Dangerous Escapes
Cases (Irish)
Connolly v The Congested District Boards for Ireland
52 ILT & Sol J 52 (County Court, 1917)
Wakely J: The facts of this case proved before me are as follows (there was very little dispute as to the facts): About the spring of 1915 the defendants acquired a property ata place called Cloonerco, in this county; on this property there is a considerable amount of bog. And in particular there is a tract of bog, which is coloured blue and marked “A” on the map which has been put in and proved and admitted by both parties to this case to be correct. This tract of bog has between it and the county road, to the south-east, a tract of low-lying land, consisting of cut-away bog and marsh. Then, on the other side of the county road, to the south-east, is land belonging to the plaintiff; and in respect of the flooding of which he brings this action. This latter land is coloured yellow on the map, and it forms part of the holding of the plaintiff, and the only part which has to do with this action. The watershed on this property acquired by the defendants changes at the pink line marked on map “boundary of catchment”. From that pink line – going ina southerly and south-easterly direction – all the water goes south-east, and north of that pink line the water goes north, and with the latter water this case is not concerned. The water from the bog area coloured blue and marked “A” on the map goes in a southerly and south-easterly direction towards the county road, and is carried under the county road bya rather small culvert at letter “D” on the map, and thence by a drain across the plaintiff’s lands in a south-easterly direction, and thence in the same direction into the Ballintrillick River at “E” on the map, passing through other lands on the way, between the plaintiff’s lands and the river. The water is carried from the defendant’s bog to the culvert under the county road at “D” by a drain along the black line on the east of the defendant’s bog and marsh land, and which I have marked “P R” and continuing towards the culvert at “D” it is more a depression in the marshy land than a defined made drain: drain “P R” is old water course. The water is also carried to the culvert at “D” from defendant’s bog by a drain along the north side of the county road, and which drainI have marked “S S” and it is an old water course also. In 1915 the defendants, in order to provide fuel for the tenants on this property and other properties “belonging” to them in this district, commenced to make drains in the bog area “A” (blue) on the map and to make and lay out turf banks. The plaintiff and his witnesses deposed that there was not much making of drains for these purposes in 1915, and that his land was not much flooded in that year. In 1916 the defendants, in order to provide more fuel for their tenants on this and other property of theirs in this neighbourhood, drained more of the bog “A” marked blue on the map, and laid out more turf banks thereon, and their tenants cut turf on a large number of turf banks on this bog. In 1916 from 70 to 80 of such tenants cut turf on this bog. Mr Chute, the engineer, examined for the plaintiffs, deposed that the defendants, between new drains made to drain the bog and so make the turf fit to be cut and used as fuel and new drains made by the actual cutting of the turf banks or bog holes, as they are called, made certainly three miles of new drains in this bog marked “A” on the map and coloured blue, and this was not denied or disputed by the defendants. Mr Chute also deposed that the defendants cleaned and improved and deepened several existing drains on the same bog, and this also was not disputed by the defendants. Mr Chute and all the witnesses for the plaintiff admitted and deposed that the only water which got into and is carried by these new and improved and cleaned and deepened drains is water off this bog of the defendants and off the cut-away and marsh land of the defendants to the south and south-east of the bog, and that no water was or is into or on the plaintiff’s land, but the water on this bog and land of the defendants, and which is produced by the rain which falls on the bog and land of the defendants. It was also proved before me that all these new drains made by the defendants were well and properly made, and that the drains improved, cleaned and deepened were well and properly done, and that these new drains and the cleaning, improving, and deepening of the existing drains were necessary in order (1) to make the turf fit to cut for fuel; and (2) in order to cut and save the turf as fuel, and this was not disputed by the plaintiff. It was proved on behalf of the plaintiff that all this drainage work on this bog by the defendants greatly increased the flow of water from this bog (“A”) of the defendants to the culvert “D” on the map and into the drain across the plaintiff’s land, and so that this drain, which is a small one and not deep, was quite incapable of carrying away all this water, especially at the time of turf cutting in the late spring and early summer of 1916, and that the consequence of this was that this extra water flowed over the banks of the drain and flooded the plaintiff’s lands so that he could not cut or save any of the meadow on it. The defendants somewhat disputed this, and they also proved that 1916 was in this, as in many other districts, a very wet year, and that the plaintiff did not clean his drains, and that the land of the plaintiff and the land between it and the Ballintrillick River is marshy and very flat. But I find, as a juror, that, taking into consideration the heavy rainfall, the somewhat bad state of the plaintiff’s drain, the marshy and flat nature of the plaintiff’s land, and the land between it and the Ballintrillick River, the thing that caused the chief flooding to the plaintiff’s land was this extra water coming from the defendants’ bog “A”. It was admitted that the Ballintrillick River is a mountain river which clears quickly after heavy rains, so that there would not be much backing up of water from flood in the river in the plaintiff’s drain. The level of plaintiff’s land at the culvert at “D” on the map is about 14 inches below the flood level of the river at “F” on the map, and it is about 18 inches above the normal level of the river at the same place. The plaintiff admitted that in 1907 this same land of his was flooded so that he could not cut or save the meadow on it, but he deposed that in that year there was a very heavy rainfall, and that the banks of the Ballintrillick River burst so that the water flooded all the lands and could not be carried away, and I believed him as to this. I also find as a juror that all the said drainage works done by the defendants were well and properly done and were done without negligence, and that there was no negligence on their part. I also find as a juror that all the said drainage works done by the defendants were necessary for, and were only done for, the purpose of providing turf as fuel for their said tenants. After allowing for the abnormally wet year, the somewhat bad and uncleaned state of the plaintiff’s drain, and the marshy nature of his land I am of opinion that the damage measured in money done to the plaintiff by the extra water so brought to his land by the defendants’ said drainage work is £12 in 1916. I also find as a juror that the water which so came to the plaintiff’s land came only from the defendants’ said bog, and that they did not bring on their said bog, or to the plaintiff’s land, water from anywhere else, and I find that this water was caused by the rain which from time to time fell on the defendants’ said bog “A”, and that it flowed naturally, by gravitation, to plaintiff’s land. Mr Carson, for the plaintiff, argued that the maxim sic utere tuo ut alienum non laedas applied, and that the defendants were liable because they flooded the plaintiff’s land, and that negligence on their part was not necessary for his case.
Mr Fetherstonhaugh argued that the defendants only used their bog for a purpose for which it might in the ordinary course of the enjoyment ofland be used, that the bog was only used for the natural purpose of cutting and saving turf, that for that purpose these drainage works were necessary, that the defendants had not brought any water to their lands but only drained their land of water which from rain was on it, and that this water, by natural gravitation, had passed on to the plaintiff’s land. Both counsel referred me to several authorities. As the case seemed of importance to both parties and to farmers all over the country and as it was intimated to me that there would be an appeal in any event, I reserved my decision from Sligo Easter Sessions to this Trinity Session at Sligo. First, I must note that in this case the defendants are in the position of an ordinary individual, and that there is no statute which protects them from liability or assists them in this case. I do note this, as there are several statutes relating to the Congested Districts Board and giving that Board various powers. Next, I think that to make the defendants liable it is not necessary to prove negligence on their part, nor even knowledge that their acts would cause damage. Lord Cranworth, in Rylands v Fletcher LR 3 HL 330, says, at p 341:
“In considering whether a defendant is liable to a plaintiff for damage which the plaintiff may have sustained, the question in general is not whether the defendant has acted with due care and caution, but whether his acts have occasioned the damage. This is all well explained in the old case of Lambert v Bessey’ reported by ‘Sir Thomas Raymond’ (Sir T Raymond 421). ‘And the doctrine is founded on good sense. For when one person in managing his own affairs causes, however innocently, damage to another it is obviously only just that he should be the party to suffer. He is bound sic ut tuo ut non laedat alienum.”
In the case of Rylands v Fletcher A was a mine owner and had worked his mine up to a spot where there were vertical shafts and passages of old mines which communicated with the land above and had been out for use for years. B was a mill owner of a mill standing on land adjoining that under which the mines were worked. B constructed a reservoir on his land and over where these vertical shafts were, and his engineers did not block up these shafts. When water was brought into the reservoir it broke through these shafts and flooded A’s mine, and A was held entitled to recover damages from B. The headnote says:
“Where the owner of land, without wilfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbour, he will not be liable to damages. But if he brings upon his land anything which would not naturally come upon it and which is in itself dangerous and may become mischievous if not kept under proper control, though in so doing he may act without personal wilfulness or negligence, he will be liable in damages for any mischief thereby occasioned.”
Lord Cairns says in that case, at p 338:
“My Lords, the principles on which this case must be determined appear to me to be extremely simple. The defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might, in the ordinary course of the enjoyment ofland, be used, and if in what I may term the natural use of that land there had been any accumulation of water, either on the surface or underground, and if by the operation of the laws of nature that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so by leaving or by interposing some barrier between his close and the close of the defendants in order to have prevented that operation of the laws of nature. As an illustration of that principle I may refer to a case which was cited in the argument before your Lordships in the case of Smith v Kenrick in the Court of Common Pleas” (7CB 515).
‘On the other hand, if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose, which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it for the purpose of introducing water either above or below ground in quantities, and in a manner not the result of any work or operation on or under the land, and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril, and if in the course of their doing it, the evil arose to whichI have referred, the evil – namely, of the escape of the water and it passing away to the close of the plaintiff and injuring the plaintiff- then, for the consequences of that, in my opinion, the defendants would be liable. As the case of Smithv Kenrick is an illustration of the first principle to which I have referred, so also the second principle is well illustrated by another case in the same court, the case of Bairdv Williamson 15 CB (NS) 367, which was also cited in the argument
at the Bar.’
The case of Smithv Kenrick was: A, owner of a mine on a higher level, worked out all his coal, leaving no barrier between his mine and the mine on the lower level, so that the water, percolating through the upper mine, flowed into the lower mine and obstructed the owner of it in getting his coal. It was held that the owner of the lower mine had no ground of complaint. The defendant, the owner of the upper mine, hada right to remove all his coal. In Baird v Williamson the defendant, the owner of the upper mine, did not merely suffer the water to flow through his mine without leavinga barrier between it and the mine below, but, in order to work his own mine beneficially, he pumped up quantities of water, which passed into the plaintiff’s mine in addition to that which would have naturally reached it, and so occasioned him damage. Though this was done without negligence and in the due working of his own mine, yet he was held to be responsible for the damage so occasioned. There are many references in the text-books and many cases on this point. Coulson and Forbes, Law of Waters (2nd edn, 1902)p, 136 et seq, contains most of the law on the subject. In Halsbury’s The Laws of England vol XXI, pp 401, 402, it is stated: ‘The question of the natural or non-natural user of the land is material in considering the origin of the injuries, but it is not conclusive ofliability.’
Thus an owner of mining rights is entitled to exercise them to the full and is not liable for injury resulting to his neighbour’s mine through the percolation of water, even if the percolation is guided by artificial means not in the ordinary course of mining, but such right does not extend to throwing a greater burden upon his neighbour by operations in the course of mining which discharge into his neighbour’s minea greater quantity of water than would naturally gravitate there, and the cases of Wilsonv Waddell (1876)2 App Cas 95; Baird v Williamson (supra) and other cases are cited. In vol XXVIII of the
same workp, 453, it is stated: “When water escapes or overflows from land the owner of that land is not liable for the consequences, if this happens in the ordinary use of the land without any wilful act or negligence on his part,” and Wilsonv Waddell (supra); Fletcherv Smith;2 App Cas 781, and Walley v Lancashire and Yorkshire Railway Co (1884) 13 QBD 131 (CA), are cited. Again, at p 455: “Injuries caused by the escape of water due to the effect of gravitation or percolation in the proper and ordinary use and working of the land give no cause for damages, though the pumping of water to another’s land, even when done without negligence and in the due working ofa mine, renders the owner liable unless he can show that his operations do not throw any burden on the land which it had not been subjected to before.” The law is also discussed in Beven on Negligence 3rd ed, vol 1, pp 476,477,478,479. In the Scotch case of Armisteadv Bowerman 15 Rettie 814, a claim was made by the proprietor ofa “fish hatchery” against the purchaser of timber higher up the stream for dragging his timber across the stream which fed the “fish hatchery”, and thereby fouled and damaged it. The court held that, apart froma right given in the grant to the purchaser restricting the removal of timber in the ordinary way of business, the pursuer had no right to recover, since the defendant was only performing an ordinary and legitimate operation in the ordinary and usual way. And the Scotch Law is the same as our law on this point (see Blair v Hunter, Finlay & Co 9 Macph 204). I think that the cases of Rawstron v Taylor I I Ex 369 (1856), and Broadbent v Ramsbottom 11 Ex 602 referred to by Mr Fetherstonhaugh, do not apply in this case. They were cases of defendants using surface waters which were on their lands in no definite channels, though they had for years gone on to the plaintiffs’ lands and were used by the plaintiffs for their mills, and by defendants’ user were stopped from reaching the plaintiffs’ lands, and I think that the words used by the judges in those cases are confined to such cases.
I have referred to these various authorities, as it seems to me that this is a case of great importance to all farms in Ireland, especially now when farming is improving, and therefore the drainage of lands increasing, and also when tillage is increasing, as well drained land is essential to good tillage, also because it is so important to all persons who burn turf as fuel in Ireland, as well-drained bogs are essential to good turf and bad turf is nearly always caused by badly drained bogs. I have come to the conclusion that the defendants in this case have only worked their bog according to the natural user of the land, and that their drainage works were necessary to obtaining turf for their tenants, and that the water from their drains went in its natural course to the plaintiff’s lands, and that within what Lord Cairns said in Rylands v Fletcher (supra), they are not liable, and that this action should be dismissed on the merits.
Healy v Bray Urban District Council
[1963-1964] Ir Jur Rep 9 Supreme Court Kingsmill Moore J:
The plaintiff, a woman of middle age, while walking on the public footpath which runs around Bray Head at about 100 feet above sea level, was struck and somewhat seriously injured by a loose rock which had rolled down the hill, in all probability froma spot 210 yards distant and about 350 feet higher than the path. The upper slopes are owned in perpetuity by the defendant council under an indenture of the 27th October 1923, which contains a convenant by the Council to use the lands solely for the purpose ofa public park for the inhabitants of and visitors to the town of Bray. The strip of land over which the public right of way runs at the scene of the accident is also owned by the council, under a different title, an agreement of the 31st March, 1932, whereby the Great Southern Railway Company let to the council ona yearly tenancy, subject to determination by six months’ notice in writing and toa variable rent, three parcels of land: first, a small part situate at the end of Bray esplanade bordered by the sea on one side and the railway line on the other, coloured red on the map attached to the conveyance, and referred to in the conveyance as “the said Park”; second,a strip of ground, coloured brown on the map, over which runs the path in question; third,a strip of ground coloured blue on the map, which could be utilised to providea further way to the park. Those three portions of ground are referred to in the conveyance as “the said premises”. The “said Park” is granted on the express conditions that the same “shall be used solely asa public park for recreation purposes for the people or general public” but
I am of opinion that on the construction of the document this condition does not extend to the strip coloured brown, over which the public path runs.
The council maintained the plot marked red on the map as a park for the public. They
inspected and supervised the path and maintained its surface, but the path was not subject to the bye-laws. No evidence was given as to the user of the lands conveyed by the earlier indenture of 1923 but it was admitted that the public was given free access to these lands. Froma map put in evidence by the plaintiff it would appear that the more level portions of these lands, situate on or near the top of the head, had been planted and provided with paths but the steep seaward slopes were left in their natural untouched condition. If any member of the public chose to walk over these slopes and enjoy the
view he was at liberty to do so.
The plaintiff put her case on four grounds. First she relied on the principle of
absolute liability laid down in Rylands v Fletcher and said that the rock which hit her was something ofa dangerous nature brought and kept by the council on their land, for the escape of which they were responsible
…..
To understand the arguments based on these submissions it is necessary to describe somewhat fully the general physical features of the scene of the accident and the circumstances, so far as they are known, of the descent of the stone.
