Duty of Care II
Civil Law (Miscellaneous Provisions) Act 2011
Liability for negligence of good samaritans, volunteers and volunteer organisations.
4.— The Civil Liability Act 1961 is amended by the insertion of the following Part after Part IV:
“PART IVA
Liability For Negligence of Good Samaritans, Volunteers and Volunteer Organisations
Interpretation (Part IVA).
51A.— (1) In this Part—
‘emergency’ includes circumstances arising in connection with an actual or apprehended accident;
‘good samaritan’ means a person who, without expectation of payment or other reward, provides assistance, advice or care to another person in an emergency, but does not include a person who does so as a volunteer;
‘negligence’ does not include breach of statutory duty;
‘voluntary work’ means any work or other activity that is carried out for any of the following purposes:
(a) a charitable purpose within the meaning of the Charities Act 2009;
(b) without prejudice to the generality of paragraph (a), the purpose of providing assistance, advice or care in an emergency or so as to prevent an emergency;
(c) the purpose of sport or recreation;
‘volunteer’ means a person who does voluntary work that is authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement for expenses) or other reward;
‘volunteer organisation’ means any body (whether or not incorporated) that is not formed for profit and that authorises the doing of voluntary work whether or not as the principal purpose of the organisation.
(2) A reference in this Part to the provision of assistance, advice or care to a person includes a reference to any of the following activities:
(a) the administration of first-aid to the person;
(b) the treatment of the person using an automated external defibrillator;
(c) the transportation of the person from the scene of an emergency to a hospital or other place for the purposes of ensuring the person receives medical care.
(3) Nothing in subsection (2) shall operate to limit the nature of activities that may constitute assistance, advice or care for the purposes of this Part.
This Part not applicable to existing causes of action.
51B.— This Part shall not apply to any cause of action that accrued before the commencement of this Part.
This Part not applicable to motor accidents in public places.
51C.— (1) This Part shall not apply in relation to the negligent use of a mechanically propelled vehicle in a public place.
(2) In this section ‘mechanically propelled vehicle’ has the same meaning as it has in Part VI of the Road Traffic Act 1961.
Protection of good samaritans from liability for negligence.
51D.— (1) A good samaritan shall not be personally liable in negligence for any act done in an emergency when providing—
(a) assistance, advice or care to a person who is—
(i) in serious and imminent danger, or apparently in serious and imminent danger, of being injured or further injured,
(ii) injured or apparently injured, or
(iii) suffering, or apparently suffering, from an illness,
or
(b) advice by telephone or by another means of communication to a person (whether or not the person is a person referred to in paragraph (a)) who is at the scene of the emergency.
(2) The protection from personal liability conferred on a good samaritan by subsection (1) applies even if the emergency is caused by an act of the good samaritan.
(3) The protection from personal liability conferred on a good samaritan by subsection (1) shall not apply to—
(a) any act done by the good samaritan in bad faith or with gross negligence, or
(b) any act done by the good samaritan when providing assistance, advice or care in circumstances where the good samaritan has a duty (whether imposed by or under any enactment or any other rule of law) to provide such assistance, advice or care.
Protection of volunteers from liability for negligence.
51E.— (1) A volunteer shall not be personally liable in negligence for any act done when carrying out voluntary work.
(2) The protection from personal liability conferred on a volunteer by subsection (1) shall not apply to any act done by the volunteer if—
(a) the act was done by the volunteer in bad faith or with gross negligence, or
(b) the volunteer knew or ought reasonably to have known that the act was—
(i) outside the scope of the voluntary work authorised by the volunteer organisation concerned, or
(ii) contrary to the instructions of the volunteer organisation concerned.
(3) An agreement, undertaking or arrangement has no effect to the extent that it provides for a volunteer to give a volunteer organisation an indemnity against, or to make a contribution to a volunteer organisation in relation to, a liability that—
(a) the volunteer would incur for his or her negligence but for the operation of subsection (1), and
(b) the volunteer organisation incurs as a result of its vicarious liability for that negligence.
Protection additional to any other protection under other law.
51F.— The protection from personal liability conferred on a good samaritan by section 51D or a volunteer by section 51E is in addition to any protection from personal liability conferred on the good samaritan or volunteer by or under any other enactment or rule of law.
Volunteer organisations and duty of care.
51G.— (1) This section applies to proceedings relating to the liability of a volunteer organisation for negligence arising from activities carried out by or on behalf of the organisation.
(2) In any proceedings to which this section applies, when determining whether the volunteer organisation owed a duty of care to the plaintiff or any other person, a court shall consider whether it would be just and reasonable to find that the organisation owed such a duty having regard to the social utility of the activities concerned.
(3) Nothing in this section shall operate to limit the matters that a court may consider, in proceedings to which this section applies, when determining whether a volunteer organisation owed a duty of care to a plaintiff or other person.”.
PART 4
Cases
Breslin v. Corcoran
[2003] IESC 23 [2003] 2 ILRM 189, [2003] 2 IR 203
FENNELLY J., [Nem Diss].
1. It is an act of folly to leave one’s motor car in the public street, even for a short time, with the keys in the ignition. There are plenty of ill-intentioned persons around to take advantage. The consequences can be tragic. But what is the liability of the imprudent car owner to a person injured by the bad driving of the thief?
2. The agreed facts of the present case are that first-named defendant left his car outside the Tea Time Express Coffee Shop in Talbot Street in Dublin unlocked and with the keys in the ignition. He dropped into the shop to buy a sandwich. As he came out, he saw an unknown person jump into the car and drive it off at speed. The car turned from Talbot Street into Talbot Lane. The plaintiff was walking across Talbot Lane. The car ran into him and injured him. For simplicity, if not accuracy, I will refer to the person who took the car as “the thief.” He may, of course, have been a joyrider or other temporary taker of the car.
3. The plaintiff brought an action in the High Court against Mr Corcoran, first-named defendant, alleging negligence in leaving the car unattended in the manner described. He joined MIBI, as second defendant, “pursuant to the terms of an agreement dated the 21st day of December 1988 and made between the Minister for the Environment and the Second Named Defendant and in particular Clause 2(2) and 6 thereof.” The plaintiff succeeded before Butler J against MIBI only. The damages were agreed at £65,000. The learned High Court judge apportioned all the liability to the MIBI and gave a decree against it with costs.
4. The MIBI is sued directly in this way, not as representing or standing in for the thief, but because it has agreed to compensate victims of uninsured driving, subject to the terms of the agreement. The real issue before the Court is whether there was any negligence on the part of the first named defendant. If there was, the MIBI has no liability. If not, it is bound by the agreement. The form of the proceedings is unsatisfactory in one respect. The plaintiff had a clear case against whoever was responsible for the driving of the car. There were no pleadings between the defendants. Thus MIBI was left to argue the liability of the first named defendant, in order to escape its own. In particular, the extent, if any to which the regulations, made under the Road Traffic Acts were part of the argument is unclear.
5. Counsel for MIBI argued in the High Court that the first named defendant was negligent. In the circumstances, he said, it was probable that the car was going to be stolen and that it was reasonably foreseeable that the thief would injure someone. The concept of novus actus interveniens was central to the argument as were two cases, one Irish, a Circuit Court decision of McWilliam J (Dockery v O’Brien [1975] ILTR 127, “Dockery”) and one English (Topp v London Country Bus (South West) Limited [1993] 3 All ER 448, “Topp”). Reference was also made to the well-known Supreme Court decision in Conole v Redbank Oyster Company [1976] I.R. 191. Butler J had no doubt that the act of the thief amounted to a novus actus interveniens, which broke the chain of causation. He thought that, to impose any liability on the first named defendant, it would be necessary to have evidence that the car was left in an area where it should be known to the owner that people routinely stole cars for the purpose of driving them around in a reckless and dangerous fashion.
6. MIBI contest these views of learned High Court judge. In particular MIBI says that he was wrong not to find that the “admitted negligence” of the owner of the car was the cause of the plaintiff’s injuries and that the chain of causation.
7. The contending positions may be expressed as follows. The appellant would say that the act of leaving a motor car, unattended and unguarded, for any length of time in a public street with the keys in the ignition is clearly an act of carelessness. There is an obvious and serious risk of the car being taken, whether by way of theft, in order to commit some crime or, merely for joyriding. The culprit must necessarily be a person who does not respect the law and who is likely to be a danger to others whether by reason of general irresponsibility or while trying to get away. The first defendant would say that the taking of the car is a novus actus interveniens. It is an independent, illegal act of a third party. The car owner is not responsible for the manner of driving of the thief. He cannot control it. He should not be treated as if he had authorised the driving of the car. He is not vicariously liable.
Analysis
8. In order to resolve this dispute, it is necessary to consider both the scope of the duty of care in negligence and the cause of the damage. Specifically, does the person injured by a stolen motor car come within the range of persons who can complain? Once more, the case raises the sufficiency of the test of foreseeability and hence the range of damage for which the person performing a careless act is liable.
9. It is particularly helpful that Keane C.J. has, in his recent judgment in Glencar Exploration plc v Mayo County Council [2002] 1 IR 84, reviewed in a considered manner the very vexed question of the proper test for the imposition of a duty of care. In doing so, he went a long way to resolving the apparent divergence which had manifested itself from the mid nineteen eighties between the approaches of our courts and those of other common law jurisdictions, in particular those of England and Wales. The merely persuasive status of the decisions of other common law jurisdictions has not dissuaded our courts from taking its inspiration from contemporaneous new steps in the development of the common law. The decisions of the House of Lords in Donoghue v Stephenson [1932] A.C. 532 and Hedley Byrne v Heller and partners [1964] AC 465 are the best known examples.
10. The famous two stage test enunciated by Lord Wilberforce in what was once regarded as the landmark case of Anns v London Borough of Merton [1978] AC 728 at 751, was, however, open to being read as postulating foreseeability as the single governing test. In truth, it led to much confusion both here and in England. After a period of some doubt both in the English and Commonwealth courts, the House of Lords, taking its lead in part form the High Court of Australia, (Council of the Shire of Sutherland v. Heyman (1985) 157 C.L.R. 424), departed from Anns ( Murphy v Brentwood District Council [1991] A.C. 391). Keane C.J., in Glencar, citing Council of the Shire of Sutherland v. Heyman, referred to the need to maintain the distinction between duties on the moral plane and those whose breach could be invoked in the law of negligence. He went on:
“It is precisely that distinction between the requirements of altruism on the one hand and the law of negligence on the other hand which is in grave danger of being eroded by the approach adopted in Anns v. Merton London Borough [1978] AC 728, as it has subsequently been interpreted by some. 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 [1985] I.R. 29 by Brennan J . in Sutherland Shire Council v. Heyman [1985] 157 C.L.R. 424 and by the House of Lords in Caparo plc. v. Dickman [1990] 2 AC 605. 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…'”
11. I consider that this passage represents the most authoritative statement of the general approach to be adopted by our courts when ruling on the existence of a duty of care. It seems to me that, in addition to the elements of foreseeability and proximity, it is natural to have regard to considerations of fairness, justice and reasonableness. Almost anything may be foreseeable. What is reasonably foreseeable is closely linked to the concept of proximity as explained in the cases. The judge of fact will naturally also consider whether it is fair and just to impose the liability. Put otherwise, it is necessary to have regard to all the relevant circumstances.
12. The present case is concerned with a narrower application of the question of to whom a duty of care is owed. It raises the circumstances in which it may be proper to fix a person with liability for an act of carelessness, where a third person’s independent act has intervened between that act and has directly caused the damage. However, the general principles laid down by Keane C.J provide useful guidance.
13. I will refer, firstly, to the cases directly concerned with the taking of unattended motor vehicles.
14. There are two Irish Circuit decisions. The facts of Dockery are similar to the present case. An owner left his car in the street with the keys in the ignition. An intoxicated person took it and crashed into the plaintiff’s parked car. McWilliam J said:
“With regard to a novus actus interveniens, Lord Reid, in the Dorset Yacht Co. case, said that, if what is relied on as a novus actus interveniens is the very thing which is likely to happen, if the want of care which is alleged takes place, the principle involved in the maxim is no defence, and he added that, unfortunately, tortious or criminal action by a third party may be the very kind of thing which is likely to happen as a result of the wrongful or careless act of the defendant…this was the very kind of thing which a reasonable person should have foreseen.”
15. In Cahill v Kenneally (1955-1956) Ir Jur Rep 127), a bus driver had driven some dart players to a competition. The driver allowed some of the players back onto the bus after the event and then left the bus unattended while he went off to look for some of the passengers. In fact, the persons who drove the bus away were themselves, passengers, who started it and crashed into a parked car. According to the very brief note, Judge Patrick Roe ruled: “It was negligence on the part of the driver, when he obviously knows [sic] that the bus, if unattended, should be locked, so that it may be safe, and it was clearly dangerous to allow these men into the bus.”
16. The English courts took a strikingly different approach in Topp. In that case, a bus company had a system of leaving some of their buses parked in the public street with the keys in, to facilitate changeover of drivers. Normally, there would only be an eight-minute interval, but the accident happened on a day when one driver failed to attend for duty. The bus was left for over nine hours. It was driven away and crashed into a cyclist. May J carefully reviewed a number of authorities, not only concerning the misfortunes flowing from the taking of motor vehicles, but touching on the general issue of liability where an intervening person has done the damage. His conclusion, so far as relevant, was as follows:
“…It would not be fair just and reasonable to recognise the duty of care contended for here….
…any affirmative duty to prevent deliberate wrongdoing by third parties, if recognised in English law, is likely to be strictly limited.
It is in my view, clear that the law should not impose such a duty on what may compendiously be called the private motorist. There could be very many different circumstances in which a private car, standing unlocked and with its ignition key in the switch, might be stolen, and then driven negligently so as to cause injury or damage. The motorist may or may not have been careless for his own property, but he should not be held for the wrongdoing of criminal hijackers.
………….
…problems would arise with the length of time during which the vehicle was left unattended and the place where and the circumstances in which this occurs. Is it material or crucial if the vehicle is left outside a public house? And what if the car is left for several weeks in an airport long-term car park?
I do not consider that the likelihood of an unlocked and unattended minibus with its keys in the ignition being both stolen and so negligently driven as to cause injury is sufficiently strong to compel the law to impose a duty of care on the owners of the minibus.”
17. The Court of Appeal approved the decision of May J. Dillon LJ held that the case was ruled by an earlier unreported case of Denton, where a bus had been taken from the private property of the bus company. Neither he nor May J thought that it made any difference whether the vehicle had been left on private property or the public road. Nonetheless, it does not appear that the Court of Appeal entirely closed the door to liability in circumstances of this sort.
18. The Court of Appeal in Topp said that May J had not “laid down too rigid a line..” The judge was deciding the case before him. An appeal court should be slow to interfere with the determination of a trial judge.
19. It is of some importance, however, that May J had referred to the House of Lords decision in Smith v. Littlewoods Organisation Ltd [1987]AC 241. In that case, in turn, the law lords referred to the more celebrated case of Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004. As noted above, McWilliam J has also found that case helpful.
20. In Littlewoods, the defenders had bought a disused cinema in Dunfermline. They left it vacant pending its conversion into a supermarket. It was set on fire by some teenagers. The fire spread to neighbouring buildings, whose owners sued for damages. The claim against the defenders was that they, as owners and occupiers of a disused cinema, owed a duty to the owners of neighbouring property to take reasonable care against vandals gaining entry and setting fire in the old cinema. On the other hand, there was nothing inherently dangerous stored in the premises; the owners were not on notice of any dangerous activity by trespassers, in particular that there had been any attempts to start fires; it was common case that only twenty four hour guard would have been likely to have prevented the fire from taking.
21. It must be said at once that the Littlewoods case and the present one are quite substantially different on their facts. The pursuers’ case implied a heavy duty of care, inspection and supervision of their premise on the defenders, whereas the only complaint against the first named defendant, in this case, is that he failed to take the simple step of locking his car. Moreover, the issue, in Littlewoods, turned largely on the absence of specific knowledge, on the part of the defenders, concerning the activities of trespassers and vandals on their property. In this case, by contrast, the issue is as to the level of knowledge of the nature and extent of risk that should be imputed to the owner of a motor car who fails to take that step.
22. Lord Mackay of Clashfern, firstly, stated succinctly that, since the question was whether there was a duty of care to prevent fire from spreading so as to damage adjoining premises “unless Littlewoods were bound reasonably to anticipate and guard against this danger they had no duty of care, relevant to the case…,” the pursuers could not succeed. He stated, in general terms, that:
“It is plain from the authorities that the fact that the damage, upon which a claim is founded, was caused by a human agent quite independent of the person against whom a claim in negligence is made does not, of itself, preclude success of the claim, since breach of duty on the part of the person against whom the claim is made may also have played a part in causing the damage.”
23. He summarised the legal position, as he saw it, of a defender facing a claim to fix him with liability for damage caused by third parties:
“In summary I conclude that what the reasonable man is bound to foresee in a case involving injury or damage by independent human agency, just as in cases where such agency plays no part, is the probable consequences of his own act or omission, but that, in such a case, a clear basis will be required on which to assert that the injury or damage is more than a mere possibility. To illustrate, it is not necessary to go further than the decision of this House in Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004 where I consider that all the members of the majority found such a possible basis in the facts that the respondent’s yacht was situated very close to the island on which the Borstal boys escaped from their custodians, that the only effective means of avoiding recapture was to escape by the use of some nearby vessel, and that the only means of providing themselves with the means to continue their journey was likely to be theft from such nearby vessels. These considerations so limited the options open to the escaping boys that it became highly probable that the boys would.”
24. The pursuers lost their case essentially because there was no evidence that the defenders had knowledge of the fact that the vandalising trespassers in the disused cinema were in the habit of starting fires. The House of Lords decision turned on the absence of any evidence to bring the activities of these persons within the knowledge or control of the defenders and the fact that the only remedy would have been a twenty-four hour guard.
25. The Littlewoods case provides a useful point of reference for this case. In the first instance, it is interesting that the arguments and the speeches in the House of Lords were concerned principally with the foreseeability test and the issue of novus actus interveniens or the breaking of the chain of causation played little direct part in the reasoning.
26. Having regard to its special facts, it was natural that Dorset Yacht Co. Ltd. v. Home Office should figure largely in the speeches in Littlewoods. The assumed facts ( the case came before the House of Lords as a preliminary issue of law) were that seven Borstal boys, who were working as trainees on an island under the control and supervision of three officers of the Home Office, escaped from the island at night. They boarded, cast adrift and damaged the plaintiffs’ yacht which was moored offshore. The officers were assumed to have gone to bed, in breach of their instructions, leaving the trainees to their own devices. The plaintiffs, owners of the damaged yacht, in their action against the Home Office, alleged negligence consisting in the officers’ failure, knowing, as they did of the boys’ criminal records and records of previous escapes from Borstal institutions, to exercise any effective control or supervision over them and knowing that craft such as the plaintiffs’ yacht were moored offshore.
27. Lord Reid said (page 1028 of the report) that it had never been the law that the intervention of some independent human action “always prevents the ultimate damage from being regarded as having been caused by the original carelessness.” He then asked what was the “dividing line.” He went on: “Is it foreseeability or is it such a degree of probability as warrants the conclusion that the intervening human conduct was the natural and probable cause of what preceded it?” Lord Reid’s considered answer, following a review of the authorities was:
“These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the “very kind of thing” which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this stage, I think that the taking of a boat by the escaping trainees and their unskillful navigation leading to damage to another vessel were the very kind of thing that these Borstal officers ought to have seen to be likely.”
28. Where Lord Reid spoke of whether the thing to be guarded against, the escape, was “very likely to happen,” Lord Morris of Borth-y-Gest spoke in terms of “a manifest and obvious risk,” and Lord Diplock, though also speaking of likelihood was more concerned to confine the right to recover to persons “who had property situate in the immediate vicinity.” An important element in the assessment by the House of Lords in the Dorset Yacht case of what is reasonably foreseeable is whether the event in question is the “very kind of thing” against which precautions must be taken. The reason is the probability of the thing happening. Lord Reid’s analysis, based as it was, on the insufficiency of mere foreseeability and the need for compliance with the additional test of reasonable probability is the most helpful for the present case.
29. This Court had already adopted that approach in Cunningham v McGrath Bros. [1964] I.R. 209. The defendants had left a ladder in a street leaning against their premises, after the completion of work. An unknown person moved the ladder to another nearby street where it later fell upon and injured the plaintiff. Kingsmill Moore J, in a unanimous judgment responded (at page 214 of the judgment) to an argument based on the breaking of the chain of causation:
“It is not every ‘novus actus’ which breaks the chain of causation. ‘If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence. The whole question is whether or not, to use the words of the leading case, Hadley v. Baxendale (1) the accident can be said to be ‘the natural and probable result’ of the breach of duty. If it is the very thing which ought to be anticipated . . . or one of the things likely to arise as a consequence of his wrongful act, it is no defence; it is only a step in the way of proving that the damage is the result of the wrongful act . . .”
He stated the test as follows (at page 215):
“I am of opinion that the test to be applied is whether the person responsible for creating the nuisance should anticipate as a reasonable and probable consequence that some person in pursuance of his rights would attempt to abate the nuisance and in so doing would create a danger.”
30. From all these cases, I draw the following conclusion. A person is not normally liable, if he has committed an act carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously responsible. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.
31. Before turning to the scope of the duty of care in the present case, I need to refer to a
matter raised in the submissions of the MIBI, but which was not referred to in the High Court judgment. The Road Traffic (Construction, Use and Equipment of Vehicle) Regulations (S.I. 190) of 1963, Regulation 87 provide, in relevant part:
“87. (1) Where a vehicle as allowed to remain stationary on a public road, the driver shall not, subject to sub-article (2) of this article, leave the vehicle unattended unless—
(a) the engine of the vehicle is not running,
(b) where the engine is contained in a separate portion of the vehicle capable of being closed, such portion is closed, and
(c) where the vehicle is fitted under article 31 of these Regulations with a door or doors capable of being locked or with a device for preventing unauthorised driving, such door, doors or device is or are locked so as to prevent the vehicle being driven, and, where appropriate, the key of the door, doors or device is removed from the vehicle.”
32. No claim based on breach of statutory duty was made against the first named Defendant. This is not to exclude the relevance of the Regulation. In my view, this Court can have regard to it when considering the scope of the duty of care of the first named defendant.
Conclusion
33. The test then is not merely that of reasonable foreseeability. It is, in addition, necessary to ask whether it was probable that the unattended car, if taken, would be driven do carelessly as to cause damage to others. It seems to me beyond argument, and it is not really disputed, that it was reasonably foreseeable that the car would be stolen.
34. It cannot be seriously disputed, that it was reasonably foreseeable as well as likely that the unattended car, with its keys in the ignition, would be stolen. I think it is obvious that to do all these things in a busy city street, without any mitigating circumstances, is an act of gross carelessness.
35. In modern circumstances, it is obvious that failure to exercise proper control and supervision over motor cars involves a serious risk of damage and worse to innocent people. It is equally clear that it was reasonably foreseeable that any goods, which might have been left in the car, would be stolen. Thus, if the motor car owner had been carrying goods commercially and, perhaps even looking after them gratuitously, for others, he would probably have been liable to the owners for their loss; similarly, if he had borrowed or rented the car, in respect of any damage to the vehicle. In each of these cases, it seems to me that the test of proximity would have been satisfied. Theft of the car or its contents could be regarded as “the very thing” against the custodian of the car should guard. They are directly related to the act of theft.
36. The nub of the case is, of course, the possible liability of the first named defendant for injuries caused by the negligent driving of the thief. Even if the owner of the car, or the driver, if not the owner, should be held liable to the owner of contents or of the car itself for damage to either of these items of property, it is not easy to articulate the basis for his automatic liability to the victim of negligent driving of the car.
37. It is the negligent driving, not the taking of the car, which has caused the damage. It would have to be shown that the owner should have foreseen not merely the taking but also the negligent driving. There would have to be some basis in the evidence, such as that suggested by the learned trial judge, for a finding that the car, if stolen, was likely to be driven in such a way as to endanger others. Cars may be stolen for reasons which do not carry such implications. Some of these, though criminal, do not necessarily imply dangerous driving. The line would, on any view, have to be drawn somewhere. If a car were stolen for resale, the owner could scarcely be responsible for the driving of the purchaser, whether that person were honest or not.
38. In my view, there is nothing in the present case to suggest that the first-named defendant should have anticipated as a reasonable probability that the car, if stolen, would be driven so carelessly as to cause injury to another user of the road such as the plaintiff.
39. I would dismiss the appeal.
Murphy v O’Brien
Ir LT (ns)75 (CC, 1987)
Sheridan J: The defendant is and was at all material times the proprietor of Longs Bar, Ballydaheen, Mallow, in the County of Cork. The accident in this case occurred on 18 December 1983 as a result of an alleged fall by the plaintiff from the lowest step of a stairs which leads to the ladies toilet on the premises. The complaint made by the plaintiff’s engineer, Mr Daly, as far as the stairs was concerned, came down to the hand rail which he said did not project far enough to allow a person to maintain a steady course on the last step. The plan prepared by Mr Daly in respect of the premises shows quite clearly that the hand rail stops at the door frame which means that it does not extend below the second step of the stairs. He thought that this was inadequate to enable a person to negotiate the last step in safety, particularly as there was a door with its hinges on the left as one looks up the stairs which was normally shut so as to allow for privacy for the defendant and her family, and the lay-out was, therefore, somewhat unusual. I have come to the conclusion, as a matter of fact, that there was nothing intrinsically dangerous in relation to their stair carpet or the mat. I am also of the view that the hand rail would be perfectly adequate for an ordinary sober person going up or coming down the stairs, but I accept Mr Daly’s criticism in relation to the hand rail in so far as it might affect a person somewhat intoxicated and endeavouring to negotiate the last step on her way down from the toilet.
It was alleged on behalf of the defence from the start of the case that the plaintiff was grossly intoxicated. This certainly represents the defendant’s own view. She was a proprietor of the premises at the date of the accident, and she was standing near the front door outside the premises. She saw friends of the plaintiff assisting the plaintiff. She was in a position to say to this party that they could not gain admittance to her premises, and that they should go home. She did no such thing. She walked through the premises, and was aware, or must have been aware, that this party had entered or were about to enter the premises. She said in evidence that she saw three drinks on the table in the lounge which corresponds to the drinks served by the barmaid to the plaintiff’s party. She did not at any time forbid the barmaid from serving further drinks to this party which she described earlier in her evidence as having plenty of drink. I am, therefore, driven to the conclusion that she permitted the plaintiff and others to enter the premises knowing their condition, as stated by herself, and certainly did not forbid the serving of further drink.
I have already given my conclusion as to the state of the steps, and I now have to enquire, as a matter of law, what duty, if any, did the defendant owe to the plaintiff, and, also if there was a breach of duty, whether the plaintiff contributed to her own misfortune, and if so, to what extent. In the textbook, McMahon and Binchy on The Irish Law of Torts 1st edition, at page 165, the following passage appears under the sub-heading ‘Duty to Protect Incapacitated Persons (and their potential victims) from injury’:
“A duty to control incapacitated persons so that they do not cause injury to others or to themselves may also arise in certain cases. Although it seems clear that one may with impunity pass an intoxicated person on the street even though he is a menace to traffic and in danger of being injured, the position is unclear where the dispenser of alcohol serves drink to a person beyond the point of intoxication, and as a result the intoxicated person injures himself or an entirely innocent third party. There are no reported decisions directly on point in this jurisdiction, but decisions in Canada and the United States of America impose liability on commercial purveyors such as owners of bars and hotels. Some decisions in the United States have gone so far as to impose liability on social hosts who give their intoxicated guests ‘one for the road’.”
The plaintiff was certainly more than a trespasser, and was at least a licensee. This does not appear to be of any great substance, in my view, since the decision of McNamara (An Infant) v ESB [1975] IR 1. In a majority decision, the Supreme Court applied the cases of Donoghue v Stevenson [1932] AC 562, and Purtill v Athlone UDC [1968] IR 206. Earlier cases to the contrary were not applied. In the judgment of Henchy J at page 24, the dictum of Lord Atkin in Donoghue v Stevenson is quoted as follows:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law, is my neighbour? The answer seems to be persons who are so closely directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” (at p 580)
Lord Atkin, in that passage, was dealing with liability of manufacturers and the plaintiff in this case clearly was not in that category. It cannot, in my opinion, be overlooked that this case involved a public house which was there to receive persons for the purpose of the purchase and consumption of intoxicating liquor. It, of course, should be in the contemplation of the defendant that persons in varying states of intoxication might attempt to use the stairs, and she certainly knew, accepting her own evidence, that the plaintiff was in a state of considerable intoxication. She, therefore, must be taken to have foreseen that the plaintiff might well attempt to negotiate the stairs in her condition, and, this being so, she might well have difficulty in negotiating the last step which is the crucial step in this case without the benefit of the hand rail. It seems to me that once the defendant declined to refuse admission to the plaintiff, and to permit the serving of further drink, she had to take the consequences of any foreseeable risk to the plaintiff in her then state, and this, in my opinion, she failed to do. In my opinion, therefore, the defendant was guilty of fault. What of the plaintiff? Her intoxication was self-induced, and there are many features of the plaintiff’s evidence that I, frankly, do not believe. I am satisfied that the defendant’s observation of the plaintiff, whether she was being assisted or not, was reasonably accurate, and that the plaintiff entered the defendant’s premises in an advanced state of intoxication. On one view, it might be said that she was, therefore the author of her own misfortune in seeking further drink when she had more than enough, but I think it would be over-harsh to visit the entire consequences of this unfortunate occurrence on the plaintiff herself. She must, however, in my view, bear the brunt of responsibility for her own condition, and I would come to the conclusion that she was two-thirds at fault, and that the defendant was one-third at fault.
UK Cases
Stovin v Wise House of Lords
[1996] 3 All ER 801
LORD HOFFMANN: . . .
Omissions, like economic loss, are notoriously a category of conduct in which Lord Atkin’s generalisation in Donoghue v Stevenson offers limited help. In the High Court of Australia in Hargrave v Goldman (1963) 110 CLR 40 at 65-66 Windeyer J drew attention to the irony in Lord Atkin’s allusion ([1932] AC 562 at 580, [1932] All ER Rep 1 at 11), in formulating his `neighbour’ test, to the parable of the Good Samaritan:
`The priest and the Levite, when they saw the wounded man by the road, passed by on the other side. He obviously was a person whom they had in contemplation and who was closely and directly affected by their action. Yet the common law does not require a man to act as the Samaritan did.’
A similar point was made by Lord Diplock in Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 at 325, [1970] AC 1004 at 1060. There are sound reasons why omissions require different treatment from positive conduct. It is
one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties . . . or natural causes. One can put the matter in political, moral or economic terms. In political terms it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point may be called the ‘Why pick on me?’ argument. A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another? In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs on other people (what economists call ‘externalities’) the market is distorted because the activity appears cheaper than it really is. So liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the cost of the activity to the community and reduces externalities. But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else. Except in special cases (such as marine salvage) English law does not reward someone who voluntarily confers a benefit on another. So there must be some special reason why he should have to put his hand in his pocket.
In Hargrave v Goldman (1963) 110 CLR 40 at 66 Windeyer J said:
`The trend of judicial development of the law of negligence has been . . . to found a duty of care either in some task undertaken, or in the ownership, occupation or use of land or chattels.’
There may be a duty to act if one has undertaken to do so or induced a person to rely upon one doing so. Or the ownership or occupation of land may give rise to a duty to take positive steps for the benefit of those who come upon the land and sometimes for the benefit of neighbours. In Hargrave v Goldman the High Court of Australia held that the owner and occupier of a 600-acre grazing property in Western Australia had a duty to take reasonable steps to extinguish a fire, which had been started by lightning striking a tree on his land, so as to prevent it from spreading to his neighbour’s land. This is a case in which the limited class of persons who owe the duty (neighbours) is
easily identified and the political, moral and economic arguments which I have mentioned are countered by the fact that the duties are mutual. One cannot tell where the lightning may strike and it is therefore both fair and efficient to impose upon each landowner a duty to have regard to the interests of his neighbour. In giving the advice of the Privy Council affirming the decision (Goldman v Hargrave [1966] 2 All ER 989, [1967] 1 AC 645) Lord Wilberforce underlined the exceptional nature of the liability when he pointed out that the question of whether the landowner had acted reasonably should be judged by reference to the resources he actually had at his disposal and not by some general or objective standard. This is quite different from the duty owed by a person who undertakes a positive activity which carries the risk of causing damage to others. If he does not have the resources to take such steps as are objectively reasonable to prevent such damage, he should not undertake that activity at all . . .
Home Office v Dorset Yacht Co Ltd
House of Lords [1970] UKHL 2, [1970] 2 All ER 294
LORD REID: . . .
My Lords, on 21 September 1962, a party of borstal trainees were working on Brownsea Island in Poole Harbour under the supervision and control of three borstal officers. During that night seven of them escaped and went aboard a yacht which they found nearby. They set this yacht in motion and collided with the respondents’ yacht which was moored in the vicinity. Then they boarded the respondents’ yacht. Much damage was done to this yacht by the
collision and some by the subsequent conduct of these trainees. The respondents sued the appellant, the Home Office, for the amount of this damage.
The case comes before your Lordships on a preliminary issue whether the Home Office or these borstal officers owed any duty of care to the respondents capable of giving rise to a liability in damages. So it must be assumed that the respondents can prove all that they could prove on the pleadings if the case goes to trial. The question then is whether on that assumption the Home Office would be liable in damages. It is admitted that the Home Office would be vicariously liable if an action would lie against any of these borstal officers.
The facts which I think we must assume are that this party of trainees was in the lawful custody of the governor of the Portland Borstal Institution and was sent by him to Brownsea Island on a training exercise in the custody and under the control of the three officers with instructions to keep them in custody and under control. But in breach of their instructions these officers simply went to bed leaving the trainees to their own devices. If they had obeyed their instructions they could and would have prevented these trainees from escaping. They would therefore be guilty of the disciplinary offences of contributing by carelessness or neglect to the escape of a prisoner and to the occurrence of loss, damage or injury to any person or property. All the escaping trainees had criminal records and five of them had a record of previous escapes from borstal institutions. The three officers knew or ought to have known that these trainees would probably try to escape during the night, would take some vessel to make good their escape and would probably cause damage to it or some other vessel. There were numerous vessels moored in the harbour, and the trainees could readily board one of them. So it was a likely consequence of their neglect of duty that the respondents’ yacht would suffer damage.
The case for the Home Office is that under no circumstances can borstal officers owe any duty to any member of the public to take care to prevent trainees under their control or supervision from injuring him or his property. If that is the law then enquiry into the facts of this case would be a waste of time and money because whatever the facts may be the respondents must lose. That case is based on three main arguments. First, it is said that there is virtually no authority for imposing a duty of this kind. Secondly, it is said that no person can be liable for a wrong done by another who is of full age and capacity and who is not the servant or acting on behalf of that person. And thirdly, it is said that public policy (or the policy of the relevant legislation) requires that these officers should be immune from any such liability.
[Having rejected the first argument, LORD REID continued:] Even so it is said that the respondents must fail because there is a general principle that no person can be responsible for the acts of another who is not his servant or acting on his behalf. But here the ground of liability is not responsibility for the acts of the escaping trainees; it is liability for damage caused by the carelessness of these officers in the knowledge that their carelessness would probably result in the trainees causing damage of this kind. So the question is really one of remoteness of damage . . .
…. These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think it can matter whether that action was innocent or tortious or criminal. Unfortunately tortious or criminal action by a third party is often the ‘very kind of thing’ which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this stage, I think that the taking of a boat by the escaping trainees and their unskilful navigation leading to damage to another vessel were the very kind of thing that these borstal officers ought to have seen to be likely.
. . . In the present case on the assumed facts there would in my view be no novus actus when the trainees damaged the respondents’ property and I would therefore hold that damage to have been caused by the borstal officers’ negligence.
If the carelessness of the borstal officers was the cause of the respondents’ loss what justification is there for holding that they had no duty to take care.
…It was suggested that a decision against the Home Office would have very far reaching effects; it was indeed suggested in
the Court of Appeal that it would make the Home Office liable for the loss occasioned by a burglary committed by a trainee on parole or a prisoner permitted to go out to attend a funeral. But there are two reasons why in the vast majority of cases that would not be so. In the first place it would have to be shown that the decision to allow any such release was so unreasonable that it could not be regarded a real exercise of discretion by the responsible officer who authorised the release. And secondly it would have to be shown that the commission of the offence was the natural and probable, as distinct from merely a foreseeable, result of the release—that there was no novus actus interveniens . . . I think the fears of the Home Office are unfounded; I cannot believe that negligence or dereliction of duty is widespread among prison or borstal officers.
Finally, I must deal with public policy. It is argued that it would be contrary to public policy to hold the Home Office or its officers liable to a member of the public for this carelessness—or indeed any failure of duty on their part. The basic question is who shall bear the loss caused by that carelessness—the innocent respondents or the Home Office who are vicariously liable for the conduct of their careless officers? I do not think that the argument for the Home Office can be put better than it was put by the Court of Appeals of
New York in Williams v New York State:’°
. . public policy also requires that the State be not held liable. To hold otherwise would impose a heavy responsibility upon the State, or dissuade the wardens and principal keepers of our prison system from continued experimentation with “minimum security” work details—which provide a means for encouraging better-risk prisoners to exercise their senses of responsibility and honor and so prepare themselves for their eventual return to society. Since 1917, the Legislature has expressly provided for out-of-prison work, Correction law, §182, and its intention should be respected without fostering the reluctance of prison officials to assign eligible men to minimum security work, lest they thereby give rise to costly claims against the State, or indeed inducing the State itself to terminate this “salutary procedure” looking towards rehabilitation.’
It may be that public servants of the State of New York are so apprehensive, easily dissuaded from doing their duty, and intent on preserving public funds from costly claims, that they could be influenced in this way. But my experience leads me to believe that Her Majesty’s servants are made of sterner stuff. So I have no hesitation in rejecting this argument. I can see no good ground in public policy for giving this immunity to a government department. I would dismiss this appeal.
LORD PEARSON:
It may be artificial and unhelpful to consider the question as to the existence of a duty of care in isolation from the elements of breach of duty and damage. The actual damage alleged to have been suffered by the respondents may be an example of a kind or range of potential damage which was foreseeable, and if the act or omission by which the damage was caused is identifiable, it may put one on the trail of a possible duty of care of which the act or omission would be a breach. In short, it may be illuminating to start with the damage and work back through the cause of it to the possible duty which may have been broken . . .
What would be the nature of the duty of care owed by the Home Office to the respondents if it existed? In my opinion, the Home Office did not owe to the respondents any general duty to keep the borstal boys in detention. If the Home Office had, in the exercise of its discretion, released some of these boys, taking them on shore and putting them on trains or buses with tickets to their homes, there would have been no prospect of damage to the respondents as boatowners and the respondents would not have been concerned and would have had nothing to complain of. Again the boys might have escaped in such a way that no damage could be caused to the respondents as boat owners; for instance, they might have escaped by swimming ashore or by going ashore in a boat belonging to or hired by the borstal authorities or by having their friends bring a rescue boat from outside and carry them off to a refuge in the Isle of Wight or Portsmouth or elsewhere. On the other hand the boys might interfere with the boats from motives of curiosity and desire for amusement without having any intention to escape from borstal detention. The essential feature of this case is not the ‘escape’ (whatever that may have amounted to) but the interference with the boats. The duty of care would be simply a duty to take reasonable care to prevent such interference. The duty would not be broken merely by the Home Office’s failure to prevent an escape from borstal detention or from borstal training. Performance of the duty might incidentally involve an element of physical detention, if interference with the boats by some particular boy could not be prevented by any other means. But if some other means—such as supervision, keeping watch, dissuasion or deterrence—would suffice, physical detention would not be required for performance of the duty.
Can such a duty be held to exist on the facts alleged here? On this question there is no judicial authority except the one decision in the Ipswich county
court in Greenwell v Prison Comrs. In this situation it seems permissible, indeed almost inevitable, that one should revert to the statement of basic
principle by Lord Atkin in M’Alister (or Donoghue) v Stevenson . . . It seems to me that prima facie, in the situation which arose in this case according to the allegations, the respondents as boat owners were in law `neighbours’ of the Home Office and so there was a duty of care owing by the Home Office to the respondents. It is true that the M’Alister (or
Donoghue) v Stevenson principle as stated in the passage which has been cited is a basic and general but not universal principle and does not in law apply to all the situations which are covered by the wide words of the passage. To some extent the decision in this case must be a matter of impression and instinctive judgment as to what is fair and just. It seems to me that this case ought to, and does, come within the M’Alister (or Donoghue) v
Stevenson12 principle unless there is some sufficient reason for not applying the principle to this case. Therefore, one has to consider the suggested
reasons for not applying the principle here.13
Proximity or remoteness. As there is no evidence, one can only judge from the allegations in the statement of claim. It seems clear that there was sufficient proximity; there was geographical proximity and it was foreseeable that the damage was likely to occur unless some care was taken to prevent it. In other cases a difficult problem may arise as to how widely the `neighbourhood’ extends, but no such problem faces the respondents in this case.
Act of third party. In Weld-Blundell v Stephens14 Lord Sumner said:
`In general (apart from special contracts and relations and the maxim respondent superior), even though A is in fault, he is not responsible for
injury to C which B, a stranger to him, deliberately chooses to do.’
. . .In my opinion, this case falls under the exception and not the rule, because there was a special relation. The borstal boys were under the control of the Home Office’s officers, and control imports responsibility. The boy’s interference with the boats appears to have been a direct result of the Home Office’s officers’ failure to exercise proper control and supervision. Problems may arise in other cases as to the responsibility of the Home Office’s officers for acts done by borstal boys when they have completed their escape from control and are fully at large and acting independently. No such problem faces the respondents in this case . . .
Public policy. It is said, and in the absence of evidence I assume (and perhaps it is common knowledge and can be judicially noticed) that one method of borstal training, which is employed in relation to boys who may be able to respond to it, is to give them a considerable measure of freedom, initiative and independence in order that they may develop their self-reliance and sense of responsibility. This method, at any rate when it is intensively applied, must diminish the amount of supervision and control which can be exercised over the borstal boys by the Home Office’s officers, and there is then a risk, which is not wholly avoidable, that some of the boys will escape and may in the course of escaping or after escaping do injury to persons or damage to property. There is no evidence to show whether or not this method was being employed, intensively or at all, in the present case. But supposing that it was, I am of opinion that it would affect only the content or standard and not the existence of the duty of care. It may be that when the method is being intensively employed there is not very much that the Home Office’s officers can do for the protection of the neighbours and their property. But it does not follow that they have no duty to do anything at all for this purpose. They should exercise such care for the protection of the neighbours and their property as is consistent with the due carrying out of the borstal system of training. The needs of the borstal system, important as they no doubt are, should not be treated as so paramount and all-important as to require or justify complete absence of care for the safety of the neighbours and their
property and complete immunity from any liability for anything that the neighbours may suffer.
. . . I would say that the Home office owed no duty to the respondents with regard to the detention of the borstal boys (except perhaps incidentally as an element in supervision and control) nor with regard to the treatment or employment of them, but the Home Office did owe to the respondents a duty of care, capable of giving rise to a liability in damages, with respect to the manner in which the borstal boys were disciplined, controlled and supervised.
I would dismiss the appeal.
LORD DIPLOCK:.
In the present appeal . . . the conduct of the Home Office which is called in question differs from the kind of conduct discussed in M’Alister (or
Donoghue) v Stevenson15 in at least two special characteristics. First, the actual damage sustained by the respondents was the direct consequence of a tortious act done with conscious volition by a third party responsible in law for his own acts and this act was interposed between the act of the Home Office complained of and the sustension of damage by the respondents. Secondly, there are two separate ‘neighbour relationships’ of the Home Office involved, a relationship with the respondents and a relationship with the third party. These are capable of giving rise to conflicting duties of care.
This appeal, therefore, also16 raises the lawyer’s question ‘Am I my brother’s
keeper’? A question which may also16 receive a restricted reply.
I start, therefore, with an examination .. the previous cases in which both or one of these special characteristics are present . . .
…….From the previous decision of the English courts . . . it is possible to arrive by induction at an established proposition of law as respects one of those special-relations: viz. A is responsible for damage caused to the person or property of B by the tortious act of C (a person responsible in law for his own acts) where the relationship between A and C has the characteristics: (1) that A has the legal right to detain C in penal custody and to control his act while in custody; (2) that A is actually exercising his legal right of custody of C at the time of C’s tortious act; and (3) that A if he had taken reasonable care in the exercise of his right of custody could have prevented C from doing the tortious act which caused damage to the person or property of B; and where also the relationship
between A and B has the characteristics; (4) that at the time of C’s tortious act A has the legal right to control the situation of B or his property as respects physical proximity to C; and (5) that A can reasonably foresee that B is likely to sustain damage to his person or property if A does not take reasonable care to prevent C from doing tortious acts of the kind which he did.
On the facts which your Lordships are required to assume for the purposes of the present appeal the relationship between the Home Office, A, and the borstal trainees, C, did possess characteristics (1) and (3) but did not possess characteristic (2); while the relationship between the Home Office, A, and the respondents, B, did possess characteristic (5) but did not possess characteristic (4). What your Lordships have to decide as respects each of the relationships is whether the missing characteristic is essential to the existence of the duty or whether the facts assumed for the purposes of this appeal disclose some other characteristic which if substituted for that which is missing would produce a new proposition of law which ought to be true.
. . . To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a borstal trainee from escaping from his custody before completion of the trainee’s sentence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public.
What distinguishes a borstal trainee who has escaped from one who has been duly released from custody, is his liability to recapture, and the distinctive added risk which is a reasonably foreseeable consequence of a failure to exercise due care in preventing him from escaping is the likelihood that in order to elude pursuit immediately on the discovery of his absence the escaping trainee may steal or appropriate and damage property which is situated in the vicinity of the place of detention from which he has escaped.
So long as Parliament is content to leave the general risk of damage from criminal acts to lie where it falls without any remedy except against the criminal himself, the courts would be exceeding their limited function in developing the common law to meet changing conditions if they were to recognise a duty of care to prevent criminals escaping from penal custody owed to a wider category of members of the public than those whose property
was exposed to an exceptional added risk by the adoption of a custodial system for young offenders which increased the likelihood of their escape unless due care was taken by those responsible for their custody.
I should therefore hold that my duty of a borstal officer to use reasonable care to prevent a borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or not any person fell within this category would depend on the facts of the particular case including the previous criminal and escaping record of the individual trainee concerned and the nature of the place from which he escaped . . .
In the present appeal the place from which the trainees escaped was an island from which the only means of escape would presumably be a boat accessible from the shore of the island. There is thus material, fit for consideration at the trial, for holding that the respondents, as the owners of a boat moored off the island, fell within the category of persons to whom a duty of care to prevent the escape of the trainees was owed by the officers responsible for their custody . . .
Smith v Littlewoods Organisation Ltd House of Lords
[1987] UKHL 3, [1987] 1 All ER 710
LORD GRIFFITHS:
My Lords, I regard these appeals as turning on the evaluation and application of the particular facts of this case to a well-established duty and standard of care . . .
The duty of care owed by Littlewoods was to take reasonable care that the condition of the premises they occupied was not a source of danger to neighbouring property.
…. I doubt myself if any search will reveal a touchstone that can be applied as a universal test to decide when an occupier is to be held liable for a danger created on his property by the act of a trespasser for whom he is not responsible. I agree that mere foreseeability of damage is certainly not a sufficient basis to found liability. But with this warning I doubt that more can be done than to leave it to the good sense of the judges to apply realistic standards in conformity with generally accepted patterns of behaviour to determine whether in the particular circumstances of a given case there has been a breach of duty sounding in negligence.
LORD GOFF OF CHIEVELEY:
My Lords, the Lord President (Lord Emslie) founded his judgment on the proposition that the defenders, who were both owners and occupiers of the cinema, were under a general duty to take reasonable care for the safety of premises in the neighbourhood.
Now if this proposition is understood as relating to a general duty to take
reasonable care not to cause damage to premises in the neighbourhood (as I believe that the Lord President intended it to be understood) then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party’s own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognised that there is no general duty of care to prevent third parties from causing such damage. The point is expressed very clearly in Hart and Honore Causation in the Law (2nd edn, 1985) p. 196, where the authors state:
`The law might acknowledge a general principle that, whenever the harmful conduct of another is reasonable foreseeable, it is our duty to take precautions against it . . . But, up to now, no legal system has gone so far as this . . .’
The same point is made in Fleming The Law of Torts (6th edn, 1983) p. 200, where it is said: `. . . there is certainly no general duty to protect others against theft or loss.’ (Fleming’s emphasis.)
I wish to add that no such general duty exists even between those who are neighbours in the sense of being occupiers of adjoining premises. There is no general duty on a householder that he should act as a watchdog, or that his house should act as a bastion, to protect his neighbour’s house.
Why does the law not recognise a general duty of care to prevent others from suffering loss or damage caused by the deliberate wrongdoing of third parties? The fundamental reason is that the common law does not impose liability for what are called pure omissions . . . I think it important that we should realise that problems like that in the present case are unlikely to be solved by a simple abandonment of the common law’s present strict approach to liability for pure omissions.
[A] statement of principle, which has been much quoted, is the observation of Lord Sumner in Weld-Blundell v Stephens [1920] AC 956 at 986, [1920] All ER Rep 32 at 47:
`In general . . . even though A. is in fault, he is not responsible for injury to C. which B., a stranger to him, deliberately chooses to do.’
This dictum may be read as expressing the general idea that the voluntary act of another, independent of the defender’s fault, is regarded as a novus actus
interveniens which, to use the old metaphor, ‘breaks the chain of causation’. But it also expresses a general perception that we ought not to be held responsible in law for the deliberate wrongdoing of others. Of course, if a duty of care is imposed to guard against deliberate wrongdoing by others, it can hardly be said that the harmful effects of such wrongdoing are not caused by such breach of duty. We are therefore thrown back to the duty of care. But one thing is clear, and that is that liability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply on foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing. There is no such general principle. We have therefore to identify the circumstances in which such liability may be imposed.
That there are special circumstances in which a defender may be held responsible in law for injuries suffered by the pursuer through a third party’s deliberate wrongdoing is not in doubt. For example, a duty of care may arise from a relationship between the parties which gives rise to an imposition of assumption of responsibility on or by the defenders, as in Stansbie v Troman [1948] 1 All ER 599, [1948] 2 KB 48, where such responsibility was held to arise from a contract. In that case a decorator, left alone on the premises by the householder’s wife, was held liable when he went out leaving the door on the latch and a thief entered the house and stole property. Such responsibility might well be held to exist in other cases where there is no contract, as for example where a person left alone in a house has entered as a licensee of the occupier. Again, the defender may be vicariously liable for the third party’s act; or he may be held liable as an occupier to a visitor on his land. Again, as appears from the dictum of Dixon J in Smith v Leurs (1945) 70 CLR 256 at 262, a duty may arise from a special relationship between the defender and the third party, by virtue of which the defender is responsible for controlling the third party: see, for example, Home Office v Dorset Yacht Co Ltd. More pertinently, in a case between adjoining occupiers of land, there may be liability in nuisance if one occupier causes or permits persons to gather on his land, and they impair his neighbour’s enjoyment of his land. Indeed, even if such persons come onto his land as trespassers, the occupier may, if they constitute a nuisance, be under an affirmative duty to abate the nuisance. As I pointed out in P Perl (Exporters) Ltd v Camden London BC [1983] 3 All ER 161 at 172, [1984] QB 342 at 359, there may well be other cases.
