I must dismiss the claim.
Murphy v. County Wexford VEC
[2004] IESC 49 Supreme Court
McCracken J.
This is an action by a pupil against his school authorities for damages for personal injuries suffered by him during a lunch period in the school on 7th May 1998. At the time of the accident the Plaintiff, who was 16 years of age, was with a number of other students in what was known as the recourse area, where 5th and 6th year students could go during the lunch period. There were about fifty students in the area at the time, and one of them produced a bag of chocolate bars which he offered to share. Apparently the bag had burst and a good deal of horseplay then ensued during which a number of the pupils, put by the Plaintiff as about nine, started throwing the bars around the room at each other. The Plaintiff in evidence said that this went on for about ten minutes, although the learned trial Judge felt that that was probably an overestimate. In the course of the horseplay, one of the bars struck the Plaintiff in the eye causing him serious injuries. There had been no supervision of any kind by the Appellants on that day in the area where the incident took place. The learned trial Judge found that the school had been negligent and awarded the Respondent the sum of €50,000.
In its defence, the Appellants pleaded contributory negligence on the part of the Respondent. In opening the case, Counsel for the Respondent said:-
“The plaintiff himself will concede that he may have thrown one or two himself during the period leading up to the injury. He will freely concede that.
He also said:-
“A full defence is being delivered, including an allegation of contributory negligence alleging that the plaintiff himself indulged in excessive horseplay. I don’t think the plaintiff will dispute that, as I’ve already said in my opening.”
In fact in giving evidence the Plaintiff did dispute that he had indulged in excessive horseplay. He said that he did not throw a chocolate bar at anybody, although he threw one onto the ground. He also said that he moved into the window sill to try to avoid the bars.
The only other witness called on behalf of the Respondent was another pupil, a Mr Kevin Keane. He gave evidence of taking the Respondent to the Principal’s office after he had been injured, and that he did not come across any teachers until he got to the Principal’s office. He was not cross-examined as to how far the Respondent had taken part in the horseplay.
At the end of the Respondent’s evidence, Counsel for the Appellants applied for a direction, and stated that he was not going to go into evidence. As a result, the only evidence which the learned trial Judge had before him was that of the Respondent and of Mr Kevin Keane. From the evidence of these witnesses it emerged that about two years before this incident the Appellants had introduced a supervision rota system, whereby the school was divided into four areas, each area to be supervised by a teacher during lunch hour. This arose because there had been serious incidents in 1996 in which there had been fights in the school which had resulted in some twenty pupils being expelled. After the rota was introduced, it appeared to work efficiently, and the Respondent’s evidence was that there was reasonably good supervision, but there were still fights in the school.
Both parties accept that the duty of care owed by a school is correctly set out in Lennon v. McCarthy & Anor, an unreported judgment of the Supreme Court of 13th July 1966, in which O’Dalaigh CJ said:-
“The duty of a school master is to take such care of his pupils as a careful father would of his children (per Lord Esher MR in Williams v. Eady [1893] 10 TLR 41). But when normally healthy children are in the playground it is not necessary that they should be under constant supervision: Rassthrane v. Ottley [1937] 3 All ER 902.”
Counsel for the Appellants also relied on the decision of Laffoy J in Flesk v. King (unreported 29th October 1996), in which she said that:-
“The Irish authorities established that the law does not require children in the school playground to be under constant supervision and watched at every instance.”
Quite clearly, school authorities are not insurers of the pupils under their care. However, they do owe a duty to those pupils to take reasonable care to ensure that the pupils do not suffer injury. To do this, some degree of supervision is clearly required. The extent of such supervision will depend on a number of factors, for example, the age of the pupils involved, the location of the places where the pupils congregate, the number of pupils which may be present at any one time, and the general propensity of pupils at that particular school to act dangerously.
The evidence shows that in the Appellants’ school there had been serious disciplinary problems, following which the Appellants considered it necessary to ensure that a teacher was present in certain specific areas, including the area where this incident took place, during lunch hour. It must be made clear that the question is not what the Appellants considered necessary, but what is objectively necessary to comply with the Appellants duty of care. However, the undisputed evidence of this case is that there had been problems which had resulted in twenty pupils being expelled, that following the introduction of the rota system the supervision was reasonable, and that for some unexplained reason the rota system did not operate on the day in question, and there was no supervision. It is also the undisputed evidence of the Respondent that, had a teacher been present, the horseplay which resulted in his injury, would not have been allowed to take place.
The learned trial Judge expressed his view as follows:-
“In the absence of any explanation and in the presence of this schedule I have to take the view that the school decided …. The school is of the opinion that there should be supervision, that there was not supervision, that had there been supervision this incident would not have taken place. In those circumstances, and again I say in the absence of … this would have been a circumstance in which the school could have explained and possibly explained to my satisfaction, but in the absence of such explanation I have to find for the plaintiff.”
While the learned trial Judge can certainly be criticised for emphasising what the school had decided, the fact remains in my view that the undisputed evidence before him could only lead to one conclusion, namely that there had been a need for supervision, supervision had taken place on a consistent basis with considerable success, but that on this occasion, such supervision was not present and this unfortunate incident took place. The learned trial Judge was perfectly entitled to reach the conclusion, which was supported by the Respondent’s own evidence, that the incident would not have taken place had there been proper supervision. I am of the view that the particular circumstances of this case, and the history of indiscipline in the school, imposed a duty of care on the Appellants to provide supervision at lunch time in accordance with its rota system, and that the failure to do so constituted negligence on the part of the Appellants.
I am also of the view that there is no evidence of contributory negligence on the part of the Respondent. The learned trial Judge must decide the case on the evidence before him, and not on concessions possibly made by the Respondent’s Counsel in opening the case.
Accordingly, I would dismiss this appeal and confirm the decision of the learned trial Judge.
Fennelly J.
This is an appeal from the judgment and order of de Valera J awarding €50,000 to the plaintiff for an eye injury sustained at school. The appeal is confined to the liability issue.
At the outset of the hearing counsel for the Appellant said that the trial had been unsatisfactory, but conceded that this was the responsibility of the Appellant. It appears that counsel applied for a direction and stood on the application, when it was refused, i.e., did not call any witnesses. In fact, it appears that any witnesses had been allowed to leave. In effect, the case was heard on the Plaintiff’s evidence.
The plaintiff, who was sixteen at the time, was in fifth year at the VEC School at Enniscorthy. The plaintiff and his class were in the recourse area, an area for students to congregate before teacher arrived for the afternoon classes. This was at lunch time, a period from 12:50 to 13:40, on 7th May 1998. This area was reserved for fifth and sixth class students. There were about 50 students in the area. One of the plaintiff’s companions arrived with a packet of chocolate bars which he offered to everyone. The packet burst; there was a suggestion that the bars were out of date and that the other students did not want them. Whatever the reason, bars started to be thrown about. About nine people were throwing bars. The plaintiff’s description was:
“Well, basically, it escalated there was bars being thrown around the resource area. They were hitting off the lockers and some were hitting the windows. One actually hit me before the accident actually happened. It basically got out of hand.”