Bray Head is a solid bluff of Cambrian rock rising to about 700 feet above sea level, sloping seawards at varying angles. At its base, some 50 feet above the sea, runs the railway line, in steep sided cuttings and tunnels cut through the live rock and on rocky ledges and shelves. About fifty feet higher on the landward side and closely parallel with the railway line runs the path. It is separated from the steep slope of the railway cutting by a carefully built masonry wall 2 ‘6″ high and on the other side of the path a mass concrete wall 2′ high supports the earth and prevents it from shingling down on to the path. The surface of the path appears to be compacted stones and gravel and from the photographs it is clear that the path, at all events where the accident occurred, was at some time cut out of the hillside and, with its side walls, artificially constructed at a considerable expenditure of time and labour. Above the path the side of the head stretches up to a height of over 600 feet. The gradient is at an angle of 30° to 38° and the surface is covered with a natural growth of bracken, furze, brambles and coarse grass. In this vegetation, buried or partially buried, lie some stones and boulders, the result of past erosion, and in places the rock outcrops in small knolls of bare stone, the lower sides of which lie at a somewhat steeper angle than the main slope. Except for the walls to which I am about to refer the slope appears never to have been interfered with by the hand of man and to have reached its present state as a result of natural agencies – water, wind, ice, sun and frost – operating throughout the many millions of years since the formation was laid down.
There are on the hillside two stone walls substantially built and apparently of considerable age, which are admittedly boundary walls of the property conveyed by the deed of 1923, though in age antedating that conveyance. One stretches straight up the slope and forms the boundary between that property and the Meath estate. The other runs parallel with the path and about 25 feet above it and constitutes the boundary between the property and the land formerly owned by the railway. It was claimed by the plaintiff that this wall was built as a protection for persons using the path against any stones that might roll down the slope, and undoubtedly, so long as it was intact, it would have served to intercept anything but a large boulder: but the trial judge, on a comparison of this wall with the other wall and on the admitted fact that it ran along the boundary of the two properties, told the jury, rightly in my opinion, that it should be regarded as a boundary wall and that there was nothing to warrant the conclusion that it was built to protect the path. This wall, though clearly very old, is generally in good repair but over one stretch of about 30 yards someone has removed the coping stones and immediately above the spot where the accident happened there is a gap about 15 feet wide at the top and 9 feet wide at ground level. It is not a new gap, for the grass has grown over it and there is no sign of the stones which must have come from it; and no evidence was given to fix even its approximate age.
The circumstances which led to the fall of the stone are established in broad outline. Six boys were descending the Head in a straggling group and the stone was dislodged from where it was lying by one of them, either accidentally or wantonly. It rolled down the hill, found its way through the gap in the wall and came to rest in the middle of the path, striking the plaintiff just as it came to rest. In weight it was between two and three hundred-weight and its dimensions are stated to have been about 2’ x 1½ x l ‘. Its shape is described as being “wedge shaped” and three sided. Photographs of the stone were put into evidence but they only show two faces, which are rectangular with rounded comers. As far as I can judge from the description and the photographs, if stood on end, it would havea rectangular base and top and the sides would be rectangular with the corners rounded. The base and two of its sides appeared to have been in contact with the earth;the third side was weathered.
One of the boys who had been on the hill pointed out to an Inspector of the Garda the
spot from which he thought the stone had come. There was a hole l 7′ deep on the upper side and 16’ across, but owing to the declivity there was little or no supporting earth on the sea side. The Inspector said that if the stone had been in place it would have been “like an egg in an egg cup with one third of the side of the egg cup broken away on the lower side”. This depression was on a small outcrop and, immediately below the ground fell very sharply for about 100 feet so that if the stone was once dislodged from its bed it would rapidly gain impetus which might be sufficient to carry it on down the somewhat gentler, but still steep, gradient to the path. This was what had happened for the Inspector was able to trace the marks of its descent in an irregular course to where it came to rest on the path.
Mr Purcell, an engineer called for the plaintiff, said that on examination he has found on the inside of the wall a few stones which had apparently, at some time or another, come down the hill; but he did not specify their size, nor whereabouts in the length of
wall he had found them.
I have summarised the evidence given by the witnesses and contained in the maps,
plans and photographs. In addition, certain interrogatories administered by the plaintiff and answered by the town clerk to the council were put into evidence by the plaintiff. From the answers it appeared that the council had no knowledge of any previous falls of rock on Bray Head or on to the path; that no reports of any such falls had ever been made to them; that no claims had been made on them nor, as far as the records went, on any previous occupier, in respect of such falls. It was admitted that the council supervised and inspected Bray Head and the footpath, and maintained the surface of the footpath, but they did not in any way inspect, supervise or maintain the wall, which was alleged to be merelya boundary wall marking the extent of the property. No representations had at any time been made to the council as to the danger from falling rock or stones nor had the existence of any such danger come to the knowledge of the council or its members or staff. It was admitted that the footpath was a public highway, having been dedicated by user from time immemorial. No invitation to use the path had ever been issued, nor permission given, nor had any warning been given to persons using the footpath, that there wasa danger from falling stones or that they used the footpath at their own risk. Although there were bye-laws governing the use of the park, these did not extend to
cover the footpath.
At the conclusion of the case for the plaintiff, Mr Peart, for the defendants applied to
have the case withdrawn from the jury on the ground that the evidence did not establish any duty on the council to prevent the fall of the stone. The trial judge refused to accede to this application and, on the defendants electing not to call evidence, the judge left to
the jury the following questions:
( 1) Was the boulder which struck the plaintiff dislodged by human agency?
⦁ Was the said boulder insecure if not interfered with by human agency?
⦁ If so, did the defendants know that the said boulder was insecure as aforesaid?
⦁ If not, should the defendants reasonably have known the said boulder was insecure?
⦁ Were the defendants negligent?
⦁ Damages.
We are told that the four grounds of liability which I have mentioned were advanced by counsel for the plaintiff in the course of his argument resisting a direction, and in his speech to the jury, but the learned judge in his charge did not direct the jury on the law of nuisance, nor on the liability to invitees and licensees, nor on the principle of Rylandsv Fletcher. He left the case to the jury as a straight case of negligence or no negligence, and further directed the jury that it was within their province not to answer the specific questions but to bring in a general verdict in the form of “We find for the defendants” or “We find for the plaintiff”. In the result the jury gave no answer to questions 1 to 4, answered question 5, “Yes” and assessed damages at £1,457.
From this verdict and the judgment given thereon the defendant council appeals, assigning numerous grounds of appeal, of which it is only necessary to note tw-o first that the learned judge was wrong in refusing the direction sought by the defendants at the conclusion of the plaintiff’s case, and second “in holding that there were any facts in evidence from which it could be concluded that any duty lay upon the defendants
towards the plaintiff, a breach of which might give rise to any claim based on negligence in this action”.
As Mr O Siochain did not object to the charge of the learned judge, except in one respect to which the judge acceded, I doubt if any question other than common law negligence is open for argument; but the court allowed Mr 6 Siochain to rely on the other grounds which I have mentioned and therefore I will deal with them briefly.
The rule in Rylands v Fletcher has no application. In that case the rule was stated by BlackburnJ in the Exchequer Chamber as follows – “The true rule of the law is that the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril”. The defendants did not bring the rocks or outcrop on to [their] land for their own purpose (or at all). They are there asa result of natural forces operation in geological time, as indeed is the land. They are, in short, the land itself and not things brought on to it. See also Pondardawe
RDCv Moore-Gwyn [1929] 1 Ch 656, a decision of Eve J which appears to me to be clearly correct.
Superquinn Ltd. v. Bray U.D.C. [
1998]3 IR 542 Laffoy J. 54
The claim
In these proceedings, which were initiated by plenary summons issued on the 19th August, 1988, the plaintiff claims damages for loss it incurred in consequence of the flooding of its supermarket premises at Castle Street, Bray, Co. Wicklow, on the night of the 25th August, 1986, and in the early hours of the morning of the 26th August, 1986, during the course of the storm known as “Hurricane Charlie”. That night, the river Dargle overflowed its banks and caused extensive flooding in the town of Bray and, in particular, in the area known as Little Bray in which the plaintiff’s premises are located.
When the hearing commenced in this Court, the proceedings had been discontinued against two of the defendants, the Wicklow County Council and Powerscourt Estates. In broad outline, the basis of the plaintiff’s claims against the remaining defendants is as follows:
(1) Bray Urban District Council, the first defendant is sued as the sanitary authority for the functional area in which Little Bray, including the plaintiff’s premises, is situate and as the body responsible for planning and directing drainage construction works which were being carried out in that area prior to the storm. It is alleged that the first defendant is liable in negligence and nuisance for the flooding of the plaintiff’s premises, which it is alleged was caused or contributed to by the manner in which the drainage construction works in the river Dargle in the vicinity of Bray bridge and of the plaintiff’s premises were being executed prior to the storm. In particular, it is alleged that in the execution of the works prior to the storm the river defences were breached and the flow toward and through Bray bridge was obstructed by temporary works and machinery.
(2) Uniform Construction Limited, the third defendant, the building contractor which was carrying out the drainage construction works under contract with the first defendant, is alleged to be liable in negligence and nuisance for the manner in which the works were being carried out.
(3) Coillte Teoranta, the fourth defendant, is sued as the successor in title to the Minister for Energy, as the owner, occupier and body responsible for an artificial lake or reservoir known as Paddock pond, which was located upstream of the river Dargle. On the night of the storm the dam at Paddock pond failed. It is alleged that the waters released by the dam failure joined the river Dargle, thereby increasing the volume and level of the river and, in consequence, causing or contributing to the flooding in Little Bray. The claim against the fourth defendant is founded in negligence and nuisance for alleged failure to properly use and maintain the dam and to provide and maintain an effective overflow arrangement for releasing water from Paddock pond when the level of the reservoir rose. It is also alleged against the fourth defendant that the existence of the Paddock pond reservoir constituted an unnatural use by the fourth defendant of its land and that the fourth defendant is liable under the Rule in Rylands v. Fletcher [1866] L.R. 1 Ex. 265; [L.R. 3 H.L. 330] for the escape of the water and the alleged resulting flooding of the plaintiff’s premises.
At the commencement of the hearing it was agreed by the parties that the quantification of the damages, if any, to which the plaintiff is entitled should be deferred. This judgment is concerned only with the issue of the liability of the defendants to the plaintiff for the damage caused by the flooding of the plaintiff’s premises.
[The learned judge considered the evidence generally and continued.]
Geography and typography of the Dargle catchment
Paddock pond was located approximately 14.4 kilometres, measured along the channel of the river Dargle, upstream of Bray bridge. The reservoir was formed about a century and a half ago by the construction of a dam across the northern end of a natural valley, which was fed by a stream. It was originally part of the Powerscourt Estate. Historical sources suggest that initially its purpose was ornamental. In later years it may have been used to power a sawmill downstream. However, such use had long ceased before the mid-1980’s. By then it was in the middle of an afforested area and its only practical benefit to its owner would appear to have been that the roadway which was constructed on the top of the dam afforded the only means of access to the forestry in the area to the west known as Priest’s hill.
Immediately downstream of Paddock pond there is a steep wooded gorge. A watercourse connected Paddock pond to the Dargle through this gorge. The confluence of the watercourse and the Dargle is somewhat downstream of Powerscourt waterfall. A number of landmarks and features along the river, downstream of this point and between it and the outskirts of the urban area of Bray, are of significance in the history of the storm. The first is a bridge at the main entrance to Powerscourt waterfall, which was not damaged in the storm. A short distance downstream, a masonry bridge, which most of the witnesses have referred to as Valclusa bridge, was demolished by the current and pieces of masonry weighing several tons were carried up to a hundred metres downstream. Further downstream, at the confluence of the Dargle and its tributary the Glencree river, Ballinagee bridge was demolished. Further again downstream, roughly halfway between Paddock pond and the sea at Bray, at Tinnehinch bridge near the Golden Gates, the most dramatic incident recounted by an eye witness, which I will outline later, occurred. Another tributary, the Glencullen river joins the Dargle a short distance upstream of the bridge known as Dargle bridge, which was called Fassaroe bridge by some of the witnesses.
[The learned judge further considered the evidence and continued.]
From the very considerable body of evidence adduced as to ground levels certain broad propositions can be deduced. The lowest ground levels are in the area to the north of Haughton’s Junction along Adelaide Villas and Sheridans Lane. In general, ground levels fall from the Coburg Estate east towards Bray bridge; Lower Dargle Road falls towards Sheridans Lane and Greenpark Road falls towards Castle Street. To the east of Haughton’s Junction Lower Dargle Road rises towards Bray bridge.
The plaintiff’s store is part of a shopping complex near Bray bridge at the junction of Lower Dargle Road and Castle Street. The threshold level at the entrance to the plaintiff’s store is 3.86m O.D. I should perhaps point out that all levels mentioned later are expressed in meters over the Ordnance Survey (Malin Head) datum. On the Castle Street frontage of the store there are two carparks which, in general, are below the level of Castle Street. Near its junction with Lower Dargle Road, Castle Street rises in the direction of Bray bridge.
Lower Dargle Road and the area to the north of it, which is commonly known as Little Bray, historically has been part of the natural flood plain of the Dargle.
Bray bridge is a three arched masonry bridge which gives access from Castle Street to Main Street. At normal levels the river flows through the northern and middle arches only. The southern arch has been variously described by the witnesses as a “dry” arch, a “relief”arch and an “overflow” arch.
Downstream of Bray bridge, as it flows to the sea, the Dargle is bounded on the north by Ravenswell Road, which in turn bounds Bray golf course. On the southern bank of the river, some distance downstream of the bridge, there is a housing estate known as Seapoint Court housing estate.
Overall the Dargle catchment comprises 12,100 hectares. It is a very fast flashy catchment, being very steep with very little storage.
Condition of Paddock pond and dam
The dam at Paddock pond was a gravity dam. It had two core elements. The main core element was a pillar of blue clay, which was probably six feet wide at the bottom and tapered off towards the top. The other core element, which was masonry, also tapered off towards the top. Between the two core elements there was ordinary earth fill and there was earth on the upstream and downstream faces and on the top of the cores. A roadway was constructed on top of the dam.
Four witnesses who resided in the vicinity of Paddock pond testified as to the use and the condition of the roadway on the dam immediately prior to the storm. Their evidence, which was not controverted, established that there was a considerable intensification in the use of the roadway prior to the storm, when it was traversed by large trucks and heavy machinery in connection with major felling operations in the forestry on Priest’s hill. This led to a deterioration of the surface of the dam, which dipped on the left hand side as one looked downstream. Some weeks before the storm red slatey shale had been spread across the dam, but this did not improve the surface. Mr. William McLaughlin (hereafter “Mr. McLaughlin”), a consulting engineer called by the plaintiff, was of opinion that the traffic described by the witnesses was likely to have caused damage to the dam, not merely the surface damage which the witnesses observed, but also some breakdown of the structure beneath.
All of the expert witnesses who addressed the issue of the failure of the dam were agreed that it was impossible to say precisely what the failure mechanism was. Mr. McLaughlin thought that what happened was that the water over-topped the dam at its lowest point – the dip observed by the local residents – and that this would have led to erosion. The over-topping water would probably have cut into the toe of the dam and this would have worked its way back and there would have been a catastrophic movement of the majority of the material in the dam. Mr. Alan Kennedy, the managing director of Nicholas O’Dwyer and Partners, consulting engineers, who was called on behalf of the fourth defendant, advanced a somewhat similar theory. In his view, one could not expect the dam to be level and a dip in the surface was to be expected. Initially as the water in the reservoir rose it would have trickled over the lowest part of the dam and it would have begun to gouge at the top downstream and tend to cut down into the dam. As the quantity of water increased it would have begun to eat into the bottom of the dam, and it would have damaged the bottom and undermined it downstream. Once this happened, the dam would have, as it were, “hinged” open and literally fallen over. Mr. Kennedy was of the view that the eventual failure would have been catastrophic and immediate. He emphasised that the water flowing over the crest of the dam would not have had sufficient time to affect the core.
At the time of the storm, the only means in existence for releasing excess water from Paddock pond was a stone culvert constructed in the dam near the top of the dam on its eastern side. In the past on the opposite side there had been a pipe passing through the bottom of the dam with a contraption on the upstream side for controlling flow into the pipe. By 1986, this contraption had been defunct for many years. On the downstream side the pipe had been “deadheaded” – capped off by a large bolt system.