These are all special cases. But there is a more general circumstance in which a defender may be held liable in negligence to the pursuer, although
the immediate cause of the damage suffered by the pursuer is the deliberate wrongdoing of another. This may occur where the defender negligently causes or permits to be created a source of danger, and it is reasonably foreseeable that third parties may interfere with it and, sparking off the danger, thereby cause damage to persons in the position of the pursuer. The classic example of such a case is, perhaps, Haynes v Harwood [1935] 1 KB 146, [1934] All ER Rep 103 . . .
There is another basis on which a defender may be held liable for damage to neighbouring property caused by a fire started on his (the defender’s) property by the deliberate wrongdoing of a third party. This arises where he has knowledge or means of knowledge that a third party has created or is creating a risk of fire, or indeed has started a fire, on his premises, and then fails to take such steps as are reasonably open to him (in the limited sense explained by Lord Wilberforce in Goldman v Hargrave [1966] 2 All ER 989 at 995-996, [1967] 1 AC 645 at 663-664) to prevent any such fire from damaging neighbouring property . . .
Turning to the facts of the present case, I cannot see that the defenders should be held liable under either of these two possible heads of liability. First, I do not consider that the empty cinema could properly be described as an unusual danger in the nature of a fire hazard . . .
Nor can I see that the defenders should be held liable for having failed to take reasonable steps to abate a fire risk created by third parties on their property without their fault. If there was any such fire risk, they had no means of knowing that it existed . . .
…For my part, I do not think that liability can be imposed on an occupier of property in negligence simply because it can be said that it is reasonably foreseeable, or even (having regard, for example, to some particular temptation to thieves in adjacent premises) that it is highly likely, that if he fails to keep his property lockfast a thief may gain access to his property and thence to the adjacent premises. So to hold must presuppose that the occupier of property is under a general duty to prevent thieves from entering his property to gain access to neighbouring property, where there is a sufficient degree of foresight that this may occur. But there is no general duty to prevent third parties from causing damage to others, even
though there is a high degree of foresight that they may do so. The practical effect is that everybody has to take such steps as he thinks fit to protect his own property, whether house or flat or shop, against thieves. He is able to take his own precautions; and, in deciding what precautions to take, he can and should take into account the fact that, in the ordinary course of life, adjacent property is likely to be from time to time unoccupied (often obviously so, and sometimes for a considerable period of time) and is also likely from time to time not to be lockfast. He has to form his own judgment as to the precautions which he should take, having regard to all the circumstances of the case, including (if it be the case) the fact that his premises are a jeweller’s shop which offers a special temptation to thieves. I must confess that I do not find this practical result objectionable . . .
. . . The practical effect is that it is the owner of the damaged premises (or, in the vast majority of cases, his insurers) who is left with a worthless claim against the vandal, rather than the occupier of the property which the vandal entered (or his insurers), a conclusion which I find less objectionable than one which may throw an unreasonable burden on ordinary householders. For these reasons, I consider that both Lamb v Camden London Borough [1981] 2 All ER 408, [1981] QB 625 and King v Liverpool City Council [1986] 3 All ER 544, [1986] 1 WLR 890 were rightly decided; but I feel bound to say, with all respect, that the principle propounded by Lord Wylie in Evans v Glasgow DC 1978 SLT 17 at 19, viz that there is—
`a general duty on owners or occupiers of property . . . to take reasonable care to see that it is proof against the kind of vandalism which was calculated to affect adjoining property,’
is, in my opinion, too wide.
I wish to emphasise that I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability. When a duty is cast on a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not have to be very great before liability is imposed. I do not myself subscribe to the opinion that liability for the wrongdoing of others is limited because of the unpredictability of human conduct. So, for example,
in Haynes v Harwood [1935] 1 KB 146, [1934] All ER Rep 103, liability was imposed although it cannot have been at all likely that a small boy would throw a stone at the horses left unattended in the public road . . .0f course, if persons trespass on the defender’s property and the defender either knows or has the means of knowing that they are doing so and that in doing so they constitute a danger to neighbouring property, then the defender may be under an affirmative duty to take reasonable steps to exclude them, in the limited sense explained by Lord Wilberforce in Goldman v Hargrave [1966] 2 All ER 989 at 995-996, [1967] 1 AC 645 at 663-664, but that is another matter. I incline to the opinion that this duty arises from the fact that the defender, as occupier, is in exclusive control of the premises on which the danger has arisen.
In preparing this opinion, I have given careful consideration to the question whether P Perl (Exporters) Ltd v Camden London BC [1983] 3 All ER 161, [1984] QB 342, in which I myself was a member of the Court of Appeal, was correctly decided. I have come to the conclusion that it was, though on rereading it I do not think that my own judgment was very well expressed. But I remain of the opinion that to impose a general duty on occupiers to take reasonable care to prevent others from entering their property would impose an unreasonable burden on ordinary householders and an unreasonable curb on the ordinary enjoyment of their property; and I am also of the opinion that to do so would be contrary to principle. It is very tempting to try to solve all problems of negligence by reference to an all-embracing criterion of foreseeability, thereby effectively reducing all decisions in this field to questions of fact. But this comfortable solution is, alas, not open to us. The law has to accommodate all the untidy complexity of life; and there are circumstances where considerations of practical justice impel us to reject a general imposition of liability for foreseeable damage. An example of this phenomenon is to be found in cases of pure economic loss . . . As the present case shows, another example of this phenomenon is to be found in cases where the plaintiff has suffered damage through the deliberate wrongdoing of a third party; and it is not surprising that once again we should find the courts seeking to identify specific situations in which liability can properly be imposed. Problems such as these are solved in Scotland, as in England, by means of the mechanism of the duty of care . . .
For these reasons I would dismiss these appeals.
O’Neill v. Dunnes Stores
[2007] IEHC 33 (21 February 2007)
JUDGMENT of Mr. Justice Kelly delivered on the 21st day of February, 2007
Introduction
On the evening of 4th July, 2002, the plaintiff was assaulted by a man called Ciaran McCormack. The assault took place at a shopping centre in Thurles, Co. Tipperary. The plaintiff contends that the circumstances of that assault are such as to give rise to a liability on the part of the defendants to compensate him in respect of the injuries sustained by him. In order to appreciate how such a claim comes to be made it is necessary to set forth the facts of the matter in some detail.
The Plaintiff
The plaintiff is now 34 years old. At the time of the assault he was, and indeed continues to be, employed as a store man by a company called Premier Foods at Thurles, Co. Tipperary.
The Defendant
The defendant is the principal tenant of the shopping centre at Thurles, Co. Tipperary. It conducts a drapery, grocery and off-licence business there.
The Incident
At about 8.00 p.m. on 4th July, 2002, the plaintiff went to the defendant’s store. Whilst there he decided to telephone his grandmother to see if she wanted him to do any shopping for her. He went to a pay phone which is located at the back of the shopping centre. As he approached the rear entrance of the building a woman whom he did not then know said to him “help there’s been a robbery”. He subsequently learned that this lady is called Sadie Stapleton and was a cleaner in the shopping centre.
Responding to her cry and not knowing what to expect he continued to the rear of the building. There he saw Mr. Keith Byrne, a security officer employed by the defendant, involved in a struggle and holding a man named Alexander Colville against a wall outside the building.
He saw Colville reach for a bottle which he had in his pocket. The plaintiff said that Mr. Byrne called to him for assistance, a fact denied by Mr. Byrne.
In any event the plaintiff went to Mr. Byrne’s assistance. He thought that Colville was larger than Mr. Byrne. He went and assisted in holding Colville against the wall. Colville continued to struggle. The plaintiff prevented him from getting the bottle out of his pocket.
Mr. Byrne told him that the police had been notified and indeed that was so.
A Garda Delaney arrived on the scene.
The reason why the security officer was apprehending Colville was because he had witnessed Colville and McCormack (the assailant) whilst in the off-licence department of the defendant. He saw them taking bottles from the shelves and secreting them in the pockets of their jackets. He approached them and asked them for identity and explained that they were not entitled to be in the off-licence department since they both appeared to be under 18 years. McCormack produced a bogus identification document. Colville said that he would retrieve his from a car and ran from Mr. Byrne. He ran towards the rear of the shopping centre and was followed by Mr. Byrne. He caught up with him at the rear doors which were automatic and unable to accommodate Colville because of the speed at which he was running. Colville attempted to strike Mr. Byrne, who detained him. He put Colville’s arm behind his back and got him out of the shopping centre. It was at that stage that Colville attempted to take the bottle out of his jacket and to strike Mr. Byrne.
In his direct evidence Mr. Byrne told me that he saw Sadie Stapleton whilst apprehending Colville and shouted to her to get the manager to help him. In cross examination he said that he asked her to get him help. The version given in cross examination is more probably correct because it accords with Ms. Stapleton’s recollection of him saying “go and get help and call the guards”. In any event Ms. Stapleton then communicated with the plaintiff as I have already described and he responded to that call.
When Garda Delaney arrived on the scene at about 8.25 p.m. he found Colville being restrained by both Mr. Byrne and the plaintiff. Meanwhile McCormack had arrived at the scene but left more or less at the time of the arrival of the guard. The guard went after him and asked him to return, which McCormack did. The guard then proceeded to take particulars. Colville was very aggressive and was kicking and threatening and indeed struck the guard. Garda Delaney called for police backup. While all this was going on the plaintiff was helping to restrain Colville. McCormack interfered and tried to pull the guard away from Colville. He was directed by the guard to go away and he did so. The guard continued to try and deal with Colville, who was being held by Mr. Byrne, assisted by the plaintiff, when McCormack returned, this time brandishing a motorcycle chain. He drew out with the chain, swung it and struck the unfortunate plaintiff on the face. He drew out a second time, but missed on this occasion. At this stage police backup arrived and McCormack and Colville were arrested.
I am satisfied from the evidence that the assault on the plaintiff took place after the police backup arrived and not as was originally said in his evidence by Mr. Byrne, before that event. The version which I prefer is consistent with the account given by the guard and indeed with the statement made by Mr. Byrne on 5th April, 2002.
I must now consider certain factual matter which is pertinent to the defendant’s contention made both at the conclusion of the plaintiff’s case and at the end of the evidence to the effect that it bears no liability to the plaintiff for what occurred.
The Defendant’s Security Arrangements
The only evidence adduced by the defendant in relation to its security arrangements came from Mr. Byrne.
He is no longer employed by the defendant and now works as a bodyguard in Haiti.
He served in the defence forces for a period of three years. During that time he was attached to an infantry division but had special forces training dealing, inter alia, with unarmed combat.
The only training which he received from the time that he joined the defendant was confined to procedures to be followed by reference to a written protocol. The protocol was not put into evidence. That training was given on the job over a period of 12 months whilst he worked at the defendant’s Clonmel store. No training was given in Thurles. There may have been a similar protocol in Thurles but he never had occasion to refer to it. At the time of the incident he had been in Thurles for one and a half years. He said he knew the terms of the protocol by heart.
He accepted that the protocol provided that, if outnumbered, a security officer should get help.
Normally three security personnel would be on duty at the store. They consisted of the security manager, Mr. Byrne and a part-time security officer.
On the evening in question he was the sole security officer on duty. This was so despite the fact that the store was open for late night shopping on that occasion. The security manager had gone off duty at about 6.00 p.m. and there was no part-time security officer on duty.
As sole security officer he had responsibility for all three parts of the defendant’s store. That is to say drapery, grocery and off-licence.
When more than one security person is on duty each is equipped with a two-way radio. That permits of communication between the security staff at the touch of a button. As Mr. Byrne was on his own he was not carrying such equipment since there was nobody with whom to communicate. Consequently the only way in which he could communicate with any member of the defendant’s staff was by means of a mobile phone. That provides a much slower method of communication. He used his mobile phone on the evening in question to contact the police.
He admitted that the whole incident took about 20 minutes during which time he was unable to effectively communicate with anyone of the defendant’s staff. Neither did he receive any assistance from any member of such staff. The only help he got came from the plaintiff.
Conclusions on the Evidence
The security arrangements which the defendant had in place on the evening in question were substandard. To ask one person to take responsibility for the security of the entire of the defendants shop consisting of drapery, grocery and off-licence was not reasonable.
The absence of a two-way radio was a considerable impediment to Mr. Byrne being able to carry out his duty and deprived him of the ability to call for backup from the defendant’s personnel as a matter of urgency.
Mr. Byrne attempted to do his duty as best he saw it. Given that he was dealing with two intoxicated persons he would have been more prudent not to have attempted to detain Colville. He was alone and outnumbered. They were armed with bottles. It was very likely that the already violent Colville would be joined by McCormack when he was being arrested. Both were intoxicated.
Under the terms of the protocol he ought to have sought help rather than attempt an arrest.
I am satisfied that when he found himself dealing with a violent and resisting Colville he shouted to Sadie Stapleton to get help and to phone the guards. He also, I find as a fact, called on the plaintiff to assist him.
The plaintiff responded to that call and assisted Mr. Byrne in the manner described. He did so at the requests of Mr. Byrne and Ms. Stapleton, who made her request on the directions of Mr. Byrne.
Mr. Byrne was certainly in need of help. He was dealing with a violent and aggressive person who was armed with at least one bottle and was endeavouring to use it on Mr. Byrne. Colville was engaged in a joint endeavour with McCormack and although the latter was not present in the immediate vicinity of the arrest he was likely to arrive there very quickly and indeed did so.
The Legal Position
It is common case that the plaintiff went to the rescue of Mr. Byrne. Both sides agree that the case falls to be determined by reference to the law on rescuers. Both sides quoted passages from McMahon and Binchy’s Law of Torts (3rd Edition) in support of their respective arguments.
For the plaintiff it was pointed out that the legal position of the rescuer has undergone a transformation in recent years. No longer the Cinderella of the law he is now it’s darling, counsel contends, with acknowledgement for that colourful description to Fleming’s Law of Torts (9th Edition, 1998), p. 186. The plaintiff relies upon a passage from the judgment of Cardozo J. in Wagner v. International Railroad Company [1921] 232 N.Y.S. 176 where he said:-
“Danger invites rescue. The cry of distress is the summons to release. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”
The defendant contends that liability attaches to it only in circumstances where it has been guilty of negligence in creating the situation of actual or apparent peril. It says it was not guilty of any negligence on this occasion.
At the conclusion of the plaintiff’s case I declined to accede to an application for a non-suit taking the view that there was a prima facie case made out against the defendant. Having heard the defendant’s evidence and submissions I conclude that the plaintiff is entitled to succeed in his claim against it. I do so because I am satisfied that the defendant was guilty of negligence for the following reasons.
First, the employment of a single security officer to cover the entire of the premises on an occasion of late night shopping was inadequate. There was no security back up for him. Secondly, the only method of communication that he had with other members of the defendant’s staff was a mobile phone. That was much less efficient than the two-way radio which would have been in operation had other security personnel been on duty at the time. Thirdly, Mr. Byrne conscientiously attempted to do his duty in circumstances where it would have been more sensible to have adopted a different approach. When confronted with two drunken louts, both with bottles in their jacket pockets, it would have been safer to have contacted the police before endeavouring a citizen’s arrest of Colville. The police station is next door to the shopping centre and closed circuit television was in operation in the defendant’s store. The protocol which I was told about does not require a security officer to attempt an arrest in circumstances where he is outnumbered. Mr Byrne negligently breached that protocol and the defendant is vicariously liable for that act. The situation requiring assistance of a rescuer was reasonably foreseeable and was brought about by a combination of Mr. Byrne’s non-adherence to the protocol and the defendant’s failure to provide appropriate backup for Mr. Byrne.
Counsel for the defendant indicated that if I were to find in favour of the plaintiff it would mean that security officers should not attempt to detain suspected shoplifters and so I would be writing a shoplifters’ charter. I haven’t the slightest intention of doing so nor does my decision amount to such. There would have been little difficulty in bringing the situation under control if the defendant had a sufficient number of security personnel with the appropriate two-way radio equipment in operation on the evening in question. Alternatively the protocol could have been observed, the police called, the suspects observed and arrested afterwards.
Damages
The plaintiff was struck in the face with a heavy link chain with such force that he fell back against a wall. When Colville and McCormack had been arrested the plaintiff was taken to the nearby police station. His face was cleaned up by members of the force. He was taken by ambulance to Cashel Hospital, where he was x-rayed. The following day he went to Waterford Regional Hospital. On examination he had a laceration over the nasal bridge and a swelling over the right cheek. He was found to have suffered an injury to his nose with a possible fracture of his nasal bones. He also had a swelling of his right cheek and epistaxis from the right side of his nose. Analgesics were prescribed and he was advised to attend the Ear, Nose and Throat department concerning the nasal injury. He did so. He was found to have a laceration to the nasal dorsum. There was a fissure fracture affecting the tip of the nasal bones shown on x-ray. He was seen again later in July complaining of pain in his neck and the back of his head. He was diagnosed as having soft tissue injury to his neck secondary to the injuries to his face. He was prescribed analgesia for this.
When he was reviewed in February, 2004, he continued to complain of soreness to the top of his nose and intermittent blockage of the nose. He also complained of pain on the right side of his upper jaw which came on about six weeks after the incident. It was recommended that the pain in the upper jaw be investigated by a maxillo facial specialist.
He went to see Professor Sleeman who is such a specialist. Professor Sleeman found that he certainly had a problem in his jaw in that he couldn’t open it to any satisfactory degree. He suspected a problem with his right temporo mandibular joint which would require surgery. Before doing so, however, he required a CT scan to be done. The results of that suggested that the plaintiff had a problem with the joint which would be amenable to surgical management. Accordingly an orthrocentesis was carried out in February, 2005. It did not solve the plaintiff’s problem. Consequently an exploration of the joint was carried out by Professor Sleeman. His examination found little pathology present and all seemed to be normal. However, he directed that an MRI scan of the joint be done to see if that would help inform him as to why the plaintiff had pain and reduced movement in the joint. That examination showed a dislocated thinned incompletely reducing disc on the right hand side.
Apart from the nose and jaw injuries the plaintiff also complained of the injuries to his neck and shoulder. He was seen by an orthopaedic surgeon in respect of those complaints. He took the view that the plaintiff’s neck and shoulder injuries should heal fully in time. Any ongoing pain is likely to subside in the future and the plaintiff will not suffer any permanent deficit in his neck, lower back or shoulder as a result of the assault.
As a result of the injuries the plaintiff lost a good deal of time from work. He had an accident at work in November, 2002, which gave rise to injuries resulting in him being off work for about two to three months. Apart from that period I am satisfied that his other absences were as a result of the assault in suit and have been medically certified. He is at present having physiotherapy and I think it likely that he will return to normal work within the next few months.
The plaintiff had a horrible experience which gave rise to substantial injuries to his jaw, nose and neck. He has had to have two operations carried out in relation to his jaw and is still having ongoing treatment for the neck injuries. His ability to participate in sport (which he enjoyed greatly) has been much diminished.
I assess damages as follows:-
(1) For pain and suffering to date €40,000;
(2) For pain and suffering into the future €10,000;
(3) Nett loss or earnings to date and for the next few months €28,000;
(4) Agreed special damages €3,201.
(5) Total €81,201.
In conclusion, I cannot but comment on the shabby way the plaintiff was treated by the defendant. Despite his bravery in going to the assistance of one of its security men he received not a word of thanks or acknowledgement from Dunnes Stores until the commencement of his cross examination in this case, four and a half years after the event. No real effort was made to make any contact with the plaintiff to enquire as to his welfare or to thank him for what he had done.
Result
The plaintiff succeeds and there will be judgment in his favour for €81,201 and costs.
Approved: Kelly J.
Carolan v Board of Management of St. Ciaran ‘s National School
[2006] I.E.H.C. 416JUDGMENT WAS DELIVERED ON THURSDAY, 6 JULY 2006 BY
MR. JUSTICE FEENEY, AS FOLLOWS:
MR. JUSTICE FEENEY: This is a claim brought by the
plaintiff for damages for
personal injury arising from an accident that occurred to the
plaintiff at the defendant’s school on 13 May 1997. The
plaintiff was on that date some five weeks short of her 13th
birthday and was in sixth class. She had started in that
school at the beginning of fifth class and was nearing the
end of her second full year as a student of that school.
During both her years in the school, the plaintiff’s teacher
was Mr. John Walsh. Mr. Walsh was an experienced teacher,
having graduated from St. Patrick’s in Drumcondra in 1974,
and by the time of the accident had been continuously working
as a primary school teacher for over 20 years, and by the
time he came to give evidence for some 32 years.
The system as St. Ciaran’s was that one teacher taught all
subjects to a particular class. Mr. Walsh was Aoife
Carrollan’s teacher and he covered everything in the
curriculum including physical education. At the time of the
accident Mr. Walsh was taking a PE class which was due to
last for about one hour starting at 1:30 p.m. and ending
shortly before the end of the school day at 2:40 p.m. The
accident occurred during a game of “dodgeball” which was part
of the PE class. The form of “dodgeball” being used was a
particular variation used in the school. During the course
of the game, which had been going on for some time, the
plaintiff had to run or traverse the width of the room and
had to avoid being hit by any of three sponge balls being
thrown by three classmates.
They, the classmates, were standing to the side as the
plaintiff crossed the floor and the plaintiff had to avoid
being hit by dodging, weaving, stopping and running. The
object of the game was to avoid being hit and to cross the
room. If a pupil was hit that pupil was out, and went to sit
on a bench. The plaintiff was the last successful pupil,
that is un-hit, whilst crossing the room, and had to make one
more successful crossing to finish the game. The plaintiff
had made some three or four crossings without being hit to be
the last pupil in the game.
In making the final crossing the plaintiff avoided the first
ball and in trying to avoid either the second or the third,
the plaintiff is uncertain in her evidence as to which, she
was ducking or weaving and came to a stop and in moving off
again to try and reach the far side, she stumbled or tripped
over her own legs and fell to the ground on her left arm.
That fall caused a severe injury to the left arm and she had
a fracture of both her ulna and radius. The injury was so
severe as to require open reduction and internal fixation and
thereafter a further operation to remove the metal plate.
The plaintiff has been left with two extensive scars on
either side of her forearm, one of approximately eight inches
in the length and the other of approximately six inches.
The above factual description of the accident is not disputed
and is accepted as an accurate description of how the
accident occurred. There are a small number of factual
matters in dispute; there is no issue as at suitability of
the premises or in particular as to the suitability of the
floor surface and this was expressly acknowledged in the
opening of the plaintiff’s case. It was also acknowledged
that there was no issue in relation to supervision.
The facts that are in issue are whether the plaintiff had
ever previously been involved in a game of “dodgeball” and
secondly, whether the game was being used as a warm up at the
start of the class period rather than towards the end of the
period following an independent warm up. The evidence
concerning whether or not the plaintiff had taken part in the
this “dodgeball” game on a previous occasion or not is
somewhat uncertain. The plaintiff believes it was her first
experience of the game. The teacher, Mr. Walsh, indicated
that had the game was a regular feature of a PE class and
that the plaintiff, in all probability, would have
participated on a number of occasions during her time with
him in fifth and sixth classes.
The plaintiff had certain absences during fifth class due to
ill health but had been a regular attender during sixth
class. On balance I would favour the evidence which suggests
that the plaintiff would have participated in this type of
game on other occasions. It is unlikely that she would have
missed all the occasions during fifth and sixth class when it
was played. However this finding is not of particular
significance as it is apparent that the variation of
“dodgeball” used in the school had simple and straightforward
rules of a basic kind and by the time of the accident the
plaintiff would have been aware of the format of the game or
activity.
Also there is no case made to suggest that a lack of
understanding of the format caused the accident. It is the
format itself rather than a knowledge of same which is
criticised by the plaintiff. The issue of the use of the
game or activity as a warm up is by and large academic. It
is extensively questioned as a suitable warm up exercise in
the report of the plaintiff’s Physical Education expert, Ms.
Judith Wooton. However, the balance of evidence tends to
support the view that there was an independent warm up of the
type approved by Ms. Wooton. The plaintiff and her classmate
do not recall one on that day, but the evidence of Mr. Walsh
indicates that there was an independent warm up. The Court
prefers that evidence and the lack of recall on the part of
the plaintiff and her classmate can be explained by the
passage of time.
The Court accepts that it is likely that the accident
happened towards the end of the PE class as suggested by
Mr. Walsh, rather than early on as contended for by the
plaintiff. The teacher’s evidence that the Head Master was
sent for after the accident and that when he arrived, the
class time was nearly over. And that evidence is strongly
supportive of the accident happening near 2:30 p.m. after the
majority of the class time had passed. The Court favors the
evidence that there was an independent warm up. Even if
there was not, the activity involved in the class up to the
time of the accident or even the limited activity involved in
the particular “dodgeball” game would have been sufficient
for a warm up. Also the type of injury and accident do not
relate to the existence or non-existence of a warm up.
The real criticism put forward on behalf of the plaintiff was
that the variation of “dodgeball” used in the school or its
particular format was unsafe and should have been identified
as such. And it was unsafe because the throwers threw from a
right angle position or sideways-on to the direction that the
plaintiff was required to run. It is suggested that by
having the three throwers sideways-on to the direction the
plaintiff was travelling, that this caused a so called
conflict in the focus of attention. By having a conflict of
attention between the travelling forward and the looking
sideways to see the balls approaching, together with the
added likelihood of the participant moving or jerking her or
his head together with the pressure to succeed, resulted in a
situation where there was a clear risk of a participant
losing balance and tripping or falling. This contention was
support bid the evidence of Ms. Wooton. The Court does not
have regard to the engineer’s view on the appropriateness of
the activity as it considers his expertise to be of marginal,
if any, relevance to such matters.
The defendant’s case is that this was a simple straight
forward game or activity, suitable for 12 year old with no
significant risk of injury over and above the risk inherent
in physical activity, where a trip or fall can occur. And
that the format was safe and shown to be safe by 20 years of
use and there being only one accident, that is the accident
the subject matter of this case. This view was supported by
the evidence of Dr. Joseph Lennon.
The Court has considered both experts’ evidence and the
evidence as to fact, and is of the clear view that the more
rational and credible evidence of expert opinion is that of the
defendants. The experts evidence called by the defendant is
in the Court’s view compelling in support of an absence of
negligence on the part of the defendant. This is not a case
of defective premises or equipment or lack of supervision,
but rather a claim that a particular activity or game was
unsuitable, likely to cause injury or as stated by the
plaintiff’s counsel, inherently dangerous and ill-considered
as being suitable for 12 year-olds. The Court is of the view
that this contention is based upon a contrived examination
and analysis of the game or activity.
The criticism from the plaintiff’s expert lacks reality and
disregards many activities and games requiring a conflict of
focus; it disregards the simple and straight forward nature
of the activity or game compared to other more complicated
games suitable for and played by 12 years old, such as
football or basketball, and it also disregards 20 years of
safe use of the game.
The Court is satisfied that the facts of this case show that
the plaintiff dodged and weaved to avoid a ball she saw
approaching and came to a stop. That appears to be common
case, and when taking off again she tripped herself. That
unfortunate event is a type of risk or event inherent in
physical activity and it is the Court’s view that the school
did not impose an unsuitable or unsafe activity but rather
insured that an activity suitably and reasonably safe was
being followed. The Court is of the view that such activity
properly formed part of a PE class.
The Court found Dr. Lennon’s evidence and opinion credible,
practical, and based on true experience. It accepts the
evidence from him that this was a simple, safe game suitable
for the premises and pupils. As he said, “the game of the
simplest and safest form”. The Court is satisfied that the
theory of risk emanating from dual focus is unreal and
contrived. What happened here was an accident which can
arise during any physical activity. All physical activity
carries some risk; the Court is satisfied that the chosen
activity did not unreasonably or unsafely create a risk and
that the game was properly chosen for use and appropriately
considered by the teachers, both as to use and format. There
is, as Dr. Lennon says, a risk of falling in any moving game.
The risk is incidental, not inherent. And the Court is the
of the view that it certainly cannot be categorised as this
game being inherently dangerous. Physical activity is both
an appropriate and vital part of the school curriculum and
the activity chosen here was a simple and straight forward
game that could be safely played. The Court is fully
satisfied that there was no negligence or lack of care on the
part of the defendant and therefore dismisses the plaintiff’s
claim.
the judgment was then concluded
Ennis v The Child and Family Agency
[2015] IECA 105 Judgment of Mr. Justice Kelly delivered on the 18th day of May 2015
Introduction
1. In the small hours of the morning of Saturday the 1st October, 2005, three persons were unlawfully in No. 10 Percy Cottages, Magazine Road, Athlone, Co. Westmeath. They were (to use the nomenclature applied in the High Court) Mr. C, Mr. D and Ms. A. Entry to the premises was made by breaking a window at the back of the house. That was done by Mr. C and Mr. D.
2. At about 4.30 am on that day Mr. C and Mr. D went upstairs in No. 10, piled up mattresses in one room and set them alight. The fire that ensued caused major damage to No. 10 but also damaged the neighbouring house at No. 11.
3. The plaintiff is the owner of No. 11. She brought proceedings against the Health Service Executive (HSE) (to which the Child and Family Agency (CFA) is successor) and Jarlath Egan, (Mr. Egan). Mr Egan is the owner of No. 10 Percy Cottages. In the High Court, Hogan J., held that there was no basis on which a claim could be made out against Mr. Egan and, presumably, dismissed the case against him, although that fact is not recorded in the formal order made on the 23rd October, 2014 and perfected on the 3rd November, 2014. No appeal has been taken against that determination by the High Court.
4. The judge did however find in favour of the plaintiff against the CFA and awarded damages of €75,414 against it. It is against that order that this appeal is brought.
5. In order to understand how the CFA was found liable to the plaintiff in respect of the criminal wrongdoing of individuals who were not its servants or agents and over which it
Ms. A.
6. Ms. A was born on the 13th August, 1987. She had the misfortune to be born into a very dysfunctional family and was placed in care at two years of age.
7. In August 1998, she was committed to the care of the HSE by order of the District Court.
8. In August 2004, Ms. A began to reside in a HSE residence, known as Shannon Cottage which was situated at 6 Percy Cottages. The HSE personnel dealing with her were conscious of the approach of her eighteenth birthday in August 2005. She herself was anxious to live independently and the HSE thought that the prospect of her being able to stay in rented premises close to Shannon Cottage a desirable one.
9. A number of detailed reports were prepared by Ms. A’s guardian ad litem in the last year of her minority. Those reports set out her many difficulties and described the various occasions on which she had absconded from care, often in unsuitable male company.
10. In December 2004, her guardian ad litem prepared a report for the High Court expressing concern in respect of plans for independent living on the part of Ms. A upon attaining her majority. The guardian thought that such a plan was “contra indicated by (Ms. A’s) past history and will, I believe, lead to a personal crisis . . . it would be more likely that (Ms. A) would quickly revert to volatile substance abuse to manage her feelings of anxiety, any attempt to fast track independent living without her having received sustained therapeutic intervention and support will set her back”.
11. While those reservations were expressed by the guardian ad litem in December 2004, no such concerns were contained in the guardian’s report of May 2005. So, it was decided to proceed with the endeavour to have Ms. A live independently. This was not done until she became an adult.
No. 10 Percy Cottages
12. In the early part of 2005, Mr. Egan purchased No. 10. It was not in good condition.
13. Mr. Egan was a university student and he spent much of the summer renovating the house in order to prepare it for letting. At the end of July 2005, the work was completed and he placed an advertisement in a local newspaper advertising the premises for letting.
14. One of the social workers attached to Shannon Cottage saw the advertisement for the letting of No. 10 and viewed the premises. She was of opinion that it would a suitable residence for Ms. A. She arranged with Mr. Egan that Ms. A would take a letting of the premises.
15. The lease commenced on the 25th July, 2005. The monthly rent of €550 was to be paid by the HSE for the first two months and thereafter the costs were to be split between the HSE and Ms. A in the form of rent allowance. The lease arrangement was very informal and unwritten.
16. Ms. A attained her eighteenth year on the 13th August 2005. Shortly afterwards steps were taken to have her move into No. 10 on a phased basis. All of that was completed by the 2nd September, 2005.
Trouble
17. In the middle of September 2005, Mr. Egan received complaints from neighbours about loud noise emanating from No. 10. He telephoned the HSE personnel in No. 6 and asked them to see to it that Ms. A would turn down the music. Some days later he was requested by the HSE to fix a light bulb in No. 10. On that occasion he found the premises in an untidy condition and he went down to the HSE personnel in No. 6 and requested them to arrange for the property to be tidied.
18. At about the same time, Ms. C, the owner of No. 12 Percy Cottages complained to the gardaí and to the HSE about loud noise emanating from No. 10. She was visited by a representative of the HSE who told her that Ms. A would no longer be regarded as a suitable tenant in No. 10.
19. On the 24th September, 2005, there were reports of a break-in to No. 10. The HSE staff found the property “in a complete mess”. In addition to items having been stolen the staff noted that “every chair in the kitchen was broken, clothes were thrown everywhere, food was on walls and lipstick was used to write abuse and nicknames”.
20. The HSE social workers spoke to Ms. A about her behaviour, her choice of friends and her attitude to alcohol and drug misuse. The social workers cleaned up the premises and arranged for Ms. A and her sister (who was also in care) to help them in the process. That night the HSE staff received a call from Ms. A to say that she wanted to leave No. 10 and move to a new flat elsewhere in Athlone. She feared that the youth responsible for the break-in on the 24th September would return.
21. On the 29th September, in mid-morning, a social worker attached to the HSE went to No. 10 to encourage Ms. A to get up out of bed. She did so, but not until 2.30 pm. She was taken to Shannon Cottage for lunch. After lunch she returned to No. 10 in order to tidy up the premises along with HSE personnel.
22. That evening a meeting took place with the landlord Mr. Egan at about 6.00 pm. Ms. A was present at that meeting.
23. Mr. Egan outlined complaints that he had received from other neighbours and referred to the break-in and the property that was damaged or stolen. He expressed the view that it was best that Ms. A leave the premises. She was “cheeky” towards Mr. Egan when confronted with the damage done to his property.
24. Later Mr. Egan met two HSE social workers along with members of his family and the HSE personnel agreed that the condition of the property was unacceptable. They asked Mr. Egan to provide a bill in respect of the damage which had been done and agreed that Ms. A would leave the property immediately.
25. Meanwhile, Ms. A had been brought by staff to visit her sister at another HSE residence known as Retreat Lodge. Ms. A and a staff member returned that evening to No. 6 where she was provided with her dinner. A note taken on that occasion said that Ms. A “was glad to be back in care and she felt that she was not ready or able to live alone”. However in the later evening Ms. A left No. 6 and was followed by staff. They tried to persuade her to return, but she refused. She was observed purchasing cans of lager from a shop. She finally returned to No. 6 and told staff she wanted to go out the following night with a named male. The staff explained to her that that person was a convicted rapist, but she paid no heed to their warnings and said that she thought he was “ok”.
26. The following day, Friday the 30th September, 2005, Ms. A and HSE’s social workers met with Mr. Egan in No. 10 to assess the damage to his property. At that time the tenancy was terminated and the key was returned to Mr. Egan. The HSE staff and Ms. A returned to Retreat Lodge.
27. It is clear from the evidence given by Mr. Egan that the property had been vacated by Ms. A on the evening of the 30th September following his meeting at about 6.45 pm. The keys had been returned to him and Ms. A was no longer legitimately entitled to be on his premises. The HSE staff who gave evidence agreed that the property was vacated on the 30th September. All of Ms. A’s belongings were moved out of it and Ms. A was taken to Retreat Lodge.
28. Unfortunately, Ms. A left Retreat Lodge without permission in the company of her sister. The HSE staff telephoned her at 11.15 pm to warn her to return to the unit by midnight. She did not return. Rather, she telephoned at 12.50 am to request staff to come to collect her sister in the Battery Heights area of Athlone. She made it clear that she would not be home then and did not know what she would be doing later.
29. The HSE staff then went to the garda station at 1.30 am and accompanied two officers in a squad car to Battery Heights to look for both girls. Despite the garda search neither girl was found.
30. Another social worker later on travelled by taxi to collect Ms. A having made contact with her. She refused to get into the taxi and the social worker had no power to compel her to do so. Meanwhile Ms. A’s sister arrived back in Retreat Lodge at around 4.30 am.
31. Athlone Fire Service recorded a telephone call at 5.01 am from Athlone garda station to say that No. 10 was on fire. The gardaí contacted Retreat Lodge at 5.50 am to inform the social workers that Ms. A had been detained by them as No. 10 was on fire and they believed that she had been involved in an incident. Ms. A was recorded as telling HSE staff that young men that she had been with had broken into No. 10 where they then had a party. She said that having smelt smoke she went upstairs and two bedrooms were on fire. She then escaped. There was blood on her clothes and she thought that the young men had been fighting and that the blood was from one of them.
32. On the following day, Saturday, the 1st October, 2005, Ms. A made a statement to the gardaí. She said that she had been drinking very heavily and had taken illegal substances. On walking back from Battery Heights towards Magazine Road, she met two young men, Mr. C and Mr. D. She maintained that the door to No. 10 was open and that Mr. C and Mr. D had been in there beforehand. A party went on inside and there was further drinking of lager. Eight persons were present for most of the party. By 4.30 am, her sister and three other youths had left the premises. Shortly afterwards Mr. C and Mr. D went upstairs and after a few minutes there was a smell of smoke. Two upstairs rooms were on fire and the house was then evacuated. She made it clear that she had no keys to No. 10 and had given them back to the HSE social worker on either Thursday the 29th or Friday the 30th September 2005.
33. Mr. D made a statement to the garda admitting that he and Mr. C set fire to mattresses in No. 10. Having set fire to the mattresses they remembered that Ms. A and another companion were downstairs. They banged on the window and the premises were then evacuated.
34. I have set out this factual material (all taken from the facts as found in the High Court) in some detail. I do so because these facts are crucial in any consideration of the legal position which obtains.
The legal position of Ms. A.
35. There is no dispute, but that upon the attainment of her majority, the HSE ceased to have the many powers and entitlements conferred on it in respect of minors under the provisions of the Childcare Act 1991. When Ms. A ceased to be a child and became an adult, the only relevant statutory provision that could be utilised by the HSE was s. 45 of that Act. Section 45 provides as follows:-
“(1)(a) Where a child leaves the care of a health board, the board may, in accordance with subs. (2), assist him for so long as the board is satisfied as to his need for assistance and subject to para. (b), he has not attained the age of 21 years.
(b) Where a health board is assisting a person in accordance with subs. (2)(b), and that person attains the age of 21 years, the board may continue to provide such assistance until the completion of the course of education in which he is engaged.
(2) A health board may assist a person under this section in one or more of the following ways –
(a) by causing him to be visited or assisted;
(b) by arranging for the completion of his education and by contributing towards his maintenance while he is completing his education;
(c) by placing him in a suitable trade, calling or business and paying such fee or sum as may be requisite for that purpose;
(d) by arranging hostel or other forms of accommodation for him;
(e) by co-operating with housing authorities in planning accommodation for children leaving care on reaching the age of 18 years.”
36. It was in reliance on these statutory provisions that the HSE had arranged the accommodation for Ms. A at No. 10 Percy Cottages. As is clear from the evidence that tenancy had come to end prior to the break-in which in turn led to the fire at No. 10.
37. Ms. A. was at the time of the incidents in question an adult. She was undoubtedly an adult with a great number of difficulties, but the HSE, in endeavouring to assist her, were confined to the provisions of s. 45. The HSE had no statutory power to detain or seek to detain her even if such a course might have been considered desirable.
Expert Testimony
38. The plaintiff adduced evidence from a Dr. Patrick Randall who was a forensic psychologist with a particular interest in individuals who have committed sexual offences and adolescents displaying challenging or harmful behaviour.
39. Dr. Randall neither saw nor treated Ms. A at any stage. Nonetheless, he believed he could diagnose her pattern of behaviour from a consideration of the documents which were discovered in this litigation. He took the view that she was an acutely vulnerable young woman whose placements had often broken down. She had failed to cooperate with various therapies, had engaged in substance misuse and in sexual promiscuity. She had frequently absconded from secure environments. He saw a pattern of self harm, threats, assaults and substance misuse on her part, which had given rise to a wish to engage in destructive activities. Her behaviour was indicative of internal turmoil and distress. Had he been called upon to advise on steps to be taken to deal with her, he would have devised a behavioural care programme. He would have advised the HSE to engage Ms. A in conversation and to return to a place of safety.
40. Three things are of note in the testimony of Dr. Randall. First, he had never seen or met Ms. A. His assessment of her was entirely based upon an examination of documentary material.
41. Second, in the course of his cross examination he admitted that he did not know the boundaries of what can and cannot be done by social workers in respect of a young adult who is at risk. The following extract from his testimony is instructive. Dr. Randall was giving evidence of what he considered was the correct procedure to adopt in the circumstances which obtained on the night of the 30th September, 2005, when Ms. A left Shannon Cottage.
“Q. Do you know the boundaries of what the social workers can and cannot do?
A. I would talk to them about that and in some cases for example if I use a slightly different example where the young person was under aged, the social care worker followed that person because a person was at risk. Now granted the person was under age and I can see the distinction that counsel is drawing in that he is now dealing with an adult versus a person (sic). However, the person we are concerned with here might be of chronological age of an adult and have those rights, but the young person is nonetheless very difficult and it is likely that they are not going to be as regulated perhaps as counsel might be when counsel leaves the home, as I might be when I leave the home. It is reasonable to say well this is somebody that might need more support.
Q. Dr. Randall I asked you, you have already said in your direct evidence that you do not know the boundaries of what can and cannot be done by social workers for a young adult who is at risk. You don’t know?
A. Indeed.
Q. And if I put it to you that there are – that social workers are not entitled to follow and keep a young person at risk inside at all times, just follow them around the town, stand outside houses that they go into and stalk them in that way. Do you have any view on that?
A. Judge, what I would say is that one wouldn’t stalk them at a distance. You would be attempting to engage them and you would offer them a choice. You would offer them a choice of, ‘look either I follow you around because I am concerned about your safety or failing that you come with me to a place where you are safe, where you have safety’.
Q. If they say to you ‘no, leave me alone, I do not want you to follow me and I do not want to return to this place of safety with you, please respect my civil liberties and leave me alone’, do you know what you can and cannot do in these circumstances?
A. I don’t judge, no.
Q. Alright. Then you said the next step is when they tell you to, I think I might not put it quite as politely as that, but the next step you say is that they should, this multi disciplinary team that is following this child around Athlone or young person around Athlone should request the assistance of the gardaí and inform them of the difficulties, do you know if that was done that night?
A. I believe it was judge.
Q. Because the gardaí were informed that there was a young person at risk. A Ms. Casey went to the garda station, asked for gardaí to come with her around Athlone to look for her and was out in the early hours of the morning trying to hunt her down, but what can the gardaí do? They can’t do anything. I mean how can you make a complaint to the gardaí about an adult that I am out in town and I have alcohol and I may be at risk, how can you make that complaint. Gardaí will facilitate social workers, but how far can that go?
A. They do judge I suppose in the cases where you have people at risk, they do facilitate.
Q. But anyway in respect of the three steps that you provided, you accept fairly that they were all met, that the social workers did engage with her, did try to bring her back, and did try to persuade her. Did try to find her, did bring the gardaí on board. So if a psychologist was present you wouldn’t quite criticise him for directing that level of engagement, 2, 3 o’clock, 4 o’clock in the morning still looking for her. Would you criticise that?
A. No, I wouldn’t judge.”
42. That extract from the cross examination fairly sets out the extraordinary efforts that were made (as adduced in evidence) by social workers throughout the night to deal with Ms. A. It also underscores the impotence of the HSE to deal with an adult, albeit a very troubled one. That is not a criticism of the HSE but rather an acknowledgment of just how little power, statutory or otherwise, it has when dealing with an adult rather than a minor.
43. The third point of note in the testimony of Dr. Randall concerns his view as to Ms. A’s propensity to manifest her destructive behaviour particularly where property is involved. Despite her many years of damaging property and her propensity to do so, she had no record of fire setting or arson. This is of minor importance since the trial judge found that the fire was not started by her.
Efforts
44. A variety of witnesses from the HSE gave evidence of the quite extraordinary efforts that they made to try and provide support for Ms. A. They went to great lengths, particularly throughout the night and early morning of the 30th September/1st October 2005. The trial judge found that the individual HSE personnel used their very best efforts to protect Ms. A’s welfare in extremely difficult and challenging circumstances. He said that their dedication to duty – which went far beyond the call of duty – was most impressive and was to be hugely commended and appropriately acknowledged. I entirely agree. Indeed it is clear from the extract from Dr. Randall’s testimony that he could find no fault with them and that they did all that he would have expected. They also involved the gardaí who fully cooperated, but were likewise restricted in what they could do. In truth, there was very little that they could do. They are not be criticised for that.
The judge’s conclusions
45. The judge held that the HSE owed the plaintiff a duty of care by reason of its special relationship with Ms. A.
46. He then said:-
“Although the individual social worker showed huge commitment and dedication to the welfare of Ms. A, viewed objectively, it was negligent to conclude that Ms. A. was suitable for independent living when she (sic) plainly unsuited to this.”
He went on:-
“Against this background it can be said it was entirely foreseeable that the property would be damaged once Ms. A was left to her own devices essentially unsupervised in the property. It was further just and reasonable and in line with established precedent that a duty of care should be imposed. It follows that the plaintiff is entitled to damages as against the HSE in respect of the loss and damage which she has suffered as a result of this fire.”
47. I must confess that I have considerable difficulty in understanding how, having regard to his findings of fact, the trial judge reached these conclusions.
48. In a few moments I will follow the course which he took through a wide range of authorities both in this country and abroad in order to provide legal support for his conclusions. But legal issues cannot be decided other than by reference to the facts and in this regard it seems to me that the following matters are of crucial importance.
49. No. 10 Percy Cottage was broken into. The break in took place after the tenancy with Mr. Egan had been terminated.
50. Ms. A was not responsible for the break in. It was Mr. C and Mr. D who were. Ms. A was likewise not responsible for starting the fire in No. 10. It was Mr. C and Mr. D.
51. At no stage did the HSE have any responsibility for or control over Mr. C or Mr. D.
52. Insofar as the HSE had a relationship with Ms. A, it was one which altered radically when she attained her majority. Thereafter the HSE had no powers of detention or coercion over her.
53. Whatever may be said about the decision that Ms. A should live independently, such independent living in No. 10 had ceased by the time it was broken into and set on fire.
54. In any event I find it difficult to classify the decision on independent living as being made negligently. The HSE could not compel Ms. A to reside anywhere and it had no coercive powers over her. There was uncontradicted testimony that independent living was the only option available for Ms. A.
55. No finding of negligence was or could be made against the HSE personnel and their endeavours to save Ms. A from herself on the 30th September/1st October.
56. These matters have to be borne in mind at all times when considering the case law.
57. I will now turn to a consideration of the authorities which were considered by the trial judge and relied on to support his conclusions.
The authorities
58. The trial judge began his consideration of the legal issues with an unremarkable and quite correct statement that the general principle is that one party is not liable for the actions of a third party, save where a duty of care has been found to exist by reason for special circumstances. He went on to say that it has also been judicially recognised that the actions of troublesome children and delinquent juveniles often present a special case.
59. He began his consideration by referring to the decision in the House of Lords in Dorset Yacht Co. Limited v. Home Office [1970] AC 1004.
60. In my view this decision has little, if any, relevance having regard to the facts of the present case. In Dorset Yacht, three young offenders were in the custody of three officers and were working on an island near Poole harbour in Dorset. In breach of their instructions, the prison officers went to bed at night leaving the offenders to do as they wished. Seven of them escaped and went aboard a yacht which was nearby. They launched it and it collided with the plaintiff’s yacht which was moored in the vicinity. They then boarded the plaintiff’s yacht and damaged it. In the course of his speech, Lord Reid said of the prison officers:-
“If they had obeyed their instructions they could and would have prevented these trainees from escaping. They would therefore be guilty of the disciplinary offences of contributing by carelessness or neglect to the escape of a prisoner and to the occurrence of loss, damage or injury to any person or property. All the escaping trainees had criminal records and five of them had a record of previous escapes from Borstal institution. The three officers knew or ought to have known that these trainees would probably try to escape during the night, would take some vessel to make good their escape and would probably cause damage to it or some other vessel.”
61. The Home Office was held vicariously liable for the negligence of the prison officers in failing to take appropriate steps to detain the persons in their custody. In the instant case, neither the HSE nor its personnel had any powers of detention over Ms. A. She was not in their custody. Insofar as they were entitled to do anything on the night and early morning in question, no criticism was made of them, even by the plaintiff’s own expert. The HSE personnel went to extraordinary lengths to try and deal with Ms. A’s behaviour. Furthermore, the damage in this case was caused by strangers to the HSE over whom it had no control whereas it was the escaped detainees who did so in Dorset Yacht.
62. The trial judge then proceeded to examine how the Dorset Yacht principles had been subsequently applied by the English courts in cases dealing with arson and vandalism often involving teenagers and young adults.
63. The first case he considered was Vicar of Writtle v. Essex County Council 77 LGR 656. In that case a twelve year old boy was brought before a juvenile court on a charge of entering a local school as a trespasser. The police asked that the boy be remanded as it was known that he had been responsible for several fires in the area. He was remanded into the care of a local authority for eight days and placed in a community home. The house parent in charge of the home was not informed of the boy’s fire raising propensities by the social worker who had been present in court. While at the home, the boy, in the middle of the day, walked out and set fire to a nearby church. The church authorities brought an action for damages against the local authority alleging negligence, in that it had failed to exercise proper supervision over the boy by placing him in a home where no restrictions existed, failed to heed a warning that the boy might have fire raising propensities, and failed to take any steps to prevent him for damaging any neighbouring property.
64. The church authorities succeeded before Forbes J. who held that a relationship of neighbourhood existed between the parties sufficient to establish a duty of care on the local authority towards the plaintiffs since the authority’s duty towards the boy under s. 24(2) of the Children and Young Person’s Act 1969, was that of a parent and parental responsibility extended to a consideration of the consequences of failure to exercise parental control.
65. The judge held that in the circumstances of that case, the duty of care owed by the local authority was the ordinary duty of a reasonable parent to control his child; that the local authority had not acted reasonably, having regard to the degree of risk, in failing to give warning to the head of the community home who would, had he been made aware of the boy’s fire raising propensities, have kept him under closer observation and adopted a course of supervision which would have prevented him from walking out of the home and would therefore have prevented the damage.
66. It is clear that that the Vicar of Writtle case on its facts is far from the present one.
67. First, the HSE were not operating under a statutory provision analogous to s. 24(2) of the Children and Young Person Act 1969, and had no parental responsibility for Ms. A. Second, no powers of detention could have been exercised in the present case. Third, whatever her failings, Ms. A had never demonstrated any fire setting tendencies and in any event from the judge’s findings of fact was not the person responsible for setting fire to No. 10. Having regard to these facts it is difficult to see the relevance of the Vicar of Writtle’s case.
68. The judge then went on to contrast that case with a number of subsequent cases decided in England. In all these cases the plaintiff failed.