Probably correctly, the learned trial judge thought the “ten-minute” description a bit exaggerated.
The plaintiff was struck in the eye by one of the bars and sustained the quite serious injuries which warranted the award of €50,000. He said that he was sitting at the window beside one of his friends waiting for the teacher. He said: “A bar came from the left hand and struck me in the eye.”
The liability of the Appellant depends on the issue of supervision. The plaintiff said, in evidence, that there was normally supervision, but that there was none on the day. The Appellant had made discovery. The discovered documents were admitted and showed that there were four teachers who were supposed to supervise four different areas at lunch break. One of these was the resource area. The uncontradicted evidence was that there was no one supervising the resource area on the day in question.
There was some evidence to suggest that, at an earlier stage, there had been a history of quite severe fighting in the school, which led to the introduction of the rosters. The plaintiff said that there was then a full regime of supervision. “Everyone knew that if someone did something wrong there would be a teacher down on their back in minutes or seconds.”
The totality of the evidence for the plaintiff was that of the plaintiff and of one of his sixteen-year old companions, one K Keane who merely confirmed that he saw no teacher in the area at the relevant time and that the build-up of the horse play lasted only a few minutes.
The plaintiff called no other evidence, and, in particular, no expert evidence. However, it is clear that the principal, if not the sole, plank of the plaintiff’s claim on supervision was that there was a roster of teachers who were supposed to supervise the various areas of the school, including the senior resource area, at lunch break. This case was based on admitted documents produced through discovery. At any rate, there was no objection to the plaintiff’s use of these documents. Moreover, it was not disputed, through cross-examination, either that, in accordance with the roster, a teacher was assigned to supervise the area or that there was no teacher in the senior resource area at the relevant time.
In these circumstances, counsel for the Appellant applied for a direction and, at the same time, made it quite clear that, in the light of the evidence of the plaintiff, he would not go into evidence. Having cited to a number of the leading relevant authorities on the standard of care expected of school management, to which I will refer later, he submitted that the defendant (i.e. the Appellant) had no case to answer. It is clear, therefore, that the Appellant invited the learned trial judge to decide the case on the evidence before him, but by reference to the authorities cited to him.
The learned trial judge commenced by saying: “we all have experience of this sort of thing.” He continued:
“In this matter what concerns me, what I take note of, is that the school authorities themselves obviously had come to the conclusion, because of the schedule that has been discovered, that it was necessary to have lunchtime supervision for this area and they scheduled a teacher to look after that supervision.
The incident that occurred, and I have to say that things have changed since my time, if there was a packet of chocolate biscuits brought into my school the fight would have been to get them not to throw them away, but if there had been a teacher supervising, if there had been a supervisor, I have no doubt that they would have at least taken steps to control the situation.
I accept that 10 minutes is probably an exaggeration but it is probably an exaggeration of the length of time this was taking place, but is a perfectly understandable, perfectly normal sort of situation, other than my comment about fighting to get them rather than to give them away. It is a perfectly understandable situation which could be controlled by a teacher and probably would have been controlled by a teacher. I am told that the school took the view that there should be supervision by a teacher.
Now, in the absence of any explanation it may well be that the school could explain the situation and could explain it to my satisfaction, but there is nobody here from the school and I wasn’t asked for an adjournment. Had I been asked to adjourn this matter because teachers were not in a position to attend in the circumstances I would have given it sympathetic consideration, subject to anything Mr Doyle might have said.
In the absence of any explanation and in the presence of this schedule I have to take the view that the school decided – the school is of the opinion that there should be supervision, that there was not supervision, that had there been supervision this incident would not have taken place. In those circumstances, and again I say in the absence of – this would have been a circumstance in which the school could have explained and possibly explained to my satisfaction, but in the absence of such explanation I have to find in favour of the plaintiff”.
That is the entirety of the learned trial judge’s ruling on the legal issues which had been addressed to him. He did not refer in any way to the legal submissions which counsel for the Appellant had addressed to him. Nor did he identify the nature of the duty of or the standard of care. It is appropriate to refer then to those cases.
Firstly, counsel had referred to the ex tempore judgment of Laffoy J in the case of Flesk v King (High Court, Unreported 29th October Act of 1996). In that case, Laffoy J had held: “The Irish authorities establish that the law does not require children in the school playground to be under constant supervision and watched at every instant.” Laffoy J had relied on a passage from McMahon & Binchy on The Irish Law of Torts. Counsel referred to a similar passage, possibly from a later edition. Secondly, counsel then referred to the unreported decision of this Court in Lennon v McCarthy (unreported 13th July 1966), which, he stated, supported the proposition that “when normally healthy children are in a playground it is not necessary that they should be under constant supervision.” Thirdly, counsel relied, to similar effect on the English decision, cited by O’Dalaigh C.J. in Lennon v McCarthy, of Rawsthorne v Ottley and others [1937] All ER 902, where Hilbery J, presiding at the Manchester Assizes, held that: “…it is not the law and never has been the law that a schoolmaster should keep boys under supervision during every moment of their school lives.”
The authorities so cited by counsel addressed the standard of care, which objectively, lies upon school authorities in respect of their duty to safeguard pupils under their care. The standard is, as stated by O’Dalaigh C.J. “to take such care of his pupils as a careful as a careful father would of his children.” While counsel for the defendant did not articulate the standard in those express terms, he cited a number of authorities all of which were based on that proposition.
Counsel for the plaintiff, in reply, quoted, without apparent objection, from the affidavit of discovery sworn on behalf of the Appellant and stated: “That is their own system, that is what they have sworn on affidavit is the regime of supervision to which they aspire and which they aspire in their in their school.” Later, he said:
“The defendants’ own system, as they have admitted, is that they have somebody supervising every day the senior resource area; that is their system. They have singularly and very obviously failed to live up to that system….”
In reply, counsel for the plaintiff referred again to the judgment of Hilbery J referred to already regarding the standard required by the law.
In one sense, counsel for the Appellant took somewhat of a risk in not going into evidence. That aspect of the case, as counsel conceded, was something for which responsibility lies entirely on the Appellant, which cannot now complain of its failure to call witnesses who could have been made available. However, the Appellant was entitled, in my view, to expect that the learned trial judge would give a ruling based on the authorities cited to him and on the applicable legal principles. The learned trial judge chose, instead, to decide the case exclusively, as he was invited by counsel for the plaintiff, on the basis that, since, the school had adopted a roster for supervision, adherence to that standard had to be taken as the appropriate standard of care for the purpose of deciding the case. In my view, that was a mistaken approach. It substituted a new subjective approach test for that ordained by the law. The implication is that, if a schoolmaster takes an excessively cautious view, and makes provision for total and absolute supervision of pupils during every moment of the school day, the school will be liable for any departure from that standard. I do not think the school should, in law, be liable for departure from a standard not required by the law. Yet, that seems to be the consequence of the decision of the learned trial judge in this case.