On the upstream side the culvert was the traditional rectangular shape with a semi-circular top. While there is no reliable survey from 1986 which establishes the dimensions of the culvert, I accept the evidence of Mr. Amhlaoibh O h’Aonghusa, a civil engineer who was working in the State forestry service in 1986, who calculated the dimensions of the culvert on the basis of the photographic evidence which was adduced by the plaintiff as measuring 1.35m wide and 0.675m in depth as a reasonably fair estimation of the dimensions of the culvert.
There is reliable evidence as to the condition of the culvert before the storm from one of the local residents, Mr. Hugh Hackett. The culvert had silted up with gravel and it was obstructed by vegetation and forestry debris. Mr. Hackett investigated the culvert on the downstream side a few weeks before the storm and he discovered lengths of timber varying from 8 feet to 20 feet in length which had obviously come through from the upstream side and had got stuck at the exit and had become tightly enmeshed. Judging by the rot and decay, some of the timber had been in the culvert for a considerable time. The photographic evidence adduced
by the plaintiff of the condition of the culvert after the storm corroborates this evidence. On the evidence, I am satisfied that the culvert was capable of taking some overflow in its pre-storm condition but that its capacity was considerably reduced because of the silting up and obstruction by stones, vegetation and forestry debris. It follows that I consider that it has not been established on the evidence that the location of the culvert in relation to the lowest level of the dam was such to render the culvert totally ineffective.
There is no evidence that the fourth defendant’s predecessor had any scheme in place for the periodic inspection of Paddock pond and for the repair and maintenance of the dam and the clearing and maintenance of the culvert or that any such inspections or maintenance or repair works were implemented. On the contrary, the only witness who was called who was in the employment of the fourth defendant’s predecessor at the time, was not aware of any such programme or activity.
Drainage construction works
The drainage construction works which were being carried out in the vicinity of Bray bridge prior to the storm in August, 1986, were being executed under the Bray sewage scheme stage II contract number 2A by the third defendant for the first defendant. The consulting engineers in connection with the project were Messrs. John B. Barry and Partners (hereafter”Barry”). Mr. Liam Prendiville, a civil engineer, was the resident engineer in connection with the project and he was a temporary employee of the first defendant. He was involved with the project for six or seven years. Mr. Stephen Cellier, a civil engineer, was the third defendant’s site agent on the work at Bray. In broads terms, the works involved the laying of a sewage pipeline from east to west, extending from a point downstream of Bray bridge along the southern bank of the Dargle as far as Bray bridge, then passing through the southern arch of Bray bridge and continuing along the southern bank for a short distance and then crossing under the river and emerging on the north bank at a point opposite the shopping complex in which the plaintiff’s store is located and then continuing through the People’s park from east to west and crossing under the river again near the western extremity of the People’s park. The works also involved the construction of manholes to facilitate inspection and maintenance of the pipeline at intervals along the pipeline. By August, 1986, the pipeline had been brought within a short distance of the downstream (east) side of Bray bridge. A short distance upstream, to the west, of the bridge a section of pipeline had been laid to the point of the river crossing and the pipeline had been taken across under the river. On the northern bank the pipeline was being laid in the People’s park. Immediately prior to the storm in August, 1986, the following works were ongoing: preparatory works for the laying of the pipeline under the southern arch of the bridge; approximately fifteen metres upstream of the bridge on the southern bank the construction of a manhole; and on the other side of the river the laying of the pipeline in the People’s park.
The factual evidence to support the plaintiff’s allegation that the river defences were breached in the course of the drainage construction works and that the flow toward and through Bray bridge was obstructed on the night of the storm by reason of temporary works and machinery was supplied by Mr. Cellier and Mr. Prendiville, who had the benefit of some contemporaneous documentation, such as site diaries, to aid recollection of what had occurred over ten years previously.
In relation to the allegation that the river defences had been breached, the evidence establishes that a stretch of the river wall on the north side of the river which had separated the river from the People’s park was taken down on the 9th June, 1986, and had not been reinstated by the 25th August, 1986. Mr. Prendiville’s recollection was that the resulting breach was between five and fifteen metres wide. Its location was the point at which the pipeline crossing the river reached the northern bank of the river. It was necessary to take down the river wall at this point because it had been built without foundations and it was not possible to lay a pipeline under it while leaving it in situ. At the time of the storm there was construction work outstanding in the area of the breach and that work was not completed until the beginning of October, 1986. The only precaution which the third defendant had taken to protect the breach was the building of an earthen embankment within the People’s park. Neither Mr. Cellier nor Mr. Prendiville had any clear recollection of the location, construction or dimensions of the embankment. It was obviously upstream of the breach and Mr. Prendiville’s recollection was that it was built at right angles to the river wall.
It was not contended on behalf of the plaintiff that the river wall should not have been taken down to facilitate the laying of the pipeline but it was contended that it should have been reinstated at the earliest opportunity. It was also contended that a clay or earthen embankment was not a sufficient barrier against a possible flood, pending reinstatement, because heavy rain and water movement over an earthen embankment would remove it quickly. Mr. McLaughlin stressed that the wall removed was part of the river defences and that the location of the breach was one of the weakest points in the river defences. His opinion was that a satisfactory temporary protection would have been afforded there by sandbagging. Mr. Liam Downes, who at the time of the storm was the Civil Defence Officer for Co. Wicklow, testified that sandbagging was only a protection against surface water and that it was not effective against flooding.
The evidence disclosed only two items of temporary works which would have impacted on the flow of the Dargle on the night of the storm. The first was a temporary road which had been constructed under the southern arch of the bridge to facilitate movement of machinery from east to west in the course of the laying of the pipeline. A photographic survey of the southern arch prior to the construction works reveals that to some extent the southern bank of the river extended under the southern arch. To create the temporary road, the third defendant excavated the soft silty material and replaced it with suitable material such as gravel from the river bed and some imported material. The resulting surface was at a lower level than the level of the pre-existing bank which extended under the southern arch, the lower level being necessary to create a depth sufficient to allow a crane to travel under the arch. However, the temporary road was wider, that is to say extended further north, than the pre-existing embankment had. Mr. Prendiville’s evidence was that the temporary road was necessary to facilitate the drainage construction works. Mr. McLaughlin did not seriously take issue with this proposition. However, he did make the point that, if there was no further use for the temporary road, it should have been removed. He also made the point that the silty sand which had been under the southern arch prior to the construction of the road would have responded to the flood more readily than the material with which it was replaced – larger and more compacted material – allowing greater access for the flow through the southern arch during the storm.
The second item was trench sheeting which had been put in place immediately to the west of the manhole which was under construction upstream of the bridge for the purpose of retaining the soil during deep excavation of the trench or tunnel for the pipe line. Mr. Cellier’s recollection was that the trench sheeting was 5 m or 6 m in length and 2 m or 2.5 m in width on the narrow side facing the river and it was about 1.2 m above ground level of the southern bank. The evidence was that from an engineering point of view the trench sheeting was necessary and it would not have been feasible to remove it on the 25th August, and to reinstate it after the storm, say, on the 27th August, 1986.
The construction works were “rained off”on the 25th August, 1986. In the early afternoon, having learnt that there was a weather warning, Mr. Cellier walked the length of the works with the site engineer and took such precautions as he considered necessary to secure the site and the third defendant’s plant and equipment. On the evidence, I am satisfied that the largest and heaviest item of machinery which was on site, an NCK/C 54 crane, was moved back out of the line of the river. The only machine which was left on the upstream southern bank in the line of the river was a Komatsu excavator, which was a “hired in” machine, and for which Mr. Cellier did not have the keys and, accordingly, could not move. At some time prior to the storm, in the course of the construction works, the southern bank upstream of the bridge had been cleared of trees and vegetation and had been benched back to facilitate the construction works. On the afternoon of the 25th August, the Komatsu was tied to the benching.
Mr. Cellier testified that following the storm there was debris in the northern arch and the middle arch of the bridge. A large tree which had been caught in the northern arch was subsequently removed by the third defendant. However, there was no debris in the southern arch after the storm.
Both the NCK crane and the Komatsu excavator were silted up and had to be dug out and cleaned. Nonetheless, I accept Mr. Cellier’s evidence that the crane was moved on the afternoon of the 25th August, 1986.
On the basis of the factual evidence given by Mr. Cellier and Mr. Prendiville, Mr. McLaughlin expressed the view that the manner in which the works were executed was substantially satisfactory, subject to the reservations he expressed in relation to the temporary road, which I have already outlined. However, in his view, once the river was in spate the direct flow to the south arch would have been blocked by the presence of the Komatsu, the trench sheeting and the works at the manhole.
One of the ironies of this case is that one of the objectives underlying the drainage project was to separate foul sewerage from surface water and storm water drainage, there having been hitherto a combined system, in the Bray area with a view to preventing or at least alleviating flooding in the Little Bray area in the future.
The storm
The Little Bray area had experienced flooding prior to 1986. There had been flooding within living memory in November, 1965, and there were records of severe flooding in 1905, coincidentally on the 25th August in that year. However, the storm, which was caused by an offshoot depression from “Hurricane Charlie”, which hit the Wicklow and Dublin areas on the 25th August, 1986, was exceptional. It occasioned publication by the meteorological service of a supplement to the Monthly Weather Bulletin for August, 1986. This publication from its opening paragraph to its concluding paragraph paints a picture of a summer which is best forgotten – a summer which was “a real wash out” with a thundery June, a July which was the dullest in over thirty years and an August which brought a succession of storms which caused flooding in many areas. Of Monday, the 25th August, 1986, it records that in the worst affected areas the storm was of a severity that would be expected only once in one hundred years on average and it had the “depressing distinction” that no sunshine was recorded anywhere in the country on that day.
That gloomy picture is reflected in the rainfall records maintained by the meteorological service. Over the twenty-four hour duration of the storm from 8.00 a.m. (0900 GMT) on the 25th August to 8.00 a.m. (0900 GMT) on the 26th August, the recorded rainfall in the Dargle and Upper Dodder catchments ranged from 80 mm in low lying areas to at least 250 mm in the highest areas with a considerable amount of the catchment which was located at middle levels recording 150 mm to 200 mm rainfall. At Bray garda station 86 mm was recorded during that twenty-four hour period. Rainfall of that magnitude at a low lying station has a return period of one hundred years. At Glenasmole, which is just outside the Dargle catchment, 165 mm was recorded for the same twenty-four hour period, with a return period of at least one hundred years. The one day values recorded at Bray garda station and Glenasmole are put in perspective when contrasted with the rainfall recorded at the same locations during the November, 1965, storm. At Bray garda station the total rainfall recorded over three days of the November, 1965, storm was 48.7 mm and at Glenasmole, 165 mm was recorded over three days.
The intensity of the rainfall on the 25th August, 1986, was reflected in the rainfall recorded at Casement aerodrome where moderate to heavy rain persisted for most of the twenty-four hour period commencing at 8.00 a.m., the highest six hour duration total having occurred between 3.00 p.m. and 9.00 p.m. on the 25th and the highest twelve hour duration total having commenced at around noon on the 25th. Although Casement aerodrome is outside the Dargle catchment, Mr. Denis Fitzgerald, the head of the climatological division of the Meteorological Service, testified that the pattern of intensity represented by those records would have been reflected throughout the Dublin and Wicklow area and was consistent with the record at Glenasmole, where the total rainfall recorded for the six hours from 5.00 p.m. to 11.00 p.m. on the 25th was 85 mm. For the sake of clarity I should perhaps state that, although the Meteorological Service records refer to G.M.T., the foregoing times are expressed as B.S.T..
While the rainfall statistics speak for themselves, I think it is worth noting that Mr. Fitzgerald, who did not strike me as a man given to hyperbole, resorted to epithets such as “exceptional”, “quite remarkable” and “startling” when describing the recorded rainfall during the storm. Mr. Fitzgerald expressed the opinion that in the extreme conditions which prevailed on the 25th August, the actual rainfall could have been in the region of 10% higher than the recorded rainfall.
The overall picture which the data recorded by the meteorological service paints of the storm on the 25th and 26th August, 1986, is of heavy persistent rain which produced exceptional one day rainfall totals which, applying the methodology of the Flood Studies Report, to which I will refer later, produced a return period from one in fifty years to one in one hundred years. The rainfall was accompanied by strong to gale force winds. The storm followed a number of other active weather systems which affected Ireland and gave high rainfalls earlier in the month. There was very little soil moisture deficit even in low lying areas.
The eyewitnesses whose experiences on the night of the storm I will record later were unanimous that the storm was unprecedented in its ferocity. Between them they had very many years of experience of living in the Dargle catchment and none of them had previously experienced rain of such duration and intensity. The level of the Dargle was higher on that night and its velocity greater than had been experienced in living memory. In short, their perception of the event was that it was a major natural disaster.
The effects of the storm were not just localised in the Bray area. There was evidence of very serious flooding in Dublin city when the Dodder overflowed its banks flooding approximately three hundred and fifty houses, as well as public houses and business premises from Milltown down to Ballsbridge. The rainfall in the Dodder catchment during the storm was the most significant in recorded history.
Throughout Co. Wicklow, outside the Dargle and Dodder catchments, bridges were destroyed or damaged during the storm. Annamoe bridge, an early 19th century masonry bridge over the Avonmore was badly damaged. Avoca bridge, a mid-19th century bridge, on the Avonmore was badly damaged and, upstream of that, the Lions Arch bridge at Castlehoward, a masonry bridge, was completely destroyed. The Sally Gap bridge high up in the Avonmore catchment was demolished. Ballyward bridge, a masonry bridge on the Liffey catchment upstream of the Blessington lakes, collapsed in early September, 1986, as a consequence of damage sustained during the storm.
Eye-witness accounts
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Mr. O hAonghusa gave a very graphic description of the gorge downstream of the dam when he visited the area after the storm. He said that the erosion was really spectacular. The water from the dam had attacked the glacial drift on either side and cut huge clips in it thirty or forty feet high. It had tumbled down big trees. It had scoured the gorge and the bottom of it was bare rock which looked as if it was sandblasted. There was not a scrap of vegetation left, no moss and nothing even in the crevices. Everything had been scoured out. He had never seen rocks so well cleaned.
….
Mr. Forrestal, who was the county engineer for Co. Wicklow at the time of the storm, with responsibility for roads and bridges in the county, attributed the collapse of Valclusa bridge partly to the failure of the dam at Paddock pond. When the water from Paddock pond came thundering down the valley, Valclusa bridge was carried clean away and pieces of masonry weighing several tons were carried up to 100 metres downstream. Mr. Forrestal attributed the demolition of Ballinagee Bridge further downstream also, in part, to the failure of the dam at Paddock pond.
Mr. Paul Barnwell was in Enniskerry on the night of the 25th August, 1986. While endeavouring to find a safe route back to Bray, where he lived, he arrived at the Golden Gates near Tinnehinch bridge. Visibility was appalling. As he was approaching Tinnehinch bridge, there was a lot of water lying on the ground in what he assumed was a dip in the road.
There was a car ahead of him going in the same direction. The car ahead proceeded through the water at a fairly slow pace and got through. Having assessed that his own car had as good a chassis clearance as the car ahead, Mr. Barnwell decided to drive through the water. When he was approximately half way through, there was a sudden surge and the car was lifted and appeared to shoot to the left hand side of the road. The water began to come through at the side of the car. Then there was a sudden major surge and the car was hit by a wall of water. The rear of the car swung back and it appeared to drop down. The road had actually collapsed beneath the car. Mr. Barnwell could not open the car door. The car was still in motion. It was moving with the run of the water. Fortunately, he was able to open the car window. At that stage, the water was up to window ledge level and, when he opened the window, the water started coming into the car. He climbed out through the window and clung to a tree. Eventually, his horrific experience came to an end when he was rescued by a man on a tractor. Mr. Barnwell’s evidence was that initially when he drove through the flood, the water seemed to be relatively still but after the surge the water was moving. He timed the incident at between 10.30 p.m. and 11.00 p.m.