69. The first of these was P. Perl (Exporters) Limited v. Camden London Borough Council [1984] QB 342. In that case the plaintiffs had leased basement premises from the defendants and used them to store garments. The defendants owned the adjoining premises. Those premises had a broken lock on the front door. Unauthorised persons were often seen on those premises and burglaries had often taken place there. The defendants did nothing about complaints regarding the lack of security. During a weekend, intruders entered the defendants premises, knocked a hole through the common wall in the basement and stole garments from the plaintiffs basement. The plaintiff brought an action against the defendants claiming damages for negligence and succeeded. The decision was reversed in the Court of Appeal.
70. In the course of his judgment Waller L.J. said:-
“But no case has been cited to us where a party has been held liable for the acts of a third party when there was no element of control over the third party. While I do not take the view that there can never be such a case I do take the view that the absence of control must make the court approach the suggestion that there is liability for a third party who was not under the control of the defendant with caution.”
71. I entirely agree with this statement. What control could the HSE have exercised over Ms. A in the present case? The answer is none. Still less had it control over the intruders who actually broke into and set fire to the premises. The HSE personnel went to enormous lengths to try and persuade Ms. A to return to Shannon Cottage on the night in question but knew nothing of Mr. C and Mr. D and had no control over them.
72. Later in his judgment Waller L.J. said that
“The foreseeability required to impose a liability for the acts of some independent third parties requires a very high degree of foreseeability.”
I cannot accept that what happened here was reasonably foreseeable so as to impose a liability on the HSE.
73. Hogan J. went on to consider the decision of the House of Lords in Smith v Littlewoods Organisation Limited [1987] 1 A.C. 241. That was an appeal from the first division of the Inner House of the Court of Session in Scotland. In 1976, the defendant purchased a cinema building with the intention of demolishing it and replacing it with a supermarket. After some work had been done in June of that year the cinema remained empty and unattended. The security of the building was from time to time breached and vandalism occurred. That vandalism included an attempt to set fire to the cinema. On the 5th July, 1976, a fire was deliberately started in the cinema by children or teenagers as a result of which it burned down and an adjacent café, billiard saloon and a nearby church belonging to the pursuers were seriously damaged.
74. The House of Lords rejected the claim that the defendant should be held liable in negligence. The Law Lords were of the view that there was nothing inherently dangerous in the abandoned building and the defendant had no advance knowledge of the potential fire.
75. In the course of his speech Lord Mackay of Clashfern cited with approval from Lord Radcliffe’s dictum in Bolton v. Stone [1951] AC 850:-
“. . . unless there has been something which a reasonable man would blame as falling beneath the standard of conduct that he would set for himself and require of his neighbour, there has been no breach of legal duty.”
Lord Mackay said of this:-
“This is the fundamental principle and in my opinion various factors will be taken into account by the reasonable man in considering cases involving fire on the one hand and theft on the other but since this is the principle the precise weight to be given to these factors in any particular case will depend on the circumstances and rigid distinctions cannot be made between one type of hazard and another. I consider that much must depend on what the evidence shows is done by ordinary people in the circumstances to those in which the claim of breach of duty arises.”
I agree.
76. The trial judge then considered Breslin v. Corcoran [2003] 2 IR 203, where Fennelly J. observed that the plaintiffs in Smith had lost their case “because there was no evidence that the defendants had knowledge of the fact that the vandalising trespassers in the disused cinema were in the habit of starting fires”. Neither was there any such evidence in the present case.
77. The trial judge considered a series of Irish authorities involving the destruction of property and the causing of injury by the actions of third parties. They included John C. Doherty Timber Limited v. Drogheda Harbour Commissioners [1993] 1 I.R. 315, Breslin v. Corcoran [2003] 2 IR 203, and Flanagan v. Houlihan [2011] 3 IR 574. The common feature of all of these three cases is that in every instance the plaintiff failed. In the Doherty case a claim was made against the Harbour Commissioners in circumstances where it permitted consignees of shipments to Drogheda Port to unload and leave the goods on the harbour quayside. The quayside was unenclosed, no security was provided and the general public used the quayside as a form of thoroughfare. The plaintiff unloaded a cargo of timber and paid the harbour dues, but some days later the timber was set on fire by a group of children. Whilst Flood J. accepted that goods on the harbour quayside could be liable to damage by third parties, that fact was not sufficient to give rise to a duty of care. He held that the relationship between the plaintiff and the defendant was that the defendant gave “a bare permission which carried no further obligations of care on the part of the defendants for the very simple reason that it would be virtually impossible to effectively implement. In my opinion, the inference to be drawn from the relationship of the parties is that each party knew that the goods were placed and retained on the quayside at the consignee’s risk”.
78. In Breslin, the Supreme Court rejected a claim arising from the fact that the first defendant parked his car in a central Dublin street for a short period and carelessly left his keys in the ignition. A thief got into the car and drove it away at speed. The thief crashed into the plaintiff as he crossed the road. The Supreme Court took the view that the theft of the vehicle was foreseeable, but that it was not foreseeable that the car would be driven in a negligent manner by the thief. Fennelly J. said:-
“A person is not normally liable, if he has committed an act of carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously responsible. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.”
79. Again in Flanagan’s case, Feeney J. rejected the proposition that a publican owed a duty of care to road users in respect of the supply of alcohol to patrons who are thereafter likely to drive. He took the view that the imposition of a duty of care in those circumstances would be impractical and place an impossible burden on publicans. There was no effective means whereby such publicans could ascertain whether patrons would later drive while under the influence of intoxicants.
80. It is clear that the facts of this case are far removed from those in the cases just cited and considered by the trial judge. But they all stress the test of foreseeability which must be met before a legal liability can be found.
Glencar
81. Having traversed all the above mentioned authorities the trial judge then came to consider Glencar Exploration plc v Mayo County Council (No 2.) [2001] 1 I.R. 84, which is the governing authority in this jurisdiction.
82. The Glencar case was an appeal from a decision of my own to dismiss a claim for damages which was brought against Mayo County Council arising out of the imposition of a ban by it on gold mining on Croagh Patrick. That ban had been held to be ultra vires the Council. The ensuing claim for damages involved a consideration of whether the County Council owed the plaintiff a duty of care in the manner in which it had imposed the ban. I held that it did not and the Supreme Court upheld that decision.
83. A consideration of the decision in Glencar shows that a fourfold test is applicable in establishing legal liability.
84. The four matters that must be considered are: (i) reasonable foreseeability, (ii) proximity of relationship, (iii) countervailing public policy considerations, (iv) the justice and reasonableness of imposing a duty of care.
Reasonable foreseeability
85. Before a liability is established for injury or damage to property, such injury or damage must be reasonably foreseeable.
86. On the facts of this case as found by the trial judge I am unable to conclude that the damage here was reasonably foreseeable by the HSE.
87. Whilst it is probably correct to say that Ms. A was not a suitable person for independent living, the fact is that she was at all material times an adult and that the HSE had no coercive powers over her. In any event she was not independently living in No. 10 at the time of the fire. In addition the judge failed to take account of the uncontradicted testimony that independent living was the only available option for Ms. A. However, even if it can be said that the HSE were wrong in so concluding, how could it ever have been foreseeable that premises formerly occupied by Ms. A with the help of the HSE would be broken into and set on fire by third parties in whose company Ms. A was and that as a result damage would be caused to the neighbouring house?
88. I am reminded of the observations of Lord Griffiths in Smith v. Littlewoods, where he said:-
“A series of foreseeable possibilities were added one to another and, hey presto, there emerged at the end of it the probability of a fire against which Littlewoods should have guarded. But, my Lords that is not the common sense of this matter.”
89. Neither is a finding of liability on the CFA the common sense conclusion that one would come to in the present case given the findings of fact made at trial.
90. Having failed the test of reasonable foreseeability it is not necessary to consider the other headings identified in Glencar. I will however make some general observations on the fourth of those namely, the justice and reasonableness of imposing a duty of care on the CFA in this case.
91. It would be neither fair or just or reasonable to visit a liability on the CFA on the facts of this case. To do so would be to make it liable for the criminal wrongdoing of persons over whom it had no control or indeed any dealings whatsoever. The court should be mindful that a too ready imposition of a duty of care on the CFA could have a stultifying effect on it in the discharge of its functions.
92. The court should be slow to add to the difficulties of social workers and CFA personnel in trying to deal with problem persons such as Ms. A by a too ready imposition of a liability towards third parties.
Conclusion
93. One cannot but have sympathy for the plight of the plaintiff but there was, in my view, no basis for finding a duty of care owed to her by the CFA and still less a breach of such alleged duty.
94. I believe the trial judge was in error in concluding as he did and I would allow this appeal.
Peart and Irvine JJ. agreed.
McCarthy v Kavanagh (t/a Tekken Security) [2018] IEHC 101, Cross J.
JUDGMENT of Mr. Justice Cross delivered on the 6th day of March, 2018
1. The plaintiff was born on 13th July, 1985. He is a psychiatric nurse by profession. After secondary school, he went to University College Cork where he completed a BSc in psychiatric nursing in 2008 and was employed thereafter by the HSE in North Lee Mental Health Services from 2008. After his employment, he decided for promotional purposes to get a higher diploma in acute and in enduring mental illness and in October 2011, he was in the course of studying for this diploma.
2. Briefly put, the plaintiff, who throughout the incident was the innocent party in all altercations, attended the second named defendant’s supermarket premises in the early hours of 31st October, 2011, and after an incident was evicted by the first named defendant’s security staff and was shortly thereafter assaulted by a third party. The plaintiff suffered serious injuries and claims that these injuries were caused by reason of the negligence of the defendants or either of them.
3. The defendants initially were separately represented and filed full defences including each blaming the other but both defendants are now represented by the same firm and no issue arises between them. The defendants deny liability, deny that they owed any duty of care to the plaintiff, plead a novus actus interveniens and further pleaded the provisions of s. 35(1)(i) of the Civil Liability Act 1961.
4. The facts in this case are not greatly in issue save for two matters which will be considered later and considerable evidence was furnished by the witnesses and also by CCTV footage and stills which will be discussed below. I find the essential facts are as follows:-
(i) On the evening on 30th October, 2011, Halloween weekend and also the weekend of the Cork Jazz Festival, a very busy weekend, the plaintiff and his then girlfriend (now his wife) went to a well known public house, Costigans in Washington Street, had a number of drinks there and went on with friends to the nearby licensed premises and indeed, nightclub, known as Reardans, opposite the Courthouse.
(ii) The plaintiff had a number of drinks in both premises and he says he would not have been fit to drive but there is no suggestion and no evidence exists that alcoholic drink or indeed any other act of Mr. McCarthy was in any way to blame for what happened. Mr. McCarthy was, at all stages, an innocent party. Though contributory negligence was pleaded against the plaintiff, this has not been maintained and no evidence exists of any contributory negligence. For the avoidance of doubt accordingly I hold that there is no contributory negligence against the plaintiff.
(iii) At some time after 2am, Mr. McCarthy and Ms. M decided to go to the first named defendant’s Centra shop on the Grand Parade, Cork, to purchase some rolls to eat. The CCTV cameras show a very large number of people milling around in front of the Centra supermarket. It was Halloween weekend. There was clearly a fancy dress engagement going on nearby as people are to be seen in “drag” and other fancy dress outfits. It is common case that the gardaí had just left the front of the premises having to deal with an incident or disturbance in front of the shop moments before the plaintiff arrived. However, though the crowd outside the supermarket was very large, the CCTV films show, apart from the central actors in the affair that other citizens were milling around and took no part in what occurred.
(iv) There were a large number of patrons in the shop, along with the staff and two security guards who were on duty on behalf of the second named defendant. One of them, Mr. F was back near the counter and the other, Mr. P was near the front door. A queue formed up on the right hand lane as one looks at it from the front door which queue then turned slightly to its left in front of the deli counter.
(v) The plaintiff and Ms. M entered the shop and made their way up the queue with a number of people in front of them including two ladies, who turned out to be the O’M sisters who wore fancy or distinctive dresses.
(vi) A man, who turned out to be Mr. O’C, entered the shop with a cardboard box on his head by way of fancy dress presumably. He attempted to go to the deli counter direct without going through the queue but were redirected by the guard, Mr. F, back to the queue. Mr. O’C then is seen attempting to jump the queue, by moving upwards towards where the O’M sisters were placed in front of the plaintiff. The plaintiff and his fiancÉ, not unreasonably objected to this. It is possible that one of the O’M sisters who were in front of the plaintiff indicated that Mr. O’C was with them and that one of them would leave the queue to enable Mr. O’C to take his place.
(vii) In any event, Mr. O’C is seen, and is noticed by the guard, Mr. F, to be manhandling his way up to the front and this, apparently, caused some protest from the plaintiff and his girlfriend. One of the O’M girls went over to the security guard and the plaintiff is seen calling out probably to her or to the guard, something to the effect that people should mind their manners. Both Mr. O’C and in particular the O’M sister who was left in the queue objected to the plaintiff’s conduct and words followed and the remaining sister in the queue is assaulted the plaintiff around his jaw and mouth.
(viii) The security guard, Mr. F, went over to the queue and because he apparently wanted to separate the plaintiff who was, as he saw it, one person in a row with three people, he escorted the plaintiff out of the shop. Mr. F was not it seems aware of Ms. M’s connection to the plaintiff or that he was in fact separating the plaintiff from her. He handed the care of the plaintiff over to the second security guard, Mr. P, and omitted to tell Mr. P, as he now accepts to be the case, that the plaintiff was the innocent party in the affair.
(ix) The plaintiff was followed almost immediately from the shop by the O’M sisters and by Mr. O’C. Mr. F apparently did request them not to follow but did not communicate to Mr. P that the three persons exiting the store immediately after the plaintiff were the perpetrators of the row against him.
(x) When the plaintiff exited the premises he was chased by the three pursuers who attempted to hit him about the head while at all times the plaintiff offered no resistance and backed away trying to cover his head to prevent these assaults.
(xi) The plaintiff then managed to break loose from his pursuers and made for the front door of the shop seeking safety. He was pursued by Mr. O’C.
(xii) Mr. P did not know that the plaintiff was the innocent party in the initial row and did not witness the plaintiff being beaten and pursued outside. Mr. P barred the plaintiff’s re-entry and either pushed him away or puts his hands up so as to cause the plaintiff to bounce off him. Whether Mr. P merely barred the plaintiff with his two hands as he maintains or pushed the plaintiff back is one of the few factual matters of dispute.
(xiii) The plaintiff states that he was pushed backwards by Mr. P and fell over an unconnected person, Ms. H. In this, he is supported by Ms. L O’S an independent witness who was inside the store and also another independent witness, Mr. C O’S who was outside. Mr. P says that he blocked the plaintiff with his two hands and Ms. AG, a third independent witness heard Mr. P telling the plaintiff to stop and did not see him push the plaintiff. Examining the photographs, it is clear that whatever occurred and whether or not Mr. P’s hands were moving towards the plaintiff in a push or were merely held up, the force of the impact of the plaintiff on Mr. P’s hands caused him to stumble back towards Ms. H and towards the assaulting arms of Mr. O’C. I believe that all witnesses were attempting to tell the truth as they saw it but examining the CCTV and the still photographs especially from Camera 5, none of them show Mr. P with his two hands raised in a blocking position as he maintained. The photographs do show the plaintiff in collision with Mr. P and being pushed or falling backwards and in particular one photograph taken at 02:25:34:64 exhibited in Mr. Romeril’s report shows Mr. P with not two hands but one hand raised and I conclude that what Mr. P did was, in fact, to push the plaintiff back towards the crowd and in particular, towards Mr. O’C. However, I am not persuaded that the resolution of this factual dispute causes any substantial difference to the outcome of the case.
(xiv) The only other issue of fact in dispute is whether the plaintiff then fell and knocked over Ms. H due to the direct impact of the push or whether he was assisted in that impact by being entangled with Mr. O’C. The defendants contend that it was the entanglement of the plaintiff with Mr. O’C after he had been pushed or blocked backwards which caused the plaintiff to knock down Ms. H. Again, while the film is not definitive on this, I hold that the best explanation for what occurred and what is shown in the photographs is that indeed, the plaintiff was pushed back in a falling motion and was grappled by Mr. O’C as he was falling. It was a combination of Mr. P’s push and Mr. O’C that caused the impact with Ms. H. However, again I am not persuaded that the resolution of this factual dispute causes any significant change in the outcome of this case. It should, of course, be pointed out that Mr. C must have been of the view that the main cause of the impact with Ms. H, his girlfriend, was the plaintiff, hence Mr. C’s response.
(xv) The plaintiff stumbled backwards from the push of Mr. P and with the assistance from Mr. O’C who had now caught up with the plaintiff and this caused the plaintiff to trip over and knock to the ground Ms. H who had nothing to do with the incident but was standing on the payment outside the shop.
(xvi) Unfortunately Ms. H’s boyfriend, Mr. C who was behind or beside Ms. H intervened with a massive fist to the plaintiff’s head causing him to fall to the ground crack his head and suffer a serious head and brain injury.
(xvii) Ms. M came out from the shop just as this was happening she herself remonstrated with and is then assailed by the OM sisters and then Mr. M saw the plaintiff on the ground bleeding profusely and went over to him.
(xviii) The gardaí came and Mr. C was subsequently charged and pleads guilty to Assault Occasioning Serious Harm and was appropriately sentenced and the O’M sisters and Mr. O’C were appropriately sentenced for public orders offences.
(xix) The plaintiff has no recollection of the incident or its aftermath until he awoke after being in a coma in hospital.
(xx) The entire incident is captured by a number of CCTV cameras. I have had the benefit of viewing these cameras and the stills extracted from the films on a number of occasions. The CCTV film, as is normal, is not a continuous movie but jumps from frame to frame as what is captured is not a continuous flow but rather millisecond after millisecond. I have also had the benefit of a frame by frame analysis by consulting engineers of what was to be seen and a discussion by Counsel of these matters.
(xxi) The entire incident occurred in real time not in fragmented milliseconds. This case can only be assessed by allowing for the fact that the incident happened in real time. The interval between the plaintiff being removed from the shop and being hit by Mr. C is less than ten seconds which period involved him being beaten by O’M sisters and by Mr. O’C, braking loose from them making for the door being pushed back and knocking over Ms. H as well as the punch. The interval between the plaintiff being pushed back by the security guard and the blow from Mr. C is just two seconds.
5. The issues of liability maybe summarised as follows:
(a) Did the defendants owe to the plaintiff a duty of care in the circumstances?
(b) If so were the defendants in breach of their duty of care.
(c) If so were the plaintiff’s injuries caused by reason of the defendants’ breach are the actions of Mr. C in assaulting the plaintiff to be regarded as a novus actus interveniens.
(d) If there is a duty of care and if the principle of novus actus interveniens does not apply, do the provisions of s. 35(1)(i) of the Civil Liability Act serve to defeat the claim.
Does the defendant owe the plaintiff a duty of care in the circumstances and were the defendants in breach of their duty of care?
6. I have had the benefit of extensive submissions on behalf of the plaintiff and the defendant of which I have read.
7. The defendants submit that insofar as they owe a duty of care to the plaintiff it does not extend to the conduct of third parties such as Mr. C and that Mr. C’s assault and the injuries sustained by the plaintiff were not reasonably foreseeable and certainly not reasonable probable and in the absence of any special relationship between the defendants and Mr. C the imposition of responsibility on the defendants for the criminal actions of Mr. C cannot be justified.
8. The defendants admit that they owe the plaintiff a duty of care while in the Centra premises and this duty is owed not just to the plaintiff but to all customers and the defendants assert that their duty was “to take reasonable care to ensure the safety of such customers by employing security staff, floor staff, operating systems of queuing as they did and expelling customers and refusing re-entry were that appeared recently necessary”. They submit that the duty did not extend to policing outside their premises on Washington Street and in particular they submit had they left their post to police any matter outside the ambit of their role they would have been guilty of dereliction of their duty to remaining customers. The defendants submit that the plaintiff was ejected from the premises in order to avoid a confrontation inside the premises which if it had escalated would have affected a large number of customers and that it was not reasonably foreseeable that Mr. O’C or the OM sisters would follow the plaintiff outside or that the security guard’s decision to decline the plaintiff’s permission to re-enter would result in Mr. C punching the plaintiff as he did. It is submitted that in order for the defendants to have a liability for the actions of third parties that they must be “a special relationship” as referred by Hogan J. in Ennis v. Heath Service Executive and Jarlaith Egan [2014] IEHC 440 and that no such special relationship existed between the defendants and Mr. C.
9. The plaintiff in their submissions rely upon the ex tempore ruling of this Court on the application of the defendants for a Direction on Day 7. That determination by the court does not satisfactorily deal with the issue of duty of care. The defendants’ Direction application was on the principal of novus actus interveniens and, for that purpose, counsel on behalf of the defendant conceded that it was open to the court to find (a) that the defendants owe a duty of care to the plaintiff, (b) that that duty does not cease at the door of the supermarket, (c) that the defendants breached or may have breached that duty in allowing the three pursuers to follow the plaintiff without any ramifications and also possibly in the manner of their eviction of the plaintiff in the first place by not advising the security guard of the facts and by failing to allow the plaintiff back into the store and pushing the plaintiff out into the open air. In the aforementioned ruling the court stated that the defendants “had a duty knowing the plaintiff who they had excluded from their premises and who they had allowed to be pursued by three pursuers would be offered safety by the security official and could easily have been re-admitted as though he was pursued by Mr. O’C he had escaped from his clutches and the security guard of which he could have admitted the plaintiff and stopped Mr. O’C and let (the plaintiff) back in. And also they had a duty not to push the plaintiff back towards his assailant …” the plaintiff’s rely upon that determination.
10. Given that the determination was limited to the issue of novus actus interveniens, in the circumstances when, for the purposes of the direction application, counsel for the defendant conceded that a duty of care existed beyond the door of the shop, my decision is not determinative of the issue now raised by the defendants, after all the evidence has been heard as to whether they owed a duty of care to the plaintiff.
11. Prior to the decision of Glencar Exploration Plc. v. Mayo County Council (No. 2) [2002] 1 IR 84 a plaintiff seeking to establish the existence of a duty of care had to satisfy two tests. That there was a sufficient proximity of relationship between the parties to warrant the imposition of a prima facie duty of care and that there were no policy reasons for not imposing such a duty. After Donoghue v. Stevenson [1932] AC 562 courts in England and in Ireland utilised the Biblical simplicity of the Neighbour Principle of Lord Atkins to establish whether a duty of care exists.
12. Anns v. Merton London Borough Council [1978] AC 728, referred to this test to be: is there a “sufficient relationship or proximity or neighbourhood such that in a reasonable contemplation of the former carelessness on his part may be likely to cause damage to the later, in which case a prima facie duty of care arises…” and as the learned authors in McMahon & Binchy (4th Ed.) at para. 6.13 state:-
“Proximity does not require closeness in either space or time. Liability in negligence may attach to conduct that results in injury or damage thousands of miles away in decades later to a plaintiff not born at the time when the conduct was contemplated…”
13. The language of Anns was adopted by McCarthy J. in the Supreme Court in Ward v. McMaster [1988] I.R. 337. Though in Glencar, Keane C.J. was of the view that “by no means clear” that Ward v. McMaster had involved unqualified endorsement of the Anns two step test and Keane C.J. stated the test for the existence of a duty of care involves four rather than two steps as follows:-
“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…” (Emphasis added)
14. The somewhat academic discussion as to whether the authorities after Glencar (above) introduced a three step rather than a four step analysis need not concern us here.
15. In the vast majority of cases, it is not, of course, necessary to analyse the principles in Glencar to establish a duty of care. Road users clearly owe duties of care to other road users, employers to employees, local authorities to persons injured to defective repairs or of the highway. But in this case, as the existence or nature of the duty of care is in issue, reference must be made to the duty of care as clarified by Glencar and subsequent cases.
16. The defendants submit that they owe no duty of care in respect of the actions of Mr. C. Whether Mr. C’s actions represent a novus actus interveniens will be considered later but at this stage, the issue is whether the defendants owed a duty of care to the plaintiff in respect of their actions or inactions. It is important not to confuse or to overlap the issue of the existence of a duty of care and the issue of novus actus interveniens. The issue of novus actus interveniens only arises if a duty of care is found and there is breach of it.
17. The defendants did not punch the plaintiff or knock him on the ground that is clear and the defendants accept that they were under a duty to take “reasonable care to ensure the safety of their customers…or (by) operating systems of queuing…and (by) expelling customers and refusing re-entry where that appeared reasonably necessary”. It is the action of the defendants rather than of Mr. O’C or the OM sisters or Mr. C that are relevant in relation to the existence of the duty of care. Mr. O’C, the OM sisters and Mr. C are not agents of the defendants whether the defendants are liable for what Mr. C did will be considered under novus actus interveniens.
18. The plaintiff to whom the defendants owed a duty of care on the premises was ejected, reasonably peacefully, though with some protest, from their premises. The defendants were entitled to do this. The first security guard, Mr. F, says, and I accept this to be the case, that he advised Mr. O’C and the OM sisters that they should not follow the plaintiff and this, I accept, was part of the defendants’ duty of care. Having done so, however, Mr. F did not advise Mr. P, that the plaintiff was the innocent party in the affray. Mr. P knowing that Mr. F was a highly trained security guard, naturally assumed that the plaintiff was the guilty party. Mr. F did not advise Mr. P that the three persons immediately following the plaintiff out of the premises were those who had been involved in an altercation and indeed, an assault on the plaintiff which was the reason that the parties were separated. Not knowing that the three pursing persons were those who had assaulted the plaintiff, Mr. P had no reason to notice what was apparent to independent persons that immediately he left the shop, the plaintiff was being assailed by the pursing threesome, was offering no resistance but shielding his head from their blows. Similarly, Mr. P had no reason to notice, and did not notice that the plaintiff had broke free from his assailants and was running to the shop door for safety. When he saw the plaintiff, attempting to re-enter the premises, Mr. P did not know that he had been assaulted both inside and outside the premises and was attempting reasonably to flee from his assailant.
19. As Mr. P very fairly said in his evidence had he known these things, he would not have prevented the plaintiff from being readmitted into the premises, would not have put his hands up or pushed the plaintiff away causing the plaintiff to move or fall backwards over Ms. H and would rather have let the plaintiff in and denied admission to Mr. O’C. It is clear that if the issue is confined to the neighbour principle then in the words of the good neighbour Mr. P, the plaintiff would have been readmitted and his injuries would not have occurred.
20. The issue here to be discussed is whether a duty of care in the light of Glencar was owed by the defendants after they had evicted him from their premises. I fully accept the submission by the defendants that they were not to know and indeed were completely ignorant of Mr. C’s propensities or indeed of his presence. However, to introduce Mr. C into the discussion at the moment is again to fall into the trap of conflating the issues of novus actus interveniens with that of a duty of care.
21. In Lyons v. Elm River Limited (Unreported, High Court, Barr J., 16th February, 1996), the High Court on appeal from the Circuit Court imposed liability upon the operators of a disco in respect of assault from the plaintiff. I do not accept that this liability was on the basis of any “special relationship” as submitted by the defendants, rather the defendants were aware of the menace of the perpetrators towards the class of person like the plaintiff and they gave no warnings to the plaintiff before he left the premises though they were aware of other assaults.
22. However, insofar as a “special relationship” between a plaintiff and a defendant, rather than between the defendant and the perpetrator, is required, the plaintiff in this case was in a “special relationship” with the defendant. The plaintiff is not a stranger unconnected with the defendants’ premises who was assaulted out on the Grand Parade. The plaintiff was a customer in the defendant’s premises. The defendants admit that they owe a duty of care to him and to other customers. In this case, I find the defendants’ duty of care did not stop at the door of their premises. The defendants were entitled to eject the plaintiff though he was entirely innocent in order to avoid confrontation with Mr. O’C and the O’M sisters. This is part of the duty of care they owed to their customers or visitors. Mr. F says that he advised the O’M sisters and Mr. O’C to remain in the store and I accept that that also was part of the defendants’ duty of care. Being aware of the dangers posed by a continuation of the row, Mr. F ought to have noticed the three following the plaintiff and ought to have advised Mr. P of the situation. This, at the very least, would have led Mr. P, if he himself could not have persuaded the pursuers to remain in the store, to keep what was going on outside the store under observation and rather than pushing the plaintiff back as I find to be the case or blocking his re-admittance as he himself contends, he would have allowed the plaintiff back into the safety of the store. The neighbour question has been answered by Mr. P when he fairly said that had he known the circumstances he would, indeed, have not had denied the plaintiff access to the store. A property owner or its security staff, duly entitled, may lawfully evict a customer from their premises, but that eviction cannot involve the person, in effect, being thrown to the wolves, with the property owner having no concerns of legal liability for anything that occurred once the eviction had taken place.
23. Following the decision of Glencar, I hold that injury to the plaintiff, though not necessarily the indexed injury, was reasonably foreseeable as when the plaintiff was denied readmission, the defendants ought to have been aware that he was likely to have been assaulted and injured. The proximity test has been met. I also hold that in all the circumstances it is just and reasonable that the law should impose a duty of care upon the defendants and indeed that there are no public policy considerations to prevent it.
24. It is just and reasonable to impose a duty of care upon the defendant as otherwise security guards could eject customers involved in a minor row and thereby subjecting their former customers to risk of more serious injury outside their premises. If a defendant were entitled, in effect, to wash their hands under a supposed rule of law that no duty of care extends beyond their hall door, such a rule would not merely legitimise walking by on the other side of the road but also legitimise pushing a traveller out into the arms of brigands.
25. The duty of care is not to act as a policeman, it is not necessarily to intervene if persons unconnected and, therefore, without any “special relationship” with the defendants’ premises are in danger (though I am not deciding that point) but rather where somebody who has been, in effect, placed in danger by the actions of the defendants is attempting to avoid that danger and such danger can readily be avoided by the readmission of the party into safety then it is not only just and reasonable that the law should impose a duty but public policy considerations cry out for such duty to be imposed.
26. Having decided to eject the plaintiff, Mr. F ought to have informed Mr. P that the plaintiff was, in fact, the innocent party. He did not do so. Having advised the three persons that they should not leave the premises Mr. F ought to have noticed that rather than accepting his advice, they were in hot pursuit of the plaintiff, he did not take any such notice. Furthermore, having seen the three in pursuit of the plaintiff, Mr. F should have notified Mr. P of this fact. He did not do this. Had Mr. P been aware of the facts, he would have kept the parties under observation and when he saw the plaintiff being assailed by his pursuers in attempting to return, he would have admitted him rather than forcibly excluding him. Unfortunately, this did not occur. The defendant accordingly did owe a duty of care to the plaintiff and were in breach thereof.
Novus Actus Interveniens
27. The determination made at the close of the plaintiff’s case on the application for direction by the defendant in relation to novus actus interveniens is not necessarily determinative of the issues and I must revisit the issue de novo in the light of all the evidence heard.
28. The defendants submit that the causal link between any actions of the defendant and the plaintiff’s injury was broken by the actions of Mr. C, a unconnected third party severely and criminally striking the plaintiff and being the sole cause of his injuries. The defendants submit that any action or inaction on their part was a causa sine qua non but not the causa causans. The defendants rely upon the passage of Charlesworth and Percy on Negligence (13th Ed.) at para. 6-77:-
“Generally where a claimant’s damage has resulted from the act of another person independent of the defendant, the mere fact that the defendant’s breach of duty has given, as it were, the third party the opportunity to intervene does not suffice to make the defendant responsible for the consequence of the intervention. Rather these consequents must be within the scope of the risk created by the defendant’s conduct.”
29. The defendants also cite the passage from the learned authors of McMahon and Binchy (4th Ed.) para. 2.49:-
“In examining the circumstances when the intervening act would have the effect of relieving the original perpetrator, two factors feature in the judge’s approach: first, whether, and to what extent the intervening act was foreseeable by the original actor, and second, what was the mental attitude of the subsequent intervener – was he careless, negligent, grossly negligent, reckless or did he intend to do the damage?”
30. The Supreme Court in Breslin v. Corcoran [2003] 2 IR 203; stated per Fennelly J., in relation to novus actus interveniens:-
“From all these cases, I draw the following conclusion. A person is not normally liable, if he has committed an act of carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously responsible. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.”
31. The defendants, in effect, submit that there is an unbridgeable chasm between their actions or inactions and the act of Mr. C. The defendants concede that the situation might be different if the injuries sustained was inflicted by the OM sisters or Mr. O’C. The defendants also conceded that had Ms. H, who the plaintiff knocked down, jumped up and injured the plaintiff by an assault that there might be a connection with their actions but contend that the action of Mr. C is independent of any act or inaction of the defendants.
32. The learned authors of McMahon and Binchy summarised the law in relation to novus actus interveniens at para. 2.79 as follows:-
“From the case law we may state the following propositions with some degree of confidence:-
(i) If the third party’s act is wholly unforeseeable then the original defendant will not be liable.
(ii) If the third party’s act is intended by the original wrongdoer, or is as good as programmed by him, or if it is an inevitable response to the defendant’s act, or is very likely, then the original defendant is still considered the operative cause in law. The third party’s intervention in these circumstances is not a novus actus which would break the chain of causation between the plaintiff’s damages and the defendant’s conduct. This is more obviously true when the intervening event is not a voluntary act at all: where A pushes B against C.
(iii) If the third party’s action is foreseeable (though not probable or likely) then the courts will look especially closely at the nature of the intervener’s act in addressing this problem. If the intervener’s act is criminal or reckless in the subjective sense, then it is likely to be considered as a novus actus. Similarly, if the third party’s act is intentional in Lambe [Lambe v. Camdon LBC [1981] QB 625] Watkins L.J. described the squatter’s acts as ‘unreasonable conduct of an outrageous kind’ when he held that the defendant wrongdoer could not be responsible for it. In Perl [Perl (Exporters) Limited v. Camdon LBC (1983) 3 WLR 769], the act of thieves interposed between the defendant’s conduct and the plaintiff’s injury meant that the defendant was not liable. If the intervener’s act, however, is merely careless, negligence or perhaps even grossly negligent it may not be considered sufficiently strong to break the chain of causation between the original defendant and the plaintiff’s injury, although much will depend on the facts of the case in Crowley v. AIB [and O’Flynn & Ors [1988] ILRM 225]. We have seen that a negligent omission by the defendant bank was deemed sufficient to break the chain and relieve the third party architects.
(iv) The defendant (i.e. the original wrongdoer) will not be relieved of responsible if the act or damage caused by a third party is ‘the very kind of thing which the defendant was bound to expect and guard against the resulting damage was likely to happen if he did not’.”
33. I agree with the above summary which also was quoted with approval by Kearns J. in Hayes v. Minister for Finance [2007] 3 IR 190 at p. 206.
34. It is undoubtedly the case that the action of Mr. C was a criminal assault upon the plaintiff either deliberate or presumably in this case reckless. Had the plaintiff been injured by an assault from the O’M sisters or from Mr. O’C that would also have been a criminal and a reckless act. Had the plaintiff been assaulted by Ms. H whom he knocked down, that would also have been a criminal act. In order to establish whether the acts of Mr. C are, in effect, divided from the defendants’ actions by a “unbridgeable chasm” which any actions of the O’M sisters, Mr. O’C or, indeed, Ms. H might not be, one has to look at the sequence of events.
35. In an image taken from camera 7 at 02:25:35, the plaintiff is to be seen with Mr. O’C behind him stooping and being pushed downwards with Ms. H invisible in front of him. Shielding Ms. H from view is the rear of Mr. C. In an image timed at the next second 02:25:36, the plaintiff’s head has all but disappeared downwards, Mr. O’C is to be seen behind him and Mr. C is seen standing apparently unmoving. In the next image timed at the same second (02:25:36), Mr. C’s right hand fist is seen swinging backwards in preparation for the blow. As I concluded at the application for direction, there is no unbridgeable chasm between the actions of Mr. C and what preceded it. It was an instant reckless response to seeing his girlfriend, Ms. H being knocked to the ground by the plaintiff that caused the blow. I hold that though criminal, Mr. C’s action was reasonably foreseeable to anyone asking whether the boyfriend of an innocent person knocked to the ground would violently react against who he perceived to be her assailant. It is the action of an incident. Though the precise nature of the vicious assault was not foreseeable, I hold that under subpara. (2) of the summary of the law as contained in McMahon and Binchy (above) that a response to the plaintiff being pushed over and knocking down Ms. H was “very likely”. I also hold that the act or damage caused by Mr. C is, indeed as per Clause 4 (above) “the very kind of thing which the defendant was bound to expect and guard against the resulting damage was likely to happen if he did not”.
36. Mr. C is not an agent of the defendant. The defendants are not vicariously liable for his actions but they are liable in Tort because in failing to readmit the plaintiff in the circumstances and in pushing him back towards the danger, they knew or ought to have known as a matter of virtual certainty that the plaintiff would suffer some assault and some harm. He had already been assaulted both inside their premises and outside by his pursuers. The act of Mr. C flows directly from the actions of the defendant. The defendants conceded that assuming they did have a duty of care to the plaintiff that they might be liable for any actions of Mr. O’C, the O’M sisters or possibly Ms. H, then it is entirely unrealistic and artificial to suggest that they are not liable for the actions of Mr. C.
37. In Conole v. Red Bank Oyster Company & Anor [1976] I.R. 191, the first named defendant’s motor vessel capsized and a number of its passengers drowned. The vessel had been built by the third party and was unseaworthy when delivered to the defendants, a fact of which they were aware and it was held that “direct and proximate cause of this accident was the decision of the defendants…to put to sea with passengers when they had a clear warning that the boat was unfit for the task. The defendants were the sole initiators of the cause of negligence…”. In that case and in other cases, there is a considerable time lapse between any negligence of the alleged novus actus and of the defendants in this case there is but a gap of two seconds. However, time is not the only factor to be considered though it is, in this case, very important.
38. In Millington v. Traynor (17th July, 2002) (Circuit Court Judge McMahon), the plaintiff who was an employee of the defendant challenged a thief who had entered the back of the house where she worked and stolen her handbag and the keys of her car, the thief jumped into the car, reversed it to make his getaway and in an effort to prevent his escape, the plaintiff threw herself on the bonnet and was injured. The employers were aware that the backdoor entrance from the car park to the public house represented a security risk and the method the employer devised to prevent unauthorised entry was inadequate. The anticipated risk of a thief entering the premises was a risk that actually materialised and, accordingly, a novus actus did not apply.
39. In this case, there is a far closer connection between the defendants’ actions and that of Mr. C than between the defendants in Millington and the thief. The acts of burglary, car theft and reckless driving in Millington were all criminal. Though the consequences may not have been as severe as in this case, the acts were far more premeditated than any act of Mr. C. However, in Millington, as well as in this case, the key principle is as Fennelly J. stated in Breslin v. Corcoran [2003] 2 IR 203 that “the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not”. This case is far removed from the defendants’ breach of duty merely resulting in the third party having an “opportunity to intervene” as stated in the passage from Charlesworth cited at para. 27 above. This case is also entirely different from Conole (above at para. 36). In this case, there is a seamless rapid, almost instantaneous connection between the acts and inactions of the defendants which I have held to constitute a breach of duty and, what occurred to the plaintiff at the hands of Mr. C.
40. In order for liability to exist, the precise nature of the harm to the plaintiff does not have to be anticipated with particularity. What must, however, be clear is that when the plaintiff was denied re-entry to the premises and pushed back into the crowd, injury to him was “the very kind of thing” which the defendants were bound to expect and to guard against. In the circumstances, the defendants knew or ought to have known that the plaintiff was being exposed to, not alone a risk but the essential likelihood of, an assault which is precisely the type of harm that he actually suffered and that the defendant had a duty to prevent. There is nothing in the evidence adduced by the defendants that in the circumstances would lead me to change the finding on novus actus interveniens, I delivered ex tempore when the application for direction was made. In fact, the evidence, of the defendants especially that of Mr. P, if anything, strengthens the plaintiff’s case.
41. The defendants’ plea of novus actus interveniens must fail in this case.
Section 35(1)(i) of the Civil Liability Act 1961
42. The defendants contend that as the plaintiff has not joined Mr. C as a co-defendant that they are entitled to, in effect, a full defence and that, pursuant to the provisions of s. 35(1)(i) of the Civil Liability Act 1961, the plaintiff should be identified with the acts of Mr. C, not a party to these proceedings.
43. In his preface to the fourth edition of the Civil Liabilities Acts, Mr. Anthony Kerr quotes a judicial source as describing the Civil Liability Act 1961 as “a catalogue of metaphysical conundra”. With reference to the entirety of the 1961 Act, such a criticism is, I suggest, unfair. The Act itself is a wondrous creation drafted by a renowned Legal Academic, piloted through by a reforming Minister and subject to detailed opposition scrutiny by a number of the leading members of the Round Hall at the time. However, were those remarks to be confined to s. 35 of the Act, it would be hard to argue the contrary.
44. As O’Donnell J. stated in Hickey v. McGowan [2017] 2 I.R. 196:-
“One of the main provisions of the 1961 Act was to allow the allocation of liability (and consequently damages) between defendants and indeed other concurrent wrongdoers responsible for the damage suffered by the plaintiff…”
45. Under s. 11(1) of the 1961 Act “two or more persons or concurrent wrongdoers where both or all are wrongdoers and are responsible to a third person (in this part called the injured person of a plaintiff) for the same damage…”.
46. Clearly, based upon my findings so far, the defendants and Mr. C are concurrent wrongdoers.
47. Section 35(1) states:-
“(1) For the purpose of determining contributory negligence—
…
(i) where the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer;.”
48. In this case, proceedings have been initiated against the named defendants only. A separate Plenary Summons dated 19th October, 2017, has been issued by the plaintiff against the O’M sisters and Mr. O’C bearing number [2017 No. 9361 P.] and a separate Plenary Summons dated 19th September, 2017, has been issued against Mr. C bearing record number [2017 No. 8373 P.]. Each of these writs claim damages for assault and trespass to the person. The plaintiff in his reply to the defence offers to assign to the defendants the benefit of these Plenary Summonses.
49. The plaintiff submits that as the other concurrent wrongdoers, and in particular Mr. C, have not been joined in these proceedings given that the time limit for a personal injury action has passed that the plaintiff must be identified with all the negligence or fault of Mr. C and they contend Mr. C should be responsible for the entirety of the injury and, accordingly the plaintiff should be identified with all the fault of Mr. C and not be entitled to succeed.
50. The defendants submit that they had no obligation to join Mr. C as a third party especially on the basis that the plaintiff well knew of the existence of Mr. C and his involvement and submit that the proceedings for assault and trespass to the person do not defeat the provisions of s. 35 as they are not made in the same proceedings. The defendants also seek to distinguish between an action in assault against Mr. C and an action in negligence for personal injuries and submit that the actions for assault against Mr. C do not relate to the same damage at law.
51. The provisions of s. 35(1)(i) of the Civil Liability Act were always known to be a legal nuclear deterrent, the consequences of which were uncertain and left unspoken. It is to the credit of the good sense of the Round Hall over the years that s. 35(1)(i) has been kept in the arsenal as a deterrent for over 50 years and was not allowed to slip into the untrustworthy sphere of a judicial determination.
52. Indeed, the most recent edition of McMahon and Binchy 2013, there is no case cited referencing section 35(1)(i). However, the “good sense” of the Round Hall must have diminished in recent years as s. 35(1)(i) has been subject to judicial comment.
53. Some recent Supreme Court cases have referred to the subsection. O’Malley J. in Roche v. Wymes [2017] IESC 57 at para. 50 referred to the subsection stating:-
“…that if damage to a plaintiff is caused by concurrent wrongdoers, and the claim against one of them becomes statute-barred, the plaintiff shall be deemed responsible for the acts of that wrongdoer.”
54. A strict reading of s. 35(1) might utilise the fact that subsection is stated to be “for the purposes of determining contributory negligence” and seek to debate issues of injuria and damnum. However, the judgment of O’Donnell J. in Hickey v. McGowan (above), puts an end to any such “metaphysical conundra”. As O’Donnell J. stated:-
“It seems to me that this section can be understood more readily and more naturally as merely a deeming provision which deems the liability of the statute barred defendant a form of contributory negligence which can then be pleaded against the plaintiff in reduction of the plaintiff’s award. The purpose of a deeming provision is to give a meaning to something for a particular purpose which it would not otherwise have more generally. Breach of contract or an intentional tort is not normally contributory negligence if committed by the plaintiff, but when committed by a concurrent wrongdoer not sued and now protected by the Statute of Limitations, it is deemed to be so for the limited purposes of the identification provisions of the Civil Liability Act.”
55. O’Donnell J. in Hickey (above) did go on to indicate that there may be certain cases in which the strict effects of s. 35(1) might operate entirely too harshly and expressly held open the prospect of the section being further examined in detail. However, for the reasons outlined below, I have come to the conclusion that I need not depart from the ordinary meaning of the Act as summarised by O’Malley J. in Roche (above) and by O’Donnell J. in Hickey (above), i.e. if damage to a plaintiff is caused by a concurrent wrongdoer and the claim against one of them becomes statute barred, the plaintiff shall be deemed responsible for the acts of that wrongdoer.
56. I do not accept the submission by the plaintiff that as the Statute of Limitations must be pleaded and a party might decide not to rely upon the statute and indeed exclusions might arise even if reliance was made and that accordingly, the mere efflux of time is not sufficient as a judicial determination must be made that the action is statute before s. 35(1)(i) could be successfully invoked. It is clear that the subsection is only relevant where the concurrent wrongdoer has not been sued and therefore is not in a position to plead the limitation provisions. Accordingly, where s. 35(1)(i) is pleaded, a court must make a determination as if the un-joined concurrent wrongdoer was now joined and pleaded the Statute of Limitations. Clearly, the two year limitation period for a personal injury summons has expired. The plaintiff also clearly could not rely upon any date of knowledge provisions, and accordingly if the personal injury summons was the only pleading to be considered, s. 35(1)(i) would apply. The limitation period, however, for an action for trespass to the person or assault had not expired when the separate writs were issued.
57. Had the plaintiff sued Mr. C in these proceedings that would have included the case made against him for damages for assault and trespass for the person. An assault may, of course, be a negligent or intentional or reckless but given the plea in the criminal courts of guilty, a plaintiff would not rely upon mere negligence against Mr. C. I do not accept the submissions of the defendant that because Mr. C has been sued in assault rather than in negligence that he is not being regarded as a concurrent wrongdoer by the plaintiff or that the plea of the plaintiff’s action in assault somehow is insufficient for the plaintiff as an answer to a plea of section 35(1)(i). It is true that the assault actions do not necessarily require proof of personal injuries but in an assault action brought arising out of this incident against Mr. C, it flies against reason to suggest that personal injuries would not be proved. The plaintiff does not, in my view, have to frame his case against Mr. C as a negligent personal injury action in order to prevent s. 35 operating. As O’Donnell J. made clear in Hickey, the liability of the concurrent wrongdoer might arise in acts other than those which constitute negligence or want of care:-
“…it would make little sense to read the identification provisions of s.35 as only having a practical effect in relation to those acts of a concurrent wrongdoer which constitute negligence or want of care.”
58. Whereas clearly, the plaintiff has decided in these proceedings to “throw all the loss upon one defendant” and clearly he has done so for precisely the same reason as the defendants have chosen not to issue third party proceedings against Mr. C, such considerations are not relevant to my determination.
59. The plaintiff’s case is not statute barred against Mr. C. The plaintiff has a live unbarred action for trespass to the person against Mr. C and the plaintiff has offered the benefit of any such action against Mr. C to the defendants in this case.
60. Had the plaintiff joined Mr. C as a co-defendant, absent any contributory negligence on the part of the plaintiff, the plaintiff would be entitled to a decree jointly and severally against the existing defendants and Mr. C. In such circumstances, the plaintiff would undoubtedly enforce his judgment against these defendants. These defendants would presumably also after judgment seek to have an order of indemnity or contribution against Mr. C and it is likely that the large preponderance of the contribution would be ordered against Mr. C if these defendants were not given a complete indemnity. Given my finding that the defendants do not have a defence on the basis s. 35(1)(i), I do not have to determine the amount of the contribution or indemnity that would have been ordered against Mr. C or, therefore, the extent of any reduction in the plaintiff’s damages had the s. 35(1)(i) defence succeeded.
61. Section 35(1)(i) ought not to be given any extra effect than the ordinary meaning of language and clearly as the plaintiff’s claim against Mr. C for his injuries caused by the assault has not been barred, then the utilisation by the defendants of s. 35(1)(i) does not offer a defence.
62. Accordingly, the plaintiff is entitled to recover in full against these defendants, no submissions were offered that there should be any differentiation between the liability of the two defendants.
Quantum
63. There can be no doubt that the injuries sustained by the plaintiff were of the most serious kind. There is very little difference between the medical experts in this regard.
64. The plaintiff in this case is, as stated, a most pleasant young man born on 13th July, 1985 who is a psychiatric nurse into which profession he followed his father. He was employed by the HSE in North Lee Mental Health Services from 2008 up to the accident and was, at the time, with his fiancÉ, now his wife, studying a Higher Diploma in Acute and Enduring Mental Illness which was a necessary precursor for promotion to the grade of Clinical Nurse Manager 2 which he desired. The plaintiff married his fiancÉ in 2014 after the accident, and she is shortly expecting their first child.
65. The plaintiff was taken by ambulance to the nearby Mercy Hospital, Cork and at 5:30pm on the same day he was transferred to the Cork University Hospital. He was, in effect, unconscious and was intubated. His head injury was significant. He had a fracture in two places of the skull, bilateral multifocal intraparenchymal haemorrhage and haemorrhagic contusion of the left frontal lobe and both temporal lobes, both cerebral hemispheres and there was a volume of subarachnoid haemorrhage and a small volume of a left dural haematoma in the same place. He had a transverse fracture of his right temporal bone with blood filling the middle ear cavity. There was a no displaced right parietal fracture and his sinuses also contained blood. He was transferred to the Cork University Hospital in the afternoon of 31st and admitted under intensive care and was unconscious for many weeks and he was detained in hospital to assist his recovery until the end of November. The plaintiff commenced rehabilitation under Dr. Hanranhan and a multidisciplinary approach was adopted. The plaintiff was identified with having a brain injury affecting his cognition, an injury to his inner ear which affected his hearing and this is still affected and the brain injury was affecting his voice. He had problems with dysphasia and with reflux when he drank liquids. He underwent rehabilitation with speech and language, occupational physiotherapy under the supervision of Dr. Hanrahan.
66. An attempt was made to get the plaintiff back to work at the end of 2012. He was viewed by the occupational health doctor for the HSE who was persuaded that it would be in the plaintiff’s best interest if he got back to some work. This he did under a most sympathetic employer. He returned to work initially under supervision and on a part time basis and gradually the part time became fuller, though the plaintiff did not return to the same work with the same responsibilities as he previously had. He previously worked on his own initiative but now he worked in groups and did not administer drugs. This is still the position.
67. After he was released from hospital, the plaintiff went to the care of his supportive parents in Middleton even though he had been previously living in an apartment in Cork.
68. The defendants’ consultant neurosurgeon, Mr. George F. Kaar agrees that the plaintiff suffered a serious and significant brain injury. Of that, there can be no doubt.
69. The plaintiff’s senior clinical neuropsychologist, Mr. Mark Mulrooney, states:-
“In reviewing this man’s current profile there appears to be reasonable evidence of premorbid functioning at the upper end of average approaching the 75th percentile relative to his own age cohort. There is a marked and significant impairment which the examiner would identify as being moderate to severe in regard to reduction in overall cognition having regard to current intellectual functioning. There is even more marked impairment approaching real significance at two standard deviations in reviewing verbal memory and visual memory. These are most likely attention loaded deficits and at three years post accident are likely to continue. There is evidence of dedradion of executive functioning which was more apparent in language and behavioural manifestations including preservation of thought, rigid fixation behaviour and some deterioration in mood perception…”
70. The plaintiff manages in relation to his memory impairment by keeping a system of notes to remind him to do various tasks and this works in a practical level.