Because of his reliance on the school’s own roster, the learned trial judge failed entirely to address the appropriate legal standard of care. He not only made no reference to the cases cited to him but he failed to identify any objective standard of care.
Counsel for the Appellant argued at the hearing of the appeal that the learned trial judge took a leap by applying the roster and that the result was that he applied a standard which was contrary to the authorities and which required constant supervision. I agree with this submission.
For this reason, I would allow the appeal, but in circumstances where the learned trial judge did not rule on the matter in accordance with the submissions, there should be a retrial.
Mark McGroarty v Diarmuid Kilcullen
, Stephen McCormack Care of Cobh Golf Club, Mimi Stack Care of Cobh Golf Club, Christopher Stack Care of Cobh Golf Club and Tony McKeown
2017/4157P
High Court [Approved]
28 October 2021
unreported
[2021] IEHC 679
Ms. Justice Niamh Hyland
October 28, 2021
JUDGMENT
Summary
1. On 5 June 2015, the plaintiff, a scratch golfer, lost his left index finger while assisting with building works at Cobh Golf Club (the “club”), due to negligence on the part of the defendants. The defendants, all trustees of the club save for the fifth defendant, owed a duty of care to the plaintiff and their negligence caused the plaintiff’s injury. However, there is a significant dispute about liability in circumstances where the accident took place on the premises of a golf club. The defendants allege the plaintiff was a member of the club and as such cannot sue the other members of the golf club (represented by the first to fourth defendants).
2. The plaintiff argues that he was not a member at the time of the accident due to his subscription not having been paid up at the time prescribed by the constitution of the club and, as such, is entitled to recover as against the defendants.
3. I have concluded that the constitution of the club, properly interpreted, requires that a member’s subscription is to be paid by 31 January each year, failing which membership shall be deemed to be terminated. It is true that the practice of the club was to ignore this rule and to treat persons, including the plaintiff, as members even where the subscription had not been paid. Indeed, in this case, the plaintiff entered club competitions and represented the club on teams playing interclub tournaments, although he had paid only a small part of his subscription by 31 January 2015.
4. However, following the decision in Dunne & Ors v Mahon & O’Connor[2014] IESC 24, the rules of clubs cannot be taken to be altered by implication, including by the practice of a club, in circumstances where those rules represent a contract between all of the members and where the members commit their efforts and resources to the club on the basis of the rules as they exist at the time of joinder.
5. The club’s acceptance of a payment by the plaintiff (such payment being less than the subscription amount) after the termination date does not alter the situation. There was no evidence that the club had reinstated the plaintiff after his membership was terminated, or that this payment was a reinstatement payment. Nor was there any evidence of a waiver by the club of its requirements in relation to payment of the subscription.
6. Accordingly, I find the plaintiff was not a member of the club at the relevant date and is therefore entitled to recover as against the defendants.
Pleadings
7. The personal injuries summons delivered on 29 May 2017 sets out the plaintiff’s claim for damages for negligence, breach of duty, breach of statutory duty and/or breach of contract. Particulars delivered on behalf of the plaintiff plead, inter alia, that the defendants failed to provide a safe place and system of work, that they failed to adequately assess the risks involved, act on them or warn the plaintiff about them and that they unnecessarily exposed him to those risks. Failures are pleaded in relation to the number, competence and supervision of staff, as well as failures to comply with the Safety, Health and Welfare at Work Acts 1989 and 2005 and the Occupiers’ Liability Act 1995.
8. The particulars of the claim against the fifth defendant reproduce many of the pleas as against the first to fourth defendants. In addition, it is pleaded that that the fifth defendant failed to use proper equipment such as a workbench while cutting the timber and he caused or permitted a circular saw (an electrically powered saw) to come into contact with the plaintiff’s hand.
9. On 18 July 2017 the solicitor for the first to fourth defendants issued a notice for particulars. In the replies to those particulars of 7 February 2018, the solicitors for the plaintiff identified, inter alia, that under the terms of the club’s constitution, the plaintiff was not a member as of 31 January 2015, but that he had previously been so since 2010. However, it is pleaded that his subscription was not fully paid on the date of the incident.
10. It was also claimed that, should the plaintiff be deemed a member of the club, then a member to member contract would arise as per the decision in Dunne, the terms of which would entitle the plaintiff to compensation in the circumstances of the case.
11. On 9 May 2018, solicitors for the fifth defendant delivered their defence, pleading, inter alia, that the plaintiff was acting voluntarily in tandem with the fifth defendant, the works having been organised by Mr. Nigel Britton in his capacity as club captain. Additionally, they plead contributory negligence on the part of the plaintiff.
12. This was followed by the defence of the first to fourth defendants on 18 May 2018. The first to fourth defendants contended by way of a preliminary objection that the plaintiff was a member of the club, being an unincorporated association, and as such was restrained from effectively suing himself. In addition, it was argued that as a member he was himself responsible for ensuring safe and proper work practices. The plea in respect of the member to member contract was denied in its entirety. It was further pleaded that any personal injury was caused by the fifth defendant and/or the contributory negligence of the plaintiff. However, at the hearing of the action, it was accepted that the conduct of the plaintiff could not be described as reckless and as such there was no contributory negligence.
13. The plaintiff delivered a reply of 2 July 2019 which was largely a traverse of the various pleas in the defences.
Facts and Evidence
14. On 5 June 2015 the plaintiff was present at the club, assisting the fifth defendant in the carrying out of building works, specifically, the timber cladding of the outside of the golf pro shop. Both the plaintiff and the fifth defendant were carrying out the said works in a voluntary capacity to benefit the club and were not being paid. They commenced the works on 1 June 2015.
15. The fifth defendant was a qualified carpenter. The plaintiff did not have any training or expertise in the work which was being carried out and was present simply to provide general assistance to the fifth defendant with unskilled tasks such as lifting and moving objects. The plaintiff had been asked to volunteer for the said work by Mr. Nigel Britton, club captain. Mr. Britton had contacted the plaintiff, by telephone, on 31 May 2015, and informed him that the individual who was meant to be available (who he understood to be Mr. McKeown’s worker) was not available and enquired whether he, the plaintiff, would assist the fifth defendant. That evening, the plaintiff received a subsequent phone call to confirm he would not be required, but on the morning of 1 June 2015 he was contacted by Mr. Britton by text and was asked to attend, and he did.