……
Bray bridge was crucial to the Civil Defence operations that night and Mr. Downes, Civil Defence Officer for Co. Wicklow, regularly checked the bridge visually to see whether there was a fall or rise in the water. He said he had a good view looking over the parapet of the bridge and he looked over at both sides – to the east and to the west. His recollection was that there was water flowing through the southern arch and the central arch. A tree was obstructing the northern arch. The flow through the arches, with the exception of the northern arch, which was a bit restricted, seemed to be consistent with the arches not being obstructed. He observed no appreciable difference in the levels upstream and downstream. The water was coming at great force. The bridge was vibrating as a result of the water coming down. At one stage, the water appeared to him to be within two feet of the top of the arches and it could have been higher.
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Of the eye witnesses of the flooding in Bray on the night of the storm, it was acknowledged by the expert witnesses that the most reliable observer was Mr. Prendiville. Not only did he have a professional interest as the resident engineer responsible for the drainage construction works, but on the night he was called out by and accompanied by the late Mr. Kevin Conway, the Town Engineer. Moreover, fortunately, Mr. Prendiville did not have to rely solely on his memory when testifying as to the event which occurred more than ten years previously; he had the benefit of his contemporaneous diary record and report on the event. Mr. Prendiville was in Bray from 10.45 p.m. on the 25th to 2.30 a.m. on the 26th and during that period he was observing the behaviour of the river and its impact on the surrounding lands and buildings and he was noting flood levels.
[The learned judge further considered Mr. Prendiville’s evidence and continued].
Commenting on the event, Mr. Prendiville described it as a natural disaster of enormous proportions. His opinion was that, having regard to the immense amount of water which ended up in the Little Bray area, the flooding of the plaintiff’s premises was inevitable and, if a storm of the same magnitude were to be visited on the Dargle catchment again, the same thing would happen.
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The issues
I now propose considering the issues which arise between the parties, namely:-
(1) whether an action lies in nuisance against the first defendant or the third defendant;
(2) whether the first defendant or the third defendant was negligent;
(3) whether the fourth defendant was negligent;
(4) whether the fourth defendant was liable under the rule in Rylands v. Fletcher ; and
(5) if there was fault on the part of the first defendant, the third defendant or the fourth defendant, whether the flooding of the plaintiff’s premises and the damage resulting from it was attributable to such fault.
Action in nuisance against the first defendant/third defendant?
It was submitted by counsel, on behalf of the first defendant, that, as the sanitary authority for the Bray area, it was under a statutory duty, by virtue of s. 17 of the Public Health (Ireland) Act, 1878, to cause to be made such sewers as might be necessary for effectually draining the Bray area and that on the 25th August, 1986, the drainage construction work s being carried out in the Dargle at Bray were being executed in pursuance of that duty and in the only manner in which they could reasonably be executed. That being the case, it was submitted, as a matter of law, the first defendant was immune from an action based on nuisance and was free from liability unless it was negligent in the exercise of its statutory duty and power. I am satisfied that this proposition is correct and that, in the absence of proof of negligence, no liability attaches to the first defendant or to the third defendant, which executed the works under contract with the first defendant.
Was the first defendant or third defendant negligent?
The first defendant and the third defendant are charged with the same acts and omissions in the implementation of the drainage construction works as constituting negligence, the claim against the first defendant being premised on the fact that it planned and directed the works, and the claim against the third defendant being premised on the fact that it executed the works under contract with the first defendant. The only matters which emerged from the evidence on which the plaintiff could found an allegation of negligence against the first defendant and the third defendant were:
(a) the failure to reinstate the river wall opposite the plaintiff’s premises before the night of the 25th August, 1986 or, alternatively, the failure to provide a more effective method of preventing water passing through the breach in the river wall than the earthen embankment;
(b) leaving the temporary road under the southern arch of the bridge in situ up to the 25th August, 1986; and
(c) the failure to appreciate that the trench sheeting and the works at the manhole and the presence of the Komatsu on the southern bank upstream of the bridge would obstruct the flow of the river to the southern arch when the river was in spate.
It was urged by counsel on behalf of the first defendant that, in determining whether the first defendant or the third defendant was negligent, the court should judge the conduct of these defendants in the context in which they were implementing the works and, in particular, the court should have regard to the absolute necessity to implement the sewage scheme in Bray and to the fact that there was no evidence that there was any better or safer way of executing the works. Moreover, it was urged by counsel that in determining whether these defendants were liable for the consequences of their conduct, the essential issue was whether those consequences were reasonably foreseeable by them prior to the storm, the contention being that they were not.
Counsel, on behalf of the plaintiff, submitted that the correct test on the issue of foreseeability was the test to be extrapolated from the following passage of the judgment of Walsh J. in Kelly v. Board of Governors of St. Lawrence’s Hospital [1988] I.R. 402, (a jury action involving an allegation of negligence against a hospital in connection with the custodial care of a patient suffering from epilepsy and some automatism) at p. 410:-
“The duty the defendants owed to the plaintiff was to take reasonable care to avoid permitting him to be exposed to injury which a reasonable person ought to foresee. In this case the reasonable person concerned and the standard involved was the reasonable hospital administration and nursing service. In my view, it would not be correct to tell the jury that they must be satisfied that what has to be foreseen is a probability of injury. To maintain that position would amount to saying to the jury that even if they were satisfied that the nursing staff foresaw not merely that there was a possibility which was more than a vague or a very remote possibility, but even a substantial possibility, that because it did not reach the height of being a probability, that they could safely take no precautions. In my view, once there is a foreseeable possibility then the persons involved are on notice. Undoubtedly the standard of care which might reasonably be expected may be sufficient if it is commensurate with the degree of possibility, but that is different from saying that no standard of care is expected until the possibility reaches such a high degree as to be classified as a probability.”
The criterion was whether the type of damage done, rather than its extent, was foreseeable, it was submitted. Counsel pointed to the flashy nature of the river, the previous experience of flooding in the Little Bray area and the evidence as to the vulnerable nature of the river flood defences at the location of the breach. He acknowledged however, that as regards the standard of care expected of a public authority carrying out public works, the courts should allow a margin of tolerance.
In my view, neither the first defendant nor the third defendant fell short of the standard of care which they owed to riparians in Little Bray.
As I am entitled to, I have had regard to the social utility of the conduct of these defendants and the object of the works, to improve drainage in the Bray area. While a storm of sufficient ferocity to raise the level of the river sufficiently to flood riparian lands was, in my view, a foreseeable possibility, it was a very remote possibility, particularly, as within the previous twenty years the river channel had been upgraded following the 1965 flood to accommodate a 200cumec flood, at the behest of the first defendant and following an intensive study by the consulting engineers involved in the sewage project. I have no doubt that the standard of care observed by the first defendant and the third defendant was commensurate with the degree of possibility of flooding and that it conformed with the standard to be expected from a reasonable sanitary authority and a reasonable building contractor in the circumstances which prevailed. My observations in relation to the specific allegations of negligence against these defendants are as follows:-
(a) On the evidence I am satisfied that the river wall had to be taken down to facilitate the taking of the pipeline to the northern bank of the river and that, as the works on the northern bank in this area were still in progress in late August, 1986, it was reasonable not to have reinstated the river wall. Moreover, I am satisfied that the construction of the earthen embankment was an adequate measure to protect the breach in the river wall in the circumstances which prevailed. On the evidence, I am satisfied that sand-bagging would not have provided any greater measure of protection and probably would not have been as effective.
(b) I am satisfied that the construction of the temporary road under the southern arch of the bridge was the most expedient way of moving construction traffic from the downstream side of the bridge to the upstream side of the bridge. As the section of pipeline through the southern arch remained to be installed in late August, 1986, in my view, it was reasonable to have left the temporary road in situ up to that time.
(c) As was conceded by the plaintiff, properly in my view, the works at the manhole were necessary and installation of the trench sheeting was essential in the construction of the manhole. Accepting that it was not feasible to remove the trench sheeting on the afternoon of the 25th August, the plaintiff’s contention was that it was all the more important to remove anything else which might cause a blockage of the flow towards
the southern arch, including the Komatsu and the temporary road. I have already dealt with the temporary road. In relation to the Komatsu, which was the only movable object which was not removed from the southern bank upstream of the bridge on the afternoon of the 25th August, in my view, having regard to its location and size there was not even a foreseeable possibility that it could have any effect on the flow of water to and through the southern arch of the bridge or on the level of the river.
Accordingly, I hold that the first defendant and the third defendant were not negligent.
Was the fourth defendant negligent?
I have outlined in some detail the evidence as to the condition of Paddock pond immediately prior to the storm. There was uncontroverted evidence that the surface of the roadway which traversed the dam was in poor condition immediately prior to the storm. I am satisfied, on the evidence, that the deterioration of the roadway was attributable to intensification of its use in connection with the forestry operations in Priest’s Wood and the failure of the fourth defendant’s predecessor to have a proper care and maintenance programme in place in relation to Paddock pond and its failure to adequately respond to the deterioration and lack of repair of the surface of the dam. I am also satisfied that it was the fourth defendant’s predecessor’s failure to have a proper care and maintenance programme in place and to act in accordance with it which led to the capacity of the culvert being considerably reduced because of silting up and obstruction by stones, vegetation and forestry debris, as I have already found, on the night of the storm. The evidence discloses a deplorable lack of care and concern on the part of the fourth defendant’s predecessor as the owner, occupier and body responsible for Paddock pond.
It is common case that the dam at Paddock pond collapsed at around 10.30 p.m. on the night of the 25th August and that, thereupon, the water impounded behind the dam escaped, rushed down the gorge and joined the waters of the Dargle. The crucial question is whether the fourth defendant’s predecessor’s conduct in permitting the intensification of the use of the road on the dam, failing to adequately maintain the surface of the dam and failing to maintain and keep clear from obstruction the culvert, was a material element and a substantial factor in bringing about the dam failure.
In my view, the plaintiff has not established, on the balance of probabilities, a causal link between the use and lack of proper maintenance of the dam prior to the storm and to the dam failure. In particular, the evidence of Mr. McLaughlin, considered in the light of the theories advanced by its experts as to the manner in which the dam burst, was not sufficiently cogent to lead me to conclude that the traffic on the dam resulted in structural effects on the core which were of significance in the subsequent failure of the dam or that the condition of the surface facilitated erosion such as to be a material element in the failure mechanism. I consider that the proper inference to be drawn from the evidence is that it was the effect of the enormous volume of water flowing over the crest of the dam at the height of the storm which caused the failure. Mr. Kennedy’s theory as to the failure mechanism, in my view, is consistent with the photographic evidence of the condition of the dam in the immediate aftermath of the storm, from which it appears that the core was undamaged.
That inference leads to the question of whether the obstruction of the culvert was a material element and a substantial factor in the increase in the level of the water impounded behind the dam, eventually to a level at which it overtopped the dam. It is impossible, on the evidence, to quantify the diminution in the outflow through the culvert caused by the obstruction or to relate that diminution to the inflow into Paddock pond with any degree of accuracy. Dr Samuels, on the basis of the assumptions embodied in the model as to the dimensions of the culvert and its effective unobstructed capacity, quantified the reduction in discharge as a reduction from 3 cumec to 0.4 cumec. However, I am not satisfied that either assumption reflected the reality on the night. Mr. Kennedy calculated the discharge capacity of the culvert, in its unobstructed state, at 1 cumec and the inflow into Paddock pond at 4 cumec. If these calculations were based on data which reflected the reality on the night, the obstruction of the culvert could not have been a material element or a substantial factor in the volume of water which was inevitably going to flow over the dam. Of course, Mr. Kennedy’s estimation may be no more an accurate reflection of what happened on the night than Dr. Samuel’s.
Having regard to the evidence as a whole, in my view, it was the unprecedented intensity and duration of the storm and, in particular, the extraordinary degree of precipitation in the upland area of the Dargle catchment in the five to six hours before 10.30 p.m. on the 25th August, which caused the water in Paddock pond to rise and rise and, even if the culvert had been wholly unobstructed, the culvert could not have played an appreciable role in keeping down the level of the water. It follows that the blockage of the culvert was not a material element or a substantial factor in bringing about the dam failure.
Accordingly, the plaintiff’s claim against the fourth defendant in negligence fails.
Is the fourth defendant liable under the rule in Rylands v. Fletcher?
The most frequently quoted statement of the rule in Rylands v. Fletcher is the following passage from the judgment of Blackburn J. in the Court of Exchequer Chamber [1866] L.R. 1 Ex. 265 at p. 279:-
“We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the Act of God.”
The judgment of Blackburn J. was subsequently approved by the House of Lords (L.R. 3 H.L. 330), although in his speech Cairns L.J. restricted the application of the rule to circumstances where there had been “a non-natural use” of the land by the defendant. The decision in Rylands v. Fletcher itself is authority for the proposition that the creation of an artificial lake or reservoir is a non-natural use. The nature of the liability of a defendant for the escape of dangerous things has been clarified recently by the House of Lords in Cambridge Water Co. v. Eastern Counties Plc. [1994] 2 A.C. 264, in which it was held that forseeablility of harm of the relevant type by the defendant is a prerequisite of the recovery of damages both in nuisance and under the rule in Rylands v. Fletcher . In the light of that decision the nature of the liability of a defendant under the rule in Rylands v. Fletcher is summarised as follows inCharlesworth and Percy on Negligence, 9th ed., at p. 893:-
“The escape of a dangerous thing does not found an action unless the defendant knew of, or could reasonably have foreseen, the type of damage that would arise if it escaped and upon which the claim is based. Liability is strict only in t know of the risk, or at least could reasonably have foreseen it, he is liable for the damage caused, notwithstanding the exercise of reasonable care to prevent an escape.”
In my view, the fourth defendant could reasonably have foreseen that, if the dam at Paddock pond failed and the impounded water escaped, it would flow viathe gorge and the watercourse into the Dargle and that damage in the nature of flooding of the riparian properties downstream would ensue. In my view, the circumstances of the escape of water from the Paddock pond on the night of the 25th August, 1986, came fairly and squarely within the ambit of the rule in Rylands v. Fletcher and, unless the fourth defendant has established one of the excusing factors recognised as constituting a defence to liability under that rule, the fourth defendant is liable to the plaintiff provided the plaintiff has established that the flooding of its premises was caused or contributed to by the water from the Paddock pond.
The defence which the fourth defendant claims absolves it from liability is Act of God. Counsel, on behalf of the fourth defendant, relied on Nichols v. Marsland (1876) 2 Ex. D. 1, which is described in McMahon and Binchy on Irish Law of Torts, 2nd ed., at p. 491 as the only reported decision in which the defence of Act of God has been successful, in support of his contention that the dam failure was caused by Act of God. The facts in that case, as set out in the judgment of Mellish L.J., were that the defendant was the owner of a series of artificial ornamental lakes, which had existed for a great number of years, and had never previous to the 18th June, 1872, caused any damage. On that day, however, after a most unusual fall of rain, the lakes overflowed, the dams at their end gave way, and the water out of the lakes carried away the county bridges lower downstream. The jury found that there was no negligence either in the construction or the maintenance of the reservoirs, but that, if the flood could have been anticipated, the effect might have been prevented. Mellish, L.J. distinguished the case before him on the facts from Rylands v. Fletcher stating:-
“But the present case is distinguished from that of Rylands v. Fletcher in this, that it is not the act of the defendant in keeping this reservoir, an act in itself lawful, which alone leads to the escape of the water, and so renders wrongful that which but for such escape would have been lawful. It is the supervening vis major of the water caused by the flood, which, superadded to the water in the reservoir (which of itself would have been innocuous), causes the disaster.”
Having stated that the opinion of the Court of Appeal was that the defendant was entitled to excuse herself by proving that the water escaped through the Act of God, Mellish L.J. went on to say:-
“The remaining question is, did the defendant make out that the escape of the water was owing to the Act of God? Now the jury have distinctly found, not only that there was no negligence in the construction or the maintenance of the reservoirs, but that the flood was so great that it could not reasonably have been anticipated, although, if it had been anticipated the effect might have been prevented; and this seems to us in substance a finding that the escape of the water was owing to the act of God. However great the flood had been, if it had not been greater than floods that had happened before and might be expected to occur again, the defendant might not have made out that she was free from fault; but we think she ought not to be held liable because she did not prevent the effect of an extraordinary act of nature, which she could not anticipate . . .
It was indeed ingeniously argued for the appellant that at any rate the escape of the water was not owing solely to the Act of God, because the weight of the water originally in the reservoirs must have contributed to break down the dams, as well as the extraordinary water brought in by the flood. We think, however, that the extraordinary quantity of water brought in by the flood is in point of law the sole proximate cause of the escape of the water. It is the last drop which makes the cup overflow.”