71. Though the plaintiff has made great strides and has been congratulated by all the experts for this, as was stated in evidence, his brain cells will not regrow and he is going to be left with a permanent deficit. The real source of his improvement has been the plaintiff’s ability to cope with his disability due to the therapies learnt at Headway and from his other medical and therapeutic assistance.
72. Happily, the plaintiff married in 2014 and though he indicates that his mood is not what it used to be and that he can be difficult at home, he is extremely grateful that his fiancÉ continued to support him and has married him and he is looking forward to the joys and burdens of fatherhood.
73. Notwithstanding the fact that he manages to work, and that he does so without complaint, I do not believe that he will regress back to his previous level of independence.
74. Before the accident, the plaintiff was studying with his fiancÉ for a higher qualification which, he hoped, allow for a promotion. Certainly promotion would not be reasonably possible without such extra qualifications. He was unable to continue with his advance qualifications are the accident due to memory problems and I do not believe as a matter of probability that he will be able to return to such fairly intense academic work.
75. Given his initial ambition to go on the course, the level of his commitment to his job, his enthusiasm to utilise all the coping strategies learnt in order to be able to maintain his present job and also the level of his family connections with the psychiatric services, I believe that had it not been for the indexed event, the plaintiff, having qualified with his advanced diploma, would have gone on for promotion for Clinical Nurse Manager 2 and advance his career.
Damages
76. Damages must be assessed on the basis of (a) special damages to date, (b) loss of earnings to date, (c) loss of earnings into the future, and (d) general damages.
(a) Special damages to date
77. Past special damages have been agreed in the sum of €75,243.39 being made up of €40,000 for retrospective care provided for by his family and €17,100 in respect of loss of earnings to date.
(b) Future loss of earnings
78. I have been furnished with the actuaries’ reports from the plaintiff’s and the defendants’ actuary. I believe that the plaintiff would have achieved promotion to Clinical Nurse Manager 2. The age of 35 given by the actuary for his promotion is reasonable and, therefore, the actuarial total of the plaintiff’s future loss of earnings amounts to €235,808 to which sum should be added the sum of €97,696 for future pension and loss of future lump sum of €23,911, totalling together the sum of €357,415. I believe that this is a more realistic basis for assessing the plaintiff’s loss than that compiled by the defendants’ actuary, Mr. Byrne which concentrated on loss of premium payments but not factoring in the fact that the plaintiff will be promoted. Actuarial figures are, of course, to be seen as guides rather than rules and the figures do not allow for Ready v. Bates or other deductions. Given the fact that the plaintiff would be working in the secure employment of the HSE, any true Ready v. Bates reductions would be likely to be small. The figures from the plaintiff’s actuary assumed that the promotion would have taken place at 35 years of age which is not unreasonable and in the circumstances, I will assess the total of their future loss of earnings in the sum of €325,000.
(c) General damages
79. I have previously expressed my concerns in relation to the second Book of Quantum and the method of its compliance. However, in this case the book is of no real significance as they do not refer to brain as opposed to generalised head injuries.
80. The brain injury is the plaintiff’s main disability. From my findings above, the plaintiff though he has made a reasonable recovery is left with a permanent ongoing sequelae of a very serious nature.
81. The plaintiff is not in a position of someone with a catastrophic injury all of whose needs including transportation and holidays and accommodation are allocated for in special damages and accordingly, the “cap” on general damages is not relevant other than in general terms.
82. Each plaintiff must be examined as an individual to ascertain the sum of money reasonable to himself and the defendants to compensate him for the injury he has suffered. One does not commence such evaluations by comparisons and comparisons treated in that manner would almost always results in a downward spiral. One must look at the plaintiff’s case in the round. It is true that the injuries sustained might not be described as “catastrophic”, however, the plaintiff is clearly fully conscious of all he has suffered and all that he has lost and will continue to lose. The plaintiff has had a most significant and serious injury with permanent serious effects into the future. His enjoyment of life and career have all been adversely affected.
83. Being fair to both parties, I will assess general damages as follows:-
Pain and suffering to date €200,000
Pain and suffering into the future €150,000
Summary
Special damages to date €75,243.39
Future loss of earnings €325,000
General damages to date €200,000
General damages into the future €150,000
Total €750,243.39
84. Observing the total sum, I believe the same is fair and reasonable in all the circumstances and award same.
Mary Denniston v McNamara, Maxwell & Co.
Circuit Court.
4 July 1950
[1950] 84 I.L.T.R 168
Judge Gleeson
Judge Gleeson:
I appreciate Mr. Finlay’s able argument in distinguishing this case from the case of Donoghue v. Stevenson and others of a similar kind in which the product is in an enclosed container so that if there be anything deleterious in the product it must as a necessary consequence have got into it before it left the factory. I think, however, that the principle of those cases still applies here, because, although it is suggested that the tack could have got into the loaf at any time after it left the defendants’ bakery, yet I think that that is unlikely since the plaintiff had cut up the loaf and the tack was embedded inside one of the slices and therefore, from the position of the tack in the loaf I have formed the opinion and consider it a reasonable inference of fact that it was in the loaf before it left the defendants’ premises and accordingly I give judgment for the plaintiff with costs and expenses.
Siney v. Corporation of Dublin
[1980] IR 405
O’Higgins C.J. 405
O’Higgins C.J.
10th December 1979
This is a Case which was stated pursuant to the provisions of s. 16 of the Courts of Justice Act, 1947, by His Honour Judge G. A. Clarke of the Circuit Court; he seeks the opinion of the Supreme Court on certain questions of law which arise on the facts as he has found them. It is necessary at the outset to set out these facts very generally.
The plaintiff, being in need of housing accommodation, applied to the defendant corporation for a house. On the 23rd August, 1973, he was allotted by the defendants a flat at No. 56 Avonbeg Gardens, Tallaght. This flat was intended for the accommodation of the plaintiff, his wife and two children. On the same day he signed a form which was stamped “First Letting.” This. form contained the standard letting conditions of the defendants and a description of the flat as “a dwelling provided by the Corporation under the Housing Act, 1966.” The undertaking in the form which was signed by the plaintiff was an undertaking by him to observe these standard letting conditions. The flat in question was one of a number at Avonbeg, Tallaght, which were built and provided for the defendants through the National Building Agency. The designs for these flats were prepared by the principal architect for the National Building Agency in consultation with the defendants’ engineering and administrative staff. The work of building was carried out by a private contractor under the supervision of the architect of the National Building Agency. Upon completion and handing over to the defendants, the flats were inspected by their officials.
The plaintiff and his family were the first family to live in the flat in question. When they moved in, water appeared under the floor covering in the bedroom. Later, a putty-like fungus appeared on the bedroom wall under the window. This then spread to other walls and to the skirting in the bedroom and later to the sittingroom and kitchen. This fungus was accompanied with a heavy damp smell and a cold feeling to anyone entering the rooms. Efforts to eliminate this problem were made but did not prove successful.
On the evidence he heard, the learned Circuit Court judge found the cause of the problem to be insufficient ventilation. He found this defect to be such that, despite a reasonable and proper use of the heating and ventilation systems by the plaintiff and his family, dampness and humidity in the flat could not be overcome. This defect in the ventilation system could have been discovered prior to the letting to the plaintiff if a relative humidity test had been carried out. Such test was neither carried out by the architect for the National Building Agency nor by anybody else. By reason of the inadequacy of the ventilation system, the learned Circuit Court judge found that the flat was unsuitable to the plaintiff and his family. The judge also found that, as a consequence, the plaintiff had suffered certain damage. On the facts as found by the judge, he has submitted the following questions for determination by this Court.
“(a) Do the facts, as found, constitute a breach by the defendants of their contract with the plaintiff herein? If the answer is Yes, is the plaintiff entitled to damages?
(b) Do the facts as found by me constitute a breach by the defendants of their statutory duty under the Housing Act, 1966, and the regulations made thereunder? If the answer to (b) is Yes, is the plaintiff entitled to damages?
(c) Do the facts as found constitute negligence on the part of the defendants, their servants or agents? If the answer to (c) is Yes, is the plaintiff entitled to damages?
(d) Do the facts as found by me constitute a nuisance created by or maintained by the defendants, their servants or agents? If the answer to (d) is Yes, is the plaintiff entitled to damages?”
Breach of contract
The first question involves a consideration as to whether, in the particular letting of this flat to the plaintiff, a warranty can be implied as to its fitness or suitability for habitation by the plaintiff and his family. This is so because the document which was signed on the 23rd August, 1973, contains 32 conditions which either define the rights of the defendants or specify the obligations of the plaintiff tenant. There is no express warranty on the part of the defendants as to the suitability of the flat for any particular purpose, nor is such a warranty expressly excluded. Therefore, it becomes a question as to whether such a warranty can be implied in this particular letting in the circumstances. The law as to the circumstances under which a warranty may be implied in a contract was stated many years ago by Bowen L.J. in this wellknown passage from p. 68 of his judgment in The Moorcock 20 ;
“Now, an implied warranty, or, as it is called, a covenant in law, as distinguished from an express contract or express warranty, really is in all cases founded on the presumed intention of the parties, and upon reason. The implication which the law draws from what must obviously have been the intention of the parties, the law draws with the object of giving efficacy to the transaction and preventing such a failure of consideration as cannot have been within the contemplation of either side; and I believe if one were to take all the cases, and they are many, of implied warranties or covenants in law, it will be found that in all of them the law is raising an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have.”
At once the question arises as to whether this principle of law has any application or relevance in a case such as the present. Counsel for the defendants submit very strongly that it has not. As this was a letting of an unfurnished flat or dwelling, they assert that no such warranty can be implied. In this respect they rely on a long line of authorities as illustrated by Sutton v.Temple 21 ; Hart v. Windsor 9 ; Brown v. Norton 7 and Chambers v. Cork Corporation. 14 Those authorities established the proposition that the mere letting of land, with or without an unfurnished dwellinghouse upon it, carried no such implication of a warranty with regard to fitness for any particular purpose. Those cases applied the rule of caveat emptor to all lettings of land, with or without a house thereon, in the same way as it was applied to contracts for the sale of land.
An exception, which is not relevant to this case, was recognised where a furnished house was let for occupation; in such a case a covenant on the part of the landlord that the premises would be fit for such occupation at the commencement of the tenancy is implied: Smith v. Marrable 8 ; Wilson v. Finch Hatton 10 ; Collins v. Hopkins 22 and Brown v. Norton. 7 A further exception was recognised where a lessor sold by way of lease a house under construction; in such circumstances terms could be implied with regard to the completion of the house, the suitability of the materials used, the quality of the workmanship and its fitness for habitation: Norris v. Staps 23 ; Pearce v.Tucker 24 ; G. H. Myers & Co. v. Brent Cross Service Co. 25 ; Hall v. Burke 26 and Brown v. Norton. 7
There can be no doubt that the authorities mentioned (and others which are too numerous to cite) do establish the proposition that a mere letting of land, with or without an unfurnished house thereon, carried with it no implication that either the land or the house would be fit for any particular purpose. This rule probably developed when the main subject of conveyances and leases was land, and when buildings and houses were often of secondary importance in a society that was thinly urbanised. To-day the application of such a rule in a society which is becoming more and more urbanised, and in which the building and sale of houses has become a major industry, may appear somewhat harsh and inappropriate. However, whether the rule has or has not survived changes in society is not in issue in this case. The issue is whether it can be applied, or ought to be applied, in the particular circumstances of this letting by the defendants to the plaintiff.
To answer this question, regard must be had to the Housing Act, 1966, under which this letting was made, and to the position, powers and obligations of the defendants under that Act. The Act of 1966 is a major piece of social legislation which is aimed at dealing with the distressing problem of families that are unable to provide for themselves and being either homeless or living in overcrowded, unhealthy and unfit houses. The Act sought to establish administrative machinery under which such conditions could be eliminated gradually throughout the country, and by means of which new and suitable dwellings could be provided for those in need. Under its provisions the defendant corporation became a housing authority. As such the defendants were given the statutory duty of inspecting and assessing the adequacy of the supply and the condition of houses in its functional area, having regard to unfitness or unsuitability for human habitation and overcrowding: see section 53. The defendants were also obliged to prepare and to adopt a building programme which would have many objectives, but amongst which were “the repair, closure or demolition of houses which are unfit or unsuitable for human habitation” and “the elimination of overcrowding” and “the provision of adequate and suitable housing accommodation for persons (including elderly or disabled persons) who . . . are in need of and are unable to provide such accommodation from their own resources” see section 55.
The defendants were also obliged to draw up a scheme of priorities for the letting of available housing accommodation, having regard to the primary objectives of “the repair, closure or demolition of houses which are unfit in any respect for human habitation” and “the elimination of overcrowding”and “the provision of adequate and suitable housing accommodation for persons . . . who, in the opinion of the housing authority are in need of and are unable to provide such accommodation from their own resources” and “the provision of adequate and suitable housing accommodation for persons suffering from pulmonary tuberculosis” see section 60. To deal with the problem of overcrowding and unfit houses, the defendant corporation was given specific statutory powers to enforce the repair of such or their closure or demolition: see ss. 63, 65, 66, of the Act of 1966 as extended by s. 5 of the Housing Act, 1969. These various duties and powers were amplified in detail in various other provisions of the Act.
The Act also empowers the Minister for the Environment to provide grants for persons endeavouring to provide their own houses, either by building, or by repairing or reconstructing existing accommodation: see sections 13-23. The Minister was also empowered to give grants to housing authorities in order to promote and finance schemes for the assistance of people seeking to build or otherwise provide their own housing accommodation: see sections 24-43. In considering whether a house was or was not fit for human habitation, the defendant corporation (and every other housing authority) was obliged to have regard to the extent to which the house was deficient as respects each of the matters set out in the second schedule to the Act of 1966: see sub-s. 2 of section 66. Among the matters mentioned in that second schedule are “resistance to moisture” and “air space and ventilation.”
Generally, it may be said that under the Act of 1966 the defendant corporation, as a housing authority, was charged with the task, in respect of its own functional area, of ending overcrowding and of eliminating substandard and unsuitable housing for poor people. The defendants were also empowered, and obliged, to let such housing accommodation as they were able to provide, on a priority basis, to people released from these conditions. In short, the aim of the Act of 1966 was to bring into existence decent housing which, in each functional area, would be introduced by the housing authority and the standards of which would be maintained by that authority. It is now necessary to consider the particular letting made to the plaintiff.
This letting was expressed to be a letting of a “dwelling provided by the Corporation under the Housing Act, 1966.” Moreover, it was a letting of one of a number of newly-built flats. Therefore, it was a letting made by the defendant corporation of a dwelling provided under its building programme and let by it in accordance with its scheme of priority for, inter alia, the ending of overcrowding and the elimination of houses unfit in any respect for human habitation. Under these circumstances, can it be said that such a letting carried no implication that the accommodation thereby provided for a necessitous family would be fit for habitation by them? It seems to me that to not imply such a condition or warranty would be to assume that the defendant corporation was entitled to disregard, and was disregarding, the responsibilities cast upon it by the very Act which authorised the building and letting of the accommodation in question.
However, counsel for the defendants relied on the provisions of s. 114 of the Act of 1966 and, accordingly, that section requires to be noted. Sub-sections 1, 2 and 5, of s. 114 provide:
“(1) Subject to subsection (2) of this section, in any contract entered into after the commencement of this section for letting for habitation a house at a rent not exceeding one hundred and thirty pounds per annum there shall, notwithstanding any stipulation to the contrary, be implied a condition that the house is at the commencement of the tenancy and an undertaking that the house will be kept by the landlord during the tenancy, in all respects reasonably fit for human habitation but nothing in this section shall affect the liability of the tenant or occupier of any such house for any wilful act or default of such tenant or occupier whereby the house is rendered other than reasonably fit for human habitation.
(2) The condition and undertaking mentioned in subsection (1) of this section shall not be implied in any case in which
(a) a house is let for a term of not less than three years on the terms that it be put by the lessee into a condition reasonably fit for habitation, and
(b) the tenancy agreement is not determinable at the option of either the landlord or the tenant before the expiration of three years . . .
(5) In this section, ‘landlord’ means any person who lets for habitation to a tenant any house under a contract to which this section applies, and includes his successor in title.”
Because of s. 114, counsel for the defendants contended that, as a special condition as to fitness for human habitation was implied by the section in respect of houses let at a rent not exceeding £130 p.a., no such condition ought to be implied in respect of houses let at a higher rent. Since the letting to the plaintiff was at a higher rent it was said that, on this account, the implication of such a condition in the plaintiff’s letting was not possible. This argument rests on the assumption that the section applies to the defendant corporation, as a housing authority. In my view, this assumption is not well founded. The section refers both to a condition that the house is at the commencement of the tenancy and to an undertaking that it will be kept by the landlord during the tenancy in all respects reasonably fit for human habitation. As the condition and the undertaking are to the same effect and relate to the same tenancy, it seems clear that they are both intended to be binding on the landlord as defined in the section. It would seem improbable that the condition was intended to be binding on a wider category of landlords than the undertaking. Sub-section 2, in excluding the implication of both the condition and the undertaking in the circumstances mentioned at (a)and at (b) where “the tenancy agreement is not determinable at the option of either the landlord or the tenant before the expiration of three years,” again envisages the same type or category of landlord as being bound by, or excluded from, both the condition and the undertaking. By sub-s. 5 of s. 114 the word “landlord” is given the meaning of “any person who lets for habitation to a tenant any house . . .” However, by s. 2, sub-s. 1, of the Act the word “person,” when used in the Act, is given a special meaning. The word is there defined as follows:
“‘person’, except in this section and in sections 15 and 34 of this Act, does not include a housing authority.”
It seems to follow that the “landlord” in s. 114 cannot include a housing authority and that, therefore, the section does not apply to the defendant corporation. If I am right in this view, then this entire argument is without substance. Indeed, it probably follows that the reason why housing authorities were not included in and covered by s. 114 is that they were already burdened with a clear statutory responsibility to provide and to let only dwellings which complied with the terms of the condition and undertaking imposed by the section.
Accordingly, I have come to the conclusion that the letting made to the plaintiff by the defendants did include an implied warranty that the premises let would be reasonably fit for human habitation and, therefore, I would answer affirmatively the first question in the Case Stated. In my view the plaintiff is entitled to damages on this account.
Statutory duty
In my view the second question in the Case Stated should be answered in the negative. I will merely say that the statutory duties imposed by the Housing Act, 1966, are so imposed for the benefit of the public. Under the Act they are enforceable under s. 111 by the Minister. In these circumstances no right of action is given to a private citizen if the complaint is merely that the duties so imposed, or any one of them, have or has not been carried out. The mere fact that a housing authority has failed to discharge a duty imposed upon it does not give to a complaining or aggrieved citizen a right of action for damages.
Negligence
On behalf of the defendants it was submitted that, as the lessors of the flat, they could be under no liability at common law in respect of injury or damage caused by a defect existing in the premises at the time of the letting. If correct, this submission means that what is known as the principle in Donoghue v. Stevenson 27 has no application in the circumstances of this case and that, as landlords, the defendants cannot be made liable in negligence in respect of defects existing in the premises which they have let. This submission is supported by an impressive series of decisions commencing before Donoghue v. Stevenson 27 but continuing after the date of that decision: see Robbins v. Jones 28 ; Cavalier v. Pope 12 ; Bottomley v. Bannister 29 ; Otto v.Bolton and Norris 30 ; Davis v. Foots 31 ; McGowan v. Harrison 13 and Chambers v.Cork Corporation. 14 The immunity originated as an immunity enjoyed by vendors or lessors of land but seems to have been extended to vendors and lessors of buildings erected upon land and to defects in such buildings. It is not easy to see the basis in logic for the existence of such an immunity, particularly where the defect which causes the damage was known or could have been known to the lessor, were it not for his carelessness, and was not known and could not have been known to the tenant or to those whom he brought into the building or house pursuant to the letting. Because of this difficulty of finding a logical basis to justify a general immunity accorded to all vendors and all lessors in relation to defects in premises sold or let, it is not surprising to find in recent decisions certain clear exceptions being established.
In Gallagher v. N. McDowell Ltd. 32 the Court of Appeal in Northern Ireland refused to regard the immunity as being one which attached to realty. In that case the court held that the builders were liable for injury to the wife of the tenant of a house let by the Northern Ireland Housing Trust; the wife’s injury had been caused by a defect in the house. Lord MacDermott L.C.J. said at p. 38 of the report:
“In my opinion, the cases since Donoghue v. Stevenson 27 show that the land-owner’s immunities, which I have described as settled before that decision, have not been disturbed by it. But the fact that these immunities arise in relation to defects and dangers on land does not mean that the law imposes no neighbourly duty of reasonable care as respects defects and dangers of that kind. The immunities attach to land-owners as such, and I do not think one is at liberty to jump from that to saying that the law of negligence in relation to what is dangerous draws a clear distinction between what are chattels and what, by attachment or otherwise, form part of the realty. Why should it? Such a distinction does not justify itself, and it is not required by the immunities I have mentioned when one is not dealing with land-owners as such.”
In that passage from his judgment, Lord MacDermott seems to assume a continuing immunity for land-owners, as such, from the rule in Donoghue v.Stevenson 27 in respect of defects or dangers on their land. Such a view of the law is not consistent with the decisions of this Court in Purtill v. Athlone U.D.C. 3 and McNamara v. Electricity Supply Board. 2 In relation to their particular facts, those cases regarded the liability of the occupier of land (whether as owner or otherwise) in respect of defects or dangers found on the land as proper to be treated under the principles of Donoghue v. Stevenson. 27
In Dutton v. Bognor Regis U.D.C. 15 it was held that a local authority could be liable in respect of its building inspector’s negligence in certifying that a building, which was defective, complied with local bye-laws. In Sparham-Souterv. Town Developments 33 the English Court of Appeal confirmed both the developer’s and the local authority’s liability in similar circumstances. In the recent decision of the House of Lords in Anns v. Merton London Borough 16 it was held that a local authority, which was negligent in the exercise of its powers or functions with the result that a defective building was constructed and the occupiers were thereby injured, could be held liable at common law. Whether these decisions, some of which suggest a liability on the part of the builder although he was a vendor or lessor, indicate a trend towards applying the principles of Donoghue v. Stevenson 27 irrespective of whether the defective premises were sold or let, if the circumstances justify the application, is a question which does not arise in this case.
In this case it is sufficient to say that many of these recent decisions recognise a possible liability where the exercise of statutory powers in a negligent manner results in injury to persons occupying houses for whose protection or benefit these powers were intended. Here the defendants were given by the Housing Act, 1966, the power to provide dwellings for persons, such as the plaintiff, who were unable to provide houses for themselves. In this instance, the defendants chose to exercise this power through the medium of the National Building Agency Ltd. Having decided to do so, the defendants remained privy to the design of the dwellings to be erected and exercised a supervision over what was being done.
Before accepting the completed flat, which was intended for allotment or letting to a family such as the plaintiff’s, the defendants carried out an inspection. Obviously, that inspection should have been carried out to ensure that what had been built or provided accorded with the statutory requirements as to fitness for human habitation. Had the inspection by the defendants been so carried out, it would have disclosed that the ventilation system in this particular flat was defective and inadequate and that the defect was likely to lead to excessive humidity and to the kind of conditions of which the plaintiff and his family subsequently complained. In the circumstances the undetected defect in the ventilation was a serious concealed danger of which the incoming tenant, the plaintiff, could not have been aware and which he could not reasonably have been expected to discover. In these circumstances I can see no basis for suggesting that the principle of Donoghuev. Stevenson 27 should not apply. The inspection should have been carried out on the basis that the flat was to be handed over for occupation as a dwelling to a family entitled to expect that it would be one which was fit for human habitation. Because the inspection was defective, the flat was handed over in a condition in which it was not so fit. The result was that damage and injury was caused to the incoming family. In my view, on the facts found by the Circuit Court judge the defendants ought to be held liable in negligence.
As to the suggestion that liability in negligence should not be held to attach to the defendants because of the contractual relationship existing between them and the plaintiff, I agree with what will be said by Mr. Justice Henchy in this regard in the judgment he is about to read.
Accordingly, I would answer the third question affirmatively and say that, as a result, the plaintiff is entitled to damages in respect of such injury or damage as was caused to him as a result of the defendants’ negligence.
Nuisance
The fourth question has not been argued in this Court. On the facts as found by the learned Circuit Court judge, it does not seem to me that any question of liability for nuisance could arise. Therefore, it follows that this question should be answered in the negative.
Damages
I should like to add something with regard to damages. These were found by the Circuit Court judge to be £325, of which £175 was for damage to furniture and clothing. With regard to what was termed “interference with the ordinary comfort and convenience” of the plaintiff and his family, the Circuit Court judge measured damages at £150. It was objected on behalf of the defendants that this sum in respect of inconvenience was not recoverable and that the damages should be confined to what was described as physical or material damage. I think that this is too sweeping a submission. It is true that damages arising from a breach of contract may not be recovered for annoyance, or loss of temper or vexation or disappointment. However, damages may be recovered for physical inconvenience and discomfort: see McGregor on Damages, (14th ed. p. 61). It seems to me that it is this kind of discomfort and inconvenience which the Circuit Court judge had in mind in his findings as to damages at paragraph 5 of the Case Stated. On the facts of this case I cannot see that any different consideration applies in relation to damages for negligence.
Henchy J.
The Case Stated raises important points as to the liability of a housing authority for defects in a dwelling provided by the authority under the Housing Act, 1966.
The defendant corporation is the housing authority for the city of Dublin. Part VII of the Act of 1966 empowered the defendants to perform their functions outside their functional area. In due exercise of those powers they set about the building of ten blocks of flats in Tallaght, which is in the functional area of Dublin County Council. The defendants called on the services of the National Building Agency Ltd. in connection with the preparatory work. The Agency’s principal architect, in consultation with the engineering and administrative staffs of the defendants, prepared the design for the flats. The building of the flats was done by a private builder. A consultant heating engineer advised on the heating system.
When the flats were completed, they were inspected on behalf of the defendants and passed for acceptance. The defendants then proceeded to make lettings of them. One of them was let to the plaintiff in August, 1973. It comprised a sittingroom, bedroom, kitchen and bathroom. The plaintiff, with his wife and two young children, moved in under a written tenancy agreement. Within two months the floor covering in the bedroom proceeded to rise and, on inspection, water was found underneath. A putty-like fungus appeared on the bedroom walls. The fungus also showed as spots on the kitchen walls. The fungus spread in the bedroom. It produced a very heavy damp type of smell and a chilly atmosphere. Remedial work which was done by the defendants failed to cure the infestation. Bedroom furniture and clothing were destroyed by the fungus and the damp. Life in the flat for the plaintiff and his family was so intolerable that he applied to the defendants for another flat, and his request was granted. He was moved to a new corporation flat in 1975.
The plaintiff has now brought a civil bill in the Dublin Circuit Court claiming damages against the defendants for the damage he incurred while he was in the first flat during the period between 1973 and 1975. The Circuit Court judge assessed damages at £325, being £175 for clothing and furniture made useless by the damp and fungus, and £150 for interference with comfort and convenience and for necessary repair work. At the request of the defendant corporation the judge has stated this Case for the opinion of the Court as to whether the defendants are liable for those damages (a) for breach of contract, (b) for breach of statutory duty, (c) for negligence or (d) for nuisance. The claim by the plaintiff that the defendants are liable in nuisance has been abandoned. Insofar as the claim is laid in contract and in breach of statutory duty, it has been put forward on the basis that the tenancy agreement should be read as containing an implied condition that the flat was fit for habitation. The problems underlying the questions which have been put by the Circuit Court judge may be resolved by answering two questions:
(1) Are the defendants liable in contract for breach of an implied term of the tenancy agreement, by which they warranted that the flat was fit for habitation?
(2) Are the defendants liable in negligence?
Breach of contract
While there is no express finding on the matter, I take it to be inherent in the judge’s findings of fact that the flat was not fit for habitation when the plaintiff began living in it. Within two months of going into occupation in 1973, he found water oozing through the bedroom floor. After another three weeks the fungus began to appear. From then until he left the flat in 1975 the damp and the fungus, with their accompanying chilly atmosphere and pervasive smell, made life so intolerable for the plaintiff and his family that he was compelled to leave as soon as he was able to get another flat from the defendants. Therefore, it would be in the teeth of the evidence to say that the frat was fit for habitation when the plaintiff moved in. As far as appearances went, everything was then in order but, as events were shortly to prove, the hidden defects made the flat far from habitable when the tenancy commenced.
As the judge has found, the reason for the unfitness of the flat for habitation was a flaw in the design. Specifically, the ventilation was inadequate so that there was excessive condensation. There was a failure by the experts to make the necessary calculations so as to eliminate the danger of excessive relative humidity. The condensation, which was the immediate cause of the trouble, was found by the judge to have been preventable and foreseeable.
The facts found by the judge further show that the defendants were privy to all decisions made as to design. The architect’s plans, drawings and decisions were made in consultation with the defendants’ experts. The design of the heating system was carried out on the advice of a consultant in heating engineering who was highly qualified. He was employed by the National Building Agency but he advised in consultation with the defendants’ experts and those of the Electricity Supply Board. It has been urged on behalf of the defendants that the fault for the defective ventilation design should not be attributed to them. I cannot agree. Whether secondary or partial fault lies with others need not now be considered. The principals in the operation of building the flats were the defendants. On them fell the duty under statute of providing flats which would fulfil their housing obligations under the Act of 1966. If, as was the case, the ventilation design was so defective that some 1015% of the flats had condensation problems, and this particular flat was so badly affected that the plaintiff and his family had to flee from it, the defendants cannot shed responsibility by saying that they relied on expert advice which proved to be faulty. As the housing authority, the defendants were expected by the legislature to ensure that dwellings provided by them under the Act would not have defects which would make them uninhabitable. While the defendants may possibly have rights against third parties, the primary responsibility for the defective design falls on them. They cannot rid themselves of that responsibility by pleading that they delegated the observance of their statutory obligations to others.
It is against that background that an answer must be given to the question whether there is to be read into the plaintiffs tenancy agreement an implied term that the flat was fit for habitation.
The Act of 1966 is markedly different from previous Housing Acts in the extent to which it makes it the duty of a housing authority to plan, control, oversee and provide for the supply of adequate housing in its area. Section 53, sub-s. 1, imposes a duty on a housing authority, at intervals of not more than five years, to inspect the houses in its functional area and to ascertain (inter alia) to what extent there exist in the area houses which are in any respect unfit or unsuitable for human habitation. Section 55, sub-s. 1, makes it the duty of a housing authority, at least once in every five years, to prepare and adopt a building programme. Section 55, sub-s. 3, requires that, in preparing such building programme, the housing authority shall have regard to seven objectives, the first of which is “the repair, closure or demolition of houses which are unfit or unsuitable for human habitation.” The second schedule to the Act of 1966 numbers “resistance to moisture” and “resistance to transmission of heat” among the tests of habitability.
When the defendants, as the housing authority, prepared and adopted a building programme and then exercised their powers under s. 56, sub-s. 1, to provide these flats for letting, it was a necessary postulate of the statutory scheme of things that the flats would not add to the stock of houses unfit or unsuitable for human habitation. Indeed, it would be positively inconsistent with the powers and duties of the defendants, as a housing authority under the Act, to provide a flat that was not fit for habitation. The defendants’ powers (set out in ss. 66-69) of getting uninhabitable houses repaired, or closed and demolished if not repairable, are so specific and drastic that it must be deemed a necessary element of the statutory intent that the defendants are to use their powers under the Act in such a way that a dwelling built and let by them is fit for habitation, and that the tenant of the dwelling may act on an unarticulated assurance by them that it is fit for habitation. In other words, the letting agreement in this case should be read as if it contained an express term warranting the flat to be habitable.
The tenancy agreement entered into by the plaintiff fully bears out that deduction. The flat was provided under s. 56, sub-s. 1, as a “dwelling,” and that fact alone would have made it incumbent on the defendants to give the plaintiff at least an implied warranty that it was a flat which was fit to dwell in. But apart from that, many of the 32 terms of the written tenancy agreement are directed to specifying what the plaintiff tenant shall do or may not do when dwelling in the flat; there is even a specific term requiring him to dwell in the flat. The tenancy agreement, which was executed by the plaintiff but not by the defendants, begins with the words “in consideration of being allotted a dwelling provided by the Corporation under the Housing Act, 1966, I hereby agree to observe, perform and comply with” the conditions of the letting. Such being the basis of the letting, the defendants must be deemed to have attached to the written words a tacit assurance that the flat was being duly provided under the Act of 1966, i.e., in a habitable condition.
It has been argued on behalf of the defendants that such an implied term is not reconcilable with s. 114, sub-s. 1, of the Act. Subject to specified exceptions, s. 114, sub-s. 1, stipulates that in any contract entered into after the commencement of the section for the letting for habitation of a house at a rent not exceeding £130 p.a. there shall. notwithstanding any stipulation to the contrary, be implied a condition that at the commencement of the tenancy the house is reasonably fit for human habitation and an undertaking that during the tenancy the landlord (a term which, by the definition in the Act, does not include a housing authority) will keep it so. That provision does not apply directly to this case, because the rent payable by the plaintiff was over £130 p.a. It is urged, however, that the exclusion from the range of s. 114, sub-s. 1, of lettings for a rent above the prescribed limit necessarily excludes an intention that a condition as to habitability should be inferred in such lettings. I do not agree. This provision replaces a corresponding provision in the Housing (Miscellaneous Provisions) Act, 1931, which replaced a like provision in the Housing of the Working Classes Act, 1890, and is merely the re-enactment of a protection given to the tenants of low-rented houses of the kind specified, regardless even of an express covenant to the contrary. As the Chief Justice has pointed out in his judgment, this provision does not appear to apply at all to houses let by a housing authority. Even if it did apply to them, the existence of such a provision could not be treated as a guide to what is to be implied in the letting of a dwelling provided under the Act. To determine what is implied in such a letting, it is the powers and duties of the housing authority under the Act that must be examined and, as I hope I have shown, these necessarily require the housing authority to ensure that the dwelling, when let, is fit for human habitation.
I do not find it necessary or desirable to express an opinion as to the wider question whether there should be held to be implied a condition as to habitability in the letting of every kind of dwellinghouse.
As I construe the law, the plaintiff is entitled to succeed in contract for the particular reason that this flat was provided under the Act of 1966. Therefore, it is academic to consider whether he would be entitled to succeed if the flat had not been provided under the Act. Whether in such circumstances he would be entitled to sue on an implied condition as to habitability is a point on which this Court has never pronounced. Were it necessary to decide the point, it is not unlikely that the Chief Justice would consider it necessary to convene a full Court for that purpose, for there are long-standing judicial authorities which hold that a condition as to habitability is not to be implied in the letting of an unfurnished dwellinghouse. If those authorities are to be set aside, it would probably be better to do so by statute, with prospective effect, rather than by judicial decision with its necessarily retrospective effect. If statutory effect in relation to tenancies is given to the legislative proposals in this respect set out in the Law Reform Commission’s Working Paper No. 1 (The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises), the decision of this Court on the point is not likely to be called for.
In all the circumstances, therefore, I find it appropriate to rule on the plaintiff’s claim in contract by holding that he is entitled to rely on a breach of an implied condition as to habitability arising from the fact that the flat was provided under the Act of 1966.
Negligence
Just as the question of the liability of the defendants in contract may be decided on the basis that the flat was provided under the Act of 1966, so also the question of liability in negligence lends itself to resolution on the same footing. It would be beyond the true scope of the essential circumstances of this case to decide whether there would be liability in negligence if the flat had not been provided under the Act. That broader question will be given a legislative solution if the proposals in the Law Reform Commission’s Working Paper No. 1 are given effect by Parliament.
Following on Donoghue v. Stevenson 27 it has been established by a line of decisions (such as Dutton v. Bognor Regis U.D.C. 15 ; Anns v. Merton London Borough 16 and Batty v. Metropolitan Realisations Ltd. 4 ) that where a person, including a builder or a local authority, carelessly provides a dwelling in which there is a concealed defect which the occupier could not have discovered by inspection, the person who provided the dwelling may be liable in negligence for personal injury or economic loss suffered as a result of the defect. The precise conditions or limitations of that liability need not now be considered, for I have no doubt that the principle of liability evolved in those cases is applicable to the circumstances of this case.
Despite ample opportunity of vetting the design of the ventilation system, the defendants were wanting in due care and skill in passing and accepting it. They should have made the necessary calculation as to relative humidity, or ensured that it was made. If they had done so, they would have discovered that the ventilation system was likely to produce the excessive condensation which made this flat unfit for habitation. As the ventilation system in the flat amounted to a serious concealed defect which the plaintiff could not have been expected to discover, and as the defendants (in their capacity as a housing authority providing a dwelling under the Act) owed a duty to the plaintiff to see that the flat he was getting was fit for habitation, the defendants were negligent in failing to observe that duty. The plaintiff was entitled, apart from any contractual obligation, to rely on the defendants to ensure that the flat would be habitable. The duty placed on the defendants by the Act of 1966 justified the plaintiff in so thinking. It is the defendants’ failure, vis-Ã -vis the plaintiff as tenant under the Act, to observe that duty that was the particular source of negligence.
It has been suggested in argument that liability in negligence should not be held to attach to the defendants because of the contractual link between them and the plaintiff. I do not think that the existence of a contract of tenancy, or of liability under that contract, excludes liability in negligence. Liability under both heads may exist simultaneously: this Court so held in Finlay v. Murtagh. 17 Where, as in the present case, there was a proximity of relationship creating a general duty on one side and a justifiable reliance by the other side on the observance of that duty, it is immaterial that the parties were bound together in contract.
I would dispose of the matters argued by holding that the plaintiff is entitled, both in contract and in negligence, to recover from the defendants the damages found by the Circuit Court judge.
Kenny J.
I have had the advantage of reading the judgments of the Chief Justice and of Mr. Justice Henchy, and I agree with both judgments.
Weir v Corporation of Dun Laoghaire
Supreme Court
20 December 1982
[1984] I.L.R.M. 113
(O’Higgins CJ, Griffin and Hederman JJ)
2
O’HIGGINS CJ
(Hederman J concurring) delivered his judgment on 20 December 1982 saying: This is an appeal against a jury’s verdict awarding damages to the plaintiff. The appeal rests on two submissions made by the defendants. In the first place they contend that the trial judge ought to have withdrawn the case from the jury because there was no evidence that the interference with the roadway which caused or contributed to the plaintiff’s injuries was either authorised or permitted by them. Secondly, they claim as an alternative, that the case ought to have been withdrawn from the jury because there was no evidence of negligence.
I propose to deal in the first instance with the second ground of appeal. The evidence establishes that on the Sunday morning of the accident the plaintiff who was an elderly lady was, in the company of her husband, crossing the road at Royal Marine Road, Dun Laoghaire. She was proceeding from Dun Laoghaire Church towards a new shopping centre on the far side of the road. As she neared the side to which she was proceeding she tripped, fell and suffered injuries. There was evidence that the cause of her fall was a difference in road levels of two inches or more along a line where a new layby for buses *115 was been constructed. No warning of this difference in level was given and the entire roadway which was tarmacadam, appeared uniform. I am quite satisfied that on these facts it was proper that the case should have gone to the jury on the issue of negligence. The jury having found negligence I do not think that such finding can be disturbed.
As to the first ground it appears that the difference in road levels which caused or contributed to the plaintiff’s fall and injuries came about in the following circumstances. A company called MEPC (Ireland) Ltd sought planning permission from the defendants as the planning authority under the Local Government (Planning and Development) Act 1963 for the development of a site along Marine Road as a shopping centre. Permission was obtained from the defendants as the planning authority on 12 December 1973 but an appeal was logded by an objector. The appeal was decided and final planning permission granted by the Minister for Local Government on 21 August 1973. A condition of this permission was that a bus layby be provided by the developers, if required by the planning authority, on Marine Road. When the building of the shopping centre was completed a firm of contractors called John Paul & Company proceeded to erect or construct a bus layby along Marine Road. This involved considerable interference with the roadway and adjoining footpath. The layout of this bus layby was agreed with the defendants. This appears from the evidence of their assistant borough engineer. In addition, from his evidence it appears that the carrying out of the work was known to the defendants. From these facts it can fairly be inferred that the provision of the bus layby had been required by the defendants as the planning authority and that the work was carried out by John Paul & Company on behalf of the developers and with the knowledge and approval of the defendants as the planning authority.
The defendants maintain that as the highway authority under the Local Government Act of 1925 they are not to be fixed with knowledge or made liable in respect of any licence or approval which they might have or may have given as the planning authority under the Local Government (Planning and Development) Act 1963. I do not accept this submission. I am satisfied that the defendants must be held to have known and to have approved of the work undertaken by John Paul & Company. Even if the work was authorised originally by the defendants solely as the planning authority this does not mean that as the highway authority they cannot be regarded as having knowledge thereof. Whatever was done was clearly done with their knowledge and they had a responsibility to look to the safety of those using the roadway, who might thereby be exposed to danger if what was done caused risk of injury. In my view, the grounds upon which this appeal has been moved fail and this appeal should be dismissed.
GRIFFIN J:
The facts are set out in the judgment of the Chief Justice. On those facts, the plaintiff is entitled to succeed against the person who created the danger on the highway — for danger it was to pedestrians such as the plaintiff. The work in this case was, however, not carried out by nor was the danger created by the defendants.
*116
The defendants are the highway authority charged with the repair and maintenance of the roads (including footpaths) in Dun Laoghaire pursuant to Part III of the Local Government Act 1925, and they are sued as such. It is well settled that, as such authority, although they are not liable to a user of the highway for injuries suffered or caused by want of repair (non-feasance), they are liable in damages for injuries suffered by such user if they or their servants, or those for whose acts they are responsible, have been negligent in doing repairs to or in interfering with the highway (misfeasance). Where the interference with the highway is done by their servants, no difficulty arises. Where the work is carried out by an independent contractor engaged by them to do the work, although they are not responsible for the casual or collateral negligence of the contractor, they are liable if their contractor fails to take reasonable precautions to protect the users of the highway from danger which, from the nature of the work, is likely to be caused to them. The authority which has undertaken the work cannot escape responsibility by delegating the performance of the duty imposed on them to the contractor.
If, therefore, in this case the defendants had undertaken the work in question, and the two inch difference in level had been causd by their servants or by a contractor engaged by them to carry out the work, they would be clearly liable in damages to the plaintiff. That however was not the position.
In the High Court and on the hearing of this appeal the case made on behalf of the plaintiff was that because the developers of the shopping centre obtained planning permission for the development, which included the construction of a bus layby on Marine Road, the lay out of which had in advance been agreed with the defendants, and because the defendants were aware that work was being carried on by the contractors engaged by the developers, the work being carried out had been ‘authorised’ by the defendants, and that they were liable for any negligence of such contractors in carrying out the work, and in particular in failing to warn of or guard against the danger on the highway on the occasion of the accident.
The learned trial judge accepted this submission and ruled accordingly. In my opinion, his ruling was incorrect — so to extend the liability of a highway authority to include responsibility for the acts of a contractor engaged by a developer in doing work for which the latter had obtained planning permission, and equating this liability with that of the authority for acts of a contractor engaged by them, is in my view warranted neither by principle nor authority. Indeed, all the cases cited in the High Court and referred to in the ruling of the trial judge were cases in which the work had been carried out to the highway by the highway authority. In this Court, counsel were unable to refer to, nor have I been able to find, any case in which liability attached to a highway authority by reason of the granting of planning permission for the work being carried out.
Although the plaintiff is entitled to be compensated in damages for the injuries suffered to her in this accident, in my judgment she is not so entitled as against the present defendants. I would accordingly allow the appeal.
Representation
Connell v. McGing
[2000] IEHC 208 (8th December, 2000)
Judgment delivered by Mr. Justice Lavan on the 8th day of December, 2000.
1. I tried this case on Thursday the 30th of November, 2000 and Thursday the 7th of December, 2000. Due to listing commitments I had other duties to perform in the intervening days. The case opened before me, with the Plaintiff claiming damages for negligence on foot of an extensive list of breaches of statutory duty. This is of some significance in relation to the submissions which were made to me by the Defence at the end of this trial.
2. The Plaintiff’s claim is for damages for that on the 22nd day of March, 1995 the Plaintiff, in the course of his employment with the Defendant on board the Defendant’s fishing boat, then situated off the County Donegal coast, was engaged in hauling in a fishing net on board the said vessel when, due to the negligence of the Defendant, his servants or agents, in and about the construction, layout, supervision, training, control and employment of competent employees, the Plaintiff was dragged along the deck of the said vessel, whereby he sustained personal injury, loss and damage.
3. The Plaintiff furnished particulars of negligence and breach of duty and they are fully set out in the statement of claim. Suffice to say that having read the pleadings before the action commenced, I was fully aware that the Plaintiff’s cause of action
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was framed in terms of a breach of duty, at common law and a breach of statutory duty, as therein set out.
4. The Plaintiff’s case was opened by Mr. Gordon S.C. in a reserved but robust fashion. At the conclusion, Mr. Nugent, Counsel for the Defendant, indicated to the Court that he would not be strenuously challenging a finding of negligence against the Defendant, his client. He would nonetheless be seeking to make a substantial case of contributory negligence against the Plaintiff having regard to his age, experience and skill.
5. I accepted that admission as constituting an admission of breach of statutory duty as well as breach of common law duty of care, and the case so proceeded.
6. Having regard to that submission a Court would have little difficulty in concluding that the Plaintiff would and does succeed on the issue of negligence. I therefore have no difficulty in concluding that the Defendant is liable to the Plaintiff on both a statutory and common law basis.
7. What occurred was as follows which account I accept as fact. The Plaintiff was on duty at the stern of the said boat when the Defendant crew commenced the difficult and hazardous operation of hauling in the net then full of the catch. To the knowledge of the Defendant (for at least six months prior to the accident the subject matter of this case) the crew man operating the haulage machinery was unable to see the net as it was being hauled out the stern of the boat. Any hitch in the retrieving process could be dangerous to the safety of the boat and crew.
8. The Plaintiff was close to the stern rail and as the hauling operation was taking place a hitch arose whereby the net was about to snarl. The Defendant’s attention was drawn to this and appreciating the necessity of guiding the net rope onto the
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machinery he sprang to the net rope to guide it in. In the course of this, his ankle was caught in the heavy netting whereby he sustained his injury.
9. Having heard the evidence and submissions over two days I am, upon the evidence, left with one issue, on liability, to decide, namely the degree of contributory negligence (if any) of which the Plaintiff may be guilty.
10. I especially note that, notwithstanding the trenchant cross-examination of Mr. James Sheehan – the remainder of the medical evidence is agreed between the parties.
11. In respect of the issue of contributory negligence, I have the following opinion to express.
12. The matters pleaded by the Defendant in his defence, delivered on the 12th of October, 1998 are as follows:-
a. Failing to take reasonable care for his own safety;
b. Failing to keep any or any adequate lookout for his safety;
c. Failing to act in accordance with his established experience as a fisherman;
d. Causing or permitting his foot to become entangled in the netting;
e. Failing to alert and/or warn the Defendant, its servants and agents that his foot had become caught in the netting;
f. Exposing himself to the risk of injury;
g. Causing himself to suffer personal injuries, loss and damage.
13. The Defendant further reserved the right to raise particulars of negligence and/or contributory negligence at the trial of the action.
14. The issue as to whether a breach of statutory duty was established is of importance in this case for the following reasons.
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15. The object of the particular statutory obligations relied upon by the Plaintiff in this case is, to my mind, to compel the employers of a trawler such as this, to take certain precautionary and preventative measure designed to reduce the possibility of accident. It is my view that the particular section imposes an absolute obligation in the event of the precautionary and preventative measures not achieving their ultimate object.
16. The Defendant made the case that because the Plaintiff had engaged, along with other crew members, in a discussion with the Defendant as to the safety alterations which ought to be taken in regard to the fishing vessel in question, he should therefore be made liable. It has, however, long been accepted that there is no defence of delegation of a statutory duty whereby a person subjected to a statutory duty can relieve himself fully of liability by claiming that he has delegated the duty or its performance to another. The general principle received statutory recognition in section 57(2) of the Civil Liability Act, 1961 which provided:
“It shall not be a defence in an action for breach of statutory duty merely to show that the defendant delegated the performing of the duty to the plaintiff”.
17. The defendant cannot escape liability for breach of his statutory duty by arguing that he diluted his obligation to provide a safe workplace by discussing the matter with his employees.
18. However, while delegation of a statutory duty is not a special defence this does not mean that the defendant will always be fully liable in every case where there is apparent delegation. The principles of contributory negligence still apply. In Ginty v. Belmont Building Supplies Ltd. [1959] 1 All ER 414 at 423-424 Pearson J. captured the principle:
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“In my view, the important and fundamental question in a case like this is not whether there was delegation, but simply the usual question: Whose fault was it?…”
19. In an action for breach of statutory duty, contributory negligence has a different meaning from that for an action for common law negligence. There is an essential difference in the nature of the acts and the quality of the acts which would amount to contributory negligence in the one vis-a-vis the other. It seems to me that the essential difference is that in relation to statutory duty an error of judgment, heedlessness or inadvertence, will not constitute contributory negligence, because the statutory protection was passed for the express purpose of saving workers such as the Plaintiff from their own carelessness and inattention. While in relation to contributory negligence and a common law duty, an act of inadvertence, if it is an act which a reasonably careful workman would not do, will constitute contributory negligence. See Higgins v. South of Ireland Asphalt Co. Ltd. (1961) 101 ILTR 168 (SC).
20. The principles in relation to breach of statutory duty and contributory negligence were enunciated by the Supreme Court in Stewart v. Killeen Paper Mills Ltd. [1959] IR 436 and Kennedy v. East Cork Foods [1973] IR 244. In Kennedy a jury had found contributory negligence against the plaintiff in relation to his claim for common law negligence but had exonerated him of contributory negligence in his claim for breach of statutory duty. In the Supreme Court O’Dálaigh C.J. quoted with approval Henchy J.’s direction to the jury in the High Court where the learned judge had stated in relation to contributory negligence and breach of statutory duty:
“[The plaintiff] must enter into the realm of downright carelessness, because the Factory Act was passed for the express purpose of saving factory workers from their own carelessness, and their own inattention. The plaintiff would not be guilty of
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contributory negligence unless you are satisfied that what he did was not simply inadvertence, normal forgetfulness, normal inattention, but he was in fact negligent and careless in a more positive and definite way.”
21. O’Dálaigh C.J. further adopted Lord Wright’s statement in Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] AC 152 that
“The policy of the statutory duty protection would be nullified if a workman in a factory were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which though trivial in itself threw him into danger consequent on the breach by his employer of the statutory duty”.
22. The Court must take into account, as Lawrence J. stated in Flower v Ebbw Vale Steel, Iron & Coal Co. [1934] 2 KB 132, that “it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence”.
23. These principles have been implemented in practice by Barron J. in Dunne v. Honeywell Control Systems Ltd. and Virginia Milk Products Ltd. [1991] ILRM 595 and in Kelly v. McNamara High Court (Budd J) 5th June, 1996, unreported.