16. On the morning of 5 June 2015, the plaintiff was told by the fifth defendant to hold a long plank of timber balanced on a single milk crate, while the fifth defendant cut the timber with a circular electric saw. The plaintiff was holding the timber when the fifth defendant lost control of the saw, which made contact with the plaintiff’s left hand. The plaintiff suffered severe injuries to his left hand resulting in his left index finger being partially severed, as well as severing the extensor tendon of his middle finger. He was airlifted by helicopter to Cork University Hospital where he underwent an operation to amputate his left index finger.
17. Mr. Philip Doherty, B.E., expert engineer on behalf of the plaintiff and Michael Byrne B.E., expert engineer on behalf of the fifth defendant gave evidence. Both engineers agreed that the fifth defendant was negligent in the manner with which he attempted to cut the piece of timber in question. In particular, it was agreed that the fifth defendant should have secured the piece of timber by way of a clamp, or otherwise, and not with a human hand. In addition, it was agreed that the use of a milk crate as a support structure was unsafe in all the circumstances. It was also agreed that, due to the plaintiff’s lack of expertise and training, he should not have been in such close proximity to the electric saw.
18. In relation to the liability of the club, the engineers agreed that it was negligent and in breach of its statutory obligations as set out in sections 15 and 17 of the Safety, Health and Welfare at Work Act 2005, as well as the Safety, Health and Welfare at Work (Construction) Regulations 2013. It was agreed that there were a number of other construction projects on the club premises at the same time as the works the plaintiff and fifth defendant were engaged in, and that there should have been a suitable person appointed to supervise the manner in which the entire construction site was being operated. Evidence was given that if such a person had been appointed, the plaintiff would not have been allowed on the site as he was unqualified, and, in particular, did not hold a safe pass for construction works. (Safe pass cards are required by persons working on construction sites. They establish that the worker has completed a safety awareness training programme that aims to allow persons to work on construction sites without being a risk to themselves or others). Evidence was also given that, if the plaintiff and the fifth defendant had been observed carrying out the cutting of the timber in the manner which caused the accident, the work would have been stopped immediately.
19. In relation to the plaintiff’s membership of the club, the evidence was uncontroversial in relation to the payment of his subscription. The membership year runs from 1 October to 30 September. The plaintiff had initially joined in October 2009 and had paid both his joining fee and his annual subscription fee over a number of years by way of direct debit spread over the membership year. By October 2012 he had paid off his joining fee and he set up a direct debit for his subscription fee. He continued that practice for the membership year October 2013 to September 2014 and paid off his subscription fee for that year by August 2014.
20. However, because of lack of funds, he cancelled his direct debit and no direct debit payments were made from September 2014 onwards. He made a cash payment in January 2015 of €140 and a further cash payment in April 2015 of €150. However, that meant that on the relevant date of 31 January, by which time his payment for the year 2014/2015 was due under the relevant club rule (rule 3.4.2 (e)), he had only paid €140 whereas in the previous year his subscription was €869. He had therefore only paid a small proportion of his subscription on 31 January 2015.
21. In cross examination, the plaintiff gave evidence that he had played (and won) a competition known as the Captain’s Prize on 31 May 2015, some 5 days before the accident, being a competition reserved to members, that he held a handicap authorised by the Golfing Union of Ireland through his membership of the golf club and that he participated in competitions in 2014 as against other clubs, including one known as the Barton Shield. He had always paid his fees by instalment. He never considered he was not a member of the club due to a failure to pay his subscription by 31 January.
22. Mr. Des McKee, the current treasurer and former president of the club, who was also a founding member of the club, gave evidence on behalf of the club. Mr. McKee accepted that that the golf season ran from 1 October to 30 September in any given year and that the version of the constitution of the club in effect at the time of the accident required subscriptions to be paid by 31 January each year.
23. Mr. McKee’s evidence was that a lax view was taken of payment of membership subscriptions. Payment by instalment was permitted. Delays in payment were generally accepted on the basis that a full discharge would ultimately be made of the subscription due in that subscription year. Members were also allowed to pay by lump sum.
24. Mr. McKee accepted that for the year 2014/15, the plaintiff had not paid his annual subscription by 31 January 2015. Mr. McKee stated that this rule was not strictly enforced by the club, and that a number of other individuals in the club would have been in breach of this rule. He gave evidence that a member had never had their membership terminated for not paying their subscription.
25. Mr. McKee gave the following evidence on cross examination:
“Q. So he fell into the category whereby on the 31st he wasn’t fully paid up. You ignored the rule. He then had, like the others, the influx of fees. He didn’t have an influx. He only paid 150, 150 at that stage, yes.
A. Yes, in April, yes.
Q. Okay. So as I say, you had effectively two, you’d the rules according to the constitution and you’d what was operating on the ground. It seems that you didn’t even, you didn’t even – not only was the system of payment different, people weren’t even deemed terminated or their membership wasn’t even deemed terminated. Even that didn’t happen. You just turned a blind eye.
A. I’ll repeat again, I’m not aware of anybody’s membership being constituted – being cancelled on the list February any year.”
Case Law on Implications of Club Membership for a Plaintiff
26. It is well established that a club is, as a matter of law, an unincorporated association. Various consequences flow from this, one of which is that the club per se is not a legal entity and therefore cannot be sued in its own name. The difficulty that this presents is circumvented by plaintiffs generally suing the trustees of a club or the office holders of the club, such as the president, secretary, treasurer and so on, who act effectively as nominees on behalf of the body of members. Although it appears from the pleadings that only the identified defendants are being sued, in fact the legal theory underlying such proceedings is that all the members of the club are sued and the office holders or trustees are being identified as a proxy or nominee for all club members.
27. It is clear from the personal injuries summons that the first to fourth defendants of the club are sued on behalf of all persons who are full members of the golf club as of 5 June 2015.
28. In response, the first to fourth defendants plead that they were at all material times the owners and/or occupiers of the club. That it is accepted that the plaintiff, by suing the first to fourth defendants, was in fact suing all members of the club is confirmed by the preliminary objection identified in the defence, which refers to the plaintiff being estopped from suing the first, second, third and fourth defendants “ who are sued on their own behalf and on behalf of all persons who are full members of the Cobh Golf Club, where the Plaintiff was himself a full member of that club at the material time in question and in the premises, the within proceedings against the First, Second, Third and Fourth Named Defendants, being an unincorporated association, amount to a suit by the Plaintiff against himself…”
29. This plea is unsurprising, given the well-established line of case law that a member of a club cannot sue his or her fellow members. This principle was identified in Murphy v Roche[1987] 5 JIC 1504 at para 17 as follows:
“By reason of the legal identification of the Plaintiff with the Defendants by virtue of their mutual membership of the Club the Plaintiff cannot maintain the present proceedings against the members of their Club or these particular members being the Defendants as trustees”
30. In other words, because a club has no separate legal identity from that of its members, a member suing the club by means of an action against the club’s trustees or committee members as representatives of the members is in law suing herself.