Counsel for the fourth defendant emphasised the similarity on the facts of Nichols v. Marsland (1876) 2 Ex.D. 1 and the instant case and urged that Nichols v. Marsland should be followed. He submitted that the decision in Dockeray v. Manor Park Homebuilders Ltd. (Unreported, High Court, O’Hanlon J., the 10th April, 1995), the only recent Irish authority in which the defence of Act of God in a similar context to this case was considered, is distinguishable on the facts. Having recognised that Act of God orvis major could, in appropriate circumstances, afford a defence to a claim under the rule in Rylands v. Fletcher , and having quoted a passage from McMahon and Binchy at p. 492 to the effect that it would appear that”only the most extreme of natural phenomena” will afford a good defence, O’Hanlon J. went on to say:-
“In the present case, while the rainfall on the 26th May, 1993, and again on the 11th June, 1993, was of extraordinarily high proportions, I do not consider that it was of such a phenomenal nature as to justify the description of Act of God. It will be recalled that some of the witnesses giving expert evidence on the topic indicated that such events might be expected to recur on a 20 year cycle, and other expert evidence indicated clearly that it was a wise precaution when developing a building site not to leave the entire sewerage and drainage system wide open to the ingress of storm-waters at any time.”
The plaintiff’s response to the fourth defendant’s submission was that in Greenock Corporation v. Caledonian Railway [1917] A.C. 556, the finding of fact by the jury in Nichols v. Marsland (1876) 2 Ex.D. 1 was thought to be wrong by the House of Lords, which approved of the decision in Kerr v. Earl of Orkney (1857) 20 D. Sess. Cas. 298 on which the plaintiff relied. In the latter case Clerk Hope L.J. said at p. 302:-
“. . . if a person chooses upon a stream to make a great operation for collecting and damming up the water for whatever purpose, he is bound, as the necessary condition of such an operation, to accomplish his object in such a way as to protect all persons lower down the stream from all danger. He must secure them against danger. It is not sufficient that he took all the pains which were thought at the time necessary and sufficient. They were exposed to no danger before the operation. He creates the danger, and he must secure them against danger, so as to make them as safe notwithstanding his dam as they were before. It is no defence in such a case to allege the dam would have stood against all ordinary rains – it gave way in an extraordinary and unprecedented fall of rain, which could not be expected. The dam must be made perfect against all extraordinary falls of rain – else the protection is not afforded against the operation which the party must accomplish.”
It is stated inCharlesworth and Percy at p. 902 that to be an Act of God an occurrence must be:-
(i) the consequence of natural causes, exclusively;
(ii) of an extraordinary nature; and
(iii) such that it could not be anticipated or provided against by the defendant.
The third requirement was adopted by the House of Lords in Greenock Corporation v. Caledonian Railway , and, while supported by a line of authority, that decision departed from another line of authority represented by cases such as Nichols v. Marsland and Nitro-Phosphate and Odam’s Chemical Manure Co. v. London and St. Katherine Docks Co. [1878] 9 Ch. D. 503, to which I will refer later in another context, cases in which it was held that to constitute an Act of God it was sufficient to show that the occurrence could not reasonably be anticipated or guarded against. The authors of Charlesworth and Percy state that, in order for the defence to succeed now, it must be proved by the defendant that it was impossible to anticipate the occurrence or to guard effectively against it and they point out that the defence was not established where there had been an exceptional storm; a rainfall of extraordinary violence ( Greenock Corporation v. Caledonian Railway [1917] A.C. 556); an exceptionally heavy snow storm; a very high wind; or an extraordinarily high tide. They go on to suggest that the only circumstances in which the defence would be likely to succeed in the United Kingdom would be if some catastrophe happened as a result of an earthquake, a volcanic eruption or a tidal wave of vast proportions.
The views expressed by the authors of Charlesworth and Percy are obviously informed by the supremacy of the decision in Greenock Corporation v. Caledonian Railway [1917] A.C. 556, over the decision in Nichols v. Marsland (1876) 2 Ex. D. 1. Apart from the distinguishing feature which I have already referred to, that the finding of fact in Nichols v. Marsland was made by a jury, Nichols v. Marsland was also distinguished in Greenock Corporation v. Caledonian Railway on the basis that, having reference merely to the storage of water as in Rylands v. Fletcher , it did not affect the question of liability for interference with the course of a natural stream as laid down in other authorities, such as, Kerr v. Earl of Orkney (1857) 20 D. Sess. Cas. 298, to which I have already referred (see the speech of Finlay, L.C. at p. 573 and the judgment of Wrenbury L.J. at p. 584). Another distinguishing feature was that Greenock Corporation v. Caledonian Railway was an appeal from the Court of Session in Scotland and the issue was whether the extraordinary rainfall which caused the stream to overflow in that case was a damnum fatale under Scottish Law. In his speech Finlay L.C. stated at p. 571 that the authorities justified the view of the law propounded by Professor Rankine in his work on the Law of Land Ownership in Scotlandin the following passage:-
“The sound view seems to be that even in the case of an unprecedented disaster the person who constructs an opus manufactum on the course of a stream or diverts its flow will be liable in damages provided the injured proprietor can show (1) that the opus has not been fortified by prescription, and (2) that but for it the phenomena would have passed him scathless.”
I have quoted this passage because it discloses that even under the law of Scotland the strictures of the concept of damnum fatale gave way to the existence of a state of things for a period of long prescription. Immediately before the 25th August, 1986, the dam at Paddock pond was of sufficient antiquity to be “fortified by prescription”.
In my view, the principle to be derived from the line of authorities which includes Nichols v. Marsland (1876) 2 Ex.D.1 and Nitro-Phosphate v. London and St. Katherine Dock Co. (1878) 9 Ch. D. 503, is more in line with the current concept of tortuous liability under the rule in Rylands v. Fletcher , as exemplified by the decision of the House of Lords in Cambridge Water Co. v. Eastern Counties Plc. [1994] 2 A.C. 264, than the decision in Greenock Corporation v. Caledonian Railway .Moreover, on the facts, the instant case is closer to Nicholas v. Marsland than to Greenock Corporation v. Caledonian Railway .Accordingly, in determining whether the fourth defendant is absolved from liability for the consequences of the dam failure by reliance on the defence of Act of God, I consider that the test to be applied is whether the storm on the 25th August, 1986, could reasonably have been anticipated or guarded against by the fourth defendant. I am satisfied that the evidence shows that the storm did fall within the category of the most extreme natural phenomena and could not reasonably have been anticipated or guarded against, so that the defence of Act of God succeeds.
Accordingly, the plaintiff’s claim against the fourth defendant under the rule in Rylands v. Fletcher fails.
Dempsey v Waterford Corporation [2008] I.E.H.C. 55, Peart J.Judgment of Mr Justice Michael Peart delivered on the 29th day of February 2008:
The plaintiffs are the owners of an old 17th century building at 1, Dyehouse Lane in the City of Waterford, which they purchased in about 1984 and which in more recent years they have renovated and restored and now use as their home. The first named plaintiff is an architect by profession.
The plaintiffs’ living room has a parquet floor which was not laid until they were absolutely certain that there was no moisture in the surface on which that was to be laid since moisture can cause the floor timbers to swell and buckle.
On the 3rd March 2000, the plaintiffs’ discovered without any warning that the entire parquet floor had buckled. The room had also a noxious smell. Investigations by the first named plaintiff showed him that there had been an inflow of water beneath the floor, and that it was sewage water which had somehow entered his premises underneath this floor area. He carried out his own investigations as did the defendant local authority after the problem was brought to their attention. Mr Chris O’Sullivan, an engineer in the employment of the defendant has stated that when the complaint was received the manholes on Dyehouse Street outside the plaintiffs’ house were
inspected, and no problem was identified there. Following that inspection a test referred to as a dye test was carried out. That test involved running water containing a dye through the pipe in that street in order to see whether in due course any of the dyed water could be found to have entered the plaintiffs’ living room area. None was found to have done so.
The plaintiffs’ arranged to excavate their own floor in order to see if there was anything beneath which could have caused the ingress of water since the examination of the defendant’s drain pipes on the street has revealed no problem which could be linked to the problem within the house. That excavation revealed that there was a very old 17th century drain or culvert beneath the room and which ran out in the direction of the street outside. That culvert or drain has been referred to in the evidence as a French drain. It is not a pipe as such but rather is made of old bricks. The defendant on being informed of the existence of this culvert beneath the plaintiffs’ house carried out some excavations outside the house and discovered that this structure continued out of the house and into an equally old culvert under the pavement and which in turn ran down Dyehouse Street in the direction of Grattan Quay and the river. Further investigations revealed that this old culvert was completely blocked such that a very powerful jet used by the defendant in an attempt to clear it failed completely to do so.
Everybody is agreed that the water penetration beneath the plaintiffs’ living room floor resulted from water entering the premises via this old culvert. The plaintiffs have lived in this house since 1984 and have never had such an incident before, although in evidence it was stated that there had been a previous similar complaint but it is quite clear that that complaint related to an entirely problem in a different area of the house and there is no suggestion that the two incidents are in any way linked.
Of central importance is the fact that around the time of this incident the defendant was carrying out or had recently carried out major sewage renewal works on Grattan Quay. It appears that due to population increase a programme of sewage drain upgrading was undertaken and this involved the re-laying of the main sewer along Grattan Quay, and the reconnection into that new main sewer of all branch pipes or tributaries which connect into that main sewer on Grattan Quay. One of those branch sewers was on Dyehouse Street. That branch sewer on Dyehouse Street was the drain in which the dye-test had been carried out and which revealed no seepage to the plaintiffs’ house. It was clear that there was no defect in that pipework which could have caused the problem in the plaintiffs’ house.
Mr O’Sullivan has stated that the defendant was never aware of the existence of this old French drain beneath the pavement and which in the past must have serviced the plaintiffs’ house. It does not appear on any map or any of the defendant’s records. He is of the view that there are probably a very large number of these old drains beneath the surface of the city which they are completely unaware of. However, since the investigations carried out showed that the water had entered the plaintiffs’ house by way of this old culvert the defendant decided that in order to assist the plaintiffs it would simply divert it into the new sewer pipe which they had laid on Dyehouse Street, and the problem disappeared completely thereafter.
The defendant however does not accept that what happened to the plaintiffs was due to any negligence or fault on the defendant’s part since it was completely unaware of the existence of this old pipework and could not have foreseen that it was there. The plaintiff on the other hand submits that it was incumbent on the defendant when reconnecting all the branch sewers and drains into the new main sewer on Grattan Quay to ensure that all branches were reconnected, including that which caused the problem to the plaintiffs. Mr Bernard Harte, an engineer called on the plaintiffs’ behalf has given it as his opinion also that it was the duty of the defendant to ensure that all such branch drains were properly reconnected into the new main sewer.
Nobody is quite sure why following the work carried out to the main sewer on Grattan Quay, this old pipe, for the first time since the plaintiffs came to live in this house in 1984, filled up so that water backed up the 70/90 metres up Dyehouse Street and escaped into their house. But it seems to be clear that water must have backed up in the old culvert, whereas previously whatever water was within the culvert flowed down Dyehouse Street and either entered the old sewer drain or entered the river adjacent to Grattan Quay successfully. No further investigations have been carried out to see why the old culvert no longer empties as previously, but the plaintiffs ask the Court to infer that whatever works were carried out on the main sewer failed to identify this drain and that it was not connected into the main sewer when it ought to have been, or else whatever works were done caused its exit to the river to be interrupted causing whatever water was in it to back up to the point where the old culvert entered the plaintiffs’ house, and then to enter the house as happened for the first time on the 3rd March 2000. There is no hard evidence. There is speculation in this regard, but the plaintiffs emphasise the coincidence in time between the defendant’s sewage works on Dyehouse Street and below on Grattan Quay, and the ingress of water on the 3rd March 2000, and the fact that it had never happened before. They ask the Court to conclude as a matter of probability that these works, for whatever reason as yet undiscovered, caused the problem.
As I have said the defendant denies liability for the moisture which entered the plaintiffs’ house, and say furthermore that when the plaintiffs carried out their renovation works to their house they ought to have complied with building regulations by putting in a vertical damp proof course (DPC) along the wall which abuts the pavement in Dyehouse Street since the pavement which has a significant gradient is higher that the floor of the living room area described. This vertical DPC would then have joined with a horizontal DPC preventing any dampness or other moisture permeating the wall of the house abutting the pavement. The plaintiffs say that those Regulations apply to the building of new houses and in any event there had been no problems since 1984.
Conclusions:
I am satisfied that the plaintiffs are not to blame for the damage to their living room floor. I think the reference to the Building Regulations is a ‘red herring’ really. I have certainly not been satisfied by any evidence that these regulations apply to the renovation works carried out by the plaintiffs, and neither have the regulations themselves been opened to the Court.
Similarly I am not satisfied by the evidence which I have heard that the application of a vertical damp proof course to the exterior of the plaintiffs’ wall abutting the pavement on Dyehouse Street would have successfully prevented the seepage of water via the old culvert into the plaintiffs’ living room. There is no firm evidence that this would have blocked the culvert which ran from the plaintiffs’ house into the old drain under the pavement. I do not have any evidence to assure me about that as a matter of probability.
It is trite law to state, as I should nevertheless, that the Court must make conclusions of fact based on a balance of probabilities. In my view the timing of the inflow of water on 3rd March 2000 in such close proximity to the carrying out of major sewage replacement works on Grattan Quay, and the reconnection of all branches into that main sewer line is, in some as yet undiscovered way, the probable cause of water backing up in the old culvert and entering the plaintiffs’ house. It can only be speculation, but in my view it reasonable to infer that whatever works were carried out downstream from the plaintiffs’ house were done in such a way as to impede the exit of such water as continued to flow in the old culvert into the river or the drain. It is possible that the old culvert drained into the old sewer on Grattan Street and was not reconnected into the new sewer. Alternatively, and in my view more probably, the old culvert drained directly into the river, and that for some reason, since the culvert was not known to exist, that exit to the river became obstructed or damaged during the carrying out of the works, and this caused whatever water was accustomed to flow in it down Dyehouse Street to simply back up as far as the branch into the plaintiffs’ house. It is significant that as soon as this culvert was diverted into the branch sewer on Dyehouse Street the plaintiffs’ problem disappeared as quickly as it had happened.
As a matter of probability the cause of the damage to the plaintiffs’ house was the failure to connect this old culvert into the new mains or the blocking or damaging of the old culvert during those works. The Court has no evidence from which to conclude which is the precise cause since those investigations have never been carried out, and understandably so, since the problem has been simply solved by the diversion carried out into the branch sewer on Dyehouse Street.
However, the finding that the defendant’s works is the probable cause is not the end of the matter as far as fixing the defendant with the liability to the plaintiffs for the damage thereby caused.
The plaintiff’ case is pleaded in negligence, breach of duty, including statutory duty, trespass, nuisance, and on the basis of the principles in Rylands v. Fletcher.
I am not satisfied that the defendants are in breach of duty, including statutory duty, nor in trespass. The issues to be considered are whether the defendant has been negligent in the legal sense, and/or whether they are liable in nuisance, including by reference to the related Rylands v. Fletcher principles. In opening the case, Mr Maher stated that while the case was brought under a number of headings, negligence was the main issue, but nuisance is also relied upon.
Having heard this case while on circuit in Waterford, I reserved my judgment and indicated that I would give my decision in due course in Dublin. While considering my judgment, and having prepared it in part in relation to conclusions already set forth above, I listed the case for mention and invited submissions in relation to matters not addressed in argument before me, principally the impact of the judgment of Keane CJ in Glencar Exploration Ltd and anor v. Mayo County Council [2002] 1 ILRM 481 in relation to the issue of negligence. Those submissions were in due course made to me, and the Court was provided also with helpful written submissions by both parties.