In Dunne v. Honeywell Control Systems Ltd. Barron J. held that the plaintiff was not guilty of contributory negligence in relation to his claim for breach of statutory duty. He reasoned
“The plaintiff was not taking sufficient care for his own safety, not through any positive act on his part, but because the danger did not occur to him.”
24. The threshold of negligence in a “more positive and definite way” was not reached.
25. On the other side of the line, in Kelly v. McNamara Budd J. stated that he did “not think that the plaintiff as an experienced carpenter and an obviously responsible and competent tradesman can escape all liability for succumbing to the taking of an obvious risk”. He held that “a small portion of the fault must be ascribed to the Plaintiff for putting himself in peril…”
26. Turning to the case in question, I accept that the Plaintiff was an experienced seaman/fisherman. I nonetheless find it difficult to accept that because an employee is
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engaged in discussing with his employer matters that might be rectified in relation to the day to day work of a particular vessel that the employer in some way is permitted to delegate his, the employer’s duties, or to raise it as s defence as against the Plaintiff in this case.
27. My view of the evidence is that what was in operation on the day of the accident was a dangerous operation to the knowledge of the Defendant. He may not delegate his duties under the statutory code in this regard.
28. On the evidence the Plaintiff acted in a moment of crisis. The transcript contains a detailed account of how this occurred. He, the Plaintiff, ought not to have been required to so act. Therefore, on the evidence, I accept the Plaintiff’s account, it is uncontradicted, the very complaint that the Plaintiff has is that no other person could have foreseen the actual events which led to his injury.
29. I have considered the Defendant’s allegation of contributory negligence and, on the evidence, I am unable to conclude that there should be a finding of contributory negligence. I now turn to an assessment of damages.
30. As to special damages this is an agreed figure in the sum of £7,500.00.
31. As to damages to date and damages in the future I rely on the agreed evidence with the evidence of Mr. James Sheehan. I will allow a figure of £30,000.00 damages to date and a figure of £30,000.00 damages in the future.
32. As to the claim that the Plaintiff may be unable, due to the onset of arthritis, to role as a skipper of the trawler, when he attains the age of 50 or thereafter, I have the following view.
33. I accept the evidence of Mr. James Sheehan on this crucial issue and I clearly accept the agreed medical evidence submitted to me by both parties.
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34. I conclude that on the balance of probabilities there is a problem that may arise at some state in the future, when the Plaintiff is between the age of 50 and 55 years. The Plaintiff on the balance of probabilities may be unable to continue his duties as a skipper.
35. I therefore conclude, doing the best that I can on the evidence laid before me, and accepting the medical evidence, that the plaintiff may lose 2 to 3 years of his livelihood as a skipper. Therefore, in the circumstances I would allow for future loss of wages, a full two years loss of the equivalent of the Plaintiff’s net yearly loss of £37,250.00 (which is agreed between the parties). Therefore, there will be a finding for future loss in the sum of £74,500.00.
36. There will be judgment for the plaintiff in the sum of £142,500.00 together with his costs.
Cassells (a minor) v. Marks and Spencers plc
[2001] IESC 69 (30th July, 2001)
JUDGMENT delivered on the 30th day of July 2001 by Mrs Justice McGuinness
[nem. diss]
1. This is an appeal from the judgment and order of Barr J. made in the High Court on the 25th March 1999 whereby he found that the defendant was not negligent and dismissed the infant plaintiff’s claim for damages in respect of personal injuries which had resulted from an incident in which the dress which she was wearing caught fire.
2. The facts of the case, which are not essentially in dispute, are clearly set out by the learned High Court judge in his judgment and they may be briefly summarised. The plaintiff, Rebecca Cassells, was born on the 27th September 1989 and now resides with her mother in Navan. Prior to late 1994 the family lived in Brixton, London. In September 1994 the plaintiff’s mother purchased a cotton day dress for the plaintiff at the defendant’s retail store
at Brixton. The dress had a full flared skirt. Because the plaintiff was small for her age the skirt reached to within three to four inches of her ankles.
3. At 5.30 p.m. on 24th May 1995 the plaintiff and her mother came home to their house in Navan. The plaintiff was wearing the dress with a light cardigan and normal underclothes.
4. She complained that she was cold. When the plaintiff and her mother entered the livingroom Mrs Cassells lit the fire which was in a typical open domestic fire place. There was no fire guard. The plaintiff went to turn on the television and her mother left the room briefly to go upstairs. The learned trial judge accepts that she was out of the room for at most three minutes. On her way downstairs she heard the plaintiff screaming. She ran downstairs and found the child in the kitchen with the back of her dress in flames. Mrs Cassells put her daughter into the kitchen sink and extinguished the flames by turning on the cold tap. The child had suffered severe extensive burns involving the upper leg and buttock on the left side, the back, the left arm pit and left upper arm. Barr J. was satisfied that Mrs Cassells reached the plaintiff within ten seconds from hearing her cry out. The learned judge continued:
“In the light of the foregoing facts the probability is that, having turned on the television, Rebecca went over to the fire to warm herself and stood with her left side nearest the flames as she watched the television. It is evident that the hem of her flared skirt on that side caught fire and the flames spread rapidly upwards. It is likely that as soon as she became aware that her dress was on fire, or at least when she began to feel pain from burning, the child screamed and ran towards the kitchen where she was rescued by her mother a few seconds later. That scenario establishes that the cotton material comprised in the dress was highly flammable and a source of immediate danger for a child to wear if exposed to fire.”
5. The dress which the plaintiff was wearing was made of 100% cotton material. This cotton material had not been treated with a chemical fire retardant. Inside the dress there was a hanging label stitched at one end into a seam. On one side of the label information as to the nature of the material was given together with the customary washing instructions indicated by symbols. On the other side the age range and size of the dress was given and in addition there was a warning in red “KEEP AWAY FROM FIRE” in English and three other languages. This label was a permanent part of the dress. The normal practice of the defendant was to attach to the dress two sizeable cardboard tags which hung below the hem of the dress and were intended to be removed after purchase. One of these tags which was approximately one and a half inches wide by two inches long contained on one side a warning in large red “IN THE INTEREST OF SAFETY IT IS ADVISABLE TO KEEP YOUR CHILD AWAY FROM FIRE”. The same warning was repeated in smaller red capital letters on the other side of the tag in English and three other languages. Mrs Cassells agreed in evidence that she saw the permanent tag and was aware of the warning “KEEP AWAY FROM FIRE”. She did not recall seeing the other cardboard tag but the learned trial judge accepted that in all probability they would have been appended to the dress as described.
6. In evidence the plaintiff’s mother conceded that she should have fitted the fireguard after she lit the fire and that children should not be left unaccompanied in a room with an open fire. She had not intended to be out of the room for long.
7. It was contended on behalf of the plaintiff in the Court below that the defendant was negligent in selling and marketing the dress in question without having it treated with a chemical fire retardant. It was also contended on behalf of the plaintiff that the dress did not contain an adequate warning of the dangers of fire. Barr J. rejected both these contentions and dismissed the claim. There is no appeal from the decision of the trial judge on the fire retardant issue. The present appeal concerns only the adequacy of the warning given by the defendant that the dress should be kept away from fire. In the plaintiff’s notice of appeal the grounds are set out as follows:
“That the learned trial judge was wrong in law and on the facts in holding that despite the finding that the cotton of the lighter variety including that used in the plaintiff’s dress was highly inflammable and that the standard adopted by the defendant/respondent was inadequate, that the warning given by the defendant/respondent in this case was adequate.”
8. There was considerable technical evidence before the Court below as to the testing of materials for flammability and as to statutory and other regulations in England and in this jurisdiction covering both the flammability of materials and the need for warning labels on garments. This evidence established that it had been a requirement of law in the United Kingdom since 1955 that children’s nightwear must conform to a specified minimum flammability standard. Similar regulations existed in this jurisdiction – the Flammability and Labelling Requirements of Fabrics and Fabric Assemblies Used in Children’s Nightwear (I.S. 148: 1988) issued by the National Standards Authority of Ireland. These regulations laid down methods for testing flammability of a material. Details of these tests are given in the judgment of the learned High Court judge and there is no need to repeat them here. What is clear however is that these regulations as to flammability apply only to nightwear and there are no regulations of this type relating to children’s day wear.
9. Barr J. accepted that the defendant company was long established as one of the leading retailers of children’s clothing both in the United Kingdom and in Ireland and that their clothing had “long enjoyed a high reputation for quality and value” . He also accepted that they had a regard for safety which exceeded that displayed by many of their competitors in the clothing industry.
10. Despite the fact that there were no regulations covering children’s day wear the defendant gave evidence that the company had introduced their own minimum requirement as to flammability in respect of materials used in children’s day wear. This standard falls short of the flammability standard required by the British and Irish children’s nightwear regulations. The defendant had also introduced permanent fire warning labels for day wear garments which were similar in nature and wording to those required by the official regulations for nightwear. In addition they added the hanging cardboard label which has been described above. The wording of the warning “keep away from fire” given on the permanent label sewed into the dress was in conformity with the wording required for children’s nightwear both in the United Kingdom and in this jurisdiction – see. I.S. 148: 1988.
11. During the course of the trial eighteen children’s dresses made of cotton and other comparable materials which had been purchased from the defendant’s major competitors were introduced in evidence. All had been tested by independent experts. None conformed to the Marks and Spencer’s standard of flammability for children’s day wear and none had any fire warning label. The learned trial judge accepted that the defendant company “has voluntarily adopted and is complying with a minimum standard of safety vis-à-vis fire risk relating to children’s day wear which leads the field in the retail trade in the U.K. and Ireland.”
12. Having carefully considered the evidence in regard to fire retardant chemical treatment the learned trial judge stated that he was satisfied that the defendant was not negligent or in breach of duty to the plaintiff in marketing the dress without treatment by a fire retardant provided that it contained an adequate fire warning. Ultimately, the essence of the plaintiff’s claim, he said, turned upon the adequacy of the fire warning given by the defendant with the dress. Barr J. then went on to consider the relevant case law in regard to the adequacy of the fire warning and concluded that the defendant had given a sufficiently clear warning and had discharged its duty of care in relation to the plaintiff’s dress by adopting the form of words specified by the regulatory authorities in both jurisdictions for children’s nightwear.
13. Senior Counsel for the plaintiff/appellant, Mr Hussey, submitted that in the circumstances of the case the warnings provided by the defendant/respondent were inadequate. The warnings were “mere platitudes” and did not tell purchasers anything that they did not already know. Mr Hussey dealt in some detail with the evidence that was before the High Court concerning the flammability tests that had been carried out on the cotton material of the dress in question. It was clear that light cotton material was very dangerous if exposed to fire because of the rapidity and acceleration of the flame along the fabric. He referred to the finding of Barr J. (at page 10 of his judgment) that cotton material “presents a major fire hazard” . He submitted that the defendant well knew the characteristics of the material and that the warning given should have contained some indication that the fabric was fast burning or that it was a major fire hazard. An ineffective general warning was equivalent to no warning.
14. Mr Hussey referred to case law and in particular to the case of O’Byrne v Gloucester and Another (unreported Supreme Court 3rd November 1988) where in similar circumstances Finlay C.J. in his judgment in this Court suggested the attaching to the garment in question of “a simple warning that it was dangerous if exposed to a naked flame and would burn rapidly.”
15. The wording suggested by the learned Chief Justice was, Mr Hussey argued, much more effective that the somewhat bland warning provided by the defendant.
16. Senior Counsel for the defendant, Mr Brady, submitted that the wording of the warning, which was specifically the same wording as that of the mandatory warning provided for children’s nightwear, was sufficiently clear. The plaintiff’s mother had admitted in evidence that she had seen the warning label sewn into the dress, that she knew children should not be left alone in a room with an open fire, and that a fire guard should have been provided.
17. He referred to the standards set by Laffoy J. in the case of Duffy v Rooney and Another (unreported High Court 23rd June 1997, unreported Supreme Court 23rd April 1998) where she stated (at page 21 of her judgment):
“However, I am of the view that a reasonably prudent manufacturer or retailer, had he properly addressed the issue, would have, and the second defendant ought to have, affixed a label to Amy’s coat warning that it should be kept away from fire.”
18. That standard had been approved by Hamilton C.J. on appeal in this Court. In the Duffy case no warning label whatsoever had been affixed to the garment in question.
19. In reference to the O’Byrne v Glocester case Mr Brady submitted that in that case also there had been no warning label whatsoever. The ratio of Finlay C.J.’s decision was that there should have been a warning label. The wording which he suggested was obiter. It was unlikely that he saw himself as laying down an exact wording for future labels.
20. Mr Brady also drew attention to the evidence concerning the facts of the market given on behalf of the defendant in the Court below. Neither in this country nor in the United Kingdom was there any statutory or regulatory requirement that fire warning labels be attached to children’s day wear. There was equally no requirement that flammability tests be applied to materials used in these garments. In other European countries even children’s nightwear did not have to be labelled.
21. Eighteen dresses similar to the dress in question in the case, which had been purchased from competitors of the defendant, had been produced in Court. None of them carried any fire warning label.
22. The defendant, who operated flammability standards and provided both a sewn in label and swinging tag label, showed a commitment to safety which went beyond which was required by law and what was normal in the market.
23. Mr Brady pointed out that the evidence showed that some two hundred thousand children’s dresses of this style, which was very popular, had been sold by the defendant. Sixty thousand of the dresses had been sold in that season alone. The present case was the only case known to the defendant where a child wearing one of these dresses had been injured by fire. This went to demonstrate that the defendant’s fire warning was, in fact, both adequate and effective.
Conclusion
24. In this jurisdiction, the mandatory regulations regarding flammability and labelling of children’s nightwear are set out in I.S.148: 1988 Standard Specification (Flammability and Labelling Requirements of Fabrics and Fabric Assemblies used in Children’s Night Wear) Declaration 1988 made by Eolas – The Irish Science and Technology Agency in the exercise of powers conferred by section 20(3) of the Industrial Research and Standards Act 1961 and the Science and Technology Act 1987.
25. Where children’s night clothes comply with the flammability requirements of Clause 5 of the Standard they must bear labels stating “low flammability to I.S. 148” . Children’s pyjamas and bath robes, which do not have to meet the flammability requirements of Clause 5 must, under Clause 6, bear a warning label in red letters with the words “KEEP AWAY FROM FIRE”.
26. There is no requirement either in Ireland or in the United Kingdom for children’s day clothes, of whatever material, to meet any particular flammability standard or to carry any label warning against fire. In the case of the plaintiff’s dress the defendant of its own volition provided a permanent label carrying a warning in the same words as that provided in the Irish and British regulations. In addition the defendant had tested the fabric for flammability, although admittedly to a lower standard than that prescribed in the statutory regulations. The trial judge accepted that in all probability the dress also carried the cardboard warning tag normally attached by the defendant. It appears from the evidence that the defendant went considerably further than most of its competitors in warning purchasers of this type of cotton dress of the danger of fire.
27. Of the cases opened to the Court by counsel on both sides the two most relevant are Duffy (A Minor) v Patrick Rooney and Dunnes Stores (Dundalk) Limited (unreported Supreme Court 23rd April 1998) and O’Bryne (A Minor) v Brendan Gloucester and Ors (unreported Supreme Court 3rd November 1988). In both these cases children were badly burnt as a result of their clothes catching fire. It should be noted, however, that in neither case did the garment in question bear any label whatsoever warning of the dangers of fire. In both cases the Court accepted the need for such a label and that the failure to provide a warning label was a breach of the retailer’s duty of care. In the Duffy case in the High Court Laffoy J. stated:-
“However, I am of the view that a reasonably prudent manufacturer or retailer, had be properly addressed the issue would have, and the second defendant ought to have, affixed a label to Amy’s coat warning that it should be kept away from fire.”
28. Laffoy J., however, went on to hold that in the circumstances of that case the retailer’s breach of duty did not in fact cause the plaintiff’s injuries. In this Court, which upheld the decision of Laffoy J. Hamilton C.J. cited with approval the passage from Laffoy J’s judgment quoted above.
29. In the instant case the defendant, Marks and Spencer, acknowledges the duty of care owing to the plaintiff. It also accepts that, without the provision of the warning label, it would in breach of this duty of care. The label (or labels) provided by the defendant in the instant case fully met, in my view, the standards set by Laffoy J. and approved by this Court in the Duffy case.
30. In the earlier case, O’Byrne v Gloucester , a young girl had been injured when her skirt caught fire from the flame of a butane gas heater. Again the garment was of high flammability (brushed cotton) and carried no warning label. In the High Court the trial judge (Johnson J.) concluded that the defendants were negligent in manufacturing the skirt and selling it without having attached to it some warning regarding the fact that it was made of a fast burning fabric which had not been treated. It was also established in evidence that the defendant in that case had actually contemplated the placing of a warning upon the garment but decided not to do so.
31. In this Court Finlay C.J. in his judgment in the O’Byrne case referred to the flammability and labelling requirements under the British 1964 statutory regulations. At the time of the injury to the plaintiff in O’Byrne (December 1984) there was no Irish standard and no prescribed label in this jurisdiction.
32. As stressed by counsel for the plaintiff, Finlay C.J. upheld the trial judge’s conclusion that a warning should have been provided:-
“..having regard to the simplicity of the precaution which it is alleged the defendants should have taken, namely, the attaching to the garment of a simple warning that it was dangerous if exposed to a naked flame and would burn rapidly, the learned trial judge was correct in concluding that this was a precaution which a reasonably careful manufacturer and vendor of this type of clothing should have taken.”
33. Counsel for the plaintiff argues that in the instant case the defendant should have provided a warning label similar in wording to that used by Finlay C.J., or at the very least a warning stressing the rapid burning qualities of the material. The learned High Court judge did not accept that the defendant’s warning was inadequate. He pointed out (at page 14 of his judgment):-
“…there is no statutory requirement as to fire warnings for children’s day wear and, therefore, it is a matter for the individual manufacturer/retailer to devise a warning which adequately puts child carers on notice that the relevant garments should be kept away from fire.”
34. I find myself in agreement with the learned High Court judge that the warning required by the regulations as to children’s nightwear is in its terms “keep away from fire” a sufficiently clear warning to carers that a child wearing the garment to which the warning is attached should be kept away from unprotected fire.
35. In addition, I find it somewhat difficult to follow the logic of the argument asserted on behalf of the plaintiff that a warning “KEEP AWAY FROM FIRE” merely “tells people what they know already” and is too bland. The warning clearly indicates that the garment is made of flammable material – otherwise there would be no need for the warning. Is it suggested that because the label does not warn that the material burns rapidly one might think that there was really no danger in allowing the garment to come in contact with a naked flame? Is it suggested that a child dressed in material which burns more slowly, but is nonetheless flammable, may safely be exposed to unprotected fire, or that in that case a “keep away from fire” warning may be ignored? Different materials have different properties when exposed to fire; it is well know that some emit fumes; others melt and may adhere to the flesh causing severe burns; others, like cotton, burn rapidly. When a purchaser is presented with a warning label “KEEP AWAY FROM FIRE” the only logical reaction is to do precisely that, regardless of the nature of the particular garment or the material of which it is made. To her credit, the plaintiff’s mother in this case accepted that she had seen the warning label and knew of the danger of an unguarded fire.
36. It is tragic that the plaintiff suffered serious injury. Unfortunately, it is a fact of life that in spite of reasonable care on the part of those concerned such as retailers and parents, such tragic accidents do happen and I would join with the learned High Court judge in admiring the way in which both the plaintiff and her mother have dealt with the sad situation.
37. Nevertheless, I would dismiss the appeal and uphold the decision of the High Court judge.
Thomas v. Leitrim County Council
[2001] IESC 28; [2001] 2 ILRM 385 (7th March, 2001)
JUDGMENTof Mr. Justice Hardiman delivered the 7th day of March, 2001 [nem. diss.].
1. This is the Plaintiff’s appeal against the finding of the High Court (McCracken J.) which apportioned liability for an accident in which the Plaintiff had suffered personal injuries on the 1st May, 1995 in the proportions of two thirds against the Plaintiff and one third against the Defendant. The Plaintiff maintains that there was no contributory negligence on her part or, if there was, it was in a much smaller degree than the learned High Court Judge found.
2. The Defendant has cross appealed against the finding that the Plaintiff was an invitee as opposed to a licencee, on its lands at the relevant time.
Background.
3. The facts of this matter have been comprehensively set out in the judgment of the learned High Court Judge, which is now reported at [1998] 2 ILRM 74 .
4. The Plaintiff, together with her husband and three other people had travelled from England to take part in a ballooning event in Sligo. However, weather conditions prevented the event from going on on the 1st May, 1995 and the party went sight seeing instead. They had read about Glencar Waterfall in Co. Leitrim in the Michelin Guide and decided to go there.
5. The area around Glencar Waterfall had been purchased by the Defendant in 1986. It is a well known place of resort and an area of considerable natural beauty. Whilst in private ownership a concrete footpath was laid some thirty or forty years ago. The local authority developed a car park with toilet facilities across the road from the area of the waterfall. They also renewed all the footpaths. They made the area accessible, up to a point, to disabled persons. This occurred in 1991/92. The local authority also had the trees on the site inspected by Coillte Teoranta as a result of which four trees were removed. The premises were visited by or on behalf of the area Engineer “on a reasonably regular basis” and had been last visited on the 6th April, 1995. A lady was employed on a part time basis who looked after the toilet facilities. There was no full time maintenance staff because, according to the Engineer “It is the type of area that doesn’t need maintenance. It is left wild”.
6. On the evidence, the site was acquired by the County Council and developed in the way described “in order to provide an amenity within their administrative area”.
The accident.
7. The Plaintiff and her party arrived at the area and went up a footpath which led from the road up the side of the waterfall to a viewing platform. It then continued at a sharp angle to the left and rose to its highest point. From there it descended again quite steeply by way of steps, turned to the left and rejoined an original pathway thus creating a roughly triangular loop. The pathway consisted of stone slabs 4ft. wide.
8. The Plaintiff and her party, having proceeded to the top of the path, began to descend again on the looped pathway. Towards the bottom of a steep part of that pathway, they came upon a tree which had fallen across the path completely blocking it. A row of trees made it impossible to pass the obstruction on the right hand side. To the left hand side there was a very steep bank leading downwards towards the bottom. This had been grassed but it had been used as a short cut to some extent and there were two distinct bare tracks on it, one on either side of a tree stump. There was a considerable amount of bare earth where the grass had been worn away.
9. When the Plaintiff’s party came upon the obstruction they were walking in single file, with the Plaintiff at the back. There was no discussion about what was to be done but the various members of the parties stepped off the path and on to the bank. It was necessary to go sideways down the bank and to hold on to whatever supports offered in order to keep one’s balance. The Plaintiff’s husband in fact slipped shortly after leaving the path but was not injured. It appears that just as he was getting up, the Plaintiff stepped off the path higher up and immediately or almost immediately slipped.
Issues.
10. There is no doubt that the Plaintiff unfortunately sustained a serious injury to her ankle. Furthermore, having regard to her age, which was 62 years at the time of the accident, her occupation, her weight and build and her previously active lifestyle, the injury and its consequences have been serious for her. However this appeal is not concerned with the question of damages, which have yet to be assessed. The question is whether she can make the Defendant liable in whole or in part for her injuries.
11. As the case was argued on appeal, this general question involves several issues. Firstly, was the Plaintiff’s status on the lands around Glencar Waterfall that of an invitee or a licencee? Secondly, was the Defendant in breach of its duty to her as an invitee or a licencee? Thirdly, if they were in breach of their duty to her, was the damage suffered by her caused partly by her own negligence or want of care, and if so in what proportion?
The findings of the learned trial judge.
12. The learned trial judge held that the Plaintiff was an invitee on the premises, on the basis that there was a material benefit to the Defendants in having Glencar Waterfall opened to the public. He held that the Defendants had been in breach of their duty of care to the Plaintiff in not ensuring that the pathway was kept clear and passable, particularly in an area where there was a steep and possibly dangerous bank at the side of the path. He went on to hold that the Plaintiff had decided to take the risk of going down what must have appeared to be a somewhat dangerous bank. He held that “she took a calculated risk in the knowledge that there was a danger of falling”. He held that this risk could have been avoided by simply retracing her steps, a distance of 178yds. He assessed the contributory negligence of the Plaintiff at two thirds.
Invitee or licencee.
13. This case was argued with great economy and precision on both sides. It was agreed that the question of whether the Plaintiff was an invitee or a licencee turned on whether the Plaintiff’s presence on the lands conferred a “material benefit” on the Defendants. Neither side took issue with the statement of the law contained in the second edition of McMahon and Binchy, Irish Law of Tort, page 213:-
“The benefit which the occupier must enjoy before the entrant becomes an invitee is a material interest (frequently, although not invariably, a financial interest) – a social benefit is not enough. But it must be noted that, in looking for the occupier’s benefit, the test is not one of absolute material interest in all cases, but rather where the visit, under normal circumstances, would usually involve a material benefit for the occupier. ‘What is to be looked at is the nature of the purpose for which the visitor comes, and whether the party in occupation would normally have a material interest in visits made for that purpose’. So a person who comes into a shop with the intention of purchasing and does not buy because the shop does not at present stock the commodity, is nevertheless an invitee…..”.
14. This passage draws heavily on the judgments of the former Supreme Court in Boylan v. Dublin Corporation [1949] IR 60. In that case the Plaintiff had attended a social event promoted by a charitable society who had hired part of the Mansion House from Dublin Corporation for the purpose. It was held that his presence on the premises constituted a material benefit to the Corporation so as to make him an invitee, on the basis that the presence of persons in that capacity “helps to bring about continued profitable hirings as a natural probable and intended result and therefore the owners interest in it is the very reverse of remote”.
15. The facts of this case do not reveal any such commercial interest on the part of the Defendant. However, the learned trial judge held that the presence of the Plaintiff and people like her conferred a material benefit on the Defendants on the following basis:-
“This is not a park provided as an open space in an urban area by a local authority, this is a scenic attraction in a rural area. I doubt very much if the Defendant County Council spent considerable sums of money on building a car park and toilet block and on building a path of some length simply for the residents of Co. Leitrim. This is clearly a tourist amenity and is designed to attract tourists into Co. Leitrim. The Plaintiff and her party in fact went to the area because they read of it in a book dealing with tourist attractions.
The question remains whether attracting tourists is of sufficient material interest to bring entrants into the area under the heading of Invitees. On balance, I think it is. One of the main purposes, if not the principal purpose, of attracting tourists into an area is that they bring financial benefits to the area. While these benefits may initially put money in the pocket of local shopkeepers, nevertheless there is, at least indirectly, a benefit to the local authority as well. Accordingly in my view the Plaintiff entered the area of Glencar Waterfall as an invitee”.
16. The only evidence in relation to the purpose for which the Defendant acquired the relevant lands and improved them to the extent as they did, was that already quoted from the evidence of the area engineer that it was with a view to providing an amenity within their administrative area. In the course of cross examination, the same witness said that he would normally visit before bank holidays. He agreed that the time of his visit of the 6th April was when “You are just getting into the high use, the tourist season as such”. He was asked “You are just coming out of the winter and early spring and coming to Easter, so you are anticipating that the number of visitors is going to increase. Is that the idea?”, and agreed, though adding that there were visitors all year round.
17. He also agreed when it was put to him that “With Easter coming up and the tourist season about to start you would anticipate that there would be a big increase in the number of visitors coming along”.
18. In my opinion, this evidence does not establish on the balance of probabilities that the presence of the Plaintiff or similar persons conferred a material benefit on the local authority nor that the local authority viewed the amenity in that light. The predictable fact that the number of visitors to the site is likely to increase as the weather improves does not seem to me to provide any evidence of anticipated material benefit. More fundamentally, I do not accept that, when an amenity is developed, a local person visiting it would do so in the capacity of a licencee and a foreign visitor as an invitee. The evidence establishes only that the local authority has provided some amenities at a long standing place of public resort to which anyone, tourist or local, can have free access. No doubt it is for the public benefit, and is certainly within the powers of the local authority, that such access is guaranteed by the public ownership of a conspicuous site but I do not accept that it has been shown on the evidence that the local authority has a material interest in the access of an individual to the site, anymore than the previous private owners would have had.
19. I can find no support in the cases for the proposition that gratuitous entry for recreational or amenity purposes to lands confers a material benefit on the owner. In Sutton v. Bootle Corporation [1947] 1 KB 359 a public park had been developed and maintained by a local authority, which had installed a playground. A child who came into the playground was held to be a licencee only. The Plaintiff contended that this decision merely assumed the status of the child as a licencee but the report does not support this contention. Indeed Counsel for the Plaintiff had contended “The position of a person entering the public recreation ground as of right is different from that of a licencee…… The Defendants owed a higher duty than that of a licensor because what they were providing was an allurement to any child”. All three of the Lord Justices of Appeal held that the child was a licencee only and one, Asquith L.J., surveyed a number of authorities to the same effect.
20. I do not regard the evidence in this case as establishing that the local authority did not develop the amenity for any person who cared to visit, no matter where they were from, but developed it for the purpose of attracting tourists to Co. Leitrim. I agree with the submission of the Defendant that “The evidence is more, or at least as, consistent with the policy of bringing areas of natural beauty into the common ownership or enjoyment of everyone, than a policy of obtaining tourist money”. I consider that the act of developing an amenity by a local authority cannot be regarded as simply a means of “putting money into the pockets of local shopkeepers”. And, as noted above, I do not accept that a person’s status on a publicly owned amenity varies with whether he or she is a local or a foreign visitor. What is to be said, on that analysis, of the status of a person who comes from another part of Ireland?
21. The law relating to occupiers liability has been radically reformed by The Occupiers Liability Act, 1995. Had this law been in force at the time of the Plaintiff’s accident her position would have been a less favourable one than under the old law, which applies to this case.
22. The essence of the applicable law was a distinction between those whose presence on lands or premises was in pursuance of an interest common to them and the occupier, and all others, the position of trespasser does not arise here. Since this concept of interest or benefit is at the heart of the distinction, it cannot be ignored or unrealistically glossed without destroying the whole basis of the common law approach.
23. At an abstract level it is possible to gloss almost any permissive presence of a person on another’s lands with an element of benefit. The private house guest was the classic licencee. But even the relationship of host and guest might be analysed in terms of benefit: social amenity, relief of loneliness, or hope of reciprocation. An occupier might not himself fully analyse his reasons for offering hospitality.
24. But these putative benefits are simply too remote to amount to the material benefit which alone grounds the status of invitee. In cases governed by the common law, the distinction which lies at the heart of it must be given substance by realistic application. The provision of a public benefit to all comers is not less worthy of protection, by the attribution of a social or altruistic motive, than private hospitality. The provision of access to a naturally wild area should not require its being manicured to the degree required of commercial or industrial lands or premises. I would hold that the Plaintiff, and anyone else in her position, was a licencee on the Defendant’s lands.
Liability to licencees.
25. Historically, the liability to licencees was restricted by the proposition that an adult licencee, in any event, must take the premises as he found them. The only duty of the occupier was not to set a trap: “subject to this, which involves, as has been decided, conduct bordering upon deceit or fraud, the licencee must take the premises as they are with all their imperfections whatever they might be” : Bohane v. Driscoll [1929] IR 428.
26. This formulation was however criticised by Finlay C.J. in Rooney v. Connolly [1987] ILRM 768. Commenting on the passage just quoted the learned Chief Justice said:-
“That is a view which in my opinion has not survived the later development in this country of the law affecting the duty of an occupier to a licencee, and is too favourably expressed from the Defendant’s point of view”.
27. I propose to approach the issue in this case on the basis of the statement most favourable to a licencee which can be found in the authorities. This appears to me to be that of Lord Sumner in Mersey Docks and Harbour Board v. Proctor [1923] AC 253 where it was said that licensor “must act with reasonable diligence to prevent his premises from misleading or entrapping the licencee……”. Similarly, in Aherne v. Roth and Ors. [1945] Ir Jur Rep 45, the duty to a licencee was being described as being a duty “to protect licencees against concealed dangers which he (the licensor) actually knows to exist”.
28. I do not consider that a formulation involving the concepts of deceit or fraud, even as those terms are used in a civil rather than criminal context, is helpful to the elucidation of duties to a licencee.
29. In this case, the Defendant has not sought to argue that it is entitled to be exempted from such duty as it may owe to the Plaintiff on the basis that it did not actually know of the danger represented by the fallen tree or the slope below the path. This was probably a wise concession having regard to the presence of a part time employee whose house, on the evidence, appears to overlook the site of the accident.
Decision on liability.
30. In applying the duty of an occupier, as stated above, to the facts of the present case, it does not appear to me that the fallen tree can be regarded as a concealed danger or a trap. While there was some dispute in evidence as to the point at which it would have become obvious, it was beyond dispute that it was actually observed prior to the Plaintiffs stepping off the path and was in fact the cause of that action. If, therefore, there was any misleading or entrapping of the licencee it must be found other than in the obvious fact of the tree’s collapse and presence as an obstacle on the path. Once the path was observed to be blocked by the members of the Plaintiff’s party it was necessary for them to take some alternative route in order to get back to their car. It was certainly open to them to retrace their steps and I do not accept the contention that the path was too narrow to allow them to do so safely having regard to the actual or possible presence of other people coming down the path. Firstly, the path was in my view wide enough to allow such persons to pass. Secondly, if the Plaintiff and her party had met such persons they would no doubt have informed them that the path ahead was impassable.
31. However, having read the transcript and considered the photographs I am of the opinion that the presence of two tracks across the slope was a significant factor in the decision of the leaders of the Plaintiff’s party to step off the path. When it was put to the Plaintiff in evidence that this was a foolhardy thing to do when she could have retraced her steps she said “not at that time, no. It seemed a natural thing to follow everybody down over the bank, which is what people had obviously been doing over the weeks, months, however long the tree had been there”.
32. I agree with the learned trial judge in his assessment of this decision. He said:-
“All the persons in the Plaintiff’s party gave evidence before me, and they all accept that this was a steep bank, and that it was not possible to simply walk straight down it. It was necessary to go down very carefully sideways, and take advantage of anything available to hold on to. This must be perfectly obvious to the Plaintiff…… they all, including the Plaintiff decided that they would take the risk of going down what must have appeared to them to be a somewhat dangerous bank”.
33. He then concluded:-
“I consider that there was a greater liability on the Plaintiff as she took the decision to take the risk, which must have been an obvious one as she had another way of avoiding the accident. Her negligence was the immediate cause of her injury, although not the sole cause”.
34. It seems clear from another passage in the learned trial Judge’s decision that he would not have found the Defendant liable to the Plaintiff if he had considered her to be a licencee. He said:-
“She took a calculated risk in the knowledge that there was a danger of falling. This is the type of risk taken frequently by persons who go hill walking or walking on unsurfaced areas in forestry plantations, and of course are entirely responsible for any injury they may suffer. However, in such cases they would clearly be licencees”.
35. I agree that the nature of the risk was analogous to that undertaken to that undertaken by hill walkers. It is also clear from the evidence of Mr. Legg, one of the Plaintiff’s companions, that the party were in fact prepared to walk across unsurfaced terrain and were dressed to do so. However, their actual decision to do so at the point where the accident took place, which was taken quickly, was significantly influenced by the presence of the tracks which had been permitted to be made, and to remain on the ground, by the Defendants. They may, in my opinion, have misled the Plaintiff in altering her perception of the risk, though the course she embarked on was still obviously risky.
36. Applying the formulation already quoted of Lord Sumner in Mersey Docks and Harbour Board v. Proctor, it is clear that on the evidence the trial Judge would have been entitled to arrive to the conclusion that the Defendant in his capacity as licensor had not acted with reasonable diligence to prevent the particular area from misleading the licensee, a failure which contributed, although in part only, to the accident.
37. Accordingly I find that each party was at fault in this accident.
Degrees of fault.
38. Counsel for the Plaintiff, very realistically, confined his argument to the proposition that the apportionment was grossly disproportionate. He did not press the submission that there was no scope for any finding of contributory negligence. He relied on the well known case of O’Sullivan v. Dwyer [1971] IR 275 to the effect that “degrees of fault between the parties are not to be apportioned on the basis of the relative causative potency of their respective causative contributions to the damage, but rather on the basis of the moral blame worthiness of their respective causative contributions. However, there are limits to this since fault is not to be measured by purely subjective standards but by objective standards”.
39. This formulation was significantly qualified in a later case, Carroll v. Clare County Council [1975] IR 221, at 227. Commenting on the passage just cited, Kenny J. said:-
“I think that ‘fault’ in section 34 of the Act of 1961 means a departure from a norm by a person who, as a result of such departure, has been found to have been negligent and that ‘degrees of fault’ expresses the extent of his departure from the standard behaviour to be expected from a reasonable man or woman in the circumstances. The extent of that departure is not to be measured by moral considerations, for to do so would introduce a subjective element while the true view is that the test is objective only. It is the blame worthiness, by reference to what a reasonable man or woman would have done in the circumstances, of the contributions of the Plaintiff and Defendant to the happening of the accident which is to be the basis of the apportionment”.
40. Kenny J. also remarks, in an unconnected portion of the judgment of some relevance to this case that “it is not a principle of law that a person who maintains or permits an unusual danger must bear a higher share of fault than that attributed to a person guilty of a casual act of negligence”.
41. I agree with the learned trial judge that the Plaintiff must bear the larger share of fault in this accident. If the Defendant had simply provided access to the site, without developing any paths, I do not believe they would have been negligent at all. The Plaintiff’s action in stepping off the path when she could have retraced her steps was both the immediate and the greater fault leading to the accident. The fault committed by the Defendant was limited to that of somewhat misleading the Plaintiff as to the negotiability of the terrain. But the terrains main features continued to be obviously dangerous.
42. I would therefore attribute two thirds of the fault involved in this accident to the Plaintiff and one third to the Defendant.
Daniel Sweeney v. Denis Duggan
[1989 No. 2602P]
High Court 31st July 1991
Barron J.
31st July 1991
The plaintiff was until the accident which gave rise to the present proceedings a drilling machine operator employed by Kenmare Limeworks Ltd. at its quarry at Caher, Kenmare, County Kerry. He had been employed by the company for some ten years before his accident. Before that he had worked in other quarries. He had a take-home pay of approximately £100 a week. On the day of the accident he was drilling when the drill stuck. In his efforts to free the drill he caught his knee on a rock and found himself caught under the drill for approximately an hour. He was ultimately released by another driver who heard his cries. This accident occurred on the 18th February, 1984. He subsequently commenced proceedings against the company which were defended. The quarry continued in operation until the winter of 1984. It closed then and re-opened in March, 1985. Thereafter it remained open until November, 1986, when it closed for good. He himself was taken back after his accident and remained at work until the quarry closed. A creditor’s voluntary liquidation commenced in August, 1987, after which date the defence to the action ceased. It came on for hearing in October, 1987. The plaintiff obtained judgment for the sum of £20,866 and costs. No part of this judgment has been paid to the plaintiff though it appears that in the liquidation of the company he will receive as a preferential creditor approximately 15% of his claim.
At the date of the plaintiff’s accident the quarry employed four people. One of these was the defendant who was the quarry manager for the purposes of s. 23 of the Mines and Quarries Act, 1965. The company had an issued share capital of £18,999 of which all but one pound was in the beneficial ownership of the defendant. The remaining share was owned by the defendant’s wife. The liquidator gave evidence as to the circumstances of the company. He was unable to give a proper picture of the state of the company at the date of the accident since there had been a fire in July, 1985, in which its records as of that date had been destroyed. In August, 1987, when the company went into liquidation it had a deficiency of £73,000. Its records and accounts were well kept. Its difficulties arose from the nature of its business. It produced lime for use by farmers. This business depended upon subsidies. These however were terminated with consequential loss of customers for the company. All statutory payments had been made on behalf of the plaintiff and the plaintiff’s state benefits were in order.
The plaintiff’s claim is for loss of the judgment which he obtained in October, 1987. The manner in which the claim is pleaded is set out in the following paragraphs contained in the statement of claim:
“5. A At all material times the defendant was the designated sole manager of the said quarry under s. 23 of the Mines and Quarries Act, 1965, and thereby owed a special duty of care to the plaintiff.
5. B At all material times the company was experiencing financial difficulties such that would warrant a reasonable person, fully acquainted with its financial position, to be apprehensive that an award of substantial damages against it in a personal injuries action in respect of a serious injury brought by one of its employees, would not be met in full or in substantial part from the assets of the company.
7. At all material times the plaintiff was engaged in a dangerous and/or unsafe occupation and it was reasonably foreseeable by the defendant, the effective owner and operator of the said quarry business, that employees therein, and in particular the plaintiff, in the course of their employment would sustain personal injuries and would suffer loss and damage in respect of which the said business would be found liable to pay compensation as was the fact, as aforesaid.
8. In the circumstances at all material times the defendant had a duty of care to employees in the said business, and in particular to the plaintiff, and/or it was an express or an implied term of the plaintiff’s employment contract that, by reason of the defendant being the controller and the effective owner of the business being conducted in the name of Kenmare Limeworks Ltd. aforesaid, and accordingly as the person primarily and solely responsible for its proper conduct, management and operation, to take reasonable steps so as to ensure that the said business would be capable of paying compensation to such employees, and in particular to the plaintiff, particularly by means of an appropriate policy of insurance for such personal injuries, loss and damage as might be suffered by such employees, and in particular the plaintiff in an accident at work as aforesaid.
8. A Further and in the alternative the defendant has impliedly undertaken to ensure or impliedly warranted that any damages which the plaintiff might be awarded against the company in respect of personal injuries he sustained in and or arising out of his employment would be met by the company either from the proceeds of an appropriate employer’s liability insurance policy or otherwise.
8. B Further and in the alternative in the circumstances the defendant was under a duty to warn the plaintiff that the company did not have employer’s liability insurance and that, in the light of the company’s financial position at the time, there was a distinct possibility that any injuries the plaintiff might suffer in the quarry would not be compensated in full or substantially from the assets of the company.
9. Further or in the alternative at all material times in the circumstances as aforesaid the defendant had a duty under the Constitution to safeguard the plaintiff’s bodily integrity in and about his employment and by reason of the aforesaid to ensure that any bodily injuries suffered by the plaintiff arising out of or in the course of his employment as aforesaid would be duly compensated by or on behalf of the defendant.”
The defence as pleaded is a traverse. There is also a plea that the plaintiff’s claim is barred by reason of the provisions of s. 11, sub-s. 2 (b) of the Statute of Limitations, 1957. The plaintiff’s claim is a claim for the amount of the lost judgment. There is no plea that the personal injuries sustained by the plaintiff which gave rise to the judgment were caused by the negligence or breach of statutory duty of either his employer, the company, or the defendant. The defence being a traverse, there is no plea that the plaintiff is not entitled to succeed in the absence of proof of negligence or breach of statutory duty. However the case as presented by the parties did not raise that issue specifically and I do not propose to found my judgment in any part on that basis.
Counsel for the plaintiff based his claim upon four special factors which he submitted imposed the duties which he was seeking to establish. These are:
(1) that the defendant was quarry manager;
(2) that the company was in severe financial difficulties;
(3) that the defendant was in fact the owner and manager of the company and
(4) that the plaintiff’s employment was extra hazardous.
Counsel for the plaintiff put particular emphasis on the fact that the plaintiff’s claim was for a purely economic loss and sought to establish both foreseeability and proximity on the part of the defendant. The defendant did not contest many of his submissions. Essentially the difference between them was whether or not there could be a duty to insure arising out of a contract of employment.
In Ward v. McMaster [1988] I.R. 337 the Supreme Court considered the nature of a duty owed by a local authority to a borrower from that authority and whether or not that borrower could rely upon implied representations arising from the nature of the transaction. The plaintiff had applied to Louth County Council pursuant to the provisions of the Housing Acts for a loan to purchase a house within its administrative area. In accordance with the provisions of the relevant statutory scheme the Council obtained a report as to the value of the house but not one as to its structural condition. The loan was made and after the plaintiffs had completed the purchase with the aid of the loan, it was found that the house contained so many structural defects, most of which were concealed, that it was not habitable. It was accepted that the plaintiffs could not reasonably have been expected to have obtained their own structural survey but were entitled to assume since they had been granted a loan that the Council would have obtained a report that the house was structurally sound.
The court had to consider whether or not in those circumstances a duty of care was owed by the Council to the plaintiffs. They held that such duty was owed. In considering the test to be applied to establish a duty of care, McCarthy J. at p. 347 accepted the test as laid down by Lord Wilberforce in Anns v. Merton London Borough Council [1978] A.C. 728, at pp. 751 and 752, as follows:
“[T]he position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations where a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise . . .”
Having considered later English authorities, McCarthy J. rejected any variation of this test and said at p. 349:
“I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him.”
Having found that there existed both proximity and reasonable foreseeability, McCarthy J. concluded as follows at pp. 351 and 352:
“These two considerations are both involved in the first leg of the Annsprinciple. I do not understand it to be argued that there are considerations which ought to negative or to reduce or limit the scope of duty or the class of person to whom it is owed or the damages to which a breach of it may give rise, within the second leg of the observations of Lord Wilberforce. It follows, in my view, without entering into the question of whether or not it is ‘just and reasonable’ to impose the duty, that the duty arose from the proximity of the parties, the injury caused was reasonably foreseeable, the breach was established, and the first plaintiff was entitled to succeed.”
In two recent English cases Reid v. Rush and Tompkins Group plc [1990] 1 W.L.R. 212 and Van Oppen v. Clerk to the Bedford Charity Trustees [1990] 1 W.L.R. 235 the courts had to consider the extent of the duty of care owed by a master to a servant and by a school master to a pupil respectively. Both cases had to consider whether masters had in the particular circumstances of those cases to effect personal accident insurance to cover injury to their servant and pupil respectively.
In Reid v. Rush and Tompkins Group plc [1990] 1 W.L.R. 212, the plaintiff had been employed by the defendant in Ethiopia, a country in which there was no adequate provision to compensate those injured in road traffic accidents. While acting in the course of his employment, the plaintiff was involved in a road traffic accident in Ethiopia and sustained severe personal injury. He was unable to recover compensation. He sued his employer for damages for negligence. It was claimed that it was an implied term of his contract of employment that the employer should have taken out appropriate insurance cover to protect him against this loss or alternatively to warn him so that he could take out such insurance for himself. His action failed. Although the facts of that case differ substantially from those in the present case, the bases of the claims are essentially the same. The case was pleaded upon the basis of an implied term of the contract of employment as well as in tort. The latter duty was claimed to be a duty to take”all reasonable steps which were necessary, in the light of any special risks arising from his working in Ethiopia, properly to protect the economic welfare of the plaintiff whilst he was acting in the course of his employment, and, therefore, in particular either to provide the appropriate insurance cover or to inform the plaintiff of the special risk and advise the plaintiff himself to obtain that cover.”Several reasons are set out in the judgment of Ralph Gibson L.J. in support of the court’s decision. At p. 221 he said:
“If a servant is to have a claim in tort against his employer in respect of economic loss it must be based upon some special factor in the circumstances or in the relationship between them which justifies the extension of the scope of the duty to cover such a claim or upon a separate principle of the law of tort which imposes such a duty.”
At p. 230 he said:
“As to the duty to provide personal accident insurance at the expense of the defendant for the plaintiff, it is in my judgment impossible to hold that the scope of the duty in tort could extend so far. The legislation has not in general extended even the duty of compulsory employer’s liability insurance in respect of employment out of this country. It has not been suggested that the master is required to provide personal accident insurance in those cases where in this country his servant is exposed to the risk of suffering injury in the course of his employment through the fault of a third party who cannot pay. The common law cannot in my judgment devise such a duty which the legislature has not thought fit to impose and it could not be just or reasonable for the court to impose it.”
Again at p. 231 he said:
“To impose the duty alleged in this case would be contrary, in my judgment, to the accepted principles of our law relating to the general duty of a master to his servant.
I have had much difficulty in concluding that a general duty at common law upon a master to take care for the protection of his servant’s physical well being cannot be extended by decision of the courts to include protection for the financial well being of his servant in special circumstances where the foreseeable financial loss arises from foreseeable physical injury suffered in the course of the employment and the duty claimed would extend only to a warning of a special risk. If this view be right the only way in which an employer’s general duty of care – and I emphasise that I am referring only to the general duty of care which arises out of the relationship – will be capable of extension to cover financial loss will be by legislation, or by a contractual term, express or implied on the particular facts, or by a term which the court is able to say must be implied by law.”
In Van Oppen v. Clerk To The Bedford Charity Trustees [1990] 1 W.L.R. 235, a schoolboy had sustained severe spinal injuries during a rugby game at his school. In proceedings against the school for negligence, one of the issues raised was whether or not the school had a duty to insure its pupils against accidental injury. In his judgment at p. 251 Balcombe L.J. regarded the plaintiff’s case as depending upon the existence of “either (a) a duty to have regard to the economic welfare of its pupils arising from the relationship of school and pupil; or (b) a duty arising from an assumption by the school of specific responsibility in relation to personal accident insurance.”
He accepted an analysis of recent English cases on the law of negligence undertaken by Bingham L.J. in Caparo Industries plc v. Dickman [1989] Q.B. 653 as showing that three requirements are necessary to establish a duty of care, viz:
“(1) Foreseeability of harm;
(2) Proximity;
(3) That it must be just and reasonable to impose it.”
He then considered two further recent English cases, Banque Keyser Ullmann S.A. v. Skandia (U.K.) Insurance Co. Ltd. [1989] 3 W.L.R. 25 and Reid v. Rush and Tompkins Group plc [1990] 1 W.L.R. 212 and said at pp. 259 and 260:
“From these last two cases I derive the following principles, which are explanatory of, and a gloss upon, the general principles referred to in Caparo Industries Plc v. Dickman [1989] Q.B. 653.
(1) A pure omission, consisting of a failure to speak or act, by A resulting in economic loss to B, can give rise to a liability in negligence by A to B, provided there has on the facts been a voluntary assumption of responsibility by A, and there has been reliance on that assumption by B.
(2) Exceptionally, in some cases of pure economic loss the Court may be prepared to find the existence of a duty of care and to treat the defendant in law as having assumed a responsibility or duty to the plaintiff which is capable of giving rise to a claim for damages for such loss. Although the point is not altogether free from doubt, for the purposes of this appeal I am prepared to assume that this duty of care not to cause economic loss can exist in the exceptional case.
(3) An existing relationship between the parties which may give rise to a duty of care by one party for the physical well-being and safety of the other (e.g. master and servant), does not of itself mean that there is sufficient proximity between the parties to justify finding the existence of a duty of care not to cause economic loss.
(4) Whether a duty of care should be held to exist in a particular case must in the last resort be a question of policy to be decided by the court by reference to the principles to be deduced from the decided cases.”
In his judgment Croom-Johnson L.J. dealt with the plaintiff’s claim that it was necessary to establish the three ingredients to which I have already referred. Dealing with proximity he said at p. 266:
“In the present case there was unquestionably a proximity between Bedford School and the pupil. The school has never contended that it does not owe a duty of care to each of its pupils. The only question is, what was the scope of that duty to the plaintiff? This is clearly not the kind of case where proximity can be regarded as a synonym for duty of care.”
At p. 267 he said:
“The alleged duty was put as high as a duty on the school to take reasonable care to prevent economic loss by the pupils. Presumably that would mean economic loss, however caused, by every pupil, and would indeed be an open-ended commitment on the part of the school going much wider than any duty owed by a parent to a child. No such duty exists.”