31. In that case, the club was a GAA club – Wolfe Tone Na Sionna – in Shannon, Co. Clare and it was alleged that the plaintiff had suffered injuries at a dance organised by the club following a fall. His action could not be maintained because he was a member of the club. The position was not altered by the fact that he had paid a fee for admission to the dance.
32. That approach was followed in Kirwan v Mackey[1995] 1 JIC 1801, a case involving the accidental shooting of a member of a gun club by another member of the gun club, where Carney J. followed Murphy v Roche and held that the proceedings were not maintainable against the officers, committee and trustees of the club.
33. In Walsh v Butler[1997] IEHC 9, a case heavily relied upon by the plaintiff, the defendant argued that the plaintiff was not entitled to seek recovery on the basis that he was a member of Bandon rugby football club. The plaintiff alleged that he had been injured while playing rugby for the club. The club had no constitution or rules until 1979. In 1979 rules were adopted. Those rules provided members were to be elected and that, as team members, they were required to pay an annual subscription. In the year 1989/90 the plaintiff took over as team captain of the first team. He had paid his subscription in the year 1988/89. There was no evidence that he paid for the year 1989/90. The accident happened in spring 1990.
34. The plaintiff argued that the procedure provided for in the rules for the election of members was never employed in his case and therefore, although everyone concerned regarded him as a member of the club, he was not in the legal sense a member of the club. He further argued that even if he was a member of the club up to 1988/89, since there was no evidence he paid his subscription, at the time he received his injury he was no longer a member of the club as his membership had lapsed in accordance with the rules.
35. The defendants argued that the plaintiff was estopped by his own conduct from making the point he was not a member of the club as he had held himself out to be such a member. It was further argued it was within the capacity of all members of the club to agree to accept a member into the club without the necessity for following the formal procedure provided for by the rules.
36. Morris J. considered whether, by participating in the full activities of the club, the plaintiff acquired membership of the club but concluded that he did not and could not because of the terms of the relevant rule, being rule 9. This clearly stated that all members, including juvenile members, had to be elected by the general committee and this was the only route by which a person could join the club.
37. Further, he noted that even if payment of the plaintiff’s subscription could have been construed as rendering him a member of the club, his failure to pay after that date meant that in accordance with rule 8 his membership lapsed. Accordingly, he concluded that if the plaintiff had ever been a member of the club, he was not a member on the date of the accident.
38. As noted by the plaintiff, the facts in Walsh are remarkably similar to those in the instant case in relation to the question of payment of the subscription.
Was the Plaintiff a Member of the Club on the Date of the Accident?
39. The plaintiff argues that he was not a member of the club by reason of the non-payment of his subscription by 31 January, which triggered an automatic termination of his membership under the club constitution. The defendants argue he was a member and make three alternative arguments in this respect – that the constitution, correctly interpreted, does not require the payment of the subscription by 31 January; that if it does, then that rule was altered by the practice in the club; or if it was not so altered, that the club had waived the requirement for payment by 31 January in the relevant year.
Interpretation of the Constitution
40. The rules of the club consist of a constitution and rules and bye laws. Rule 3.4.2 (a) provides that all categories of members (except for categories not relevant to the plaintiff’s situation) shall be required to pay an annual subscription.
41. Rule 3.4.2 (e) is critical in this case. With original emphasis, it provides;
“Any member whose subscription shall be unpaid on 31st January shall not be entitled to use the facilities of the Club, Their membership shall be deemed to be terminated and their name shall be removed from the list of members of the Club.”
42. The plaintiff argues that the effect of the rule is automatic, and no steps are required to be taken by the defendants to remove a member. Accordingly, he says that he was not a member of the club on the date of the accident.
43. On the other hand, the defendants argue that that the rules of the constitution on subscriptions are inconsistent and that, properly interpreted, the rules do not treat a member as terminated on 31 January if the subscription is not paid up but only identify certain consequences of non-payment that stop short of loss of membership.
44. First, relying on rule 3.4.1 (e), they posit that a member is entitled to pay by instalments. Rule 3.4.1 (e) may be found under rule 3.4, entitled “Subscriptions, Levies and Admissions , and provides as follows:
“Any member who, with the agreement of the Management Committee, is paying both their joining fee and yearly subscription by installments over several years shall be entitled to take part in Club Competitions and to represent the Club in interclub matches. They may attend, vote and stand for election at the Men’s and ladies Clubs Annual General Meetings and Extraordinary General Meetings of those Clubs only.”
45. The defendants note that there is no definition of “subscription” and that rule 3.4.1 (e) may, on one reading, permit payment to be made by instalments and in such case the plaintiff would be compliant with the subscription rules, given his payments in January and April of 2015.
46. That interpretation ignores two salient facts. The reference in 3.4.1 (e) to “paying both their joining fee and yearly subscription fee by instalments over several years” and the qualified rights that attend upon persons availing of this payment scheme, i.e. attending, voting and standing for election at certain types of meetings only, strongly suggest that this provision is intended to cater for the time period while a person is paying off their joining fee and instalments together. If the rule was intended to cater for payment by instalment either for the joining fee and yearly subscription fee, or for the yearly subscription alone, it is hard to see why rights would be qualified in this way. Moreover, the word “both” suggests that the rule is intended to cater for the situation where the joining fee and instalments are simultaneously being paid off. It is true that there is an implication in rule 3.4.1 (e) that it may be permissible to pay by instalment simpliciter, but this is not provided for by rule 3.4.1 (e) and nor is it provided for in any other part of the constitution.
47. Further, to interpret the rule in the way contended for by the defendant would be to ignore rule 3.4.2 (e) discussed below, which makes it clear that membership shall be deemed to be terminated if a member’s subscription is unpaid on 31 January. The terms of that rule are so clear and unambiguous that, even if I interpreted the constitution as permitting payment by instalments, it seems to me that the final payment would require to be made before 31 January. In saying this I am fully conscious that the club year goes from 1 October to 30 September; but in my view the controlling words of rule 3.4.2 (e) would not leave it open to permit a member to pay in instalments after 31 January.
48. Next, the defendants argue there is an inconsistency between rules 3.4.2 (d) and 3.4.2 (e), in that sub rule (d) and parts of sub rule (e) do not suggest that non-payment of subscription by 31 January disentitles a person to membership, identifying instead other, less draconian, consequences of failure to pay.
49. Rule 3.4.2 (d) provides:
“Any member whose subscription shall be unpaid on 31st January shall not be entitled to enter Club Competitions or represent the Club on any team playing inter-club tournaments until such a payment is made.”