Negligence:
Prior to Glencar, the law was that in order to recover damages in negligence, a plaintiff was required to first of all establish that a duty of care was owed to the plaintiff; secondly that there was a breach of that duty of care; thirdly that the injury caused either to the person or property resulted from such breach. If the plaintiff succeeded in establishing these matters, then, unless there was some countervailing public policy consideration of sufficient strength, an award of damages would follow – see Ward v. McMaster [1988] IR 337. The question of whether there existed a duty of care involved the issue of the proximity of the parties. The second question regarding a breach of that duty involved the issue of foreseeability of the damage which occurred to the plaintiff. In other words was it reasonably foressseable by the defendant that if they did not take reasonable care in the manner in which it carried out the works on Grattan Quay, that water could back up in this old culvert/French drain and cause damage to the plaintiff’s house?
Only after those matters were established did the question arise as to whether there was any sufficient public policy consideration which ought to exempt the defendant from liability.
In his judgment in Glencar, a case against a local authority, though admittedly a case involving a claim for recovery of pure economic loss, Keane CJ took the opportunity of reformulating the law of negligence in this respect in line with English authority. Having extensively considered the development of that line of authority, he stated:
“There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff, as held by Costello J at first instance in Ward v. McMaster, by Brennan J in Sutherland Shire Council v. Heyman and by the House of Lords in Caparo Industries plc. v. Dickman. As Brennan J pointed out, there is a significant risk that any other approach will result in what he called a ‘massive extension of a prima facie duty of care restrained only by undefinable considerations…”
Thus an additional test must be applied, even where a duty of care and a breach of it has been established by reference to proximity and foreseeability, namely “whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff”.
Mr Maher for the plaintiff has submitted that since Glencar was a case involving pure economic loss, this passage of the learned Chief Justice’s judgment should be regarded as obiter, and should not be extended to cases where a claim arises from personal injury or injury to property. My view in relation to that submission is that while Mr Maher is correct in identifying that distinction between that case and the present one, it is nevertheless a strong restatement of the law in relation to the duty of care in the context of a claim against a local authority, and I see no reason why it should not equally apply to a case such as the present one. Indeed, I have followed it myself in Gaffey, a minor v. Dundalk Town Council, unreported, High Court, 5th December 2006, a personal injury case.
In his written submissions, Mr Maher has stated that by the time the Court requested submissions to be made, the Court had reached a conclusion, inter alia, that the “Court was satisfied that the question of proximity and foreseeability of damage had been established”. I do not believe that this is correct in so far as foreseeability is concerned. What I have concluded thus far is that “as a matter of probability the cause of the damage to the plaintiffs’ house was the failure to connect this old culvert into the new mains or the blocking or damaging of the old culvert during those works”. I have also concluded that the plaintiffs are not guilty of any contributory negligence. But the issue of foreseeability needs to be examined further, since until this damage to the plaintiffs’ property was in the legal sense foreseeable, the other steps to be taken under Glencar do not come into play at all.
Nevertheless, Mr Maher has submitted that even if he is required to go further than establishing proximity and foreseeability, and establish that it is just and reasonable in all the circumstances that a duty of such scope should be imposed upon the defendant local authority, the Court should be so satisfied, particularly since, he submits, the defendant did not either in cross-examination or in its evidence, put in issue the question of negligence or breach of duty. He submits that the defendant defended the case on four bases, namely that the damage was not caused by an ingress of water but rather by ‘damp’; that the drain in question had become blocked over a number of years; that the ingress of water into the plaintiff’s premises was not due to any activity on the part of the defendant; and that the ingress of water was the plaintiff’s own fault for failing to damp-proof his own premises.
He submits also that the plaintiff’s engineer was not challenged in relation to his evidence that ingress of water was caused by the absence of reasonable care on the part of the local authority in failing to ensure that pipes were not blocked during the course of carrying out the drainage renewal works on Grattan Quay.
In my view it is not correct to say that the defendant conceded in this manner suggested that it was negligent. Mr O’Sullivan of the defendant Council was quite clear that this culvert was something which they never knew existed on Dyehouse Street, that it is not marked on any maps in its possession, and was probably over laid down over three hundred years ago in the 17th century. He also stated that there are probably a great many of these lying under the city of Waterford from those days that nobody knows about. Negligence is denied in the Defence, and it cannot be inferred from the matters referred to by Mr Maher that because the plaintiff’s engineer has given it as his opinion that the damage was caused by the defendant’s negligence, that the Court’s function in determining that issue has been ousted by a failure to challenge that assertion, even if that occurred. My notes do not confirm the situation one way or the other, but my clear impression is that negligence is denied, including on the basis that the Council did not know, and could not reasonably have known, of the existence of this old underground culvert.
Duty of care:
There is no question but that the defendant Council owed a duty to the plaintiffs to take reasonable care not to damage their property. The question of proximity is thus easily determined.
That duty of care is to take all reasonable care in order to ensure that the plaintiffs’ property is not damaged. The question of what amounts to “reasonable care” in the circumstances of this case must be considered, because unless the meaning of that term is in some way confined, this case would stand to be determined on the basis of strict liability, once proximity and loss have been established.
It is too general simply to conclude the matter by saying that the defendant must be taken to be aware that if they did not take reasonable care to ensure that unless they connected all the pipes and drains on Dyehouse Street into the new main sewer drain under construction, that damage to the plaintiffs’ property could ensue. Everybody accepts that all pipes and drains which the defendant was aware of on Dyehouse Street were properly connected into the new drain on Grattan Quay. In my view, the fundamental question to be determined in relation to the extent of the duty of care in this case is:
“Did the duty of care owed by the defendant to the plaintiffs extend to considering that there could be pipes/drains on Dyehouse Street of which it was unaware, and which might require to be connected into the new system or otherwise dealt with, and if necessary, carrying out such investigative works as may be necessary to establish that there were none?”
If it did reasonably extend that far, then there is no doubt that this was not done. Unless it is found to extend that far, the Court does not have to consider whether they were in breach thereof, and neither is it necessary to consider whether it was reasonably foreseeable that a breach of such a duty would result in damage to the plaintiffs’ premises. It is sometimes easy to confuse foreseeability of damage with the consideration of proximity and the existence of a duty of care. But it must be remembered that foreseeability of damage resulting from a breach comes into play only where there has been found to be a particular duty of care and a breach of it. The question of whether it is just and reasonable that a duty of care of a given scope be imposed on the defendant comes into play only if a duty of care, a breach of same, and resultant foreseeable damage have been found.
Mr O’Sullivan, the defendant’s senior drain engineer, has stated that the 17th century culvert located on Dyehouse Street does not appear on any of the maps of Waterford City, and that the Council was not aware of it, or of any other such culverts that may be underground in other locations in the city. While I cannot recall him specifically saying so in his evidence, it is a safe and reasonable inference that the only way in which this culvert could have been discovered was if Dyehouse Street had been dug up in its entirety prior to the completion of the reconnection of pipes and drains into the new system on Grattan Quay, and that this excavation be done on the off-chance that a culvert would be discovered. It must be borne in mind also that there has been no evidence that on any previous occasion the defendant was aware that such culverts existed. In my view in such circumstances, it is not reasonable that the Council’s duty of care extended to an exploratory digging of Dyehouse Street in order to confirm the existence or non-existence of such a culvert that they had no basis for suspecting might exist.
Since I have so concluded, there can be have been no breach of a duty of care, and the further question of the foreseeability of damage to the plaintiffs’ premises does not arise, much less the question of whether it is fair and reasonable that a duty of such a scope be imposed upon the defendant council.
I am grateful to all parties for the helpful submissions which I requested in relation to the judgment in Glencar. But in the end, it is unnecessary to determine the issue of negligence by reference to that decision, and I refrain from discussions its possible implications in this case.
Nuisance:
There remains the claim based on nuisance/Rylands v. Fletcher principles.
Mr Maher has submitted that nuisance should be understood as defined by Shanley J. in Royal Dublin Society v. Yates, unreported, High Court, 31st July 1997, namely:
“Private nuisance consists of any interference without lawful justification with a person’s use and employment of his property.”
He has referred also to MacMahon & Binchy, Law of Torts (Butterworths) at p. 675 where the authors state that such interference must be an “unreasonable interference with another person in the exercise of his or her rights generally associated with the occupation of property”.
In so far as the defendant may have submitted that when this ingress of water into the plaintiffs’ premises occurred, the council was performing a statutory function and that therefore it should not be found to have committed a nuisance, Mr Maher submits that it cannot be said that in this case the ingress of water was an inevitable consequence of works done pursuant to its statutory function, and that the defendant cannot escape liability on that account.
Mark Flynn BL for the defendant submits that the issue of foreseeability has relevance also in relation to whether the claim based on nuisance should succeed in this case, and has submitted that since there was no negligence on the part of the Council it cannot be found guilty of creating a nuisance.
In my view, in this case, the finding that the Council was not negligent because it could not be expected to have foreseen or anticipated that this culvert might exist without digging up the entire street in question – an unreasonable expectation in my view – leads to the inevitable conclusion also that the Council is not liable in nuisance either. I can usefully refer to a passage in Clerk and Lindsell on Torts, Sweet and Maxwell, Eighteenth Edition, para 19-66 where it is stated:
“As the general rule is that no one is liable for nuisance unless he either created it or continued it after knowledge or means of knowledge, it follows that it is a defence to prove ignorance of the facts constituting the nuisance, unless that ignorance is due to the omission to use reasonable care to discover the facts.”
That statement is supported by authorities referred to in that same paragraph, to which it is unnecessary to refer in detail. The clear evidence in this case is that the Council was unaware that this culvert existed, and that it does not appear marked on any maps in the possession of the Council. In my view it had no knowledge of this culvert, and neither had it the reasonable means of being aware of it, since speculative excavation of the entire street on a ‘just in case’ basis is an unreasonable burden to impose on a local authority.
Neither can this claim succeed under the related basis of Rylands v. Fletcher. Even if this ingress of water resulted from an unnatural use of the lands, i.e. from a culvert placed thereunder, and even if the water in question fulfils the requirement that it was likely to do mischief if it escaped, and I refrain from deciding those questions finally, the absence of any knowledge on the part of the Council of the existence of this potential mischief removes the claim from the principles derived from Rylands v. Fletcher, particularly in the circumstances of this case where it cannot with any reality be stated, in the light of that ignorance, that the Council brought the substance onto its lands.
I therefore vacate the order of the learned Circuit court judge and dismiss the plaintiffs’ claim.
Cosgrove v Ryan and Electricity Supply Board
[2008] I.E.S.C. 2
JUDGMENT of Mr. Justice Geoghegan delivered the 14th day of February 2008
This is an appeal from an order of the High Court (Murphy J.) dismissing an action for damages for personal injuries arising out of an accident involving ESB power lines above an agricultural field.
On the face of it the case was quite a simple one based on the pleadings but it developed into a four day hearing. The appellant is an agricultural contractor living in County Clare. The first-named respondent was the owner of lands at Castleconnell, Co. Limerick who had engaged the appellant to harvest some silage on a field owned by him. Above the field and across it were electric power lines installed, owned and under the control of the second-named respondent.
On the 29th August, 1998 the appellant while driving a harvester designed for the purpose was allegedly injured as a consequence of the harvester coming into contact with the electric wires. It is sufficient for the purposes of this judgment to refer to injuries arising as a consequence of this impact rather than be specific as to the nature of those injuries. Because of the dismissal of the action there was no decision on this aspect of the case which is itself in some controversy and, therefore, it would be inappropriate for me to express any views on the nature of the alleged injuries. For some reason, the learned High Court judge did express views by way of obiter dicta on items of special damage but those remarks would seem to me to be irrelevant to the issues on this appeal and not binding on any court addressing the issue of damages.
I intend dealing with only one issue namely, was the learned High Court judge correct in finding that the appellant had not established as a matter of probability that the accident was caused by the negligence of the ESB? In this connection, I have deliberately not mentioned the first-named respondent. He was originally joined in the proceedings because he had told the plaintiff that he had previously reported to the ESB that the wires were too low. Shortly before the hearing of the case, he admitted that he had never done so. In those circumstances an arrangement was arrived at whereby the ESB became the only defendant.
The principle of res ipsa loquitur has featured in this action. It is clear from the textbook writers that the precise parameters of that principle have never been conclusively determined. I am in the happy position that I find myself able to avoid their consideration because I, at any rate, consider that the appellant in this case on the evidence, as it ran, established a case of negligence against the ESB and I am therefore of opinion that on that account the appeal should be allowed. The words “on the evidence as it ran” should be noted because it may well be that, if appropriate employees of the ESB or indeed appropriate outside technical witnesses had given evidence, the appellant’s case might have been successfully answered.
There is, of course, no law which requires a defendant to give any evidence at all, to say nothing of any particular evidence. But if a plaintiff puts forward a prima facie case which has not been answered he is usually entitled to succeed. In this case, the ESB clearly made a decision not to enter the witness-box through the agency of any of their employees. This they were entitled to do but it was a strategy attended with considerable risk. For a long time the case was run on the basis of various theories put forward in cross-examination of the plaintiff which I will outline in due course. It was only at a late stage in the case and long after the plaintiff had left the witness-box that a new theory was put forward on behalf of the ESB and which in the event was the one which attracted the learned trial judge and led him to dismiss the action. I will come to that also in due course. There were experienced litigation engineers engaged by both sides but neither of them was an electrical engineer and neither showed any intimate knowledge of the ESB safety policy. There was made available to the plaintiff’s legal team, however, internal ESB documentation that indicated that a normal height for a line of the kind which was in place in this case would be fifteen feet. There was evidence that the machine at its highest point was thirteen feet. Though in fairness to the ESB, the case was run on behalf of the plaintiff on a more or less acceptance of the fifteen foot norm, it seems clear that that figure has no statutory basis and that there remains a legal obligation of the ESB under its ordinary duty to take care to make sure that such lines are at a reasonable height above a field so that normal farm machinery will not come into contact with them.
It is important that I should now cover the evidence of the appellant in some detail. After introductory evidence in which he explained how he began in the agricultural contracting business starting with a digger but later purchasing a harvester until he finally had a self-propelled silage harvester. He was asked how often he had worked with the harvester on the lands of the first-named defendant, Mr. Ryan, and he answered that he was there two or three times before. It was not with the identical machine but with a similar machine. He then explained that while the harvester is working there is a trailer beside it and that upon entering the field the operator picks up the two strokes on the outer side going in an anti-clockwise direction to make room for the trailer that is beside the harvester. When that is done you turn around and go clockwise. By a stroke the witness meant a row of grass. After the machine has passed by, the width of the cut grass is ten feet. The machine does not leave the grass but it picks it up. The grass is then processed through the machine and comes out of a chute or funnel straight into the trailer. From the trailer it is brought to the silage pit. The appellant affirmed that he had never had any difficulty or worry about overhead wires in the field either in connection with working on previous occasions or on that occasion. When asked in what circumstances would he be alerted to a danger of overhead wires he said that if he saw they were “really low” he would avoid going near them. On the day in question the appellant had done two anti-clockwise sways and had then started to do it in a clockwise direction. In doing the two anti-clockwise sways he had gone under the cable without difficulty. Photographs of the field were produced and the appellant agreed that the field included a slope in two directions. The appellant explained that when he turned around and went in the clockwise direction he suddenly heard a “big bang” and it threw him back a bit from the cab. He thought he was going to die. He saw a blaze on the chute of the harvester. He remained stopped as he was afraid to touch anything. The chute would have been out directly to the left of him. Eventually, when the blaze had stopped, the appellant got out of the machine deeply shocked and dazed. The machine was not live at that stage because the arc from the chute to the wire had stopped. The appellant knew how to work the machine manually and without the electrics and this he did. At a certain stage the appellant left the field to get a shaft. When he eventually returned a job had been done on the wire. When he was leaving it had been slightly ravelled but when he returned it was fixed and risen. He assumed the ESB had been called out.
The appellant was cross-examined at some length. The general thrust of the cross-examination was that he was the cause of his own accident or in other words that the accident was caused exclusively by the appellant’s own negligence. Essentially, the cross-examination took the form of putting forward theories as to what the appellant himself should have done with no suggestion at any stage (which in fact proved to be the event) that anybody from the ESB would be giving evidence.
The following points were put in cross-examination:
1. That there were no procedures in place in the appellant’s enterprise relating to safety of workers including the appellant himself.
2. That there was no “mystery” in “checking the height of something” to which the appellant replied “how can we measure?”.