I have referred to these two cases in considerable detail since great reliance was placed upon them by counsel. However it seems to me that they must be of very limited authority. The two tier test enunciated by Lord Wilberforce in Anns v. Merton London Borough Council [1978] A.C. 728 has no longer the authority in England which it had. The authorities differentiate between pure economic loss and other forms of loss. The statutory provisions in England are different, e.g.,there is compulsory statutory employers’ liability insurance for employees in respect of loss arising out of and in the course of their employment in Great Britain. The fair and reasonable element necessary to establish a duty of care is one which McCarthy J. in Ward v. McMaster [1988] I.R. 337 treated with reservation. Also Van Oppen v. The Clerk to the Bedford Charity Trustees [1990] 1 W.L.R. 235 was argued in the context of the acceptance by the parties that there was no general duty in English law to insure, even against negligence: see the judgment of Balcombe L.J. at page 250.
Applying the principles enunciated in Ward v. McMaster , it is necessary to consider three elements:
(1) Proximity;
(2) Foreseeability;
(3) Public Policy.
The nature of the loss is not material. Liability in negligence extends to both personal injury and economic loss suffered by reason of the defendant’s wrong: see the passage from the judgment of Henchy J. in Siney v. Corporation of Dublin [1980] I.R. 400 cited in the judgment of McCarthy J. in Ward v. McMaster [1988] I.R. 337 at page 349.
Proximity must mean the existence of a duty of care such that if the person owing the duty is careless there is likelihood that damage will be caused to the person to whom it is owed. If proximity is to arise whenever loss to another can be foreseen then it would seem that foreseeability would alone be the substantial test. In Ward v. McMaster [1988] I.R. 337 the relationship between the parties was not of itself sufficient to satisfy the test of proximity. It was held that there were special circumstances which gave rise to the duty of care in the particular case. Henchy J. said at p. 342:
“It is necessary for him [the plaintiff] to show that the relationship between him and the Council was one of proximity or neighbourhood which cast a duty on the Council to ensure that, regardless of anything left undone by the plaintiff, he would not end up as the mortgagor of a house which was not a good security for the amount of the loan. A paternalist or protective duty of that kind would not normally be imposed on a mortgagee in favour of the mortgagor, but the plaintiff was in a special position.”
In the present case foreseeability of loss is accepted and in my view correctly. However it is submitted that there is no duty at common law of the nature for which the plaintiff contends. Counsel for the defendant referred to various statutory provisions which might not otherwise have been necessary. Section 285,
sub-s. 2 (g) of the Companies Act, 1963, gives preferential rights to an employee where there is no insurance. The Mines and Quarries Act, 1965, does not include any obligation to insure. Motor insurance is a statutory code. There is no statutory insurance provided for in the Safety in Industry Acts, 1955-1980. The obligations contained in these Acts are limited to the protection of the safety and well-being of the employee. The P.R.S.I. code is aimed to protect employees. It was necessary to introduce compulsory employers’ liability insurance in England by statute.
Counsel for the plaintiff recognised the need to establish these special circumstances. He accepted that not all employers would have a duty to insure. He submitted that the defendant is liable because he is in reality the company and also because he had been appointed quarry manager. Neither of these matters is a ground for imposing liability on the defendant personally. He is in law a different person from the company and there are no circumstances from which it could be inferred that the company was a sham or should be treated as an instrument of fraud. Undoubtedly, as quarry manager the defendant was personally liable for breach of any of the statutory duties imposed upon the holder of that office. But such duties relate only to safety. There is no statutory duty of the type which the plaintiff seeks to establish.
The further basis of the plaintiff’s case is that the work upon which the plaintiff was engaged was extra hazardous and that the defendant knew that the financial state of the company was such that it could not meet an award of damages for personal injuries. The evidence of the dangerous nature of the employment was not very compelling. Obviously, quarrying is a dangerous employment; there would not be special legislation relating to it if it was not. The plaintiff was unable to adduce evidence relating to the financial status of the company at the date when it ought to have insured, if such was its duty. The test would not be its financial position at the date of the judgment but its reasonably perceived financial position on the date of the accident. It was a small company; its affairs were in order and its business failed because of outside circumstances which arose subsequently. In my view, the plaintiff has not established what he has set out to establish in this regard.
The danger to the plaintiff was not as extreme as the plaintiff contends. Even if such a duty can be imposed this was not a case in which it should be. The plaintiff’s case extends also to the existence of an obligation to warn the employee. In my view, this duty also can arise only where there are special circumstances. The plaintiff relied upon an implied term in his contract of employment. Even if such term existed, it cannot be imposed upon the defendant since he had no contract with the plaintiff.
The reality of the plaintiff’s claim is that the defendant was the person in control of the company. He can certainly have no greater liability than that of the company itself. However it does seem to me that perhaps this claim should be answered by saying that to allow it as against the defendant would in effect be depriving the defendant of his protection under company law and to nullify all the essential principles of that law. It would not be a claim which could lie in any circumstances where the employer was an individual
Finally, it seems to me that the existence of a duty upon a master to have regard for the safety and well-being of his servant cannot be extended in the absence of special circumstances, if at all, to a duty of a different kind, e.g., to have regard for his economic well-being. I would adopt the reasons given by Ralph Gibson L.J. in the passages from his judgment in Reid v. Rush and Tompkins Group plc [1990] 1 W.L.R. 212 to which I have already referred. If a duty to provide employers’ liability insurance is to be imposed, then it seems to me that it is a matter solely for the Oireachtas.
The plaintiff’s last submission is to rely upon Article 40, s. 3, sub-s. 2 of the Constitution which is:
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
In my view there is nothing in that provision to assist him. It gives him no more than a guarantee of a just law of negligence, which in the circumstances exists.
If I am wrong in the view which I have taken as to the existence of a duty to insure then it is necessary to consider the defence that the plaintiff’s claim would in any event be statute barred.
Section 11, sub-s. 2 (b) is as follows:
“An action claiming damages for negligence, nuisance or breach of duty . . . where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued.”
In Ackbar v. C.F. Green and Co. Ltd. [1975] Q.B. 582, there was a claim against insurance brokers for failure to take out particular insurance as a result of which the plaintiff was unable to recover damages from an insurer for personal injuries sustained by him. It was held that the action against the brokers did not “consist of or include damages in respect of personal injuries to any person.” At p. 588 Croom-Johnson J. said as follows:
“In the end if one asks the question here ‘What is this action all about?’ one gets the answer that it is about an alleged breach of contract by the defendants, as a result of which the plaintiff lost the chance or right to recover his loss either from the driver or from his own insurers. I do not think that the damages sought in this action consist of or include damages in respect of personal injuries. Those damages, which might have been recovered heretofore, are only the measure of the damages now claimed. Accordingly, I find that the proviso has no application and that the period of limitation is six years in this case.”
Croom-Johnson J. referred also to McGahie v. Union of Shop Distributors and Allied Workers [1966] S.L.T. 74 with approval. In that case, there was a claim by the plaintiff which arose out of a failure by the defendants to commence proceedings on her behalf within the three year limitation period for personal injuries actions. The relevant Statute of Limitations was worded in similar fashion to the English equivalent section to s. 11, sub-s. 2 (b) of the 1957 Act. It was held that the loss sustained was not a loss due to personal injury but was a loss caused by the lapse of the plaintiff’s right to sue her employers.
These two cases appear to conflict with Paterson v. Chadwick [1974] 1 W.L.R. 890 which was referred to in the judgment of Croom-Johnson J. In that case, the plaintiffs had taken an action against their former solicitors for negligence for failure to issue proceedings in time in an action for personal injuries. Discovery was sought of hospital records. It was argued that it could only be ordered in relation to a claim in respect of personal injuries. It was held that since proof of the nature and extent of the personal injuries was an essential element in the claim, discovery should be ordered.
The facts in this case are not identical to those in Ackbar v. C.F. Green and Co. Ltd. [1975] Q.B. 582. The cause of action lies in tort and not in contract. However, it can be said that the damages which are recoverable against the company are only the measure of damages against the defendant. The fact that the judgment has already been given against the company is not material since the cause of action against the defendant would have been complete at the date of the injury since the probability of loss through lack of insurance would have existed as from that date. I cannot hold however that this particular type of claim, where the manager or owner of a business is being sued, differs in substance from a claim against the business itself. Both are equally actions where the damages claimed consist of or include damages in respect of personal injuries. In these circumstances I consider that the claim would in any event have been statute barred.
For these several reasons the plaintiff is not entitled to succeed.
Colm Campbell v County Sligo Golf Club
, The Golfing Union of Ireland National Coaching Academy Limited and Kevin Le Blanc
2018/241 P
High Court [Approved]
4 June 2021
unreported
[2021] IEHC 397
Ms. Justice Bronagh O’Hanlon
June 04, 2021
JUDGMENT
Background to the Case
1. On the 28th March, 2016, the plaintiff was a spectator at a vantage between the eleventh green and the twelfth tee which was to the left of the green, observing the quarter final of the West of Ireland Amateur Golf Championship at Rosses Point Golf Club in the County of Sligo.
2. The third named defendant was playing the eleventh hole, which indicated that this was the third most difficult hole on the course. He was an elite amateur championship golfer at that time, having represented his country in that capacity abroad and, for a short time afterwards, became a professional golfer and, on this occasion, was playing off a plus 4 handicap. His shot from the tee had landed in the rough on the right hand side of the fairway. His second shot to the green, he had aimed slightly to the left. He could not see the green nor could he see the spectators, but could see the tip of the flag and was aware of the position of the flag on the green. He had used a 3 wood from his position in the rough. In broad terms, there are two main issues arising in this case, as to whether, firstly, this was a wayward shot which ought to have required the third named defendant to shout “Fore” And, secondly, whether the plaintiff was, himself, in a safe position.
The Evidence in the Case on Liability
Evidence of Mr Colm Campbell, Plaintiff
3. The plaintiff freely admitted that he and his friends were talking with each other and not watching when the third named defendant hit the ball. The importance of his evidence was that they had been at or near the vantage point beside the eleventh green for between two and two and a half hours prior to this incident. He heard no signal that the shot was being taken nor did he hear any warning. You could see a number of holes from the particular vantage point from just beside the twelfth tee box and beside the eleventh green. He confirmed that he was never told on arrival where he should stand or otherwise. He gave evidence of his prowess as a golfer and the obligations of a person before they play a shot to make sure it is safe to do so but that, in terms of his own personal safety, he felt quite happy about where he was standing. He agreed that he did not see where the ball was hit from. He was struck on the left hand side of the temple area of his head while he was looking up the eleventh fairway towards the tee box and he estimated that there were fifteen to twenty people standing at that point but that he was not watching what was happening. He put his own position as being over by a path and estimated that from where he was standing when he was hit to the green was 30 or 40 feet but that he was not a hundred percent sure about that. He agreed with the contention put to him that, for the shot to have been a wayward one, he would have had to be standing where he now says he was standing and he agreed with that. He agreed that when the third named defendant hit his shot, he could not see the green, but he could see the top of the pin on the flag and that that was 23 steps to the front and four steps from the right and that it was over to the right side of the green.
Evidence of Mr Hugh Cassidy
4. Like the plaintiff, Mr Hugh Cassidy, who also gave evidence, was a member of Murvagh Golf Club in County Donegal and he himself was a regular attendee at the very famous West of Ireland Championship. He described himself as being halfway up the length of the green or maybe short of halfway, but standing at fifteen yards, possibly twenty yards, back from the green. He did note that if you were on the fairway, you could see the crowd on the left hand side because it is higher ground and he said it was common case that the ground drops and that the whole activity seemed to be to the right side but the ground dropping obscured that view. He confirmed that there was no shout of any kind and he felt that when his friend, the plaintiff, was hit, there was a ferocious thud which he deemed to indicate a pretty serious impact and that the plaintiff began to fall and Mr Cassidy helped him onto the ground. He agreed that he was situated at the eleventh hole, which he regarded as a safe place to watch the golf come in but he did accept that, at these events, one could find a wayward shot which would present a problem and that that was just the “beast of golf”. He felt that from his account of where he was standing, he could not see how it was different to the plaintiff’s but he argued that it did not matter any way. He felt that this particular shot was 25 metres wide off the mark and went fifteen to twenty metres further on from the green. He felt that once a person hit a shot, a good golfer would know instinctively whether the shot was a good or bad one and he said if such a golfer, having hit the shot knowing that there were people to the left of the green, did not shout “Fore”, it is a breach of etiquette and the responsibility is on the golfer to ensure that he is familiar with and complies with the rules of golf and rules of the golf club and that they may exercise care in all matters relating to the playing of the game.
Points to Note regarding the Engineering Evidence
5. One item to note is that Dr Jordan’s, the plaintiff’s engineer, photographs were admitted but he himself did not give evidence. Mr Ross Mooney, engineer, called on behalf of the third named defendant was also involved in the joint inspection and he indicated that there had been a dispute at the joint inspection regarding the point at which the first shot of the third named defendant was hit from. He identified this location further down to the right on the embankment closer to the bottom of it. He referred to a hatched area in green and yellow as representing the location identified by the plaintiff where the drive landed, i.e. the first shot. Mr Mooney’s evidence was that, in fact, it landed further down to the right on the embankment, closer to the tee box, but that the distance was not of great relevance, rather, the relevance lay in the position on the embankment because that is what affects the line of sight. The third named defendant was of the view that he had taken the shot further down this patch of rough at the bottom of the embankment but not quite as far over as the tenth fairway and he disputed that that where he stood was the same location as identified in the hatched area on photograph 4 of the plaintiff’s engineer’s photographs. Photograph 6 of Mr Mooney’s photographs identified the actual spot from which the third named defendant said he took his shot and his evidence was that he took the shot from where the photograph is taken, not from where the marker is and that the distance there would be 200 metres. This Court accepted the evidence of Mr Mooney, engineer, and of the third named defendant.
Evidence of Mr Enda Lonergan, called on behalf of the First and Second Named Defendants
6. This witness gave evidence in his capacity as an executive officer of Connaught Golf with the Golfing Union of Ireland. Mr Enda Lonergan gave evidence on behalf of the first and second named defendants. Mr Lonergan described the vantage point as elevated and that people just generally do not walk and, when shown a photograph marking where the plaintiff said he was, he said he said that, where he was standing was a little distance away from where he would traditionally be used to seeing people at such a vantage point and he agreed that the plaintiff was standing closer to the green and had the potential to be closer to the area of play as people were coming up along the eleventh. He said he would be concerned about people standing there and that the terrain was such that it is a golf hole, that you do not want to miss on the right hand side so that an approach from any distance would always favour a line probably just inside on the green side, between the bunker and the green on the left and he said he would not personally stand where the plaintiff was. He described an amateur body such as the Association and their priority was to arrange the tournament and players and not to control the access to the facility, that that was not within their jurisdiction to manage and that, as tournament director, his job was to manage the event and, in effect, manage the players’ entry, their adherence to the rules, time schedules, starting times and to process results and that it did not go beyond that boundary. His employer, the Golfing Union of Ireland, had noted that there was no breach of etiquette reported to the championship committee.
7. Regarding the type of spectator who usually attend this championship, his evidence was that these are golfers themselves and are usually knowledgeable and that they know their game, especially at this championship and that the same spectators come back every year and know the course better than he does and it was pretty much the situation that they look after themselves.
8. He described the role of the referee as being to watch the match itself, with no role regarding spectators and that there were no stewards, that these are amateur championships that do not have the resources for stewarding. His evidence was that there was a profit of €83 when the accounts were done at the end of this championship.
9. He outlined the responsibility of the golfer for his own ball and, also, to make sure not to endanger anybody, not to hit anybody with the ball. If he hit a ball which might imperil a person in front of him, he should shout “Fore”.
10. Of particular note, was his evidence that from the eleventh tee box up to the eleventh green there is a change in elevation, you are climbing uphill and that is why people do not walk there and that the area where the yellow and green stripes are, the hatched area, that if one were there, it would certainly be lower than the green and one may or may not be obscured in view depending on the shape of the dunes. He said that Mr Cassidy was probably fifteen to twenty yards to the left of the green as he looked at it. He said he himself was not a very competent golfer so for him to take 3 wood from the rough he said would be a high risk shot because his own skillset is not near the skillset of a player who can make it to the last eight in the West of Ireland Championship. He respected Mr Kearney’s opinion that it was a high risk shot. This witness said that it was an inherent part of the game that, if a person hits a shot that they think is not going where it is supposed to go or where they want it go, they should be shouting “Fore”. Under re-examination, this witness confirmed that all amateur tournaments in the country are run and administered in exactly the same way by the Golfing Union of Ireland at an amateur, as opposed to a professional event. This Court accepted the evidence of this witness.
Evidence of Mr Ken Kearney of Ken Kearney Golf Design
11. Mr Ken Kearney was called on behalf of the first and second Named Defendants and runs a business called Ken Kearney Golf Design and confirmed that he had played golf to a high level on the amateur circuit for a fifteen-year period, including both the course and championship in question. His expertise in this case is in the area of golf design and the implications of that for this incident. He said that it was accepted and agreed that the third named defendant’s tee shot missed the fairway and landed in the rough between the eleventh fairway and the tenth fairway. He said his next shot was played up from that point towards the green and he said that the use of a 3 wood in the rough into a breeze where the third named defendant identified the ball was played from looked to him like a pretty risky shot in what was a really difficult golf hole with a lot of trouble on the right hand side, so you had to always err to the left hand side as you could easily miss the shot to the right because of the long and heavy grasses and that there was that element of risk to the shot for sure.
12. This witness also made the point that a person knowledgeable in golf with a reasonable knowledge of the course would be expected to stand appropriately in the correct location. The third named defendant’s contention was that he did not go near the fairway at all, rather, he walked up the left side of the rough because his ball had gone to the right and Mr Kearney gave evidence that the third named defendant would have a limited view from there, he would have been able to see the green or the flag but, because of the nature of the ground and because it rises in front of him, he may have had a limited view. He pointed out that, in the location to which the plaintiff had indicated, one would not have a view of the green but you would have a view of the right side of the green, not the left side. He said it is just rough links type grass and he had examined it on the 11th March, 2019, where he said that the plaintiff had pointed out the distance he was away from the edge of the green and had been measured on the day to scale at 25 metres. Although it was put to him that Mr Cassidy felt that the plaintiff had been closer to the green, although he had not measured it, this witness thought that as you get closer to the green, it is obviously more dangerous because that is where people are trying to strike the ball towards. He thought that the drive would have gone 225 metres and that the ball was obviously on its way down from the sky when it hit the plaintiff who is six feet tall and that, had it not struck him, it would have gone fifteen to twenty yards further on. He agreed that if you have a blind spot, you do not have to shout “Fore” and he agreed that this area was a blind shot and that there was nobody in front in danger and he clarified his understanding of the term high risk shot as meaning that, because it was particularly blind from the rough into the wind into a tough green, from a tough lie, there was an element of high risk which meant that the player may not have been able to get the ball up onto the green and that he may have lost the hole and that he did not mean this to be interpreted as a high risk for spectators and he felt that the third named defendant did not break any of the rules. By implication, he felt that a person standing in the bailout, a person such as the plaintiff familiar with golf, ought not to stand there because that was where the second shots of any player could land and he made the point that a person golfing does not have to shout “Fore” if they do not feel that somebody might be in danger.
13. This witness did, however, accept that the golfer is responsible for his ball and that it is reasonable and fair that the law should require that he be careful that it does not cause injury to others, although he did agree that this was a blind shot and said that there was nobody in front. He also agreed that the third named defendant did not break any of the rules.
14. He accepted the point that, immediately after a golfer makes his shot, they would know whether or not it is going too far and that he does not shout “Fore”, knowing that there are people to the left of the green, that that is a breach of golf etiquette and that there is a responsibility on the golfer to ensure that he is familiar with and complies with the rules of golf and of the golf club and that they must exercise care in all matters relating to the playing of the game.
Evidence of Mr Ross Mooney called on behalf of the Third Named Defendant
15. This witness confirmed his engineering degree qualifications and science degree and that he is a member of Engineers Ireland and has ten years’ experience doing court reports. At the joint inspection, one of the issues in dispute was the position from which the third named defendant’s drive or first shot. This was identified as a location further to the right down the embankment closer to the bottom of the embankment. The hatched area in green and yellow was indicated to have represented the location identified by the plaintiff where the ball landed the drive, i.e. the first shot. His evidence was that further down to the right down the embankment, closer to the tee box was the position but that the distance is not of great relevance, that the real relevance is the position on the embankment because that is what affects the line of sight. He said the plaintiff reckoned that the shot was taken from the edge of the eleventh fairway and the position of the third named defendant was that he took it further down this patch of rough at the bottom of the embankment but not quite as far over as the tenth fairway. The third named defendant disputed that that where he stood was the same location as identified in the hatched area on photograph 4 of the plaintiff’s engineer’s photographs.
16. He then turned to photograph 5 and he said it showed the position closer to where the third named defendant took his shot, that it was further back and there were people on the left side and that is the location identified by the plaintiff. The location identified by the third named defendant was that slightly to the right of that from where he took the shot, not as far up but just there at the guide that it was to the right. Photograph 6 of his own photographs identifies the actual spot from which the third named defendant says he took the shot and that the third named defendant’s evidence will be that he took the shot from where the photograph is taken, not from where the marker is and that the distance there would be 200 metres. He said the third named defendant does not have a view of the green but has a slight view of the right hand side of the green and he thought of the pin of the flag itself, rather than the green if the flag is raised up above, then left of that he does not have any view and the plaintiff was standing to the left of the green and, therefore, the third named defendant does not have any view of any of that from his position.
17. With regard to photograph 13, the witness confirmed that with regard to the three exits marked by Dr Jordan, engineer for the plaintiff, he said they would equate with the photograph and that it was not too far off where the exit was indicated and he marked it close to where the plaintiff marked his X but that a little further off the green. The engineer’s X is the smallest one of all, level with the plaintiff’s X but a little further away from the green itself. Mr Mooney said that there may have been a misunderstanding in relation to that aspect of the inspection but that he thought the shot was taken from further down, he said that the line of sight from either direction means you cannot see the green, that there is very little difference between the photographs, a question of zoom level on the camera and that Mr Kearney could have taken a closer shot than his where he was standing a bit further back. With reference to the cross-examination of the plaintiff where it was put to him that the fairway was described as a manicured or semi-manicured area just off the tenth fairway but Mr Mooney said he would not describe it as manicured and he gave the measurement where the plaintiff was found on the ground as 35 metres. He was asked did the ball not land 23 metres to the left of the green on the plaintiff’s head. He disputed that and he said there was no dispute on the day of the joint inspection when he put the measuring tape down in that location. He agreed that there had not been any dispute on that point on the day. A discrepancy or a point of dispute did appear between Mr Kearney and Mr Mooney. According to Mr Mooney, there was not a great deal in it because he said that from the line of sight from either direction, you cannot see the green and Mr Mooney said that it could be a question of zoom level on the camera and that Mr Mooney could have taken a closer shot in his photograph than his view from where he was standing which was a bit further back.
Evidence of Mr James Mooney, Referee
18. The evidence of Mr James Mooney, referee, becomes particularly important at this point. He had taken up golf himself in 2002 and had reached a handicap of 10 and he played at club level at Boyle Golf Club, County Roscommon, and had been involved with the GUI since October, 2005 and, when he was elected to the Connaught branch of the Golfing Union of Ireland and he was an ordinary delegate up to 2006 and that he then attended the R&A Rule School in Edinburgh, or the Royal & Ancient, and he said that he did a course to become a level 3 rules official which qualifies him to referee and to do the rules at Golfing Union of Ireland competitions at all levels and gave evidence of his extensive experience in that role.
19. He described this competition as one of the six top competitions in Ireland for elite golfers. He had walked up to the ball which had been pointed out to him and, with reference to the plaintiff’s photograph 2, he said the ball was not in that hatched area. He marked in red in photograph 6 where he thought the ball landed and he described it as manicured rough and it was not regular because there were little hillocks and, past the hillocks, there was prepared rough. He had seen the third named defendant strike the ball and believed it to have been a fine strike. He did not shout “Fore” nor did his caddy, so he himself, therefore, did not follow the flight of the ball. He had taken it for granted that the shot was OK and he proceeded to walk to the second player. He said, from where the third named defendant was standing, you cannot see the green but you could see the top of the flag and the flag was 22 paces onto the green and four paces to the right. He noted a crowd lying around a man on the ground and that that man was Mr Campbell, although he was not known to him. He noted the position of the third named defendant’s ball at that stage as being just off the green and he marked that in photograph 10 with the words “JM” on the photograph to show where he thought the plaintiff was found when he came up onto the green. He said that his estimate was that the plaintiff was a good fifteen to twenty paces away. His evidence was that a golfer should shout “Fore” if he believes he hit a wayward shot that he knows might endanger other people on the course whether that other person or spectator or other, that there was no obligation to shout “Fore” if the shot was not wayward or if the player did not think there was a danger and he said there was no report of breach of etiquette by the third named defendant. He marked where the ball landed as being right beside where the plaintiff was hit and lying on the ground being attended to and, again, he marked the plaintiff on the ground beside the green just beyond the bunker, ten to fifteen pace off the green.
Evidence of Mr Jude O’Reilly, Caddy to the Third Named Defendant
20. Mr Jude O’Reilly, who was caddy to the third named defendant on the day in question, gave evidence of his extensive experience in that role and said that the choice of a 3 wood between himself and the third named defendant as the safest option they had from the lie and the best option to get as close to within the area which they would deem to have been a good outcome. He pointed out that they were at a considerably lower level, six to eight metres below the level of the green, and that he could just see the mound in front and that the shot was a good one, straight and on the intended line and that he realised that the ball was just on the fringe, just off the edge of the green’s surface and that, looking at photograph 10, it probably gave the closest impression as to where the plaintiff was, beyond two sand bunkers on the left side, on the edge of what would have been a grass bunker, just beyond that and he marked “C” for caddy beside it and that he did not see anything on the tee box while watching the shot being taken, on the tee box or on the second shot. He disagreed with Mr Kearney in that he felt that this was a low risk shot from a golfing point of view and that he knew this course very well and his role is to give advice or recommendation to the player. He did agree that the ball was airborne when it struck the plaintiff on the head and he said that, depending on one’s level of experience in golf, he believed some golfers would take this shot as it was taken onto the green in question using a 3 or 4 iron index 3 into the green with people standing beside it just on the bunker with ten people, for example, as was put to him.
Evidence of the Third Named Defendant
21. He described finding his ball closer to the tenth fairway than the eleventh. He described the lie as fine and that, regarding club selection, they had calculated the distance, added the wind and slope factors going uphill and got a distance for a 3 wood to get up to the green and he said he struck the ball and it went on the intended line. They both thought it was 200 to 220 yards uphill so that they would have been adding ten yards for the uphill and then into the wind which he thought was 25 kilometres an hour on the day in question and, for every kilometre an hour wind, they added one and a half yards extra and they said they were looking at 260 to 270 yards at that stage with all factors in and he felt they picked a 3 wood as the only option. He said he called “Fore” many times if his shot was going off target or was going to hit someone or if there is a different golf hole where someone might be playing, but he said he could not see anything up there to call “Fore” to as there were no spectators watching at that stage and he presumed it was empty. This witness said that his intention was with the particular shot to land it roughly in the area of the first bunker to the right, just left of that, and for the ball to end up in an area just to the left hand side of the green beside the second bunker on the left. He said that had he been aware that there were people to the left of the green and that if his ball was heading towards people to the left, he would have shouted “Fore” but, unfortunately, he was not aware that there were people standing so close to the green.
22. This witness was most impressive, understated but very honest and very credible. He explained that had he thought his ball was going to another hole, where there might have been other players, that would, of course, require a shout of “Fore” as all golfers know that if a ball is going to another hole, not their hole, you should shout “Fore” just in case there was another golfer in the hole. He said that meant that in general that was the rule but it did not mean that it applied to this particular situation. He said he and his caddy were both of the view that it was not possible to see where the shot was going but they had a yardage book and they were very similar to the pictures and that he had 40 seconds to hit the shot as well so he had to be very careful and he took a look at the yardage book, got the intended line and actually hit the ball along the intended line and they were happy with this.
The Legal Submissions
(1) The Plaintiff’s Legal Submissions
23. In the submission made on behalf of the plaintiff he noted that there were no stewards to lead them to the vantage point or to tell them where to stand and, had he been directed to move elsewhere, he would have done so. He was struck by a golf ball and suffered numerous sequelae with problems ongoing. The plaintiff’s contention is that all three parties were liable for the damage caused to him and that they had a duty of care towards the spectators, which they failed to fulfil. The contention is that, under the principles of an occupier’s liability with reference to McCarthy v. Kavanagh[2018] IEHC 101, he was owed a duty of reasonable care.
24. It is argued on behalf of the plaintiff that the organiser must exercise a duty of reasonable care towards the spectators of their events and that they should have been able to recognise that certain areas would be hazardous and it would be incumbent upon the organisers to direct spectators away from viewing events from hazardous areas. It is argued that there should have been a fence around the vantage point to stop errant shots or any signs which would warn the spectators of the danger to them while standing there. Reference in that regard is made to Murphy v. County Galway Motor Club[2011] IEHC 135. Evidence of a sign was found in the Scottish case of Phee v. Gordon[2013] CSIH 18 (“Phee”) to go towards altering liability as there would be a likelihood of changing the reaction and awareness of those to whom it was addressed. It is argued that one is commonly used and that the shot attempted by the golfer was also a common shot and would have been expected and there could have been a chance of the vantage being a vulnerable spot for any errant shots. It is argued that, should the golfer be found to have a duty to shout “Fore”, which is a common warning shout in the rules of golf, after he made his shot, then the liability of the organisers would certainly be reduced and the golfer should be held liable. Reference is made to Brennan v. Trundle (High Court, 11th August, 2014) (“Trundle”) where Peart J. decided as follows:-
“The golfer is responsible for his ball and it is reasonable and fair that the law should require that he be careful that it does not cause injury to others.”
It is argued that the golfer ought to have checked the line of trajectory of his shot and that he should have checked further down the fairway which would have made him able to see the vantage clearly and he would have become aware of the spectators and the danger they faced. Mr Kearney had described this as a very difficult shot with a high degree for any ball becoming a “ flier ”. In accordance with the decision in Phee, this would not necessarily remove all liability from the golfer but would have been evidence towards reducing same. It was negligent in Trundle not to do so and it could be considered so here even if the likelihood of the injury was quite remote as occurred in Pearson v. Lightning (1st April, 1998). It was pointed out that, in Phee, “the level of duty of care towards those on the golf course is not to be affected by their level of knowledge of golf ”. With reference to Phee (paras. 23-24), this viewed the decisions on liability as very fact specific with reference to the game of golf.
Legal Submissions on behalf of the First and Second Named Defendants
25. The first and second named defendants’ submissions show reliance on Weir-Rodgers v. SF Trust Ltd[2005] 1 ILRM 471 (“Weir”) and, with reference to s. 4(2) of the 1991 Act, with particular reference to (e), (f) and (g) in that section:-
“(e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises, and the degree of the danger, of so doing;
(f) the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity;
(g) the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;”
The organisers argue with reference to these three sections, in particular, that they could not be held to have been negligent in their organisation of the amateur competition which would be viewed by those who are knowledgeable of the game of golf. It would be overly onerous to require signs, fencing and stewardship for the entirety of the amateur competition where stewards usually only appear in the final stages of an amateur competition.
26. It is further argued that even if the court were to decide that the plaintiff were a visitor under the 1991 Act, then the organisers would still not have breached their duty of reasonable care due to a lack of stewards, signs and fencing. In this case, it was stressed by more than one witness that the plaintiff and other attendees were all people familiar with the game of golf and then they should have to be able to exercise self-care to avoid the risk posed to them from the danger of errant shots and it would not be reasonable to require stewardship for amateur competitions all the way along. The point is further made with reference to McMahon v. Dear[2014] GWD 22-421 that the absence of any signage could not be indicative of removing liability as it was impossible to effectively know what the reaction of a person would be to any additional information being included on signage at a golf course.
27. The organisers argue that they are in no way liable for the accident and that they successfully fulfilled their duty of care towards the plaintiff by not having reckless disregard for their safety. The said organisers took the pragmatic approach that, should they be found liable for the accident, then they would accept that they had to share a level of whatever quantum is decided based on the medical evidence put forward by the plaintiff’s experts without prejudice to their contention that they should not be found liable.
(2) The Third Named Defendant’s Submissions
28. These are to the effect that the said defendant had fulfilled a duty of reasonable care and could not have foreseen the injury, quantum of damages and the liability of the organisers in terms of liability being a stronger case against them. No distinction was to be made in McMahon as between a professional referee and a spectator, as in this case. Lord Jones indicated that both categories of person would be treated as the same so that allows reference to that decision in this case. In McMahon, his Lordship decided that it would be unreasonable to require the defendant to disrupt the ordinary course of play to walk down the green and check the area in front of him for fear of hypothetical people (para. 223). In the McMahon case, there was not an immediate duty on the golfer to shout “Fore” and the position was deemed to be that of something which a golfer must assess for himself or herself in the circumstances as they arise on the basis that you can only assess what you can see. In the McMahon decision, Lord Jones stated that the referee (and, by extension, spectators) accepted the risk that could come about by attending the golf competition, that the errant shot striking them was a real possibility, saying at para. 233:-
“In summary, the Defender played his second shot in the ordinary course of play. The danger of the pursuer being hit by a shot was a risk incidental to the competition which was accepted by the pursuer. The injury sustained by the pursuer was not caused by an error of judgment on the part of the defender that a reasonable competitor being a reasonable man of the sporting world would not have made.”
In the submissions, this is applied to this case in that the third named defendant, his caddy, Mr Jude O’Reilly, and Mr Hugh Cassidy, from the vantage point, on all reckoned the shot not to be an errant one. They believed that the shot followed a good trajectory and, while it was overshot, it was not extremely so in their opinion so as to require a shouting of “Fore”. They contest that the plaintiff was not standing on the higher vantage point but was, instead, standing in the bailout area of the course and this is a difference of being 21 metres from the green and not the 35 to 40 metres which was the distance from the vantage point to the green. The third named defendant also rejects the application of Trundle distinguishing it on the basis that, in Trundle, the plaintiff was cordoned off standing on a veranda which was fully off the course. By contrast, the plaintiff in this case was standing in an area which would be considered to be part of the course, then the duty of self-care of the plaintiff was much greater and the golfer should not be held to the level of liability enunciated in Trundle. If any liability is to be attached, they argue that it should be weighted against the first and second named defendants for not organising a safer viewing experience for the spectators and referred to the apportionment of claim 75% as against the organiser and 25% as against the competitor in Murphy. The third named defendant maintains that, should the arguments against liability fail, that the lion’s share of damages should be paid by the first and second named defendants, the organisers, for not creating a safe environment in which the spectators might have watched the competition.
Submissions made by the Parties on 2nd March, 2021
29. Further oral submissions were invited in answer to the written submissions filed by each of the parties and these oral submissions were heard on the 2nd March, 2021. On behalf of the first and second named defendants, the court was urged to deem the plaintiff a recreational user on the basis that, in Weir in relation to the provisions of the Occupiers’ Liability Act, 1995, the Supreme Court held that not only was the duty owed to a recreational user (or trespasser being the same duty in the Act), of lessor stricture upon the occupier than the “ ordinary duty of reasonable care ” but that it might well be, therefore, that the liability is something more than what might be described as “ gross negligence ” (p. 477). It is carefully pointed out in the written submissions in relation to that case that Geoghegan J. (as he then was) did not express a definitive view on whether the duty not to act with reckless disregard was or was not higher than gross negligence, but it is clear from that case that the failure to erect a warning sign pertaining to a dangerous cliff edge did not amount to acting with reckless disregard; and, in that case, the court held that, even on the lessor duty of reasonable care, the occupier would not have been negligent given the nature of the land – sea cliffs, the danger was obvious and did not require a sign. Applying that logic to the within proceedings, Rosses Point, it is argued, could not be held to be acting with reckless disregard in not having stewards positioned at various locations around the course or having areas of the course specifically roped off. Reference and reliance was made on Mr Lonergan’s evidence (transcript Day 2, p. 37, 127) when he stated that, where there was golf enthusiasts knowledgeable as to the risks involved and knew where to stand and were, to some extent, self-regulating and self-policing spectators.
30. By way of amplification on the written submissions of the first and second named defendants, it is argued at para. 2, p. 9, para. 5.11 that even if the plaintiff were a visitor under the Act and owed the common duty of care, it is submitted that there was no breach in circumstances where there is a duty on the plaintiff to take account of his own safety and it was reasonable in the particular circumstances here for Rosses Point to avail of that requirement in circumstances where not just the plaintiff but all spectators were knowledgeable of the game of golf and with nowhere to stand and would reasonably be expected to take care of their own safety accordingly. The oral submissions have urged upon the court that the evidence does not support a finding in negligence against the first and/or second named defendants. It is further argued that, including Mr Cassidy, there were five witnesses who did not criticise the first or second named defendants and that, in all of the circumstances, there is no evidential basis for a finding in negligence against them.
31. Counsel for the plaintiff relies on McMahon and refers to para. 164 which summarises the facts. It is argued that here the evidence is consistent with that in being a similar situation because the third named defendant could only see the top of the flag and that the aim was not at the green but into an area the third named defendant could not see where people tended to congregate and reference is made to the description of Peart J., in Trundle, where he described the golf ball as a dangerous missile travelling at speed in that case.
32. Reference was made in the oral submissions to Day 3 of the transcript, paras. 91 and 92, where the intention was stated to be to hit the ball away from the green, not at the flag, and p. 94 which referred to the presumption that it was empty out there and further best practice and duty of care are referred to (p. 229) and it is stressed that neither did the defendant nor the caddy either took the trouble to go walk up and look before the shot was taken nor was there any shout in advance or after the shot.
33. The third named defendant’s oral submissions referred to the rules of golf and the plaintiff as spectator and that the third named defendant should not expect him to do the job of others. Reliance again in these oral submissions was to the fact that, in Trundle, the plaintiff was clearly off limits on a balcony which distinguishes it from this set of circumstances. The referee is referred to and the caddy as giving no evidence that there was going to be a danger at that point.
34. While the plaintiff argues in these oral submissions that McMahon is on all fours with his case, he stressed that the caddy did not even look and see what was above and that is with reference to Day 3, p. 60, and the plaintiff argues that the recreational user is owed a separate duty with reference to p. 212 as set out in McMahon
Further Submissions invited by the Court which were heard on the 2nd March, 2021
35. Further submissions on behalf of the first named defendant stressed the contention that the plaintiff in this case was a recreational user and that, accordingly, the law provides that the duty on behalf of the first and second named defendants is obviously much less strict and is not the duty of the reasonable care, rather the duty not to injury intentionally and, indeed, a duty not to act with wanton disregard.
36. Reference was made to what was noted by Geoghegan J. (as he then was) in the celebrated Weir case where he contended that it was really probably something close to gross negligence which was envisaged and it was submitted that there has been no evidence to suggest a finding of that kind in this case as against the first and second named defendants.
37. It is strongly stressed on behalf of the first and second named defendants that the evidence in this case does not support a finding against the first and second named defendants and a close examination of the evidence adduced by the plaintiff and the third named defendant shows no evidence supportive of any exposure on the part of the first and second named defendants. It is pointed out that neither Mr Campbell, the plaintiff, his friend, Mr Cassidy, the third named defendant, Mr Le Blanc and Mr O’Reilly, the caddy, and the two gentlemen, Mr Mooney, referee, and Mr Mooney, engineer, called on behalf of the third named defendant that one would scan the transcript in vain to find a single criticism of the first and second named defendants arrangements that they are simply not there. Counsel stressed the importance and paramountcy of the evidence in any case and in this case and said that submissions then cannot be made even in a lukewarm way as against or independently of the evidence.
38. Counsel on behalf of the plaintiff noted that the third named defendant’s submission placed great emphasis on McMahon, a Scottish case, with particular reference to para. 164 which summarises the factual position in that case and, in particular, the position which faced the golfer in question as he was addressing the shot:-
“When we looked down towards the green from where the ball had landed after his tee shot, the defendant could see that everything was clear on the right side of his intended shot and that there was a lone golf cart sitting on the left side where was marked C on appendix 3. It was in the area of “Gorse A”. The defendant could see the top third of the cart, the roof and some of the windscreen and some of the top of the seating area. Behind the cart was a background of gorse in the distance, “Gorse C”. When he saw the golf cart, the defendant visually checked around that area to see whether there were people in the bushes. He looked around the golf cart itself and there was nobody present. To the left of the golf cart, as marked on appendix 3 there is a mound, then the green. The defendant saw no one around the mound. There was no one on the green, the previous group having left.”
Counsel referred to that situation where the defendant could see the green, the fairway, the mound and a golf cart. Having seen a golf cart, he took care to check whether anyone was in the vicinity of the golf cart. He took some time to do that and, having satisfied himself that there was no one at the golf cart, or on the green, or on the fairway, he then began to take his shot. He began his stroke and did not look up until after he hit the ball, by which point it was too late and it is pointed out that this is significantly different to the factual situation in this case where the evidence is consistent, it is argued, that the third named defendant could not see the green, could not see the fairway and could not see the area he was hitting the ball into. The most he could see was the top of the flag which, it is pointed out, was irrelevant as the court had heard. He was not either aiming at the flag or the green and his caddy gave evidence to this court that no golfer that he had caddied for would have aimed at the green from where the ball was. What he was pointed out as doing was taking a shot open to him from a difficult lie, into an area he could not see and he was doing this during a golf tournament, and we have heard that it was a well-attended and popular golf tournament and he was aiming towards an area where people tend to congregate. The plaintiff’s counsel felt that the precise location where Mr Campbell was standing is largely irrelevant and he relies on Peart J.’s comment in Trundle, that it was very clear that, when you are a golfer, you are dealing with a dangerous missile travelling at speed and you have to have a responsibility for that. Counsel for the plaintiff then refers to Day 3, pp. 91 and 92 and the evidence of the third named defendant:-
“…I am not a robot so that I can’t hit it to an exact spot, Judge, but our intention was to land it roughly in the area of the first bunker on the right, just left of that and for the ball to end up in an area, just the left hand side of the green beside the second bunker on the left. That was out intention.”
And he further answers:-
“The further the shot is the harder it is to get the right end result that you exactly want. When you are playing the numbers game in golf which we do you can only go off your numbers and hope for the best after that.”
He accepted at p. 94:-
“Yeah. If I was aware that there was people to the left of the green and my ball was heading towards people that were left of the green in hole 11, Judge I would have shouted Fore but unfortunately I wasn’t aware that there was people standing so close to the green.”
Counsel points out that this is significantly different from the case relied on by the third named defendant. Counsel points out that in McMahon, the golfer had looked carefully and then took his shot but that, in this case, Mr Le Blanc did not look. His caddy did not look and he said that a key point is that there were multiple opportunities to do so had they walked up the fairway, they could have walked up to the mound and had a look, and his caddy gave evidence that the practice was that, on some occasions, people shout “Fore” in advance of hitting into the green if they think people might be up there but that this was not done here so, having not looked, they did not shout in advance of the shot or shout after the shot and anyone of those three easy steps would have averted the danger in this case and it is argued that this was a foreseeable danger to the plaintiff and people standing in that vicinity.
39. Counsel on behalf of the third named defendant replied that the golfer in this case had a certain amount of time to hit his golf shots in a competitive environment and that to expect him to go and check to do the job of others was ridiculous. Counsel said it was pushing the bounds of it if he had to go and check where in play on the course, not an off or a skewed shot, on the course of play it is safe to hit a shot. Because he refers to Peart J.’s decision (as he then was) in the old Connaught case, he said the plaintiff is up on the balcony and effectively off limits and anyone would know that it was a crazy shot to hit someone who was off the course.
40. Counsel reiterated that this was a competitive competition where you have need to shout “Fore” if and only if you feel that there is somebody who might be in danger of your shot and that leads you to the point where, if you hit an errant shot, in that regard, he says the court is being asked to decide that it was an errant shot because the plaintiff placed himself in a different location to where others were.
41. It was further pointed out on behalf of the third named defendant that, in the pleadings, his shot was criticised even though the evidence goes towards a description of a shot which cannot be criticised and this is in circumstances where the plaintiff did not see the shot at all and was not looking, nor did his witness, Mr Cassidy, actually see it. Independent evidence of an independent referee was that this was a fine shot and that there were no concerns from those who were behind the shot, including the caddy who is an expert and the referee that there was going to be a danger for anyone up in the area concerned. Counsel stressed the time limit which Mr Le Blanc had to hit the shot as 40 seconds and said nobody disagreed with that and he said that this was a competitive round of golf and the plaintiff was struck by a golf ball by a competitor in around where the plaintiff should not have been standing, effectively. He said that this is because he was hit by a golf ball on the course beside the green in an area where they say they are entitled to hit the ball without being dragged into court about it.
42. The plaintiff countered saying that the pleadings under para. 15 of the particulars against the third named defendant include acting with reckless disregard, failing to have adequate regard for the safety of the plaintiff and failing to warn spectators of dangers which the third named defendant was or ought to have been aware. It is further pointed out that there is no excuse as to lack of time, that case is not made by the third named defendant and it is pointed out that someone could have then gone behind the golf cart while his back was turned on the way back even if he had walked up but that it is not the same situation here at all.
43. In summary, the plaintiff’s counsel did accept the contention on behalf of the first and second named defendants that he was a recreational user but the plaintiff relies more on the common law duty of care and contends that the plaintiff was owed a separate duty as someone who had attended an event organised by the first and second named defendants. It was pointed out that the claim against the first and second named defendants only arises if the claim against the third named defendant is unsuccessful and, if the third named defendant was negligent, then that was a risk that the first and second named defendants could not have been expected to guard against.
Findings of Fact
44. The evidence of Mr Enda Lonergan called on behalf of the first and second named defendants is very important in that he sets out the various responsibilities of those concerned. He agreed that the plaintiff was situated at the eleventh hole which he regarded as a safe place to watch the golf but he did accept that, at these events, one could find a wayward shot which would present a problem and that that was just the beast of golf. He did not put any particular significance on the particular spot on which the plaintiff stood. He said that the shot was 25 metres wide off the mark and went fifteen to twenty metres further on from the green.
45. He set out the etiquette of golf and the responsibility of the golfer who, having hit a shot knowing that there were people to the left of the green that, if they did not shout “Fore”, was in breach of etiquette and the responsibility is on the golfer to ensure that he is familiar with and complies with the rules of golf and rules of the golf club and they must exercise care in all matters regarding playing of the game. He said that he personally would not stand where the plaintiff was, that the approach would always favour a line probably just inside on the green side, right hand side of the bunker on the left and he said he would not personally stand where the plaintiff was.
46. He went on to describe the priority, from the Association’s point of view, was to organise the tournament and players and not to control the access to the facility nor was it in their jurisdiction to manage that. As tournament director, his job was to manage the event, the player’s entry, their adherence to the rules, time schedules, starting times and to process results and that it did not go beyond that boundary and he noted that no breach of etiquette had been reported to the Championship Committee. He noted a profit of €83 when the accounts were done at the end of that particular championship. He stressed that this was an amateur championship and that all such championships were organised by the Golfing Union of Ireland in the same way.
47. Turning to the evidence of Mr James Mooney, referee, he marked “JM” on the photograph to show where he thought the plaintiff was found when he came upon the green and his estimate was that the plaintiff was a good fifteen to twenty paces away. He reiterated the rule regarding the shouting of “Fore” if a golfer believes he hit a wayward shot and that he knows that it might endanger other people or a spectator but he pointed out the rules that there is no obligation to shout “Fore” if the shot was not wayward or if the player did not think that there was a danger and he said there was no report of breach of etiquette by the third named defendant. He marked the ball as having landed right beside where the plaintiff was hit and lying on the ground and marked where the plaintiff was lying on the ground beside the green just beyond the bunker, ten to fifteen paces off the green.
48. The court then looked at the evidence again of the third named defendant, remembering that this is an amateur championship and the third named defendant’s evidence was that they, he and his caddy, had calculated the distance, added the winds and slope factors going uphill and got a distance for a 3 wood to get up to the green and he said he struck the ball and it went on the intended line. The mathematical calculation they made was that they thought that it was 200 to 220 yards uphill, therefore, they added ten yards for the uphill and then into the wind which he thought was 25 kilometres an hour on the day in question and, for every kilometre in hour wind, they added one and a half yards extra and they said they were looking at 260 to 270 yards at that stage with all factors in and he said they picked a 3 wood as the only option. He gave three instances of where he might have shouted “Fore” in the past. He said if his shot was going off target or was going to hit someone or if there was a different golf hole where someone might be playing but he said he could not see anything up there to call “Fore” to as there were no spectators watching at that stage and he presumed it was empty. He said that he had been aware that there were people who were left of the green and that, if his ball was heading towards people to the left, he would have shouted “Fore” but he said, unfortunately, he was not aware that there were people standing so close to the green. The court notes that this man had 40 seconds to hit the shot and, on his own evidence, he had to be very careful and he took a look at the yardage book, got the intended line and actually hit the ball along the intended line and both he and his caddy were happy with this and they had taken the view that it was not possible to see where the shot was going but they relied on the implements they had as described. The argument is made on behalf of the plaintiff that the third named defendant ought to have walked up and clarified his line of vision and walked back before he hit the ball but, in my opinion, that would have been a very unreasonable requirement with 40 seconds within which to prepare his calculations and to hit the ball. He confirmed that he and the third named defendant picked the 3 wood as the safest option they had from the lie to get as close to within the area which they would deem to have been a good outcome and he noted that they were at a considerably lower level, six to eight metres below the level of the green and that he could just the mound in front and that the shot was a good one, straight and on the intended line and that he realised that the ball was just on the fringe, just on the edge of the green’s surface and he said photograph 10 gives the closest impression to where the plaintiff was, i.e. between two sand bunkers on the left side on the edge and that would have been a grass bunker juts beyond that where he marked “C” for caddy beside it. He disagreed substantially with Mr Kearney because he said this was a low risk shot from a golfing point of view and that he knew this course very well and that he gave his recommendation to the player on the basis of his knowledge. I accept the foregoing evidence as reflecting what actually happened in terms of how the golf was played on the day. While there was a dispute between Mr Kearney and Mr Ross Mooney, engineer, Mr Mooney said the measurement as to where the plaintiff was found on the ground, he put it at 35 metres. He disputed that the ball landed 23 metres to the left of the green on the plaintiff’s head and he said there was no dispute on the day of the joint inspection when he put the measuring tape down at that location. Discrepancy or point of dispute did appear between Mr Kearney and Mr Mooney but, according to Mr Mooney, there was not a great deal in it because he said that, from the line of sight from either direction, you cannot see the green and Mr Mooney said that it could be a question of zoom level on the camera. This witness turned to photograph 5 where he said the position from which the third named defendant took his shot was further back and there were people on the left side and that this was the location identified by the plaintiff but that the location by the third named defendant was that slightly to the right of that from where he took the shot, not as far up but just there at the guide that it was to the right. He points to photograph 6 of his photographs as the actual spot from which the third named defendant says he took the shot and not from where the marker is and that that would be a distance of 200 metres. He said the third named defendant did not have a view of the green but had a slight view of the right hand side of the green and he thought that the pin of the flag rather than the green, if the flag is raised up above, then left of that he does not have any view. The plaintiff was standing to the left of the green and, therefore, the defendant does not have any view of that from his position, i.e. from where he took his shot and I accept that evidence. The foregoing, in the view of this Court, represents what actually happened. Let me turn now to the plaintiff’s own evidence. The plaintiff’s contention in the pleadings is that all three parties are responsible for the accident which befell him. He agreed he did not see from what point the ball had been struck and he was an experienced attendee at these events and an experienced golfer, having positions of responsibility in his own golf club. He could not be sure where he was actually standing. He agreed under cross-examination, that for the shot to have been a wayward one, he would have had to be standing where he later changed his view as to where he was standing. Mr Cassidy, his friend, helped him onto the ground when he fell and agreed that he was situate at the eleventh hole which he regarded as a safe place to watch the golf come in, but he did accept that one could find a wayward shot which would present a problem and that that was just the beast of golf. He said that from his own account of where he was standing, Mr Cassidy could not see that it was different to the plaintiff’s but he argued that it did not matter either way. Mr Cassidy felt that this shot was a wayward one in that he argued that it went 25 metres wide of the mark but that, in fact, is disputed and heavily so.