50. It is true that sub rule (d) restricts a member from entering club competitions or representing the club on any team playing inter-club tournaments until payment is made, and sub rule (e) restricts a person whose subscription shall be unpaid on 31 January from using the facilities of the club. If sub rule (e) stopped at that point, it would be quite logical to construe the consequences of non-payment by 31 January as being the non-participation on teams or in competitions and the withdrawal of permission to use the facilities. However, sub rule (e) goes on to state quite clearly that membership is deemed to be terminated and as identified above, these words are so unambiguous that they cannot be ignored.
51. In summary, it does not appear to me that there is any ambiguity in sub rule (e) or any inconsistency as between sub rules (d) and (e). The fact that in practice the plaintiff was permitted to enter club competitions and represent the club on teams playing interclub tournaments without having paid his subscription simply means that the club was not applying its own rules. It does not mean that the rules are themselves inconsistent.
52. In fact the rules on subscriptions reflect a coherent approach to membership fees, providing that unless a subscription is fully paid a member may not be entitled to enter competitions or represent the club, that a person with their subscription unpaid on 31 January shall not be entitled to use the facilities of the club, that their membership shall be terminated, and their name removed from the list of members.
53. The defendants have placed considerable reliance upon the dicta of Clarke J. in Dunne, specifically his observation at paragraph 5.5 as follows;
“5.5 … On the other hand, there is authority for the proposition that the rules of a club should not be approached with the same degree of rigour. In In re GKN Bolts & Nuts Ltd Sports and Social Club[1982] 1 W.L.R. 774 at p. 776, Megarry V.-C. observed:
“In such cases, the court usually has to take a broad sword to the problems, and eschew an unduly meticulous examination of the rules and resolutions. I am not, of course, saying that these should be ignored; but usually there is a considerable degree of informality in the conduct of the affairs of such clubs, and I think that the courts have to be ready to allow general concepts of reasonableness, fairness and common sense to be given more than their usual weight when confronted by claims to the contrary which appear to be based on any strict interpretation and rigid application of the letter of the rules. In other words, allowance must be made for some play in the joints.”
54. The first to fourth defendants also rely upon the (dissenting) judgment of Clarke J. in Law Society of Ireland v MIBI[2017] IESC 31 and the following dicta:
“10.4. However, an over dependence on purely textual analysis runs the risk of ignoring the fact that almost all text requires some degree of context for its proper interpretation. Phrases or terminology rarely exist in the abstract. Rather the understanding which reasonable and informed persons would give to any text will be informed by the context in which the document concerned has come into existence.”.
55. As identified above, the wording here is crystal clear in that, if membership fees are not paid by 31 January, the subscription of a member is deemed to be terminated. The observations of Megarry V.C. are simply not applicable here. The defendants are not asking that the rule be construed in one of two or more alternative ways potentially available. Rather they are asking that I ignore the clear wording of the sub rule and construe it so that the consequence of non-payment by 31 January is not exclusion but limitation of membership privileges. Given the clarity of sub rule (e), that in my view is not an interpretation open to me irrespective of what approach to construction I take, whether narrow or liberal. Giving the words of sub rule (e) their natural and ordinary meaning cannot be characterised as a “literal” construction, as suggested by the defendants in their written submissions. It is simply acknowledging the unambiguous way in which the rule is drafted. Thus, even eschewing an unduly meticulous examination of the rules, allowing for “ play in the joints ”, adopting a liberal interpretation, taking into account the context of the constitution, and avoiding an over dependence on purely textual analysis, it seems to me that only way to interpret the sub rule in the manner contended for by the defendants is to do what Megarry VC concedes is impermissible, i.e. to ignore the clear wording of sub rule (e).
56. The defendants note that if the rules do not provide for the payment of a subscription by instalments and a literal construction of sub rule (e) is applied, then the plaintiff’s membership was terminated on 31 January of each year on which he was a member. This may well be the case (although this case does not require me to decide upon any year but 2014/2015), but that argument cannot be used to alter the correct construction of the constitution. A similar argument did not find favour with Morris J. in Walsh v. Butler.
57. Accordingly, I conclude there is no interpretation of sub rule (e) that would permit the defendants to treat the plaintiff as a member, despite the clear breach of the rules by him in relation to his failure to pay his subscription.
58. Finally, rule 3.4.2 (f) provides that:
“Membership may be reinstated at the discretion of the Management Committee on payment of the current Annual Subscription plus a re-entry fine and any appropriate levies as may be set by the Management Committee.”
59. Contrary to what is asserted by the defendants, there is nothing inconsistent in that rule with sub rule (e). Nor was any evidence whatsoever given as to reinstatement of the plaintiff’s membership. The fact that he made another payment in April of €150 – significantly below the annual subscription rate of €890 – cannot be treated as an exercise by the club of its entitlement under 3.4.2 (f), in circumstances where there was no evidence at all that this payment was an exercise of the powers of the club under the relevant rule.
60. In conclusion, I find that the rules of the constitution provided for the plaintiff’s exclusion on non-payment of his annual subscription, and that he was so excluded due to his failure to pay the subscription in full by 31 January.
Practice of the Club
61. The second argument mounted by the defendants was that the practice of the club was always to treat the plaintiff as a full member with all the privileges of membership, including representing the club in inter-club tournaments and playing in internal club competitions, and that the plaintiff regarded himself as a full member as of 5 June 2015. I have set out above the evidence of Mr. McKee, who identified that the requirements of the constitution in relation to the payment of the subscription by 31 January, were widely ignored by the club.
62. The import of this argument must be that sub rule (e) had been implicitly amended by the practice of the club, such that the sub rule was no longer effective. To address this argument, it is necessary to consider the role of the rules of a club. Because of the lack of legal personality of unincorporated associations, the rules of such bodies are particularly important. They are a contractual agreement between the members as to how they have agreed to run the club. Describing the nature of a club, Clarke J. in Dunne observed:
“5.1 It is clear that the principal legal basis for the existence of a club is a contract between all of the members for the time being (see Walsh v Butler[1997] 2 I.L.R.M. 81; Conservative and Unionist Central Office v Burrell[1982] 1 W.L.R. 522). As an unincorporated association of individuals, a club has no separate legal personality (Sandymount and Merrion Residents Association v An Bord Pleanala & ors[2013] IESC 51; Feeney v. McManus[1937] I.R. 23). However, that is not to say that a club does not have some form of legal existence. So long as the contract between its members stays in being, then it can reasonably be said that a club continues to exist.”