3. That the appellant could have attached an insulated rod that was a little bit higher than the machine and hold that underneath the wire or near the wire so as to judge the height.
4. That on a more sophisticated basis he could have used one of the “super rule devices” that architects use to measure the width of a room, it being suggested that there was a particular one “a super rule 600 series cable height meter”.
5. That he could employ a paid observer.
6. That there was nothing to stop the appellant as he drove the machine turning his head and watching the chute before it reached the wires so as to make sure that it did not hit the wire.
The most interesting feature of these six criticisms is one to which I have already briefly adverted. They do not include the suggestion which afterwards featured heavily in the cross-examination of the appellant’s engineer that even assuming the machine was thirteen feet high and the wires were not lower than fifteen feet the machine at the time of the accident might have been driven on a hilly bit of ground with the effect that the chute reached a height of fifteen feet. I draw the inference and I think I can legitimately draw the inference from that, that whatever investigation was done by the ESB (if any) prior to the trial of the action did not include this explanation and that this was a suggestion thought up by counsel either on his own or more likely after consultation with the outside engineer called on behalf of the ESB. I will, of course, be returning to this subject when covering the cross-examination of the engineer called on behalf of the appellant and the examination and cross-examination of the engineer called on behalf of the ESB. In the meantime, I intend to comment in turn on each of the six above listed theories or suggestions put to the appellant in cross-examination.
First of all what I might call the “employer point” is, in my view, entirely irrelevant. A negligence action must be considered by a court in the context only of the actual facts of the case. Even as a contributory negligence point, an alleged failure to have in place safety precautions for the appellant himself as though he was one of his own employees is entirely irrelevant. In placing an electric line across a field in rural Ireland, the ESB must have in contemplation not the employee following the rules of the perfect employer but the typical self-employed contractor that one finds all over the country who will carry out this kind of work for local farmers. Nobody would dispute that an abnormally high machine brought in close to power lines is the responsibility of the owner of the machine and the ESB cannot be to blame if such a machine strikes its cable. This would apply to high excavators or cranes being used in building operations etc. It is clear from the evidence and indeed from common knowledge that these harvesters would have widespread day to day use in the appropriate seasons and if there was nothing abnormal on appearance in the wires or abnormal about the ground the ESB would be under a duty to ensure that the lines were at such a height as to avoid contact with any part of such machine. It would be absurd to suggest that the ESB’s duties as to fixing the height of wires applied only to a notional flat field (somewhere in the evidence indeed there was a suggestion of something like a football field). Fields all over the country have inclines and humps and are by their very nature uneven. Unless therefore there was something quite unusual about the levels on this field, the ESB would owe a duty of care to ensure that a standard machine such as the appellant was using could safely go under the wire. Some of the points which I have just been making are relevant also of course to the other five criticisms but I will nevertheless go through them in turn.
The second point made was that the appellant should have measured the height before he attempted to bring the machine under the cable. This would seem to me to be wholly unreal. As was pointed out in the evidence, the appellant would have had no way of measuring the height and there was also abundant evidence to the effect that measuring height by the eye is a very inexact science and not at all reliable. I accept, of course, that any contractor using machinery should have some concern about overhanging wires. That concern cannot be met on any reasonable basis by some kind of device for measuring heights. If, with good reason, the appellant was doubtful as to whether the machine could go under the wires then of course he would be reasonably expected to avoid doing so without first checking with the ESB. But in this connection, common sense must be applied. The appellant brought machines onto numerous fields and presumably numerous fields that would have had overhanging wires, but more importantly he had worked on this field both immediately before the accident and in previous years and there was nothing unique about his machine. In those circumstances he argues and I think, reasonably, that he had no reason to believe that there was any danger. If every contractor in such a situation had to first contact the ESB and have an inspection carried out by the ESB a hopelessly impractical situation would arise both from the point of view of the contractor and even more so from the point of view of the ESB itself. Although the ESB, as it was perfectly entitled to do did not put any of its own employees into the witness-box the failure to do so is not irrelevant when considering the weight to be attached to theories being aired in cross-examination.
The next suggestion put forward by Mr. Punch, S.C., cross-examining on behalf of the ESB was that a contractor should have in his possession some kind of insulated rod at a height slightly more than the chute and that if he had that he would then have an indication as to whether there was danger or not. This suggestion seems to me to be equally unreal and is certainly not supported by any evidence called on behalf of the ESB. The evidence did not indicate that it was ever the practice to have such a rod.
There was then an even more far-fetched suggestion made that some kind of what was described a “super rule device” used by architects could have been availed of with a view to measuring the height. It was quite clear from the evidence that the appellant and I suspect most other agricultural contractors of his kind, knew nothing about such a device and it was never the practice to have one.
It was then suggested that the appellant should have had a paid observer at all stages. Fairly and squarely, the appellant made the point that it would be uneconomic. He was heavily criticised for this approach by Mr. Punch on the basis that he was putting money before his own life. I think that this is a false equation in that if the kind of business which the appellant was carrying out would have been wholly uneconomic if he had to pay a second man as an observer, then this very necessary business could not in fact be carried out. In those circumstances, the ESB could not reasonably have contemplated in fixing the height of their lines that such a practice would be adopted.
The sixth and last point that was made in the cross-examination of the appellant is the only one that might have some possible validity in it. There is no doubt that in theory, at least, the appellant could have turned his head and looked at the chute before approaching the wire and if he had done that he might have realised that there was going to be a problem. The appellant’s answer however is that he had passed under these wires many times before and had not the slightest reason to suspect that there was any danger. In my view, this point really only sounds in contributory negligence and not on the issue of liability of the ESB. I will return to it when dealing with the question of contributory negligence.
At this stage, I move to the evidence of Mr. Hassett, an experienced engineer though not an electrical engineer called on behalf of the appellant. He gave evidence that the height from the top of the chute on the machine to the ground was thirteen feet. He then referred to a document which had been produced by the ESB, though never proved in evidence, showing various approved heights in various situations. In this context, the ESB’s own declared appropriate height would be fifteen feet. This would be at what is described as “the very worst condition”. Mr. Hassett gave evidence that even in relation to work with high machines on a building site, it is never suggested by the ESB that an insulated pole should be used but rather that the ESB itself be contacted. He was then asked about the electronic measuring device that had been suggested and he said that he had never heard or seen anybody use it in relation to discovering heights of wire. He went on to say that he would not indeed like to use it for that purpose. Mr. Hassett then painted the general picture of what happens with contractors going into fields all over the country. He said that everywhere there were silage contractors. He was asked by Mr. McMahon, S.C., counsel for the appellant whether in the absence of anything that drew attention to a low wire, was there any practice of phoning up the ESB before going into a field that appeared to be perfectly normal. Mr. Hassett said that he was not absolutely familiar with what contractors do exactly but his view was that it would be unusual because wires are in most fields on the roadway. That would seem to conform with the ordinary common sense knowledge of anyone familiar with rural Ireland. He went on to say that unless a person had reason to suspect, he would not have thought that any special precaution was required. Mr. Hassett went on to express the opinion that the arcing of the wires could not have happened if the wires were above the minimum clearances recommended by the ESB. When asked was there a “phenomenon” known to engineers in relation to measuring heights from the ground, he answered that it was difficult and that you could be quite wrong to the nearest couple of feet. He was satisfied that on the day in question the clearance of fifteen feet was not there. He said that the wires may have been stretched or there may have been high winds causing them to drop a bit or sag over a period of time. Interestingly, Mr. McMahon’s last question and Mr. Hassett’s answer to it in direct examination were the following:
“Q. Are you aware of whether there is a system or not, may you are not (sic) but we will hear from the ESB in this regard, of checking them or of ensuring that they are at the minimum clearances?
A. I do not know what procedures they have My Lord for checking them on a periodic basis.”
It is clear from that exchange that Mr. McMahon quite reasonably assumed there would be evidence coming from the ESB itself. As I have already made clear, of course, the ESB were not under any obligation to put one of its witnesses into the box but it does have to live with consequences of that decision which may affect the inferences to be drawn from the evidence.
Mr. Punch for the ESB opened his cross-examination of Mr. Hassett by suggesting that the essence of Mr. Hassett’s evidence was that because it was difficult to measure the height of wires that it was reasonable for an employer of workers not to measure them at all or as he put it to “to throw your hat at it” because it is difficult. It my view, this is a wholly incorrect and misleading inference to draw from Mr. Hassett’s evidence but be that as it may, his answer was that these were wires erected by the ESB, that they were recognised wires and that they were not “any old wires”. The learned trial judge seems to have objected to this answer and seems to have suggested that the question related to an employer of workers which of course it did up to a point and to the responsibility of an employer working under those wires. Mr. McMahon, in my view, correctly pointed out to the learned judge that none of that arose for the simple reason that the appellant was not an employer in his own case. The trial judge then made the following observation:
“I will allow the question. We are trying to get a general obligation on employers. I presume we will deal with the individual in a moment.”
I have the firm impression reading the transcript that the learned High Court judge was heavily attracted by the duty on employers argument and that this coloured his whole view of the case but I would respectfully disagree with him. In my view, it was an irrelevant factor introduced by counsel for the ESB. The employer point was developed at some length then in the next sequence of questions in cross-examination but for the reasons which I have indicated I do not intend to comment on them. I would observe, however, that in the course of that questioning, Mr. Hassett made the perfectly obvious point that as to what, if any, precautions a person would have to take would depend on the circumstances and he gave the example of somebody who knew that he was going to have large equipment or large cranes. In that situation, contact with the ESB would be appropriate. When Mr. Hassett was asked had he heard the appellant saying that he had not carried out any visual inspection prior to the incident Mr. Hassett gave the simple answer “I have heard his evidence, My Lord, that he cut four or five rows and all was well.” In the course of the cross-examination Mr. Punch asked Mr. Hassett what “foolproof system” would he advise to make sure that people are safe. At that point, Mr. McMahon made what I think was a well-founded objection to that line of questioning. He pointed out to the judge that the ESB had the monopoly of wires across the country and that if Mr. Punch was going to put questions as to foolproof systems it was incumbent upon him to put to the witness his own clients’ recommended system. Effectively, the objection was overruled by the learned trial judge but I would respectfully take the view that it was a fair objection. The basis of the judge’s view was that the witness was an expert witness but it was accepted that he was not an electrical engineer. Even if he had been, cross-examination as to safety systems that did not include what the ESB recommended was both unreal and unfair. Mr. McMahon pursued his objection pointing out that the plaintiff was being criticised for not observing and for not taking two steps that had been mentioned in cross-examination the previous day neither of which had been pleaded in the particulars, one of them being a suggestion of the insulated pole and the other that he would have a sophisticated measuring machine. Ultimately, Mr. Punch put to Mr. Hassett that apparently in Mr. Hassett’s view the only precaution he would advise someone in the position of the appellant to take in relation to employees (a scenario which I have already dismissed as irrelevant) would be to make a visual observation from the ground. Mr. Hassett gave an answer which was in line with the case made by the appellant from beginning to end. He said that on entering different sites for the first time where he would not be used to, something more might be required. But he went on to observe that somebody like the appellant would be going to umpteen different places in the course of a season. As a matter of common sense it would seem reasonably obvious that the ordinary agricultural contractor with a silage machine would assume he was safe if he was well used to working on a particular field. I think that he would be entitled to make that assumption. That does not mean, of course, that if there was an accident of the kind that happened in this case, the ESB would necessarily be liable but they would have to meet what would be a strong prima facie case. As the evidence continued, it was clear that Mr. Hassett’s view was that either quite reasonably the contractor had no fears because of previous usage or alternatively if he had good reason to have such fears he ought to contact the ESB. A safety booklet of the ESB was then put to the witness who said that he was familiar with it but that it related to building sites and in particular to working with cranes and machinery of that kind.
It was not until the 468th question was asked of Mr. Hassett that a new point was raised on behalf of the defence and which was the point which for all practical purposes ultimately led to the action being dismissed. The question was:
“At a height of thirteen feet from the ground if that vehicle goes on a slope that goes down from left to right the end of the jib goes up, is that right?”
Mr. Hassett agreed. The thrust of Mr. Hassett’s evidence in answer to a number of questions which followed was that while the jib could kick marginally up the height difference would be very small. He took the view based on the photographs that the slopes were mild. He conceded though, that he did not measure the slope. Ultimately, the learned trial judge seems to have taken the view that in the absence of evidence coming from the plaintiff as to the measure of the slope and establishing that it could not have led to the chute being as high off the ground as the wires the appellant could not succeed. It will be clear when I come to deal with the law that I do not accept that proposition. When asked by the trial judge whether Mr. Hassett had considered taking levels on the ground and the relevance of this point he told the judge that he did not “because it is a gentle slope”. When pressed by Mr. Punch as to whether Mr. Hassett could assist the court in any scientific way in saying what height the jib was at when the accident occurred, Mr. Hassett’s reply was quite simple.
“Thirteen feet, My Lord, give or take a couple of inches having regard to the slope as shown in photograph No. 1.”
In re-examination, Mr. Hassett reiterated that on his estimate the difference of height because of a slope would be marginal. When asked his overall view of the tipping point he said that the appellant would have had reason to believe that there was no difficulty with the wire in relation to the height of the chute. This was in the context of the fact that the appellant had such previous experience of driving the harvester or a similar one on previous occasions on this field.
Mr. Hassett was recalled with a view to giving more evidence as to what effect a slope would have having regard to the cross-examination which had taken counsel for the plaintiff by surprise. There was then further cross-examination and I do not propose to go into it in detail. It is sufficient to say that Mr. Punch put forward theoretical scenarios to Mr. Hassett with a view to demonstrating by mathematics that if the slope was of a certain degree the chute could come into contact with wires which complied with the ESB’s criterion of fifteen feet. It is sufficient to state that Mr. Hassett continued to assert that on the basis of the photograph on which he was relying and on which he considered he could rely any slopes were minor. I will, however, quote the final question put to Mr. Hassett by Mr. Punch and Mr. Hassett’s answer.
“Q. And fields will naturally, apart from having slopes in them, they will have bumps and dips in them anyway in shorter areas; isn’t that right?
A. Well this field, My Lord, my evidence was that it is a fairly level field. It is a meadow field. I have no other evidence to give on the surface of the field My Lord .”
During a second re-examination following this second cross-examination, the learned trial judge suggested that the theoretical increase created by the slope of the kind adumbrated theoretically by Mr. Punch would be a 12.5 per cent. Mr. Hassett agreed and said effectively it would be a ramp. He added that it would be something like the ramp coming into the courthouse. Mr. McMahon then asked Mr. Hassett was the field, in his view, anything like the ramp coming into the courthouse and his answer was “absolutely, not My Lord, absolutely not.”
On behalf of the ESB, Mr. Sullivan, a self-employed engineer whose qualifications were in engineering mechanics was called. He gave some measurements in relation to the machine. He said that the overall machine was sixteen foot five inches in length, that the top of the cab was ten foot three inches, the top of the exit chute in transport position was eleven foot one inch. He said that he could not measure the machines specifically with the chute up because he had been informed by the appellant that the machine could not be started. He went on to confirm however that from examining similar machines he was satisfied that the height of the chute in the working position would be in the order of thirteen feet. Mr. Sullivan confirmed that he could not say anything about the slope in the field in question. He had no evidence to give about that. On the general obligation to take care on the part of the driver of the machine, Mr. Sullivan was asked was it sufficient to take a prior look at the wires from the ground. He said it was not because it would be difficult to gauge heights which of course was the evidence also of Mr. Hassett. He said that that person would want to do a bit more than that and when asked what that was he said that the person should keep an eye on the chute to see if there is any problem coming close to the wires. That particular exchange begged the question of whether the position might be different if, as alleged by the appellant, he had safely gone under the lines on several occasions and could reasonably assume he could do so again. I have already indicated that I will be returning to this issue when I deal with any question of contributory negligence. In fact Mr. Sullivan dealt with the suggestion that there would be no need to watch out if there was sufficient previous experience in cross-examination by Mr. McMahon. He thought that the driver should check each time because the wires are not at the uniform height from pole to pole, that there are dips to some degree and that they are not even exactly dead taught in his experience. It was put to Mr. Sullivan by Mr. McMahon that the unchallenged evidence was that any slope on the field was “extremely slight” and around 2 per cent and he was asked as to whether he had seen the field. He conceded that he had not and furthermore he conceded that he had not been asked to go out to the field at any stage even after the controversy emerged in evidence. Mr. Sullivan further confirmed that in his experience, contractors such as the appellant do not normally contact the ESB.