49. Turning now to the evidence of the referee, Mr James Mooney, he noted a crowd lying around a man on the ground and that he identified him as the plaintiff, although he was not known to him, and he noted the position of the third named defendant’s ball as just being off the green and he marked that on photograph 10 with the words “JM” to show where he thought the plaintiff was found when he himself arrived up at the green. His estimate was that the plaintiff was a good fifteen to twenty paces away and he marked the plaintiff on the ground, beside the green, just beyond the bunker, ten to fifteen paces off the green.
50. The court has looked at all of the evidence very carefully, has read the legal submissions and, indeed, the pleadings carefully and comes to the following conclusions. This is an amateur sport, although an elite amateur championship. There is no tariff for entry. The contention of the first and second named defendants is that the plaintiff entered this premises as a recreational user. The plaintiff’s own evidence was that he had attended this championship over many years and he picked what he believed to have been a good vantage point. Of particular note in the opinion of this Court is that the plaintiff was not paying attention at all when this incident occurred. He was not looking at play, he described people looking for a ball and that he was talking to his friends. Taking into account that the third named defendant himself was a highly experienced elite amateur golfer who knew his game and who calmly and confidently defended this action. This Court considers the decision of Peart J. in Trundle to be in a completely different category. In that case, serious injury was suffered by a person who was sitting on a veranda, a cordoned off area and that is not the situation. In the instant case, the contention of this Court is that the third named defendant did everything correctly and by book as is verified by his caddy and I am fortified in this view by the evidence of the referee in the case that it was not a wayward shot and it is a case like many other golfing cases which must turn on its own particular facts. With reference to the Supreme Court, Weir-Rodger v. SF Trust Ltd[2005] 1 ILRM 471, in relation to the provisions of the Occupiers’ Liability Act, 1995, the Supreme Court held that, not only was the duty owed to a recreational user “ or trespasser being the same duty in the Act ”, of lesser stricture upon the occupier than the “ ordinary duty of reasonable care ” but that it might well be, therefore, that the liability is something more than might be described as “ gross negligenc e” (p. 477), and in that case, it was found that the failure to erect a warning sign pertaining to a dangerous cliff edge did not amount to acting with reckless disregard and, in that case, the court heard that, even on the lesser duty of reasonable care, the occupier would not have been negligent given the nature of the land – sea cliffs, the danger was obvious and did not require a sign.
51. The situation on the ground of this championship competition was that, to a great extent, they were self-regulating and self-policing spectators. All spectators were deemed to have been knowledgeable of the game of golf and would be reasonably expected to take care of their own safety accordingly. It is my conclusion, and I accept the submissions on behalf of the first and second named defendants entirely, that here we have five witnesses who did not in any way criticise the first or second named defendants and that there is no evidential basis for a finding of negligence against them.
52. It is quite clear, from the supplementary submissions requested by me and furnished on behalf of the first and second named defendants, that the law provides the duty of the first and second named defendants, it is not the duty of reasonable care, it is much less strict than that Geoghegan J. (as he then was) in the celebrated Weir case noted that, in that case, they would have had to act with something presumably close to gross negligence and the case is put that, in this case, that the duty is not to act with wanton disagreed. With regard to the supplemental submissions received on behalf of the plaintiff, it is noted that where Mr Campbell, the plaintiff, was standing is largely irrelevant. The conclusion of this court is that it would completely impractical and unreasonable to have expected with 40 seconds to play his shot for the third named defendant to have walked before he took the shot as suggested on behalf of the plaintiff in the supplemental submissions. The preponderance of the evidence supports the contention of the defendants that no case has been actually made out against them in this case. We have to keep in mind that this is an amateur sport, although played at an elite amateur level, and that the plaintiff was a recreational user responsible to a huge extent, as matters played out, for his own safety.
53. While the court was very appreciative to have heard the medical evidence, given that I am finding against the plaintiff on liability, I do not need to deal with that evidence. The court, therefore, dismisses the plaintiff’s claim.
Quigley -v- Complex Tooling & Moulding Ltd
[2008] IESC 44 (22 July 2008)
Composition of Court: Denham J., Geoghegan J., Fennelly J.
Judgment by: Fennelly J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Fennelly J.
Appeal allowed – set aside High Court Order
Denham J., Geoghegan J.
Outcome: Allow And Set Aside
SUPREME COURT
Appeal No. 143/2005
Denham J.
Geoghegan J.
Fennelly J.
BETWEEN/
MATT QUIGLEY
PLAINTIFF / RESPONDENT
AND
COMPLEX TOOLING AND MOULDING LIMITED
DEFENDANT / APPELLANT
JUDGMENT of Mr. Justice Fennelly delivered the 22nd day of July, 2008
1. This appeal concerns an award of damages for psychiatric injury (reactive depression) found to have been caused by bullying or harassment in the workplace. In a judgment of 9th March 2005, Lavan J in the High Court found that the plaintiff had “suffered personal injury as a direct consequence of a breach of the defendant’s duties as employers to prevent workplace bullying.” The learned judge, following a separate judgment on damages, awarded to the plaintiff the sum of €75,000 for general damages together with the sum of €773.94 special damages.
2. The defendant appeals on two grounds: firstly, that the evidence, though uncontradicted, did not bear out the plaintiffs complaints of bullying; secondly, that there was no sufficient evidence of a causal link between the bullying which the High Court judge found that the plaintiff had been subjected to and the depression his doctor found him to have suffered. The defendant also appeals against the quantum.
3. In spite of the comparative novelty of the cause of action, the Court has not been asked to decide any principles of law. The parties were ad idem as to the nature of the wrong of harassment or bullying and the standard which should be applied.
The facts
4. The Plaintiff commenced employment with a predecessor company of the defendant at its premises at Kells, County Meath, in or about August 1977. The defendant terminated his employment by dismissing him on or about the 18th October 1999. The defendant, which is no longer in business, carried on the business of assembly of computer parts.
5. The plaintiff, who lives in Kells, had been employed as a factory operative for more than twenty years before the defendant company took over the business in 1998. The defendant appointed a new American plant manager, Mr. Ron Skinner. Most of the plaintiff’s complaints relate to his treatment at the hands of Mr Skinner from 1998 until the termination of his employment on 18th October 1999.
6. The learned trial judge cited as amounting to uncontradicted evidence the particulars of the harassment alleged by the plaintiff in the statement of claim. His approach was to accept as established the matters particularised as follows:
“(a) During the month of July/August in 1998 the Plaintiff was subjected to humiliation at the hands of the Defendant Managing Director, Denis Hampton, following his refusal to accept a voluntary redundancy package which had been offered to him by John Dory, on behalf of the Defendant. During a meeting on the issue, the Plaintiff enquired of John Dory as to what was the reason behind the fact that he was the only member of staff to be offered voluntary redundancy, stating that it was the principle that interested him. John Dory stated “the principle, don’t make me laugh”, at which Denis Hampton laughed also.
(b) The Defendants its servant or agents made humiliating and demeaning reference to and about the Plaintiff, such as on the 6th of April 1999, when Ron Skinner informed Fidelma Browne, an operative into the Defendant Company, that the Plaintiff and a colleague Seamus Reilly, would be retaining their Grade 11 rate of pay, and stated “don’t worry, I’ll sort out the granddads”. On another occasion, after the Plaintiff had through exasperation resulting from the bullying and intimidation at work, raised his voice to a colleague, Ron Skinner asked Seamus Reilly “Do you think that Matt talks to his wife like that. Do you think she would accept being spoken to like this?
(c) The Plaintiff was subjected to excessive and humiliating scrutiny by the Defendant’s Plant Manager, Mr. Ron Skinner. He often stood for up to 30 minutes on a box approximately 8 feet behind the Plaintiff’s work station, with the effect of intimidating the plaintiff. He also made comments about the Plaintiff’s work, for example stating to Joe Power (an operative in the employ of the Defendant ) that he would have to give the Plaintiff “some broom training”, suggesting that the Plaintiff was not capable of the most basic duties, when in fact he had received two awards for cleanest work area from previous management. The plaintiff felt that the purpose of this intimidation and scrutiny was that Ron Skinner was engaging in a campaign to seek justifications for not paying the Plaintiff his Grade 11 rate of pay.”
7. Although there was some evidence in respect of paragraphs (a) and (b), each of those seem to relate to somewhat isolated incidents and there are at least some problems of proof relating to parts of those matters. In the event, those headings do not require analysis by the Court. It is clear that the overwhelming focus of the plaintiff’s complaints related to paragraph (c) and the behaviour of Mr Skinner.
8. The plaintiff claimed that he was being over-scrutinised by Mr Skinner. A flavour of this is given by the following quotation from the plaintiff’s evidence:
“Well, when I would be working away doing my job on assembly with 5 or 6 other employees doing the same job Mr Skinner would come and position himself on some platforms behind me and would be there for half an hour, 45 minutes, daily, watching me.”
9. He became aware of this when colleagues told him of it. Then he was conscious of it. Mr Skinner would be six or seven feet behind him. He would “take up the same stance and stand there with his arms folded just watching me.” This made the plaintiff feel very uncomfortable. The behaviour continued two or three times a week even after the plaintiff had complained through his shop steward. The plaintiff described the attitude and behaviour of Mr Skinner in the following answers:
“His attitude was that I was not capable of doing the assembly the way they wanted it done. He would tell the charge hand in question that any of my work was to be looked at, you know, over scrutinise and check this that and the other. I was so nervous with him watching me that I would make mistakes, because I was aware he is watching me…”
“If I was doing silk screening for instance he would say “I do not know why you are doing that, that is no good. You can see that is no good, there is a scratch on the surface” whatever a screw missing or something. Another day when I would leave …… things out and not do them he’d say, “look you could have done that and we can get that rectified. Go back on that” you know. So no matter what I was doing it just was not right for him”
“……when I would go to get a drink of water he would be standing at my section ……and he would be tapping the door as much as to say well there is nobody working here……I would leave down my drink of water and come over thinking he wanted to speak to me and when I’d come over he would walk off.”
10. The evidence of the plaintiff showed the behaviour of Mr Skinner to combine persistent watching, constant niggling criticism, failure to respond or communicate and inconsistency. As an example of the last, there was evidence of Mr Skinner telling the plaintiff to send a product out to a customer, though the plaintiff though it was defective and told him so, and Mr Skinner blaming the plaintiff when the customer returned the defective goods. Furthermore, the plaintiff’s evidence was amply supported by the evidence several other employees. It appears that the plaintiff was singled out for this treatment.
The defendant’s argument on the harassment issue
11. Mr Lyndon McCann, Senior Counsel, accepted, on behalf of the defendant, that an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of “workplace bullying” at paragraph 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as an accurate statement of the employer’s obligation for the purposes of this case. That definition is:
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
12. Mr McCann submitted, and I would accept, that bullying must be:
· Repeated;
· Inappropriate;
· Undermining of the dignity of the employee at work.
13. Mr Patrick Hanratty, Senior Counsel, for the plaintiff emphasised the strength of the evidence and the fact that the plaintiff’s complaints were supported by the evidence of fellow employees. He laid particular emphasis on the fact that the complaints were not acted on by management. He said that they constituted a breach of the employer’s direct duty of care. It is not a case of vicarious liability.
14. The evidence of treatment of the plaintiff at the hands of Mr Skinner was fully accepted by the learned trial judge. In fact, it was, as he said, uncontradicted. Presumably, this was because the factory was no longer in business by the time of the hearing and Mr Skinner had no doubt returned to the United States. Whatever the reason, the evidence was unchallenged and the trial judge was entitled to accept it as true. I am satisfied that it amply meets the criteria of being repeated, inappropriate and undermining of the dignity of the plaintiff at work. Since the definition of workplace bullying taken from the Code of Practice laid down in the statutory instrument has been accepted by the defendant as an accurate statement of the common law duty of care, it is not appropriate to refer to other authority.
15. Mr Skinner’s treatment of the plaintiff represented a unique amalgam of excessive and selective supervision and scrutiny of the plaintiff, unfair criticism, inconsistency, lack of response to complaint and insidious silence.
16. The decision of the learned trial judge cannot be faulted in this respect. I would reject this ground of appeal.
The causation issue
17. The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to a identifiable psychiatric injury. The learned trial judge found that the plaintiff had “suffered personal injury as a direct consequence of a breach of the defendant’s duties as employers to prevent workplace bullying.” He awarded damages to the plaintiff for psychiatric injury, in the form of depression. On the question of causation, he stated:
“The plaintiff has offered uncontradicted evidence as to the immediate effect of the harassment on his state of health. Evidence has been offered to prove that the injuries of which the plaintiff complains had their root in the treatment of him by the servants of the defendant during his employment with the defendant.”
18. He also said that he accepted the evidence of Dr Coffey, the plaintiff’s general practitioner, who had given evidence on his behalf. On the other hand the learned trial judge did not refer to any of the detail of either the plaintiff’s evidence or that of Dr Coffey or her medical reports.
19. Mr McCann submits that the evidence simply does not bear out the contention that the depression from which the plaintiff suffered was causally linked to the harassment or workplace bullying.
20. At this point it is appropriate to recall that the plaintiff was dismissed from his employment in October 1999. He commenced proceedings against the defendant pursuant to the provisions of the Unfair Dismissals Acts. He was successful in those proceedings before the Rights Commissioner and, on appeal by the defendant, before the Employment Appeals Tribunal, whose determination was dated 7th February 2003. But the defendant had ceased trading in July 2002. The effect of the order of the Employment Appeals Tribunal was that the plaintiff was entitled to payment up until that date and a redundancy payment arising on the closure of the factory.
21. It is agreed that the plaintiff is not entitled in these proceedings to recover damages for any personal injuries suffered as a consequence of his dismissal from his employment.
22. Dr Coffey’s evidence must be read with her medical two reports. The plaintiff first attended Dr Coffey on 8th January 2001. He told her that he had been dismissed from his job in October 1999 and that he had been suffering from depression for six months before his visit to her. He said that he had won his case for unfair dismissal (obviously referring to the decision of the Rights Commissioner) but that the company were appealing the decision and the uncertainty of waiting for a date was adding to his anxiety. Dr Coffey stated, in her report (date 11th June 2001 but related to the visit of 8th January of that year) that the plaintiff “had become increasingly anxious about his impending case” and that “his symptoms of depression had intensified.” She concluded that the plaintiff had “suffered from a moderately severe depressive episode arising directly from his industrial relations problems.”
23. In cross-examination, Dr Coffey agreed that the plaintiff’s complaints related “to the fact that he had lost his job.” She referred to “the delay in the appeal date, the anxiety that surrounded that delay.” She had not recorded any complaint that the plaintiff had had been bullied or harassed at work and agreed that his difficulty was not attributed to such an origin.
24. Dr Coffey prepared a second report dated 24th March 2003 for the purpose of the litigation. She then mentioned that the plaintiff had a pending case against his employer “re harassment,” but did not otherwise refer to that issue. That report makes no mention of the cause of the plaintiff’s depression.
25. The picture presented by the medical evidence then is consistent only with the plaintiff’s depression having been caused by his dismissal and subsequent unfair dismissal proceedings and there is no medical evidence of a link with the harassment.
26. This is consistent with the plaintiff’s own evidence. He said: “…after all these appeals, had been heard…I realised that I wasn’t going to get my job back then it hit me……and then I went to the doctor.” He said that it was then that it “affected [him] mentally.”
27. Although the plaintiff elsewhere in his evidence described Mr Skinner’s behaviour as having shocked him and feeling very uncomfortable, pressurised and useless as an employee, he did not say that he had suffered symptoms of depression.
28. It is clear both from Dr Coffey’s evidence and that of the plaintiff that he did not consider himself to have been affected mentally until after his dismissal. He did not go to a doctor at all until some fourteen months after that event. He then said that his depression had started six months previously. The doctor gave no evidence linking that condition to the harassment or workplace bullying.
29. Consequently, the plaintiff has not discharged the burden of proving that his depression was caused by his treatment during his employment. It follows that, although the plaintiff’s complaints of bullying or harassment have been upheld, and his employer was in beach of its duty of care to him, the appeal should be allowed and the plaintiff’s claim dismissed.
Damien Jeffrey v The Minister for Justice, Equality and Defence
, The Commissioner of An Garda Síochána, Ireland and the Attorney General
266/2014
Supreme Court
8 May 2019
unreported
[2019] IESC 27
Mr. Justice Clarke
May 08, 2019
JUDGMENT
1. Introduction
1.1 In one sense, the sole issue which arises on this appeal concerns the legal status of a senior member of An Garda Síochána who presents or conducts a criminal prosecution in the District Court on behalf of the Director of Public Prosecutions. The underlying facts of this case are not in dispute, although it will be necessary to outline them in slightly more detail at a subsequent stage of this judgment. The plaintiff/appellant, Mr. Jeffrey, was convicted in the District Court of drunk driving. In the context of the sentencing process, the presenting garda indicated to the District Judge that Mr. Jeffrey had a very significant criminal record including convictions for serious criminal offences. This was contested strongly by Mr. Jeffrey’s solicitor. It would appear that, in view of the fact that none of the offences related to road traffic matters, the District Judge did not consider that the alleged but contested criminal record was particularly relevant when imposing sentence. However, it would also appear that the fact that Mr. Jeffrey was alleged to have a significant criminal record was reported in the local newspapers and, it is said, had significant adverse consequences for him.
1.2 It transpired that the statement made by the presenting garda was completely wrong, for Mr. Jeffrey had no previous convictions of any sort and there would appear to have been some confusion between him and someone else of the same name. It does have to be said that some aspects of the manner in which An Garda Síochána handled their mistake in this case do not reflect particularly well on the force. There was a belated acceptance that the statement made in court was wrong, coupled with a written statement of regret. However, An Garda Síochána declined to go into court and, as it were, correct the record. Whatever may be the legal consequences, if any, of that sequence of events, it does not seem to me to be reasonable to fail to make a public correction of what was accepted to have been a damaging but erroneous statement made by a senior member of An Garda Síochána in open court. While appreciating that the correspondence had become litigious by the relevant time, it seems to me that, if Mr. Jeffrey was damaged by the garda mistake in the first place, it would not seem to be too much to ask that a correction should be made in the same forum, in the hope that the damage thereby caused might be negatived.
1.3 However, in reality, all of that is but background to the relatively net and narrow legal issues which arise on this appeal. Mr. Jeffrey commenced proceedings in the High Court. The defendants/respondents (“the State”) brought an application before the High Court seeking to have those proceedings dismissed either on the basis that the claim as pleaded disclosed no cause of action or that the proceedings were bound to fail. For reasons set out in a judgment of Barrett J. (Jeffrey v. Minister for Justice and Equality & ors. [2014] IEHC 99, [2014] 3 I.R. 508), the High Court acceded to the State’s application and the proceedings were dismissed.
1.4 Mr. Jeffrey then appealed to this Court. For completeness, it should be noted that this appeal was one of those cases which were initially transferred from this Court to the Court of Appeal but have, in recent times, been returned to this Court.
1.5 In order to understand the precise legal issues which arise, it is appropriate to start by setting out the facts in a little more detail.
2. The Facts
2.1 On the 9th December 2010, Mr. Jeffrey appeared at Sligo District Court to answer charges brought by the Director of Public Prosecutions arising out of certain road traffic offences. Mr. Jeffrey pleaded guilty to the offences. During the course of the hearing on that date, a member of An Garda Síochána, Inspector Connolly, in the course of presenting the case on behalf of the Director of Public Prosecutions, described what were said to be Mr. Jeffrey’s previous convictions to the Court. Inspector Connolly was not sworn at the time. In fact, Inspector Connolly erroneously described the previous convictions of a different person with the same name as Mr. Jeffrey.
2.2 Prior to sentencing, Mr. Jeffrey’s solicitor strongly suggested to the Court that an error had been made, that the convictions described by Inspector Connolly did not relate to Mr. Jeffrey and that Mr. Jeffrey did not, in fact, have any previous convictions. Following this submission, the District Court proceeded to sentence Mr. Jeffrey without, it would appear, taking those alleged previous convictions into account. However, despite this, the erroneous account of the previous convictions was reported in local media.
2.3 Following the District Court proceedings, solicitors acting for Mr. Jeffrey engaged in correspondence with the gardaí requesting an admission of liability, a published written apology and compensation for the injury and distress arising from the actions of the State. Mr. Jeffrey’s solicitors also requested that the Garda Superintendent appear before the District Court to outline the inaccuracy of the information provided to the Court by Inspector Connolly, to formally correct the public record, apologise to Mr. Jeffrey and allow the media the opportunity to report on the matter. The gardaí did not accede to any of these requests.
2.4 It should be noted at this stage that, during the course of the oral hearing of this appeal, counsel on behalf of the State made clear that the statement made by Inspector Connolly in the District Court was incorrect and that Mr. Jeffrey, prior to his conviction in the District Court, had no previous convictions of any sort.
2.5 These proceedings were commenced in the High Court on behalf of Mr. Jeffrey by plenary summons issued on the 20th October 2011. A statement of claim was delivered on the 17th January 2012.
2.6 It is next necessary to set out the case as pleaded by Mr. Jeffrey. This is particularly relevant because one of the core contentions made on behalf of the State on this appeal was that the substance of Mr. Jeffrey’s claim was one in defamation, even though it was technically pleaded as a claim in negligence or negligent misrepresentation.
3 The Claim as Pleaded
3.1 Mr. Jeffrey’s claim in the High Court was one for damages for negligence, breach of duty and negligent misrepresentation.
3.2 In his statement of claim, Mr. Jeffrey claimed that the State were negligent and in breach of duty in failing to take any reasonable care to ensure that the information given by Inspector Connolly in the District Court was accurate, by failing to carry out any investigations into Mr. Jeffrey’s past criminal history (if any), by causing, allowing or permitting information concerning Mr. Jeffrey to be placed in the public domain in circumstances where same was inaccurate and untrue, by failing to take any adequate measure to ensure that the relevant information was accurate in circumstances where the State knew or ought to have known that it would be reported in the local press, and by thereby exposing Mr. Jeffrey to a risk of damage, injury or loss of which they knew or ought reasonably to have known. All of this is claimed to be against a background where Mr. Jeffrey did not have, as stated by Inspector Connolly, 19 previous criminal convictions or, indeed, any such convictions.
3.3 It will be seen that each of the contentions made on behalf of Mr. Jeffrey in those pleadings amount in substance to an allegation that inaccurate information concerning Mr. Jeffrey was placed in the public domain, thus exposing Mr. Jeffrey to what was described as a risk of damage, injury or loss. It is true that the pleadings assert that there was negligence involved in the manner in which the relevant misleading information was placed in the public domain by a senior member of An Garda Síochána. However, there is little doubt but that the substance of the complaint was that Mr. Jeffrey suffered damage (which can only have been damage to his reputation or consequential matters) arising out of such inaccurate information becoming public.
3.4 It is in the context of the case thus pleaded that the State brought an application before the High Court seeking the dismissal of the proceedings. It is next appropriate to turn to the High Court judgment.
4. The High Court Judgment
4.1 Barrett J. began his judgment by stating the case before him centred on whether the immunity from defamation that arises in court proceedings also extends to other forms of action and later asked whether it was possible for an action for negligence and breach of duty to succeed where an action in defamation would have failed.
4.2 Barrett J. then had regard to a number of cases addressing the rationale for and the ambit of the privilege that arises within court proceedings. Having done so, he summarised at para. 12 the principles arising from those authorities as follows:-
“- [F]irst, any perceived damage that appears to arise for an individual as a result of what transpires at or before court proceedings must be balanced against the obligation of the courts to administer justice in cases coming before them, an obligation which requires that witnesses be free to give evidence without fear of consequences;
– second, in instances of ‘ flagrant abuse’ , to borrow from the judgment of Barrington J. in Looney, there may be some bounds to the privilege; however, this requires malicious and wanton behaviour of a type that was not present in the Looney case and also does not arise in the present case;
– third, whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings is generally barred by the long standing rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.”
4.3 At para. 13, Barrett J. concluded as follows:-
“The courts are temples of truth. That, at least, is the ideal. Within their confines there should be a minimum of circumspection on what can be said so that the truth can be determined and justice done. Were matters to be otherwise, were witnesses to be exposed to the threat of any form of litigation for what they said in court, truth would soon be the victim of unreal expectations and our system of court-administered justice would quickly founder. For this, and for the reasons identified above, the plaintiff’s action in this case must fail.”
4.4 In the light of both the judgment of the High Court and the arguments made on this appeal, it may be useful next to identify the issues which arise.
5. The Issues
5.1 In essence, there appeared to me to be three contested issues in this case. The backdrop to those issues is, however, the jurisprudence concerning the striking out of proceedings on a motion to dismiss. The law in this regard is now well settled.
5.2 In this context, it is important to make the distinction between an application in which it is sought that the court should exercise its power to strike out proceedings under O. 19, r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the court to strike out proceedings. Order 19, r.28 permits a pleading to be struck out on the grounds that it discloses no reasonable cause of action or is shown by the pleadings to be frivolous or vexatious. As stressed by O’Higgins C.J. in McCabe v Harding [1984] ILRM 105, 108, “in order for r.28 to apply, vexation or frivolity must appear from the pleadings alone”. The inherent jurisdiction to strike out or stay proceedings if frivolous or vexatious, or bound to fail, was, of course, first recognised by Costello J. in Barry v. Buckley [1981] I.R. 306, where he stated that its purpose was to ensure that an abuse of the process of the courts does not take place. In hearing an application under O.19, r.28, the Court is confined to considering the pleadings alone. In an application pursuant to the inherent jurisdiction of the Court, it may consider evidence which is normally given on affidavit.
5.3 In my own judgment in Lopes v. Minister for Justice [2014] IESC 21, [2014] 2 I.R. 301, at para. 2.3, I explained the distinction between those two types of application in the following way:-
“…An application under the RSC is designed to deal with a case where, as pleaded, and assuming that the facts, however unlikely that they might appear, are as asserted, the case nonetheless is vexatious. The reason why, as Costello J. pointed out at p. 308 of his judgment in Barry v. Buckley [1981] I.R. 306, an inherent jurisdiction exists side by side with that which arises under the RSC is to prevent an abuse of process which would arise if proceedings are brought which are bound to fail even though facts are asserted which, if true, might give rise to a cause of action. If, even on the basis of the facts as pleaded, the case is bound to fail, then it must be vexatious and should be dismissed under the RSC. If, however, it can be established that there is no credible basis for suggesting that the facts are as asserted and that, thus, the proceedings are bound to fail on the merits, then the inherent jurisdiction of the court to prevent abuse can be invoked.”
5.4 However, it is also clear that, if it is apparent that some reasonable amendment to the pleadings could be made to cure any defect, then the court should not dismiss a claim. In this regard, reference should be made to the judgment of McCarthy J. in Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425, where he stated at p. 428:-
“In Barry v. Buckley [1981] I.R. 306 Costello J. held that the High Court has inherent jurisdiction in an appropriate case to dismiss an action on the basis that, on admitted facts, it cannot succeed. Counsel for the plaintiff has not challenged that decision or the ratio underlying it. The jurisdiction is different from that directly arising from Rules of the Superior Courts where a statement of claim discloses no cause of action or the proceedings constitute an abuse of the process of the court, where, pursuant to section 27, sub-s. 5 of the Judicature Act (Ireland) 1877, the court may grant a stay of proceedings so far as maybe necessary for the purpose of justice. In Barry v. Buckley Costello J. referred to the notes on that sub-section as set out in Wylie on the Judicature Acts. Since the matter has not been debated, I express no view upon the decision in Barry v. Buckley save to comment that applying the underlying logic, a defendant may be denied the right to defend an action in a plenary hearing if the facts are clear and it is shown that the defence is unsustainable. This appears to have been the net effect in the decision in the High Court (Dixon J.) in Dolan v. Neligan (1959) reported in its second phase in [1967] I.R. 247. By way of qualification of the jurisdiction to dismiss an action at the statement of claim stage, I incline to the view that if the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed.” (Emphasis added)
5.5 Thus, it is agreed that the question which the Court must ask is as to whether the case as pleaded, or any reasonable amendment of same, is such that it either discloses no cause of action or, perhaps of particular importance in the context of this case, it is clearly bound to fail.
5.6 Against that background, counsel for the State suggested that there were three matters which made these proceedings bound to fail although, in fairness to counsel, he did not, for good reason, emphasise the second.
5.7 The first reason concerns the question of whether a statement of the type made by the presenting garda in this case can give rise to a claim in negligent misstatement. As was appropriate in the context of a motion to dismiss, counsel for the State accepted that the Court must approach its analysis by treating the plaintiff’s claim at its height. On that basis, and for the purposes of the application concerned, counsel accepted that it was appropriate for the Court to assume that Mr. Jeffrey would be able to establish at a trial that the relevant member of An Garda Síochána was negligent in the way in which what turned out to be a completely inaccurate account of Mr. Jeffrey’s record was spoken in open court. It was also accepted that it must be assumed that the State would be vicariously liable for any such negligence.
5.8 However, it was argued that the fact that a statement may be negligently made does not, in and of itself, necessarily lead to successful proceedings. In that context, counsel drew attention to the fact that it is not possible to bypass the rules of one tort by attempting to convert everything into a claim in negligence. Counsel argued that there was no basis for suggesting that a claim in negligence could be brought where the only adverse consequence alleged by the plaintiff involved, directly or indirectly, damage to reputation as a result of words written or spoken. Counsel for Mr. Jeffrey accepted that it would not have been possible to bring a claim in defamation against the State in the circumstances of this case because of the limitations included in defamation law which would have protected the comments made. Counsel fairly accepted that it was for that reason that Mr. Jeffrey’s claim had been framed as a claim in negligence or negligent misstatement. However, counsel for the State argued that it was not possible to get around the limitations of a defamation action by characterising a claim for damaged reputation arising from published materials as being one in negligence rather than in defamation. The first issue was, therefore, as to whether the law in this area is sufficiently clear for it to be possible for a court safely to hold that Mr. Jeffrey’s claim was bound to fail on that basis.
5.9 The second issue concerned the question of whether it could be said that the presenting garda, for whose actions, as previously noted, the State is assumed to be vicariously liable, owed a duty of care to Mr. Jeffrey. The reason why counsel, quite properly, did not press this point particularly strongly was that it was accepted that there are difficult legal questions about the extent of the duty of care which may be owed by a participant in court proceedings. The law in this jurisdiction, unlike that in the United Kingdom (see, Arthur JS Hall & Co. v. Simons [2002] 1 A.C. 615), still recognises an immunity, based on public policy, in respect of the conduct of legal proceedings by an advocate in court. Among the reasons why such a principle has been upheld is the undesirability of attempts to reopen the result of a case which has been lost without the successful party being present. In order to successfully maintain a claim in negligence against an advocate, it would be necessary, in addition to showing that the advocate acted negligently, to establish that there was some detrimental consequence as a result of the negligent acts of the advocate concerned. But that would call into question the result of the original proceedings in circumstances where the successful party would not have a right to be heard. Courts in this jurisdiction and in the United Kingdom have taken a somewhat different view as to the weight to be attached to that factor. It should be noted that, while reference has been made by the Irish courts to the decision of the House of Lords in Arthur JS Hall (see, for example, Behan v. McGinley [2008] IEHC 18, [2011] 1 I.R. 47), that decision has not been followed in this jurisdiction.
5.10 Be that as it may, there are also questions about the extent to which an expert witness might be open to being sued for negligence concerning the manner in which expert evidence was tendered in court. Again, the courts in this jurisdiction differ in approach from those in the United Kingdom in this regard. In Jones v. Kaney [2011] UKSC 13, [2011] 2 A.C. 398, the Supreme Court of the United Kingdom determined that the immunity of expert witnesses in that jurisdiction should no longer be recognised. With regard to the position in this jurisdiction, reference might be made to the decision of this Court in E O’K v. DK (Witness: Immunity) [2001] IESC 84, [2001] 3 I.R. 568. That case concerned, amongst other things, a negligence action brought against an expert witness, being a psychiatrist appointed by the High Court in relation to the conduct of a psychiatric examination of the plaintiff. In his judgment in that case, Murphy J. stated as follows at p. 576:-
“…Even if, however, it could be established that the third defendant was guilty of negligence and that her negligence brought about the judgment and order of which the plaintiff complains, I am satisfied that O’Sullivan J. was correct in concluding that the law in this jurisdiction confers upon a witness – whether expert or otherwise – immunity from proceeding in respect of a wrong committed in such circumstances. That immunity is subject to the qualification already noted that if a witness – or even a judge – so departed from the duties which he or she was purporting to perform as to abuse his position, that he would forfeit the immunity which he was abusing. In the present case, although it has been urged strenuously over many years that the third defendant erred and, the plaintiff alleges, acted negligently, it was not and could not be suggested, that she attempted to abuse the position of expert witness to which she had been appointed by the High Court.”
5.11 Against that backdrop, counsel argued that the boundaries of the duty of care owed by someone acting in a position such as that of the presenting garda in this case could not be said to extend to a duty to the “other side”. However, counsel did acknowledge that this was a difficult area of the law and that it might well be the case that the law in this regard was not sufficiently clear that it would warrant, in and of itself, providing a basis for a dismissal on a motion to dismiss.
5.12 The third issue concerns the potential immunity of the presenting garda arising from the fact that what was said occurred in the course of the conduct of court proceedings. It is clear from s. 17 of the Defamation Act 2009 that a wide range of immunities are granted, in the context of defamation proceedings, to the participants in court proceedings. Section 17, as it was at the relevant time, provided, in relevant part:-
“Subject to section 11(2) of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, and without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was—
…
(e) contained in a judgment of a court established by law in the State,
(f) made by a judge, or other person, performing a judicial function,
(g) made by a party, witness, legal representative or juror in the course of proceedings presided over by a judge, or other person, performing a judicial function
(h) made in the course of proceedings involving the exercise of limited functions and powers of a judicial nature in accordance with Article 37 of the Constitution, where the statement is connected with those proceedings,
(i) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court—
(i) established by law in the State, or
(ii) established under the law of Northern Ireland,
…
(4) A defence under this section shall be known as, and is referred to in this Act, as the ‘defence of absolute privilege’.”
It should be noted that that the amendment brought about by s.132 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act, 2013 is not material to the issues in this case.
5.13 It is also clear from cases such as Looney v. Governor and Company of the Bank of Ireland and Morey [1996] 1 I.R. 157 that witnesses enjoy an absolute privilege in all circumstances. Likewise, the position in this jurisdiction, as has been pointed out, is that advocates enjoy a similar immunity from suit. It is in that context that the proper characterisation of the role of the presenting garda, when speaking the words complained of, will have to be assessed. As noted earlier, the garda concerned had not been sworn to give evidence. Likewise, the relevant garda was not a professional advocate, but rather enjoys the right to conduct proceedings in the District Court on behalf of the D.P.P. as a result of O. 6, r. 1(e) of the District Court Rules. On that basis, counsel for Mr. Jeffrey argued that the presenting garda was neither a witness nor an advocate on the occasion in question or at least could not be described as an advocate for the purposes of any immunity from suit which advocates enjoy. Thus, the key issue which arises under this third heading is as to whether it is clear that the garda concerned had an immunity such as would make any suit arising out of what he said in court bound to fail.
5.14 In my view, the first two issues can be disposed of relatively quickly and I turn to those questions.
6. The First Two Issues
6.1 Counsel for the State quite properly drew the Court’s attention to the decision of the House of Lords in the United Kingdom in Spring v. Guardian Assurance Plc [1995] 2 A.C. 296. It is clear from the decision in that case that it remains the position of the common law in the United Kingdom that a party cannot bring an action for damage to reputation other than through an action in defamation. In a similar vein, in the Irish context, it is clear that an action for defamation is considered the appropriate means by which a plaintiff should seek to vindicate their constitutional right to their good name where it is alleged same has been breached (see, for example, Hunter v. Gerald Duckworth & Co. Ltd [2000] 1 I.R. 510 and Murray v. Sheridan & Ors. [2013] IEHC 303). However, while the law in that regard may well be considered clear, it is also apparent from the decision in Spring that economic loss (as opposed to damage to reputation) flowing from a negligent statement may, at least in the United Kingdom, form the basis for a successful suit. It was clear from the hearing before this Court that it was at least contended on behalf of Mr. Jeffrey that his business as a gardener and odd job man had suffered because of what was said in court. It, therefore, remains arguable that the persuasive authority of Spring will find favour in this jurisdiction and that it will be ultimately found to be possible to maintain a claim for negligent misstatement giving rise to economic loss. On that basis, it seems clear that it would be possible to re-cast Mr. Jeffrey’s claim in a way which confined the scope of the damages which he sought to one in respect of economic loss rather than damage to reputation. It is at least arguable that such a claim can be maintained in this jurisdiction and it follows that it would be possible for Mr. Jeffrey to recast his claim in a way which made it clear that it was not bound to fail but rather would be dependent on the facts as to whether the statements made in court were negligently made and whether he suffered economic loss as a result of them.
6.2 Likewise, for the reasons already touched on, it is clear that there may be difficult legal issues surrounding the question of whether it can be said that a person, such as the presenting garda in this case, owes a duty of care to persons about whom a statement may be made. In my view, counsel for the State was correct not to press this point in the context of this application. It is important to emphasise that counsel did not concede that the point was a bad one. Rather, counsel accepted that the issues raised by the point were sufficiently complex that the Court might not be persuaded that it was appropriate to deal with them within the limited confines of a motion to dismiss. In my view, counsel was correct in that regard. It cannot be said that the law concerning duty of care relating to statements of the type at issue in this case is sufficiently clear that it could be said at this stage that Mr. Jeffrey’s claim is bound to fail on the basis of the absence of a duty of care. That is not to say that if these proceedings or other similar proceedings ever come to trial, there may not be difficult issues which need to be determined under this heading.
6.3 It follows that, if those two matters were the only issues raised by the State, then I would have little hesitation in allowing the appeal and permitting a recast claim to go ahead. However, it is also necessary to consider the more fundamental point made on behalf of the State which was to the effect that the presenting garda enjoyed immunity.
7. Is it Clear that the Presenting Garda Enjoyed Immunity?
7.1 The starting point of discussion on this topic has to be to consider the basis on which the trial judge considered that it was clear that Inspector Connolly enjoyed immunity, such that any claim based on what he said must be bound to fail. The trial judge took the view that he was a witness. That proposition must be open to real doubt. In a criminal trial in any court in which the D.P.P. is represented by a professional advocate, be it a solicitor employed within the State service or a barrister instructed by such a solicitor, then evidence of any previous convictions of a person who has pleaded or been found guilty will be given by means of calling a garda witness to give evidence of the record of the person concerned. In case of any difficulty or dispute, that witness can be cross-examined in the ordinary way. There can be little doubt but that such a witness would enjoy the same immunity as any other witness giving evidence in court proceedings. But the fact is that Inspector Connolly was not sworn and was not subject to cross-examination. It was true that he was giving information to a court which might normally be given as evidence by a witness, but it does not follow that he can necessarily be taken to enjoy witness immunity just because of that.
7.2 Likewise, there are questions as to the extent to which a person such as Inspector Connolly could enjoy the immunity which attaches to advocates appearing in court. It is true that he is, by virtue of the District Court Rules, entitled to represent the D.P.P., but the precise characterisation of his status as so representing the D.P.P. is, again, a matter which is not absolutely clear.
7.3 There may also be a basis on which it could be said that the position of Inspector Connolly is analogous to that of a party appearing in the proceedings, by virtue of the authorisation which the District Court Rules give for his presentation of the case. Indeed, on one view, it may be said that any person playing a legitimate role in the conduct of court proceedings enjoys a significant immunity. However, it has certainly not yet been established that there could be no exceptions to the proposition that all such persons may enjoy full immunity and, if there be such exceptions, what the parameters of same are.
7.4 It is now well settled that, in the context of a summary judgment motion in which a plaintiff seeks judgment in summary proceedings, a court can resolve straightforward issues of law or the interpretation of documents, where there is no real risk that attempting to resolve those issues within the limited confines of a summary judgment motion might lead to an injustice. By analogy, I would not rule out the possibility, without so deciding, that it may be possible to resolve a simple and straightforward issue of law within the confines of a Barry v. Buckley application. However, even if that should be possible, it could only be appropriate where the issue was very straightforward and where there was no risk of injustice by adopting that course of action. The question of the parameters within which a person, such as Inspector Connolly, may enjoy immunity from suit arising out of what they say in court is, in my judgment, a far from straightforward matter. There are, indeed, strong arguments to suggest that immunity does arise. However, a Barry v. Buckley application cannot be used to dismiss a case simply because it might be said that there is a strong defence. Rather, such applications can only be used in cases where it is clear that the claim is bound to fail. In my view, this case is not such a case. I would not, therefore, hold that it is sufficiently clear that a person in a position such as Inspector Connolly enjoys immunity from suit for it to be appropriate to dismiss Mr. Jeffrey’s proceedings as being bound to fail on that ground alone.
8. Conclusions
8.1 For the reasons set out in this judgment, I am satisfied that it is at least arguable that a person may be able successfully to maintain a claim for negligent misstatement where, although the injury claimed relates principally to loss of reputation, it can also be established that economic loss has occurred as well.
8.2 I am also satisfied that there is sufficient doubt about the precise parameters of any duty of care which might be owned by a person, such as Inspector Connolly, to anyone else arising out of the conduct of court proceedings, such that it cannot be said that Mr. Jeffrey’s proceedings will be bound to fail on the basis of an absence of a duty of care.
8.3 Finally, while concluding that there may well be grounds for believing that Inspector Connolly may enjoy an immunity from suit having regard to the proper characterisation of his role in the District Court proceedings against Mr. Jeffrey, that question is, in my judgment, complex and not one where it can be said with sufficient clarity that the defence will prevail on the grounds of immunity alone.
8.4 Against the backdrop of those findings, and having regard to the principle that a party should be allowed ordinarily to amend their proceedings if it is necessary to do so in order to permit a sustainable case to go ahead, I would propose that the appeal be allowed and that Mr. Jeffrey should be permitted to pursue a claim, but one which is confined to seeking to establish negligence behind the statements made in court and, importantly, economic loss which can be causally linked to those statements. Insofar as any claim to general damage to reputation is concerned, it does seem to me to be clear that Mr. Jeffrey’s claim is bound to fail for to hold otherwise would be to accept that it is possible to use negligent misstatement to get around the carefully crafted boundaries of the law of defamation.
8.5 I would propose that the Court should hear counsel further on what practical steps should be put in place to allow for the appropriate amendment of these proceedings, so as to enable them to progress in accordance with the parameters which I have identified.
Michael Connolly Plaintiff v. Dundalk Urban District Council
and Mahon & McPhillips (Water Treatment) Limited Defendants
[1990] 2 IR 1
O’Hanlon J.
7th February 1990
The plaintiff, Michael Connolly, is a married man, living in Dundalk, and now almost 50 years of age. He has five children whose ages range from 17 to 25, two of whoma son aged 17 and a daughter aged 19are still living at home. He has worked in various kinds of labouring jobs, including a period of 16 years spent in England where he met his wife. Returning to Ireland he secured employment with the first defendant, Dundalk Urban District Council, as a general operative, and for 12 years or thereabouts up to the 8th January, 1986, he was assistant caretaker in the Castletown Mount waterworks. These waterworks were erected by the second defendant, Mahon & McPhillips (Water Treatment) Limited, pursuant to an agreement made by it with the Urban District Council and dated the 7th May, 1968. Having completed the design and construction of the waterworks, the contractors at a later stage agreed to service the installation by providing three service visits per annum. This arrangement has continued ever since and their charges for their services have been agreed from time to timethe current charges being much more than the figures initially agreed in the year 1972. The supply of water for the town of Dundalk has at all material times been provided from the Castletown Mount waterworks, and the work carried out there has involved the addition of chlorine to the water for purification purposes. This has been achieved by the injection of a high concentration of chlorine gas into the water, and the mixture of chlorine and water is then carried into the general water system where it is diluted to a point where the purification process is maintained while providing a water supply which is fit for human consumption. The waterworks is commonly manned by only two operativesthe caretaker or superintendent, and his assistantand at times only one of these two persons would be required on the premises. On the 8th January, 1986, the plaintiff made his way by motor-cycle to his place of work, which was closed up prior to his arrival. He unlocked the door leading into the waterworks and was proceeding along the ground floor of the building towards the chlorine room which was located at the far end of the building from his point of entry. Upon opening an internal door leading from one part of the control building to another, he was hit by a dense cloud of chlorine gas, some of which he inhaled. He succeeded in getting back to a telephone in a different part of the building; telephoned his superior, Jim Clarke, to tell him what had happened, and then made his way out of the building.
When Mr. Clarke arrived, he found the plaintiff in a very distressed condition outside the building, and prevailed on him to go to hospital. He was found to have pain and difficulty with his breathing; his heart rate was up to 100,30 above normal; he had oedema of the eyes and mouth; the oxygen level in his blood was quite low. He was kept in hospital in Dundalk for two days during which he needed continuous oxygen. His blood pressure became very elevated; he was sweating profusely and suffered tremendous headaches for 48 hours. He was then transferred to the Mater Hospital, Dublin, where his symptoms on admission involved coughing, with green infected sputum; very severe headaches; pain in chest; redness of eyes; elevated blood pressure and respiratory rate. He was very distressed, and was diagnosed as suffering from chlorine poison; infected bronchitis and deep lung injury. He was, however, found to be alert and conscious and able to give a rational account of the incident in which he had been involved. He was kept in hospital for about three weeks, during which he was given oxygen through nasal tubes, and drugs for a condition of hypertension. Dr. Brendan Keogh, who was the consultant supervising his treatment at the time, was puzzled by the abnormally high blood pressure and could not find the cause for this condition. The plaintiff gradually settled down and was described as “fairly well”on being discharged home. At that stage his x-rays and blood pressure were normal. Dr. Keogh saw him again in July of 1988 when he found the plaintiff had recovered from the physical effects of the accident, but still required medication to control his blood pressure and was likely to need this for the rest of his life. He also found an extraordinary change in the plaintiff’s mental condition. He found it impossible to communicate with him and had to obtain his history from his wife who accompanied him. He concluded that the plaintiff had recovered physically but that his mental state appeared to have been grossly affected. At a later examination in April, 1989, and again more recently, he found the plaintiff unchanged in these respects.
There was a large volume of evidence from psychiatrists, a psychologist, and the plaintiff’s wife, concerning his condition since the time of the accident, all of which bore out the finding of Dr. Keogh that the plaintiff’s mental state appeared to have been grossly affected by an accident which must, no doubt, have been very traumatic and terrifying, but which inflicted physical injuries of a comparatively minor character which should, in the ordinary course of events, have cleared up within a matter of weeks, leaving no permanent after-effects in their wake.
In many such cases it is necessary to view with considerable reserve, and to examine very closely, the claims put forward that permanent and deep-rooted psychiatric damage has emerged as a consequence of comparatively trivial physical injuries, but in the present case, having seen and heard the plaintiff in a state of incoherence in the witness-box, which was clearly genuine in character, and having heard the evidence of psychiatrists and other expert witnesses called by the defendants as well as by the plaintiff, I can only come to the conclusion that the plaintiff’s personality and life-style have been permanently shattered by the events of the 8th January, 1986. I am satisfied that for the past four years he has been profoundly depressed; that he has been aggressive and unpleasant to live with; that he has been, and will continue to be, quite unfit to undertake any kind of gainful employment, even in a sheltered workshop; that he is unable to take part in or enjoy any of the forms of recreation which he was able to enjoy before the accidentgoing to football matches, socialising with his friends, reading and so forth; that he is condemned to a miserable, stagnant existence, where he mopes around the home, in a state of total dependence on his wife for all his needs. His marital relations, which she says were normal before the accident, have never been resumed since that date. The description given by his wife and fellow workers of his personality prior to the accident was of an ordinary, pleasant, out-going individual, who got on well at his work and was a good family man in his relations with his wife and family and in helping out around the home. Dr. John Ryan, a consultant psychiatrist called on behalf of one of the defendants, agreed with this overall view of the plaintiff’s condition as given by other medical witnesses in the case, but suggested that treatment in an institution might be worth a trial, in an effort to break the plaintiff’s present state of dependence on his wife, and a change in the drug treatment which has not been varied for a long time past and which does not appear to have done much for the patient. These were, however, in the nature of speculative proposals put forward by him and it could not be suggested by him as a matter of probability or even as a strong possibility, that there was any hope of improvement for the future in store for the plaintiff, and I think the probabilities are all the other way.
It is now necessary to consider the question of causation in respect of the accident in which the plaintiff was involved and the question of liability in damages in the case of either or both defendants. When the waterworks superintendent, Jim Clarke, had done what he could for the plaintiff, he entered the waterworks wearing a respirator and quickly discovered the cause of the escape of chlorine gas. The chlorine, mixed with water, was carried from the chlorinator located in the chlorine room, through a pipeline constructed of rigid plastic and mounted horizontally to the wall of that part of the waterworks known as the Mahon Building about six inches above floor level. The injection point was located in the Mahon Building and consisted of a four inch diameter PVC upstand pipe cast in the floor and rising about 3 inches above floor level. A filtered water sump, through which the treated water flowed, was located under the floor at that point. The rigid plastic pipe carrying the treated water stopped short about three feet from the injection point, and where it terminated it was connected to a flexible, white plastic pipe, about one inch in diameter, which was bent through ninety degrees into the injection point in the floor and continued vertically into the underground filtered water sump. At some time prior to the entry of the plaintiff into the waterworks the flexible plastic pipe had become disconnected from the rigid plastic pipe, so that the treated water poured out onto the floor of the Mahon Building at a rate of some gallons per minute. The chlorine gas quickly escaped from the liquid and set up poisonous fumes in the atmosphere.
Mr. Clarke cut off the flow of treated water on to the floor of the building by pushing the flexible pipe over the rigid pipe. Later the same morning, Raymond McKenna, an executive engineer with the U.D.C. went back in with Mr. Clarke and saw the two pipes pushed together in the manner described by Mr. Clarke, and also noted the presence of a loose metal clip, known as a jubilee clip, on the white plastic pipe. Peter Lamb, then assistant overseer with the U.D.C., also came that morning and saw the pipes joined in the manner described by Mr. McKenna, and the loose jubilee clip, but his recollection was that the clip was on the rigid pipe, about twelve inches back from the joint. He made the joint more secure by fixing on a black adaptor and sealing it with wavin cement that afternoon. The pipe in that condition was photographed the same day, and the photograph put in evidence. It appears that some more work was done even later in the day by U.D.C. staff who wrapped denzel tape round the joint as a temporary measure until a permanent repair could be effected.