63. The decision in Dunne goes on to make it clear that because the rules of the club constitute a contract between the members they cannot be amended by implication. In that case Hogan J., in the High Court, had held that the club rules could be treated as having an implied term in relation to the termination of the club, though the members had not expressly agreed to vary the rules. That decision was overturned by the Supreme Court, with Clarke J. observing as follows;
“6.3 The starting point of any analysis has to be that, prima facie, the rules, representing as they do a contract between all of the members, cannot be altered except by agreement of all those members or in accordance with a specific provision in the rules allowing for such amendment. That is the position which applies in respect of any ordinary contract. A multi-party commercial arrangement cannot be altered without the agreement of all parties affected. The fact that it might make sense that a majority (or perhaps a large majority) could change the contract does not mean that such is legally possible unless the parties have agreed to an amendment mechanism. When people join a club they are committing both their efforts (whether great or small) and their resources (whether great or small) to the club on the basis of the rules as they then exist. They are entitled to have those rules applied and not to have the rules changed without their agreement (or in accordance with an amendment procedure which is to be found in the rules and to which they must be taken to have signed up by joining a club with such an amendment procedure).
6.4 Even if it might be taken to be prudent for any club to have an amendment procedure, it does not seem to me to follow that a court should imply one if it is not to be found in the rules. In the context of established errors in contracts, it is clear that a court can, in accordance with the “text in context” method of interpretation, properly interpret a contract in a way which acknowledges an obvious error but only where it is equally obvious as to what should have been in the contract concerned had the relevant error not taken place (Moorview Developments & ors v. First Active plc & ors[2010] IEHC 275 )”.
64. In substance, I am being asked to ignore the rules because the club ignored its own rules. But there is no evidence whatsoever in this case that the members had agreed to ignore the club rules enshrined in the club constitution in relation to subscriptions and had decided instead to replace it with whatever the current practice on subscriptions was from time to time. Nor has any authority been cited to suggest that a club is entitled to ignore its own rules in the absence of a decision by the members to take such a step. Such an approach would be contrary to the disavowal in Dunne of any principle of implicit amendment of club rules.
65. Further, it is worth observing that any such approach would have serious consequences for the club. To accept this argument would mean that the way of ascertaining the rules on subscriptions in the club would be to identify current practice. Current practice may vary from member to member, from year to year, and from committee to committee. There would be an entire lack of certainty as to the rules of the club in relation to subscription payments and members would be left in a position of complete uncertainty as to their rights and obligations in this regard. It would also undermine the club’s ability to enforce its extant rules on subscriptions, thus preventing it from restricting non-paying members from playing in competitions, from using the facilities of the club, and from excluding them for non-payment. This would clearly be a highly unsatisfactory situation for the club.
66. A similar approach had been adopted by Morris J. some 15 years earlier in Walsh v Butler, where, in rejecting an argument that the plaintiff should be treated as having been admitted into membership although the procedure set out in the rules providing for election of members had not been followed, he observed:
“24. To hold otherwise would give rise to a situation where the Committee of the Club would have lost all control over affairs of the Club. Members could be assumed into the Club and shed from the Club without the knowledge of the General Committee. The contractual relationship as between members regulated by their acceptance of the General Committee as the regulating authority would be varied without their approval and consent.”.
67. In the premises, I cannot accept that the defendants altered sub rule (e) by conduct.
Waiver
68. Very late in the day, an argument was included in the written legal submissions to the effect that the defendants had waived reliance upon sub rule (e). There are various problems with this argument, the most obvious being that waiver was not pleaded and that no evidence whatsoever was adduced indicating a waiver of sub rule (e) by the defendants. Mr. McKee, the only witness called on behalf of the first to fourth defendants, never referred to a decision by the club to waive its membership rules, either generally or in respect of sub rule (e). There was no evidence of any communication by the club in respect of waiver to the plaintiff. There was no evidence of any awareness by the plaintiff that the constitution contained a rule that excluded him as a member because of non-payment by 31 January or any knowledge that the rule was being waived.
69. The dearth of evidence on the point cannot in my view be overcome by a wholly theoretical reference to same in written submissions delivered some days after the hearing. At a minimum, even if the defendants were to circumvent the pleading point, they would have to show that they were aware of the rule, that they had chosen not to rely upon it, and that they had communicated this to the plaintiff, whether implicitly or explicitly. None of those facts can be assumed in the absence of evidence.
70. Accordingly, I conclude the defendants cannot raise an argument based on waiver.
Implicit Compensation Rule in Membership
71. The plaintiff had pleaded in the alternative to the effect that, even if he was a member, there was a rule implicit in membership that he was entitled to be compensated for injuries or loss suffered. However, that argument does not appear to be pursued with any vigour as no evidence was led in this respect and no legal submissions on this point were made. Because of my conclusion that the plaintiff was in fact not a member of the club at the time of the accident, there is no necessity for me to address this point.
Vicarious Liability
72. It is, I think, fair to say that the defence upon which the defendants placed greatest reliance was that of the club membership of the plaintiff. However, having circumvented that hurdle, the plaintiff must still establish that the club members, as represented by the first to fourth defendants, were negligent, whether directly or through the doctrine of vicarious liability.
73. I am satisfied the plaintiff has established negligence. The first to fourth defendants did not ensure a safe system of work was in place. Nigel Britton must have known the work involved cladding the pro shop and therefore would require the sawing of planks on site, and the fitting of same to the walls and the roof. No action was taken at all by the defendants to ensure the site was a safe place to work. This was particularly important given that it is accepted by all that Mr. Britton had requested the plaintiff to go onto the site and assist with the work. The plaintiff was not a carpenter or a tradesman of any sort. He had no specialist skill or expertise. He was entitled to be protected by the person who requested his assistance for the week. The fact that the plaintiff and indeed the fifth defendant were not being paid for their work does not alter the members’ obligations in this regard.
74. Having heard the evidence not only of the plaintiff’s engineer but also that of the fifth defendant’s engineer, I conclude there was no safe system of working on the site in respect of the work being carried out by the plaintiff and fifth defendant. Planks of wood were being sawn without being secured by way of a vice grip or bench. The plank was perched upon a milk crate and was not secured. The plaintiff’s engineer gave evidence that the only circumstances in which the plank did not need to be secured was where the person holding the plank was some very significant distance from the point at which it was being cut. The necessity for securing a plank arises from the use of a circular saw, which is a powerful piece of machinery that can jam if it catches the wood in a particular way. There is a safety catch that is designed to prevent the otherwise inevitable consequences of it catching in this way but for whatever reason, the safety barrier did not operate so as to protect the plaintiff.
75. Had there been a site supervisor, a different system of work would have been put in place that would have protected the plaintiff. Most obviously, the plaintiff would not have been permitted to go on the site as an assistant since he does not possess a safe pass. Indeed, it is accepted by the first to fourth defendants that they were responsible for the organisation of the works and that the standards applied to the organisation and execution of the work fell below the required standards. That seems an appropriate concession to me given the engineering evidence. The consequences of this failure to ensure safety on the site were disastrous for the plaintiff.