In the context of the slope controversy, Mr. Sullivan was asked by Mr. McMahon the very relevant question as to what baseline was used by the ESB in calculating the fifteen feet. Mr. McMahon developed this point in the following question and answer exchange:
“Q. I mean there would not be much point in running it across a field where it is fifteen feet in one corner but it is down to five feet where the land slopes upwards?
A. I would agree, My Lord.
Q. So the fifteen feet must be above the top of whatever the contour is of the lands are, isn’t that right?
A. I would expect that to be the case, My Lord, but I could not conclusively say because I do not do those measurements for the ESB, so I do not specifically know.”
The thrust of these questions by Mr. McMahon were with a view to suggesting that as a matter of common sense the ESB would have to take into account normal humps in a field when calculating the fifteen feet. In the absence of evidence from the ESB itself, I find that argument wholly persuasive.
I think that I have reasonably summarised the evidence on liability and I will proceed now to discuss the legal principles involved. The law of England in relation to liability for injury resulting from electricity is well summarised in the 9th edition of Charlesworth and Percy on Negligence. I am satisfied that there is no material difference between Irish law and English law in this respect. At paragraph 12-152 of Charlesworth the following is stated:
“When electricity is carried overhead by wires or cables, in addition to any precautions required by statute, great care must be taken to see that it is not likely to become a source of danger. In Buckland v. Guildford Gas Light & Coke Co. high voltage electric wires were routed across a field, immediately over the top of a tree, part of which had been cut down to permit the passage of the wires. A girl of thirteen climbed the tree when it was in full leaf, came into contact with the bare wires and was electrocuted. The electricity undertakers were held liable on the ground that they should have foreseen that someone might climb the tree and being unable to see the wires nubilated by the dense foliage, accidentally came into contact with them.”
It is explained in Charlesworth in an earlier paragraph that where electricity is supplied under statutory authority which it is here, it is a question of construction of the statute whether strict liability has been preserved or in other words whether Rylands v. Fletcher applies. But the learned editors go on to state that if the statute is silent, the usual rule is that the supplier is liable only upon proof of negligence. In the next paragraph it is stated that “the standard of care required of a supplier of electricity is a high one reflecting the intrinsically dangerous nature of electricity itself.” The passage goes on to state that all reasonable known means of keeping the electricity harmless should be used. There is then reference to a case where an electricity supply company had erected two overhead cables carrying a high tension current and, in a wind, a tree branch snapped and brought them down, permitting current to escape along a low tension cable and cause a fire in the plaintiff’s home, the company was liable. It is well established, of course, that it is not negligent for an electricity company to place lines overhead even if they could have placed them underground because of the danger of electricity, electricity supplier obviously owes a heavy duty of care even if it is not strictly liable under the rule of in Rylands v. Fletcher.
Although the onus of proof is always on a plaintiff to prove negligence the requirements of that proof may vary. It would seem that those requirements would not be high where a dangerous substance such as electricity or gas is involved. Indeed quite apart from any special principles relating to dangerous things a plaintiff in a negligence action does not have to negative every possibility of absence of negligence. This does not mean that in answer to the plaintiff’s claim the defendant may not demonstrate that he was in no way to blame. In the 21st edition of Salmond and Heuston on the Law of Torts, the learned editors under the heading “The proof of negligence” at p. 240 say the following:
“It is not necessary for the plaintiff to show that the defendant must be found guilty of negligence, or to eliminate every conceivable possibility by which the accident may have been caused without negligence on the defendant’s part.”
This sentence is particularly apposite to the case in hand. Although the learned trial judge delivered a most erudite and elaborate judgment dealing primarily with the law of causation, stripped to its essentials the reason that he held against the plaintiff was because the plaintiff was not in a position to give precise measurements of any slopes in the field. The evidence of the plaintiff’s engineer that the field was a meadow and a relatively flat field even though there were some slopes of a minor kind was quite sufficient prima facie proof on the part of the plaintiff. Since the defendant produced no contrary evidence there was no reason, in my view, for the learned trial judge not to hold that there was no relevant slope.
At any rate, as I have already made clear, the slope point like most of the other points by way of defence which were put forward in the case were done so as theories only and indeed in the case of the slope point, it was done at a very late stage no doubt by way of afterthought. Engineers’ reports had been exchanged in accordance with the modern rules and apparently the slope point had never been mentioned in the report of the defendant’s engineer. Mr. Punch argued that this was not necessary. I do not find it necessary to adjudicate on this argument as at any rate it does not appear to be a ground of appeal. It is sufficient to state that in any action for negligence but particularly one relating to dangerous things it is not incumbent on a plaintiff to negative every conceivable possibility provided he puts forward reasonable proof.
I will now comment briefly on the authorities submitted to the court by both parties and (although I have partly done so already) on the general approach of the learned trial judge.
I do not intend to refer to each of the authorities as a number of them did not seem to me to be of much assistance. The case of Coras Iompair Éireann v. Carroll [1986] ILRM 312 involved facts which had a superficial resemblance to the facts in this case. I have come to the conclusion, however, that no assistance can be gained from it. An accident involving an excavator on a low loader striking an urban bridge because it was too high is of a wholly different nature than an accident involving an ordinary agricultural contractor working with a perfectly normal machine in a field with overhead electric wires. In the CIE case the driver had never before travelled under the bridge with the same load and the Supreme Court held that there was no evidence of any kind establishing negligence against the County Council. Indeed the court took the view that even if some warning notice had been on the bridge the driver would still have attempted to go under it. A small bit of assistance can be gained from the well-known case of Hanrahan v. Merck Sharpe & Dohme (Ireland) Limited [1988] ILRM 629 but only to a limited extent because that was treated as a case of nuisance. Furthermore, unlike this case there was a genuine difficult issue of causation. Henchy J. said the following:
“There are, of course, difficulties facing the plaintiffs in regard to proof of those matters, particularly as to the question of causation, but mere difficulty of proof does not call for a shifting of the onus of proof. Many claims in tort fail because the plaintiff has not access to full information as to the true nature of the defendants conduct. The onus of disproof rests on the defendant only when the act or default complained of is such that it would be fundamentally unjust to require the plaintiff to prove a positive averment when the particular circumstances show that fairness in justice call for disproof by the defendant. The argument put forward in this case for putting a duty of disproof on the defendants would be more sustainable if the plaintiffs had to prove that the emissions complained of were caused by the defendants’ negligence.”
This passage is only relevant in so far as the learned judge refers to negligence and in that sense any remarks relevant to this case must be classified as obiter dicta. But there does appear to be a clear hint in that passage that it was the view of the learned judge that the degree of proof required from a plaintiff in a negligence action may, to some extent, at least depend on what fundamental justice should require.
While there was undoubtedly no obligation on the part of the ESB to give evidence through any of its staff, an outsider unversed in the law of torts might reasonably consider that given the nature of the accident, there was something unfair in the company’s failure to do so. The fact that it can happen in a case such as this highlights the importance of the principle that a plaintiff does not have to disprove every possibility on liability and that in relation to dangerous things at least the standard of proof will be reasonably low.
Finally, I will refer briefly again to the judgment of the trial judge. Although he has given a learned treatise on the law of causation, rightly or wrongly, I view this case in rather simpler terms. As all the textbook writers point out and not least McMahon and Binchy all kinds of problems can arise in connection with causation and, of course, it also has different meanings. There is on the one hand the meaning – what was the cause of the accident and on the other hand there is the meaning did the proven negligence cause the accident? There are then, as pointed out in the case, distinctions between factual and legal causation. Factual causation may involve what might be described as “but for” events which are far too remote to be legally relevant. “Legal causation” requires proximity. I do not think that any of these problems arise in this case. There is no controversy as to how this accident was caused. It was caused by the jib or chute coming into contact with electric wires. If the wires were at a reasonable height in all the circumstances then there was no negligence on the part of the ESB. If they were not there was in the absence of some exonerating explanation by the ESB. There can be contributory negligence on the part of the driver even if the lines were too low. But the cause of the accident is quite clear. The only matters in controversy is whether that cause involved blame on the part of the ESB and then the subsidiary question of whether even if it did there was a negligent failure on the part of the driver to look after his own safety.
For the reasons which I have been indicating, I believe that on the case made out, the learned High Court judge should have held that there was negligence on the part of the ESB. It may well be that if the ESB had run the defence differently it would have been able to absolve itself of negligence. But on the case as it ran, negligence was established by the plaintiff. The question of whether there was contributory negligence has caused me considerable difficulty. On the one hand, the plaintiff to his own belief at least quite reasonably, considered that he had not to worry about the lines as he had gone under them a number of times with the machine that day and had worked with a similar machine in previous years. On the other hand, it is suggested by the defence and indeed supported by the evidence of the defendant’s engineer that no matter how many times a contractor with a chute of this kind has gone under lines, he should nevertheless keep an eye on the chute just before he is going to do so so as to avoid any danger of contact arising from some rise in the ground or some sagging in the line. Most of the suggestions put in cross-examination to the plaintiff as to what he should have done were farfetched and wholly unreal as I have already indicated. But I have come to the conclusion that the particular suggestion that a contractor should always keep an eye out just before he goes under the lines if he has a jib or chute at a reasonable height is a valid submission and I have, therefore, come to the conclusion that there ought to be a finding of contributory negligence on the part of the plaintiff on that account only. Given the understandable assumptions which he made having regard to his previous experience of the land, I would not put the apportionment of liability at more than 25 per cent. I would, therefore, hold that the ESB was 75 per cent responsible for this accident on the evidence as it ran and I would, therefore, allow the appeal and substitute that order of apportionment. I would also order that the case be remitted to the High Court for the assessment of damages.
McDonnell v Turf Development Board
High Court on Circuit.
11 July 1944
[1944] 78 I.L.T.R 94
Murnaghan J.
Murnaghan, J.:
The plaintiff; being in possession of a County Council cottage and plot attached, planted some potatoes in a small area of the plot. I have now to investigate an injury to those potatoes caused by flooding. It is suggested by the plaintiff that the flooding was caused by the Turf Development Board, who had acquired about 70 acres of adjoining bog, on which they opened a number of drains for the development of the bog, and that heavy rain fell in the month of August, 1942, and was discharged out of those drains into a main drain or stream, which runs at the foot of plaintiff’s plot, and that this main drain or stream overflowed its banks and the overflow went over the intervening road and on to plaintiff’s potatoes. The defendants, on the other hand, say that it was not water from their bog that flooded the plaintiff’s garden; that the real cause of the flooding was the heavy rainfall which fell on plaintiff’s garden or plot and accumulated in the part of the plot in which the potatoes were planted. To support this theory of the accumulation of the rainfall in the potato part of the plot, the defendants say that the place where the potatoes were is at a lower level than the rest of the garden, and further, that the general slope of the plot is towards where the potatoes were. Secondly, they contend that even if the flooding was caused by water which came from their bogland, it came as a result of ordinary and natural user of the bogland and that they are not liable in law for this. Thirdly, they contend that they are entitled to the protection of the Public Authorities Protection Act, 1893. It is admitted that the proceedings were not commenced within six months of the occurrence of the injury complained of, and that the Act, if applicable, is a good defence.
The plaintiff’s evidence was vague as compared with the expert evidence given by the Board’s engineer. The plaintiff’s case is that he saw his plot flooded. He believes that the water came across the road and bank into his garden. Just at this plot there is a culvert in the road, which is described as good by the Board’s engineer. It would carry off ordinary water flowing from the road. There is no suggestion that at the time this culvert was constructed by the County Council it was intended that it should carry a great volume of water from the bog. This culvert was simply capable of taking an ordinary flow of water.
There was evidence given that the month of August, 1942, was extremely wet; figures for rainfall at this period went to show that the rainfall was 2 inches in four days. Such a heavy fall accumulating in one place would be a great volume of water indeed. The plaintiff’s plot was extremely small when compared with the large area of 70 acres. I have to decide whether this water which caused the flooding came from the defendants’ bog or whether it was the accumulation of all the water that fell on the plaintiff’s plot. I think the balance of probability is in favour of the plaintiff, and I find as a fact that the water came from defendants’ land.
Next I have to decide whether the defendants, as owners of the bogland, did anything that makes them liable to the plaintiff in making the drains for the discharge of the *94 water off the bogland. The legal position is that if the owner of land makes natural use of his land he is entitled to do whatever he pleases with it. The defendants admit that they intend to use heavy machinery in bog development; for this the surface of the bog must be firm, and in order that the desired firmness may be secured a five-year drainage scheme must be applied to the bog. I do not think this comes under the heading of ordinary and natural user of land. If a farmer opened the drains on his bog I think the position might be different. I think, therefore, on this point the plaintiff is entitled to succeed.
Lastly, the defendants contend that they are entitled to the benefit of the Public Authorities Protection Act, 1893. Undoubtedly this Act will provide a defence if applicable. This is an Act which is by no means easy to construe; many of the decisions on it are irreconcilable. Here we have a company formed as a private limited liability company having a capital of £10, of which a sum of £5 is issued. All the moneys required for its activities are provided out of Annual Supply Votes by the Oireachtas. These moneys are specifically included in the Votes for the Ministry of Supplies. It is contended that, looking at the realities of the situation, an act done by the defendants in the development of the bog acquired by them must necessarily be an act done in the execution or intended execution of a public duty. This is in form a private limited liability company and no person can be registered as a shareholder without the consent of the Minister for Supplies. In practice the Minister holds blank transfers executed by all the existing shareholders. I think it would be going too far to give a body of this kind the benefit of the Public Authorities Protection Act. Accordingly, I must affirm the decision of the Court below and dismiss the appeal with costs.
Shine v Irish Land Commission and Roscommon County Council
High Court.
23 July 1946
[1947] 81 I.L.T.R 100
Dixon J.
23rd July, 1946, at Roscommon.
The facts of this case may be summarized as follows: The Irish Land Commission had acquired and were in possession of a large area of bogland all of which was situate at a higher level than the lands of the plaintiff. On this bogland the Land Commission opened a large number of deep drains for the purpose of preparing the bog for cutting and saving turf. The Roscommon County Council were in possession of another parcel of bogland which is also at a higher level than the plaintiff’s and which adjoins the bogland of the first named defendants. On this parcel of bogland the County Council also opened deep drains for the purpose of winning turf. The boglands of both defendants are in the same watershed. The water, drained off the boglands of both defendants, flowed in two different drains or streams for some distance and converged at a point alongside the plaintiff’s lands where they flowed into the Cunny River. This river overflowed its banks and the overflow went on to the plaintiff’s lands and damaged his pasture, hay and potatoes. Plaintiff’s case is that the defendants wrongfully cut and opened these drains and alternatively that they failed to make adequate provision for the discharge of the increased volume of water drained off the bogland. The defendants deny negligence and their defence is that they made ordinary and natural use of the bogland.
Plaintiff’s counsel submits that the defendants made more than ordinary and natural use of the bogland by opening such a large number of deep drains. Mr. Gogarty referred me to McDonnell v. Turf Development Board (supra). In that case it was admitted that the defendants intended to use heavy machinery for bog development. In this case there is no suggestion that heavy machinery was used, and accordingly I am of opinion that the decision in that case does not apply to the facts here.
I think that the law as laid down in Gibbons v. Lenfestey and Another (supra) by Lord Dunedin applies to this case. At page 160 he says. “Where two contiguous fields, one of which stands upon higher ground than the other, belong to different proprietors, nature itself may be said to constitute a servitude on the inferior tenement by which it is obliged to receive the water which falls from the superior. If the water which would otherwise fall from the higher grounds insensibly, without hurting the inferior tenement, should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any servitude, bound to receive that body of water on his property.”
Connolly v. Congested Districts Board for Ireland (supra) has been unearthed from its obscurity and cited here on behalf of the defendants. The facts of that case were very similar to those of the case before me, and while I am not bound by the decision of the then County Court Judge I agree with and I adopt his reasoning. The appeal will therefore be allowed, the decision of the Court below will be reversed, and I allow both defendants their costs in this Court and in the Circuit Court against the plaintiff.