76. In relation to the fifth defendant, the club initially took the approach that they were not liable for the acts of the fifth defendant. However, that is no longer the position of the club in circumstances where it is accepted that, had the club discharged its obligations correctly and retained a site supervisor, the plaintiff would not have been on the site given his lack of qualifications and lack of a safe pass. The revised position of the club may reflect a recognition of the fact that the fifth defendant was giving of his time freely as a member of the club and that in the circumstances, his actions should be treated as those of the club.
77. In the circumstances, despite the undoubted negligence of the fifth defendant in the way he organised the work and the directions he provided to the plaintiff, I will treat his actions as those of the club and therefore as being the responsibility of the first to fourth defendants.
Quantum
78. Having concluded that the defendants are liable to the plaintiff in negligence, I must now turn to the question of quantum. The plaintiff’s evidence was that he spent one night in hospital after being brought there by helicopter and that he was operated upon over a lengthy period of time. His left index finger was amputated, and a small stump was left intentionally. However, due to the very significant pain that he suffered over the subsequent months, it was decided that a second operation was necessary to remove a portion of a nerve ending in the stump of his left finger. Unfortunately, that was not successful in relieving the very intense pain he suffered at times and so a third operation was carried out in 2017 and the stump that had been intentionally left was removed.
79. I have seen the plaintiff’s hand and a very neat job was done, but it is readily apparent that he has been left without any part of his left index finger. The plaintiff has suffered excruciating pain which has now happily lessened with the passage of time, but he still requires significant pain relief. For example, when he tries to play golf which he described as being a passion for him, he finds that his hand becomes very painful and he is obliged to stop.
80. On 25 July 2016 Dr. Jason Kelly, the consultant plastic and reconstructive surgeon treating the plaintiff provided a report on the initial injury. He details that the plaintiff’s finger was attached solely by a piece of volar skin and there were no clinical signs of blood flow through the finger, and that his adjacent finger suffered a division of a tendon. A replantation was immediately attempted under a general anaesthetic but due to the nature of the injury, a replantation would have allowed only for a shortened finger with a single joint. In those circumstances it was decided that given the lack of function and the aesthetic concerns involved in a replantation, an amputation was appropriate. The amputation was carried out, a stump was created, and a tendon repair carried out on the adjacent finger.
81. Dr. Kelly reports that post-surgery, the plaintiff had difficulty with his pain management and his medications included those affecting the central nervous system, non-steroidal anti-inflammatories and a morphine-based analgesia. He underwent a further surgery on 23 February 2016 to remove a piece of nerve tissue and this brought temporary pain relief.
82. On 11 February 2019 Dr. Kelly provided a follow-up report. He details that four years post-injury the plaintiff had undergone two further surgeries on 23 February 2016 and in 2017 and was suffering from an obvious cosmetic deformity and constant pain. The plaintiff struggled to lift heavy or awkward objects at work due to his missing finger, the loss of strength and the pain involved. The plaintiff continued to suffer intermittent pain that was at times disabling, his pain medications included both a morphine-based analgesia, Tylex, and one affecting the central nervous system, Lyrica. Dr. Kelly states that the plaintiff complained of stiffness across the knuckles of the hand and a loss of dexterity, he further complained that he had to stop playing golf due to his inability to play at his previous level.
83. Psychologically, the plaintiff has suffered very significantly. He has reported that his sleep has been interrupted as a result of the pain and that he has flashbacks of the accident where he recalls running around with his finger gone. He has suffered depression as a result of the loss of his finger and in particular his inability to play golf at the level and with the consistency with which he once played it. It is true that in cross examination it became clear that he has competed on a very limited basis since the accident and is playing off a handicap of 4. However, it is far from the level at which the plaintiff previously played. He has engaged with his local mental health services and he has also obtained significant assistance from his GP.
84. A report of 8 June 2021 was provided by Dr. Patrick Kirwan, a consultant psychiatrist treating the plaintiff. Dr. Kirwan states that the plaintiff has a diagnosis of post-traumatic stress disorder stemming from his injury. The plaintiff was discharged from psychological treatment in December 2019 following a period of treatment commencing in October 2018. However, Dr. Kirwan reports that the plaintiff suffered a relapse in his anxiety symptoms following an external examination associated with these proceedings. He underwent booster sessions with the psychology department and his return to work helped improve his symptoms somewhat, but residual symptoms remained.
85. In order to resolve this, his GP changed his antidepressant medication. The dose of this antidepressant was increased following an outpatient appointment in February 2021. Dr. Kirwan states that at his most recent review on 8 June 2021, the plaintiff reported a low mood and high anxiety levels. At that review the plaintiff recounted that he had been doing reasonably well until another examination in relation to these proceedings exacerbated his symptoms. Dr. Kirwan concluded that the patient appeared to be in an objectively low mood and his treatment plan was to further increase the antidepressant and to start a second medication to treat his anxiety symptoms in the short term.
Conclusion on Quantum
86. I consider the following factors are relevant to my conclusions on quantum (being factors that have both affected the plaintiff in the past and will continue to do so into the future);
– the fact that he has been left without any part of his left index finger;
– the fact that the finger in question is the index finger, being the most dominant finger;
– the fact that he required two additional operations spaced over two years as well as the initial operation which took some significant amount of time and was complex in nature;
– the psychological toll that the injury took upon him, in particular the anxiety and depression that ensued after the accident and the enduring nature of both of these conditions which have been alleviated but not eliminated by medication, psychiatric assistance and counselling and which it appears from the evidence will remain into the future;
– the fact that the plaintiff was a particularly skilled and committed golfer who was devastated by the loss of his former ability following the accident. I accept the evidence of the defendant elicited under cross examination that the plaintiff has to a certain extent returned to golf and has in fact managed to compete in a competition. However, having heard the totality of the plaintiff’s evidence, I am persuaded that his ability to participate in the sport of golf has been greatly diminished and that this has a very negative effect on his well-being, including his psychological well-being.
87. The plaintiff must be compensated by way of general damages for his pain and suffering to date and into the future. Insofar as pain and suffering is concerned, he should be compensated for the loss of the left index finger and the physical consequences of it, including the necessary surgeries, and for the very significant pain he has suffered over a significant time period, together with the psychological injuries that were caused by the foregoing.
88. In all the circumstances I estimate that the appropriate sum to compensate the plaintiff by way of general damages for his pain and suffering to date and into the future is the sum of €100,000.
89. In this case, because of the excellent support that his employer, the Navy, provided to him, he has not suffered any loss of earnings and he has not incurred significant costs for counselling since that has been provided free of charge by the Navy. Therefore, the sum of special damages is only €1,495 and I will add that onto the award making a total of €101,495.