The failure of the joint in the piping was clearly the primary cause of the accident in which the plaintiff was involved, and there was a large volume of expert engineering evidence as to the probable cause for the pipes becoming disconnected in the manner already described. There was also a good deal of controversy as to the manner in which the joint was secured prior to the accident. Mr. Clarke and some other witnesses suggested that the denzel tape was already wrapped around the joint prior to the accident, but I did not find their evidence reliable in this respect and I concluded that the first time it had been used to secure the joint was during the afternoon following the accident. It was common case that it was unsuitable and ineffective if used for this purpose, save as a temporary, stop-gap measure. Mr. Butler, a fitter employed by the second defendant who had many years experience in carrying out maintenance work on the Dundalk waterworks, gave evidence of service visits in the months of August, 1985 (lasting from the 26th to the 30th of the month) and again from the 9th to the 13th December, 1985, only a few weeks before the occurrence of the accident. He said that in August, 1985, the rigid piping was joined to the flexible pipe by means of a spigot which went into a one and three quarter inch reducer, cemented in with solder, and the entire was held together by a jubilee clip. He produced in court an assembly which he said was typical of what was there at the time. He said that he saw the joint again in the course of his December visit, while working on a wash-pump nearby, and its condition was unchanged. He considered that the pipework in the waterworks was outside the scope of the service agreement with the second defendant, and that he was only concerned with the mechanical plant. It was put to him that the jubilee clip would not go over the joint and he appeared to agree that this was so if it were pushed over the rigid pipe. Mr. McKenna said he did not think the jubilee clip he saw on the pipe on the day of the accident was appropriate for securing the jointit should be a cemented joint. Joseph O’Neill, a consulting engineer called on behalf of the plaintiff, said the joint should be a screw connection with a threaded joint or gasket for anything other than water. A joint of the kind shown in the photograph was not acceptable, with one pipe tapering into another. It was likely to come off under pressure. He said that plastic would crease and crack due to the force used in pushing it in. He would expect the rigid piping to be continued to the end of its run, with a joint fitted, if necessary, to get it into the sump. It appeared to me that the expert evidence on both sides confirmed that the type of joint seen in the photograph taken on the day of the accident was quite unsuitable for its purpose and was likely to fail at some stage, and the failure of the joint, which should have been foreseeable to the plaintiff’s employers, was the primary cause of the accident in which he was involved. Accordingly, I conclude that the first defendant, Dundalk Urban District Council, failed in the duty it owed to the plaintiff to take all reasonable steps to ensure that his place of employment was safe and free from danger of a type which should have been foreseen by it.
The expert evidence adduced in the case also conveyed to me that while alarm systems and ventilation systems were not part and parcel of the conventional installation where chlorine gas was used for water treatment, at the time when the second defendant designed and constructed the Dundalk waterworks in the late 1960s, these additional protective features have become commonplace since that time and have now been widely used for many years prior to the year 1986, when the plaintiff met with his accident. Mr. McKenna, the U.D.C. executive engineer, said that he discussed these safety features with the second defendant prior to the month of August, 1985, but was assured by its representative that if the operatives in the waterworks were doing their job properly there was not much need for a detector. However, when the regular servicing of the waterworks took place in August, 1985, the second defendant’s service engineer, Jim Butler, commented as follows in his service report: “Some thought should be given toward the provision of the following items, purely from a safety point of view, particularly where chlorine and fluorine is concerned: (1) Extract or fan and fume detector in chlorine drum store and chlorinator room . . .” This suggestion was followed up quite promptly by the U.D.C. Mr. McKenna attended a course on safety in chlorination of water treatment plants on the 24th October, 1985, and an exhibition of safety devices in Dublin in November, 1985. As a result he concluded that the Dundalk system did not meet the required standards, and decided that an alarm and extractor fans should be installed in the chlorination room, the fans to be activated automatically every fifteen minutes. He wrote to the second defendant for a quotation for the proposed changes in the installation on the 5th November; a quotation came through on the 19th November, and an order for the work was placed on the 6th December, 1985. Unfortunately, but not surprisingly, the work had not yet been put in hand when the accident happened, but was carried out shortly after the plaintiff sustained his injuries. Once again, while the first defendant was obviously activated at all times with the desire to keep its waterworks up to the best standards of safety as well as efficiency, I am forced to conclude that it must be held liable in law in respect of the accident on this ground also, namely, for its failure to acquaint itself in time with the development of safety procedures which had come to be regarded as standard for some significant time prior to the accident, and to give effect to them in the plaintiff’s place of employment.
The U.D.C. has fought the case on a number of different grounds, one being its claim that the responsibility for any failure of the pipework in the system, or any failure to implement in time safety measures which should have been incorporated in the waterworks, should be laid at the door of the second defendant, which was the acknowledged expert in the field, and which was responsible for the original design and construction of the waterworks and later for all aspects of service and maintenance of the system. It is well established, however, that an employer owes a duty to his employee to provide a safe place of work, and cannot escape liability for breach of such duty by employing an independent contractorno matter how expertto perform the duty for him. Goddard L.J. said in Paine v. Colne Valley Electricity Co. [1938] 4 All E.R. 803, 807: “This is a duty which cannot be avoided by delegation. It is no answer to say . . . ‘We employed competent contractors to provide a safe place or plant’.” See also Charlesworth on Negligence, 4th edn., para. 848: “The employer is liable if the failure to exercise reasonable care and skill is that of an independent contractor, and is only excused from liability if the danger is due to a latent defect not discoverable by reasonable care and skill on the part of anyone.”
I must next consider whether a claim in negligence has also been made out against the second defendant. If the joint in the piping was effected in the manner described by its service engineer in the month of August, 1985, and again in the month of December 1985, thenwhile not, perhaps, idealit should have been safe and secure and it is difficult to understand how the two pipes became disconnected on the 8th January, 1986, unless interfered with in some way in the
intervening period by some of the waterworks or other U.D.C. staff. However, no reason has been suggested why the waterworks staff should have had anything to do with this particular joint at any time. Secondly, I find it difficult to accept that the second defendant’s service engineer would have taken mental note of the construction and condition of the joint in question in August and again in December, 1985, when not involved in any work on the pipeline in question and expressly disclaiming any responsibility for it as part of the service contract. In this situation I am driven to the conclusion that Mr. Butler is mistaken in his recollection of the nature and condition of the joint when he was on the waterworks premises in 1985. I believe that in all probability the joint was inadequate for a considerable time prior to the accident and that this inadequacy should have been noted and acted upon when the periodical servicing of the installation was taking place. I consider that the second deendant’s obligations under the service contract did extend to service and maintenance of the pipeline and injection point through which the potentially dangerous current of water treated with chlorine was introduced into the water supply for the town.
Furthermore, I am of opinion that the second defendant having designed and erected the waterworks and having thereafter undertaken for reward the periodical service and maintenance of the equipment installed, owed an obligation to the U.D.C. to keep them informed as to changes which modern standards might require in the system from time to time. It appears to me to have recognised this duty by the recommendation made in the report of the service engineer in August, 1985, but unfortunately this came just too late to save the plaintiff from harm. I believe it should have reacted sooner to the developments in its field and should have been aware of serious accidents which had occurred elsewhere and which could be guarded against by technology which had evolved since the waterworks were constructed. If the joint at the time of the accident was merely of the crude type illustrated by the photograph taken later on the same day, then I am of opinion that it did not require the particular expertise of the second defendant to recognise it as being potentially dangerous, and that this should have been apparent to, and observed by, persons with reasonable expertise on the U.D.C. staff, among whom I would include Mr. Clarke.
On these grounds I make a finding of liability for the accident against both defendants and I exonerate the plaintiff from the charge of contributory negligence brought against him. I find that the two defendants were equally responsible for the accident and are therefore entitled to be indemnified one against the other to the extent of 50% of the damages and costs awarded in favour of the plaintiff, and each defendant to be responsible for its own costs of the proceedings.
Turning to the question of damages, I assess damages in favour of the plaintiff as follows.
As regards the claim for loss of earnings, I find that the plaintiff was employed by the U.D.C. as a general operative and by managerial order made on the 3rd January, 1986, prior to the accident, and after consideration of the determination by the waterworks sewerage appeal committee heard on the 26th June, 1984, the plaintiff was appointed to the higher grade of waterworks caretaker grade 3, giving him a weekly wage of £145.65 plus maximum weekend allowance of £11.10. Although this was a source of dissatisfaction to the plaintiff and his union representative, it appears to me to have been the plaintiff’s only legal entitlement at the time and I propose to deal with his claim for loss of earnings to date and into the future on this basis. For loss of earnings to date I award the sum of £25,314.77. For loss of earnings to age 65 I award the further sum of £78,813. As regards the award of general damages, while it is impossible to overstate the disastrous effect the accident has had on the plaintiff and will, in all probability, have on him for the rest of his life, I also have regard to two factorsone, the award of a very large sum for loss of earnings, totalling £104,127.77, and the other, my belief based on the evidence I have heard, and from seeing and listening to the plaintiff, that no award of damages, however large, is likely to enhance his enjoyment of life or bring him much in the way of comfort or consolation. For general damages to date I award a sum of £75,000, and for general damages for the future I award a sum of £100,000.
Summary
Loss of earnings to date
£25,314.77
Loss of earnings for the future
£78,813.00
General damages to date
£75,000.00
General damages for the future
£100,000.00
Total:
£279,127.77
Plus medical expenses
£1,600.00
Total:
£280,727.77
I give judgment for the plaintiff against both defendants for the sum of £280,727.77, together with the costs of the proceedings.
As I have formed the opinion that the plaintiff is incapable at the present time of managing his own affairs, I propose to direct that the sum of £20,727.77 should be paid by the defendants as to £19,127.77 to the plaintiff’s wife to be utilised for his benefit; £1,600 to plaintiff’s solicitors to discharge medical expenses and that the balance of the damages, amounting to £260,000 should be paid into court to the credit of this suit and invested pending the making of an application to the High Court to admit the plaintiff to wardship.
Sadie Phillips and Liam Phillips v James Durgan
1989 Nos. 78, 79, 189 and 190
Supreme Court
14 December 1990
[1991] I.L.R.M. 321
(Finlay CJ, Griffin and Hederman JJ)
FINLAY CJ
(Hederman J concurring) delivered his judgment on 14 December 1990 saying: These are two appeals against two awards made at the hearing of actions heard together by Egan J in the High Court on 16 February 1989.
The two plaintiffs in these proceedings are husband and wife, and claim damages against the defendant in respect of personal injuries suffered by them in a fire which occurred in the defendant’s house on an occasion when, as the result of a contract made between the defendant and the plaintiff Sadie Phillips, she and her husband, the plaintiff Liam Phillips, were commencing to carry out *323 the work of cleaning the kitchen prior to painting and decorating it. In the High Court the learned trial judge found that the defendant was liable, refused to make any finding of contributory negligence against either plaintiff and assessed damages in the case of Sadie Phillips in a sum of £100,000, and in the case of Liam Phillips, in a sum of £34,000.
The defendant has appealed against the finding of liability in each case, and against the failure to make a finding of contributory negligence in each case.
Each plaintiff has appealed against certain individual findings made in the judgment of the learned trial judge concerning the issue of liability, and, in addition, the plaintiff Sadie Phillips has appealed against the assessment of her damages on the grounds that they are inadequate.
The facts
The accident out of which this litigation arose occurred on 19 January 1981. The facts leading up to the happening of the accident and the incurring of the injuries by each of the plaintiffs were not in dispute at any time during the hearing before the High Court. The only version of the happening of the accident and the condition of the premises, all of which were matters relevant to the issue of liability, came from the evidence of the two plaintiffs.
These facts were: The plaintiff Sadie Phillips is a sister of the defendant, and in 1981 the defendant who had after the death of his mother in 1975 lived on his own in the family house, which was his property, decided to sell it.
He requested the plaintiff Sadie Phillips to paint and decorate the house, and he paid her a sum of £100 to do so. The evidence was that neither of the plaintiffs had been in the kitchen of the house since some time before the death of Sadie Phillips’ mother in 1975. The defendant, upon requesting the work to be carried out by the plaintiff Sadie Phillips, did not give any form of warning of any description to either of the plaintiffs concerning the condition of the house and, in particular, concerning the condition and situation in the kitchen.
On 19 January 1981 the plaintiff Sadie Phillips went to the house in the evening. She was driven there by her husband Liam Phillips, and as the house was some distance from the place where Mr and Mrs Phillips then lived, and since Mrs Phillips did not drive a car herself it is clear that it must have been within the contemplation or knowledge of the defendant that Mr Phillips would at least be involved in coming with his wife to the house to drive her there and probably would also take part in carrying out the work. The defendant was not present in the house when they arrived. They went first into the kitchen of the house to start the preparatory cleaning prior to painting. The kitchen was in a condition of extreme dirt and filth, most of which consisted of many years’ accumulation of grease from constant frying on a gas cooker which was situate in the kitchen. On the floor was a linoleum which was broken in one particular place, in front of the cooker and out of which there was protruding newspapers *324 which had been originally put as a lining between the linoleum and the tiles below it. Loose on the floor was an accumulation, apparently arising over a long time, of paper bags which were greasy as the result of having contained fried chips or fried fish purchased in them. The cooker itself was deeply embedded with grease on all parts of it, and the wall immediately adjoining it and at the side of it was heavily coated with grease as well.
The plaintiff Sadie Phillips commenced the task of cleaning, as might be expected, by trying to provide herself with hot water, having brought detergents, wire wool and other pieces of equipment with her. The geyser did not work and could not be made to work, and after trying all four of the jets on the cooker, she succeeded in getting one to light in a defective fashion. Upon that jet, which was described by her as stuttering, she placed a kettle of water to boil. There was no hot water running in any system in the house. Having done that, Sadie Phillips commenced with her right hand to scrape with a tool the side of the cooker and the wall beside it to try and start removing grease from it. In her left hand she had a cloth which was for the purpose of following up the scraping with a cleaning or rubbing movement. She described being down on her ‘hunkers’ and standing up, steadying herself whilst so doing, on the cooker. She apparently slipped or stumbled, due probably to the greasy condition of the floor, and in so doing the cloth in her left hand came in contact with the flame under the kettle. It immediately took light because of the grease which had already accumulated on it, and she dropped it straight away onto the floor, and attempted to put it out by stamping on it. In what is described by both the plaintiffs as an extraordinarily short time, the whole area around the cooker, including the floor, the papers on it and the cooker itself, appeared to be on fire, and the plaintiff Sadie Phillips was extensively burned as a result of the fire on the floor catching, in the first instance, onto her slippers which she was wearing, and thereafter her clothes as well. She was dragged out by her husband who in the process of dragging her out and also in having attempted to put out the fire in which in effect she was standing, was also injured.
The judgment
On those facts the finding of the learned trial judge on the issue of liability is contained in a judgment in the following terms:
Now it is suggested that the defendant in this case should have warned the plaintiffs as to the dirty condition of the floor and, because I regard the floor as being really the relevant dirty thing in this case, but when both plaintiffs arrived they could see quite clearly that the floor was greasy, so his failure to warn them of the greasiness was in my opinion irrelevant, but we are still in the position that a fire started in this dwellinghouse which was the property of the defendant and presumably of some value, and the plaintiff was his sister. This fire started *325 — I am not holding the fire started because of the immediate negligence of either party — I am certainly not holding that the fire started because of the negligence of either plaintiff because it did not. But the fire did start and I think on a principle which has been used in other countries and which is akin to a rescue principle that here they are situate in a house belonging to the plaintiff’s brother where a fire has started and a fire is spreading, that in my view they are under a moral, if not a legal, but certainly a moral obligation to do the best they can in the face of this fire to prevent it spreading, to try if possible to put it out because it may well be that the house could have been in peril of going completely up in flames. Fortunately it did not, but no one can have known that at the particular time.
On that principle, because it was the plaintiff’s brother’s house and because the dirty condition of it in some way contributed to this fire occurring, I think these plaintiffs are entitled to succeed.
The defendant’s submission concerning this finding may thus be summarised.
(a) The principle of rescue does not apply in Irish law.
(b) Even if the principle of rescue applies in Irish law it only applies if a fire which has occurred causes danger to persons as distinct from danger to property.
(c) Once the learned trial judge made a finding that the fire was not caused by the ‘immediate negligence’ of the defendant, the defendant was entitled to a direction.
(d) The learned trial judge was wrong to consider as relevant to the issue of liability the relationship between the plaintiff Sadie Phillips and the defendant.
The grounds of the cross-appeal by the plaintiffs against the findings by the learned trial judge on the issue of liability may thus be summarised.
(a) He was in error as a matter of law in holding, as he appeared to hold, that by reason of the fact that the plaintiffs could see the condition of the premises the defendant could not have been guilty of negligence in the circumstances.
(b) That having regard to the fact that the defendant ought to have known and foreseen that the plaintiffs in carrying out the work of cleaning which he had requested would require by some means to provide themselves with hot water, as the first method of dealing with the situation, and that having regard to the condition of the cooker, and the danger arising from any form of lighting jet on that cooker, coupled with the particular danger of the greasy floor and the inflammable material on it, that he had an obligation very specifically to warn the plaintiffs, before they presented themselves to the premises, of the precise nature of the dirt and condition of it, the dangers associated with it, the difficulties which would be encountered in providing hot water and the risks involved in having any form of naked flame whilst they were working there.
*326
The law
I have come to the conclusion, with regard to the legal issues arising in this case, that the following is the position. I am satisfied that what is described as the principle of rescue, and what is dealt with in the case of Ogwo v Taylor [1987] 3 All ER 961, truly consists only of a situation in which the court will rule as a foreseeable consequence of the negligent commencement of a fire that persons seeking to put out that fire, either by reason of their duty as officers of a fire brigade or by reason of their desire to prevent damage, whether to persons or property, may be injured by the existence of the fire. It is essentially, therefore, a doctrine of foreseeability and cannot, in my view, come into operation without an initial negligence causing the fire. In those circumsances, it seems to me that the manner in which the learned trial judge appears to have applied what he describes as the doctrine of rescue is in law incorrect.
Furthermore, however, I am satisfied that in so far as it is possible to construe the judgment of the learned trial judge in this case as acquitting the defendant of negligence contributing to this fire and these injuries, by reason of the fact that the plaintiffs could see the condition of the premises, that would not be a correct statement of the law which is applicable. Having regard to the decisions of this Court in O’Donoghue v Greene [1967] IR 40 and Morley v Eye, Ear and Throat Hospital Inc. [1967] IR 143, and having regard to the judgment of Griffin J, which is unreported, in Foley v Musgrave Cash and Carry Ltd (Supreme Court, 1984 No. 143, 20 December 1985), I am satisfied that the obligation in law of the defendant on this occasion, where he sought to have work carried out under a contract in his house, was to warn the plaintiffs of the particular risks and hazards which could reasonably be foreseen in the type of work which he was asking them to carry out, and to provide them either with a means of carrying out that work which was safe, or to issue to them a warning prior to their arrival for the commencement of the work, of the sort of preparations which might be necessary and the sort of equipment which it might be necessary to bring in order to carry out the work with safety.
In so far, therefore, as the learned trial judge held that the defendant was not negligent in contributing to the happening of this fire, in my view that was a decision which was incorrect in law.
In many instances these two views, acceding in a sense to some of the grounds upon which the defendant relies in his appeal, and also to some of the grounds upon which the plaintiffs rely in their cross-appeal on the issue of liability, would lead to a re-trial of these proceedings.
Having regard, however, to the situation in which the primary facts are nowhere in dispute, either in the form of contradictory evidence or in the form of any suggestion by way of cross-examination, that any account of the condition of the kitchen or the happening of the fire was inaccurate, this Court is, in my view, in as good a situation as would be a court of trial to raise inferences from *327 the facts as established in order to reach conclusions with regard to the issue of liability in this case. Having regard to the fact that the accident out of which these claims arose occurred in 1981 and that this appeal is now being concluded almost ten years later, I have no doubt that the interests of justice are that this Court should decide the issues between the parties.
I have come to the conclusion that the defendant was negligent on this occasion. The particular task which he was asking the plaintiffs to carry out in this kitchen was, having regard to the evidence of the condition of the kitchen, a most unusual task of cleaning which no ordinary person could be expected to anticipate. He owed a duty to the people whom he was asking to carry out the work for him to give some consideration to how it might be done with safety. That he cannot have done, having regard to the fact that he neither arranged any method of providing hot water, which was essential, without permitting the lighting of a jet on the cooker, nor gave to the plaintiffs any specific warning, as he should have done, having regard to the condition of the cooker and the failure to work of the geyser, that they would have to provide a system of work involving, presumably, the use of hot water, which avoided the risks associated with the excessively and unusually greasy condition of the cooker and its surrounding area.
The duty of care which the defendant owed and which appears to me to be a reasonable duty, could have been discharged in a number of different ways, the most obvious of which would appear to be that he could have arranged to have the geyser repaired from whatever fault occurred in it before asking anyone to start cleaning the kitchen. The second possible alternative was that he could have specifically warned the plaintiff Sadie Phillips when entering into the contract with her, of the fact that there was no method of making hot water otherwise than by the flame, and of the fact that the entire place was excessively and abnormally greasy. Such a warning would, to a person with the ordinary experience of a housekeeper, which the plaintiff Sadie Phillips had, be sufficient for her to devise some method of commencing work which would not have involved the risks which eventually took place. For these reasons I conclude that the defendant was negligent and that his negligence contributed to the fire and to the consequent injuries to both the plaintiffs in this case.
The fact that the plaintiffs could see the condition of the kitchen as soon as they actually got into it is relevant on the issue of contributory negligence. Here it appears to me that the legal position of each of the plaintiffs is different. I do not consider that the plaintiff Liam Phillips could be found guilty of any negligence contributing to this accident. What he did after the fire had started was the natural and obvious thing to do, and could not be an act of contributory negligence, namely, an attempt to put out the fire and to save his wife.
With regard to the plaintiff Sadie Phillips, however, the position appears to be different. She was aware, as she was the person who lit it, of the stuttering *328 nature of the flame under the kettle on the gas cooker. She was aware, because she was standing immediately beside it, of the extremely greasy nature of the cooker itself and of the immediately surrounding area, and she was aware of the condition of the floor. In those circumstances it seems to me that a standard of reasonable care for her own safety would have required that she took some special precautions about where she was working, until such time as the kettle had been boiled and the flame had been turned off.
This was an accident, however, which was, in my view, with regard to the question of culpability, by far the greater fault of the defendant who created this task and these uniquely dangerous conditions in which he expected it to be carried out, than the fault of the plaintiff Sadie Phillips. I would assess the level of contributory negligence on her part at 15%, with 85% on the part of the defendant.
With regard to the plaintiff Sadie Phillips’ appeal against the damages awarded to her, it is unnecessary to repeat the nature and extent of her injuries, other than to summarise them as being extremely extensive burning which has left her with major disabilities into the future for the rest of her life. The damages falling to be assessed in her case were general damages only, and the learned trial judge assessed a figure both for past and future damages together. I do not consider that the sum of £100,000 as a gross figure for both damages up to date and into the future could be said to be so inadequate as to be outside a reasonable assessment and to require variation by this Court on appeal.
I would, therefore, allow so much of the defendant’s appeal as was against the finding of contributory negligence in the case of Sadie Phillips only, and would assess her contributory negligence at 15%; I would dismiss the appeal against the finding of contributory negligence in the case of Liam Phillips; I would dismiss Sadie Phillips’ appeal against the damages on the basis that they were inadequate, and I would dismiss the defendant’s appeal against the finding of liability in both cases against him.
GRIFFIN J:
I agree with the judgment delivered by the Chief Justice. I would like to add a few comments.
Whilst holding that the fire started without the negligence of either party, the learned trial judge nevertheless held by applying a principle akin to the ‘rescue’ principle, that because the dirty condition of the house owned by the defendant in some way contributed to the occurrence of the fire, the plaintiffs were entitled to succeed in these actions. On the hearing of the appeal it was accepted by counsel that the ‘rescue’ principle was neither raised nor argued in the High Court. That principle cannot apply unless there has been negligence on the part of the tortfeasor. The principle is succinctly stated by Lord Denning MR in Videan v British Transport Commission [1963] 3 WLR 374 at p. 385, where he *329 says:
… if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.
Likewise, in a number of cases of which Ogwo v Taylor [1987] 3 All ER 961 (to which the Chief Justice has referred) is one, it has been held that where a person who by his negligent act had started a fire, and injuries were suffered by another person as a result of fighting the fire, and the person starting the fire should have foreseen that there was a real risk of injury inherent in the situation, there was a clear duty of care on the part of such person, and with no break in the chain of causation, he would be liable for such injuries as were suffered by the person fighting the fire.
It is clear therefore that in both rescue and fire-fighting cases there can be no liability unless there was negligence on the part of the person creating the situation of peril in the former case and on the part of the person starting the fire in the latter case.
On the uncontested facts in this case, the defendant could not, in my opinion, escape a finding of negligence on his part. The walls of the kitchen and the top and sides of the cooker and the floor of the kitchen were all covered with grease. As the plaintiff said in evidence, ‘the grease was so thick on the cooker it was like candle grease’. Three of the four rings on the gas cooker were not working as the jets were all stuffed with grease; on the remaining ring only some of the jets were in working order and the flame from those was unsatisfactory. All these facts were known to the defendant. He should clearly have foreseen that it would be necessary for his sister to have boiling water available to her for the purpose of cleaning the walls before painting. In its then condition, the gas cooker was an extremely high fire hazard. He should therefore have had the geyser and the gas cooker put into efficient working order before she commenced the work she was to do for him. He should also have informed her in advance of the condition of the kitchen so that she could bring with her the necessary materials and tools for carrying out the task she was to perform. The defendant did none of these things, and was clearly in breach of the duty he owed to her.
With regard to the finding of the learned trial judge that, when the plaintiffs arrived on the premises they could see quite clearly that the floor was greasy, and that the failure of the defendant to warn them of the greasiness was therefore irrelevant, that is a finding which in my view is not sustainable. The cases *330 decided by this Court to which the Chief Justice has referred in his judgment establish that knowledge on the part of the plaintiff, whether imparted to her by the defendant or independently possessed by her, would not excuse the defendant unless she could, by virtue of such knowledge, efficiently carry out the work for which she was engaged without exposing herself to the risk of injury. Having regard to the condition of the floor and of the cooker in this case, in my view the plaintiff could not efficiently carry out the work she was doing for the defendant without exposing herself to the risk of injury.
It is now almost ten years since the occurrence of this accident. Prior to the hearing in the High Court, the plaintiffs and their family had emigrated to Canada. It was necessary for them to return for the hearing in the High Court, and they also returned for the hearing in this Court. I entirely agree with the Chief Justice that, in the circumstances of this case, and as the primary facts are not in dispute, the interests of justice require that the issues of liability should be determined by this Court. That course obviates a further trial in the High Court and a possible further appeal in this Court. I agree with the findings of the Chief Justice on the issues of negligence, contributory negligence, apportionment of degrees of fault and damages in the case of the plaintiff Sadie Phillips, and with his findings on the issue of negligence and contributory negligence in the case of Liam Phillips, and I would concur in th orders proposed by him.
Helen McGuinness v Quinn’s Supermarket
Supreme Court
15 May 1969
[1969. No. 1867P.]
[1970] 104 I.L.T.R 13
O’Daly C.J., Walsh, Budd JJ.
O’Daly C.J.:
The plaintiff was injured in the defendants’ supermarket store in Dundalk on the forenoon of Saturday, 30th October, 1965, the eve of Hallow’s Eve. This supermarket, like most supermarkets we are familiar with, is equipped with metal baskets which customers can carry and also with wheel trolleys for the carriage of customers’ goods to the pay desk at the exit. One of these trolleys containing the goods of another customer, a Mrs. Kennedy, overturned or was knocked over and struck the plaintiff’s right foot causing the injury in respect of which this action was brought. The jury found that the defendants were not negligent and the action was therefore dismissed; and this appeal, by way of motion for a new trial, is based in substance on a complaint that the trial judge, Mr. Justice Murnaghan, misdirected the jury in failing to remind them of the evidence of the manager of the supermarket.
The plaintiff at the time of the accident was close to the fruit section in the store and was carrying a metal basket, and Mrs. Kennedy’s trolley was about a foot away from her and the front of the trolley was facing towards her (q. 31). The plaintiff’s description of what happened is (q.37-38, 45) that she just said to her sister, “I have got to go over here to get something”, and with that the trolley just came down and fell on her foot; it was full of goods. Mrs. Kennedy adds some further detail to the picture. There was a good crowd *14 in the store at the time, and she also had in mind to get some fruit. Her description of what happened is given in these words (q.137) (p.13): “Well, I turned my back to the trolley and went over to get the fruit and I got it and, as I started back, the people were pushing to get over. There was an announcement made before, that there was a bargain in fruit. There was an announcement made previous, too, that there was a special offer in fruit and nuts for Halloween, and there was a rush on to get them. So I got my fruit and I turned round, and I saw the trolley being knocked over.” She did not see who knocked the trolley (138) but she did see it being pushed (139), nor did she see what caused it to fall, (186) though she thought it was because somebody had pushed up against it (187). The plaintiff’s case, medical evidence apart, was completed with the testimony of an engineer who carried out certain experiments to ascertain with what load and in what circumstances a trolley would overturn. It is not relevant to this appeal to recount his evidence. The engineer’s evidence borne on the case of which the plaintiff had given notice in the particulars of negligence which she furnished viz. that the defendants had been negligent in failing to warn customers of the danger of overfilling trolleys. The emphasis in the case on the plaintiff’s behalf, however, shifted from the engineer’s evidence to the evidence which Mrs. Kennedy gave about announcement over the public address system of a bargain in fruit as this point was developed in the argument by counsel for the plaintiff in his cross-examination of the supermarket manager, Mr. Brendan Rooney, the principal witness for the defence.
In his charge Mr. Justice Murnaghan did not mention Mr. Rooney’s evidence. Mr. Lindsay who, with Mr. McDonald, led for the plaintiff, requisitioned a re-charge in these words: “I would ask your lordship to recall the jury and put to them the evidence given by the manager, Mr. Rooney, who not alone knew of this announcement but made the announcement in relation to the fruit. He knew from experience that there would be a rush …” This dialogue then ensued:
“Mr. Justice Murnaghan: Wait now.
“Mr. Lindsay: He saw the rush.
“Mr. Justice Murnaghan: What he described was definitely not in the nature of a stampede, a movement of people towards the fruit.
“Mr. Lindsay: Before that, Mr. McDonald tells me, he called it a rush.
“Mr. Justice Murnaghan: It was Mr. McDonald called it a rush; it was Mr. McDonald’s phrase he used all the time.
“Mr. Lindsay: Then the movement that he saw and that he did nothing about it. Your lordship has left that out entirely, the evidence of Mr. Rooney in this regard.
“Mr. Justice Murnaghan: I will tell them that.
“Mr. Lindsay: That he did not warn them not to rush or he did not add anything to his announcement about the sale of fruit, that they need not have rushed.”
The trial judge’s re-charge was as follows: “I am sorry to have to disturb you, gentlemen. Counsel for the plaintiff has asked me to remind you of a piece of evidence given by the manager, Mr. Rooney, in case you may have forgotten it. But just to bring it to your mind, it is in relation to the fact that Mr. Rooney, you remember he was the manager, and he said he made this announcement. He said, first of all in answer to counsel for the defendant, there was nothing unusual happening this Saturday morning different from any other Saturday morning. He did make this announcement. Then Mr. McDonald asked him was there a rush. The word ‘rush’ was Mr. McDonald’s word, and he said there was definitely nothing in the nature of a stampede; he said there was the normal movement of people towards the fruit. That was his evidence, gentlemen. I am asked to remind you of what he said and I do so. That is all.”
I turn now to summarise Mr. Rooney’s evidence on cross-examination by Mr. McDonald. When asked if he noticed the rush towards the fruit portion of the shop when the announcement was made that there were bargains to be got there he said the shop was 6,000 feet square and it would be very hard to know (429), and if the shop were crowded and there was a rush he would certainly see it (433). Pressed, as to whether he saw the *15 rush he said he did (434). Next he was asked if he was accustomed to such a rush after an announcement of bargains in a particular department and his answer was, “at times” (435). This was followed by a question whether it would be right to assume that at Halloween time he would expect a rush to the apple and nut department on the announcement of bargain prices and the answer given was “yes” (436). Later counsel returned to the topic. He asked the witness if the rush was in the nature of a stampede when he saw it; the answer, “no, definitely not” (491). “Q.492. Just a rush? A. Just an ordinary normal rush. Q.493. Just a normal rush not an Irish forward rush, or a movement of people? A. A movement of people going towards the fruit.” And, lastly, counsel asked if the witness had ever had anyone meeting with an injury in these rushes before and the witness answered “No, definitely not” (500).
The trial was a two-day trial, and the judge’s charge began on the morning of the second day; whether or not counsel’s closing speeches were delivered on the same day does not appear from the transcript; the probability is that they were. At the outset the judge dealt with the plaintiff’s case in these words: “Now, it is important that you should understand what the negligence that she alleges is. At one time in the course of this case it seemed to me that the case was being made based on the evidence of Mr. McSweeney that there was something wrong with this trolley, but that has disappeared out of this case and what is now alleged (and I want you to pay particular attention to this), the case that is now made on behalf of the plaintiff is this. First, that the owner, the defendant company, should have known that by reason of the announcement which was made in the store about fruit or apples or whatever it was, the plaintiff would have been exposed to considerable harm. This is the way that is put by counsel in closing the case to you yesterday afternoon and, secondly, that the owner should have known that there would have been a rush, as a result of which the trolley would be toppled, and he said to you that is the gist of this case.”
Mr. Lindsay’s requisition asked that the jury should be reminded that Mr. Rooney knew from experience there would be “a rush”; that he did nothing about “the rush” when he saw it, that he did not warn the customers not to rush and that they need not have rushed.
The Judge parsed out, accurately in my opinion, what Mr. Rooney accepted as the meaning of counsel’s word “rush”. That Mr. Rooney did nothing about the “rush” and didn’t warn the customers not to “rush” and they need not have “rushed” were matters of comment; proper enough for counsel to make to the jury, but no part of the judge’s duty to refer to. What we are left of Mr. Rooney’s evidence that the judge did not refer to it in his re-charge was his affirmative answer to the question whether he would at Halloween time expect a rush (again counsel’s word) on an announcement of bargains in the apple and nut department (436). In passing, it may be noted that Mr. Rooney was not asked in cross-examination why he did nothing and failed to give any warning. This omission, in the circumstances of this case, cannot, in my judgment, be held to amount to a misdirection. These circumstances which I take not singly but all together are (i) the term “rush” which was first used by plaintiff’s counsel was accepted by Mr. Rooney as meaning no more than a movement of people; (ii) counsel did not challenge Mr. Rooney as to why he took no action and gave no warning (it is not to be overlooked that Mr. Rooney had no experience of any injury occurring on any prior occasion when bargain announcements had been made (q.500); (iii) the omitted piece of evidence doubtless had been suitably highlighted in counsel’s speech a short while before; and (iv) counsel did not press his point to a further requisition.
I would dismiss the plaintiff’s appeal.
Walsh J.:
I agree.
Budd J.:
I agree.
Bates v. Minister for Justice
[1998] 2 IR 82
Murphy J. 82
S.C.
Murphy J.
4th March, 1998
In this case the plaintiff claims damages against the defendants for their alleged failure to take reasonable care for his safety at a time when he, the plaintiff, was a prisoner in Limerick Prison.
The particular incident of which the plaintiff complains occurred on the morning of the 20th July, 1988. There was little dispute as to what actually occurred. The plaintiff was in his cell in the area of Limerick Prison known as”A3″. It was about 9 a.m. The plaintiff had had his breakfast and returned to his bed where he was “dozing off”, as he described it, when his cell door opened and another inmate, Mr. Brian Looney, entered and attacked him. It was agreed that the attack was horrific and caused serious injury to the plaintiff. Mr. Looney threw a jug of hot water containing sugar in the plaintiff’s face; hit him over the head with a heavy object and cut him badly with a knife or blade. The screaming of the plaintiff was heard by two prison officers who went to his assistance. It was the plaintiff’s evidence that the officers stood outside his door and said “We’re not going in there”. The prison officers concerned accepted that there was some delay in gaining access to the cell for the reason, as they explained, that when they tried to enter the cell they found it blocked by the two prisoners whom they believed were fighting up against the door. The prison officers had to force an entry into the cell. This is one of the few areas in which there was a conflict between the evidence of the prison authorities and that of the plaintiff. It is, however, significant to note that the prison officers were not cross-examined in relation to the evidence which they gave in this regard.
In the High Court it was contended by the plaintiff that the defendants through their servants or agents were guilty of negligence in the following respects:-
1. In failing properly to supervise the area wherein the assault took place.
2. In causing or permitting a prisoner to be in possession of a dangerous weapon.
3. In failing to come more quickly to the assistance of the plaintiff after he was attacked.
4. In failing to anticipate the threat posed by Mr. Looney to the plaintiff.
5. In permitting inmates in the prison to have access to hot water without adequate supervision.
In a judgment delivered on the 18th May, 1995, Johnson J. rejected the arguments based on each of the foregoing grounds. He described the last of these grounds as “the question that caused me a great deal of difficulty” and in dismissing that claim said he was doing so with “a certain degree of hesitation”. It is on that ground alone that the plaintiff relied in this Court.
Anyone familiar with a boys’ boarding school or even children’s tea parties would be aware of the temptation felt by some young people to throw the contents of tea cups at one another. Prison staff would be even more conscious of this risk and the damage which violent prisoners could do to one another and to prison officers with hot water or tea. Clearly it is a risk which must be foreseen by prison authorities.
The “A3” area housed seven or eight high security prisoners in separate cells. Undoubtedly they had the potential to make trouble. The area was on the date in question supervised by five prison officers; four on the landing and one on the gate. By any standard this would appear to be a very high degree of supervision and security.
One of the cells on the plaintiff’s landing, referred to in evidence as “the grub room”, was used as a base for meals supplied to the inmates. Prior to breakfast, food was brought to that room by other prisoners and at 8 a.m. the prisoners on the plaintiff’s landing were released from their cells; collected food from the grub room and returned to their cells where they ate it. It seems that they were expected to finish their breakfast by 8.30 a.m. They were locked in their cells until 9 a.m. and thereafter the cells were opened so that they could engage in recreation. To that extent breakfast was a form of self-service. In particular the prisoners were permitted or required to make their own tea. A variety of procedures had been attempted at different times to facilitate the making of tea. On the 1st April, 1987, the authorities had installed three Burco boilers, one on each of the prison landings. These were electrically operated and maintained the water at a permanent temperature during the period for which it was required. The prisoners filled teapots from these boilers. In the case of Mr. Looney and some other prisoners a jug rather than a teapot was used. In either event the hot water was usually brought in the container by each prisoner to his cell but it was an established and permitted practice for prisoners to bring their tea into other cells and drink it in the company of their fellow inmates. In the present case the prison officers saw Mr. Looney drawing off hot water from the boiler, walking down the landing and entering the plaintiff’s cell. This was not regarded as unusual or undesirable by the prison authorities or by the prisoners who gave evidence.
It does appear that the learned trial judge was misled as to the period during which hot water was available to prisoners for tea making. It is clear from his judgment and from interventions during the hearing that the learned trial judge understood that this facility was available throughout the entire day. That was not the case. It was available for limited periods only. These appear to have been meal times and certain tea breaks. The precise times at which it was available were not clearly identified nor does it appear that the time limits were always strictly adhered to.
The nature of the duties owed by prison authorities to inmates was considered by Hamilton P., (as he then was) in Muldoon v. Ireland [1988] I.L.R.M. 367, where he said:-
“The onus, as I say, on the prison authorities is to take reasonable care. They cannot guarantee, and cannot be expected to guarantee, that an incident like this cannot occur.”
There is no question of an obligation being imposed upon the defendants to ensure that an accident or assault does not take place and counsel for the plaintiff emphasised that he was not making that case. However, he pointed out that in Muldoon v. Ireland [1988] I.L.R.M. 367 the issue was whether the prison authorities were negligent in failing to discover the existence of a weapon unlawfully brought into the prison. In the present case the “weapon”, if a jug of hot water can be so described, was provided by the authorities. This is a distinction which counsel on behalf of the plaintiff emphasised.
The assault on the plaintiff in so far as it consisted in throwing the tea or hot water in his face could have been prevented by denying the inmates access at all to tea or hot water. It is not suggested on the plaintiff’s behalf that the defendants should have taken this draconian measure. What is contended is that having regard to the known propensity of some of the inmates to violence and the obvious danger to prisoners and warders from the throwing of hot water or tea that the availability of such missiles should be carefully supervised. However, it is not a question of general supervision. The plaintiff could not contend that the ratio of prison officers to inmates in the area in question was inadequate. The criticism of the supervision relied upon by the plaintiff in this Court related to the system or regime which the prison officers supervised and enforced. The plaintiff asserts that the authorities should not have permitted one prisoner to enter the cell of another carrying a container full of hot water. However, the logic of that argument is that one prisoner could not be permitted to have such a container anywhere in the presence of another inmate or indeed a prison officer as it would be impossible to prevent an assault with the hot liquid although it might be possible to prevent the incident escalating into an even more serious struggle. Moreover, there would be little difficulty in identifying the culprit and imposing the sanctions permitted by law.
The various systems of providing tea or facilities for tea making were canvassed in evidence before the learned trial judge and discussed in argument before this Court. In particular it appears that before April, 1987, and again subsequent to the assault the subject matter of these proceedings the system in Limerick prison had been to transport large urns of tea already made from the kitchen to each of the prison landings. That procedure involved some dangers and difficulties in the transportation of the tea but more particularly the addition of milk to the urns was resented by some prisoners who preferred to have their tea without milk. A requirement discussed in argument that the inmates should drink their tea in the grub room or some other facility designed for that purpose would not solve the problem. It would merely transfer it from the cells to the eating room. Service of the hot water to each inmate in his cell might afford a solution but would involve a major change in the management of the prison and perhaps a risk to security. Furthermore if the tea or hot water was to be served by other prisoners, as would appear to be the system in the prison, this would mean that some prisoners would still have access to hot liquids with the potential for causing injury to other inmates.
Whilst it might be possible to devise some system under which prisoners could obtain tea of reasonable quality and temperature without endangering the safety of other inmates there is no obvious means by which this can be achieved without an excessive hardship on the prisoners or an excessive burden on the prison authorities. No doubt prison management is a constant battle between the need to preserve security and safety on the one hand and, on the other hand, the obligation to recognise the constitutional rights of the prisoners and their dignity as human beings. Procedures for the provision of food and hot drink and the means by and the location in which it will be provided will require to be reviewed from time to time but it would seem unfortunate if the requirements of safety precluded access to tea or necessitated further restrictions on communal eating and social intercourse between the inmates. It is a difficult balance to achieve but it is in that context that the duty of care owed by the defendants to the plaintiff must be tested.
Ultimately cases of this nature must depend upon what should have been anticipated by the authorities. There is a specific finding that the warders were unaware of any antagonism by Mr. Looney to the plaintiff. Nor was there any evidence that the authorities knew or should have known of any objection by the plaintiff or other prisoners to any other inmate visiting them in their cells. Obviously there was a danger that boiling water could be thrown, but there was no evidence to suggest that there was any particular risk to inmates from such conduct; only to warders. In the circumstances that existed at the time when the assault took place it does not seem to me that there was any evidence that the defendants’ servants or agents failed to exercise reasonable care for the safety of the plaintiff. I am satisfied that the conclusion reached by the learned judge in that respect is correct and I would dismiss the appeal.
Lynch J.
I agree.
Barron J.
I agree.
Michael Ryan v Ireland, The Attorney General and the Minister for Defence
1986 No. 346
Supreme Court
16 February 1989
[1989] I.L.R.M. 544
(Nem. Diss) (Finlay CJ, Hamilton P, Walsh, Griffin and Hederman JJ)
FINLAY CJ
(Hamilton P, Walsh, Griffin and Hederman JJ concurring) delivered his judgment on 16 February 1989 saying: This is an appeal brought by the plaintiff against the order of the High Court made on 5 November 1986 by Keane J which dismissed his claim for damages for negligence against the defendants.
The plaintiff was a member of the Defence Forces serving as a volunteer with the United Nations International Force in Lebanon when, on 18 April 1979, he was seriously wounded by a mortar attack launched by hostile forces on a camp at Naquora in the Lebanon where the Irish soldiers, including the plaintiff, were on duty.
He alleges that his wounds were due to the fact that he was negligently exposed to unnecessary risk by being placed in an unprotected billet close to a target area consisting of a machine gun, at a time when an attack was apprehended as being imminent.
The case was withdrawn from the jury by the learned trial judge at the conclusion of the defendants’ evidence. The grounds for that decision were that the plaintiff had failed to establish that the Irish Army rather than the United Nations was responsible on the occasion for his safety and welfare.
It was against that decision that the plaintiff appeals. This issue was not raised in the defence filed in the action, nor was it raised in the trial until after the conclusion of the plaintiff’s evidence. Indeed in the course of the cross-examination of the plaintiff by counsel for the defendants it was expressly put to him that an Irish officer was responsible for his safety and he agreed to that proposition.
Counsel for the respondents/defendants conceded that he could not stand over this ruling of the learned trial judge and on the legal principles applicable this concession was inevitable.
That appeal must, therefore, be allowed.
Cross-Appeal
The defendants, however, filed a notice of cross-appeal against the refusal of the learned trial judge to withdraw the action from the jury and dismiss it at the conclusion of the plaintiff’s case on the grounds upon which such a direction was then sought.
The grounds for that cross-appeal were set out in six separate paragraphs, but may be summarised as falling into the category of either of two main contentions:
(1) that there was no prima facie evidence of negligence, and
(2) that the plaintiff had voluntarily assumed the risk of injury through the action of hostile forces and waived his legal rights in respect of such injury.
Upon the hearing of the cross-appeal these grounds were, without opposition from counsel for the plaintiff, extended to a submission that under Irish law a member of the Defence Forces could not sue the State for any injury or damage caused to him in armed conflict, even if it were established to have been caused by *547 the negligence of his superior officers.
It is first necessary to deal with this far-reaching proposition.
Reliance was placed on the decision of this Court in Attorney General v Ryan’s Car Hire Ltd [1965] IR 642 where, in a judgment which was the unanimous judgment of the Court, Kingsmill Moore J analysed the statutory characteristics of a member of the Defence Forces and concluded:
(a) that they were similar to the position of members of the British and Australian armed forces, and
(b) that the relationship of the soldier to the State or to the Minister for Defence was not that of a master and servant.
The issue arising in that case with which this portion of the judgment dealt was as to whether the State could sue for the loss of the services of a soldier injured by a tortious act.
The foundation of the legal claim per quod servitium amisit necessarily involves the concept of menial or villein service. The decision of this Court in Attorney General v Ryan’s Car Hire Ltd was to exclude a serving member of the Defence Forces from such form of service. I do not consider that that decision is relevant to the determination of the issue I am at present examining.
In so far, however, as the judgment of Kingsmill-Moore J identifies a similarity between the position of a member of the Defence Forces and soldiers of other common law countries, it is submitted that decisions of those countries on the liability of the State to serving soldiers injured by the torts of persons for whose acts the State might be vicariously liable are relevant.
The court was referred to the following decisions:
Dawkins v Lord Paulet (1869) LR 5 QB 94; Wilson v The First Edinburgh City Royal Garrison Artillery Volunteers (1904–5) 7 F 168; Shaw Savill and Albion Co. Ltd v The Commonwealth (1940) 66 CLR 344; Parker v Commonwealth of Australia (1964) 112 CLR 295; Feres v United States of America (1950) 340 US 135.
The decision in Dawkins v Lord Paulet which was a majority decision was to the effect that communications made by an officer of the army in the course of his duty concerning the military capacity, competence and character of an inferior officer were absolutely privileged and could not be sued upon. The underlying reason for the decision would appear to have been the necessity for giving to the officer reporting a complete freedom in the nature of his report, having regard to the importance of an accurate and honest appraisal of the military capacity of a serving officer.
The decision in Wilson’s case as dealt with in Robertson’s Civil Proceedings for and Against the Crown would appear to have turned on the immunity of the funds of a regiment from suit because they were funds the property of the sovereign, though it would appear that the individual officer alleged to have been guilty of negligence in the carrying out of a military parade might well have been personally liable to the injured party.
In the case of Shaw-Savill and Albion Co Ltd v Commonwealth of Australia, the *548 High Court of Australia decided that an action for negligence against the Crown for damage caused by a naval ship whilst it was being navigated in the course of a naval operation against the enemy must fail for while in the course of such operations the forces of the Crown are under no duty of care to avoid loss or damage to private individuals. The underlying principle involved in support of this decision would appear to be the prime and dominant importance of the defence of the realm.
In the case of Parker v Commonwealth of Australia it was held that a civilian employee of the naval service could sue the Commonwealth for injuries caused by the negligent control of a naval ship on peacetime manoeuvres. It is tentatively, though not finally, stated in the judgment of Windeyer J that a serving member of the navy could not have sued in like circumstances. The reason stated for that view was that it would be prejudicial to the discipline and morale of the armed forces to permit of such an action.
In Feres v United States of America the major issue which arose was the interpretation of the Federal Tort Claims Act, but in the course of the opinion of the court at p. 141 the following statement occurs:
We know of no American law which ever has permitted a soldier to recover for negligence against either his superior officers or the government he is serving.
The absolute nature of this proposition for which no principle is advanced is witnessed by the fact that one of the cases which as a result of the opinion of the Court failed was one in which a serving soldier who had undergone a stomach operation by an army surgeon and who had removed from his stomach in a subsequent operation a piece of towelling 30 inches by 18 inches, marked ‘Medical Department of the U.S. Army’, was held not entitled to sue.
Counsel on behalf of the State does not contend for such a widespread immunity as is laid down in Feres’ case but confines his submission to negligence alleged during armed conflict or in a theatre of war. The reason for this distinction and the boundary line between maintainable and prohibited suits arising from the submissions of the State in this case is not to me very clear, and would appear to be based more on pragmatism than principle.
Having regard to these decisions and the submissions made, two questions of law, in my view, arise.
1. Does the common law applicable in Ireland appear to create an immunity to the State in the circumstances of the instant case?
2. If it appears so to do, could such immunity be consistent with the provisions of the Constitution.
In my view, the answer to both these questions must be in the negative.
By virtue of the provisions of s. 4 of the Defence (Amendment) Act of 1960, a soldier serving with the United Nations International Armed Forces is deemed, for the purpose of the Defence Act 1954, to be ‘on active service’. The consequence of this provision is largely related to discipline and the punishment for military offences. The provision does not, however, in any way, equate service with the United Nations with war, nor do considerations of the defence of the State arise in *549 such service. No question of a dominant priority for the effectiveness of armed action against an enemy occurs.
Article 28 of the Constitution provides the most ample and unrestricted powers to the Oireachtas to legislate to secure public safety and the preservation of the State in time of war, as there defined, or in time of armed rebellion. Nothing in the Constitution shall be invoked to invalidate such legislation expressed to be for such purposes.
It is impossible, having regard to these provisions, to accept the application of a common law doctrine arising from the necessity to ensure the safety of the State during a period of war or armed rebellion, which has the effect of abrogating constitutional rights. In so far, therefore, as the principle apparently supporting some of the decisions to which we have been referred is the question of the dominant priority in regard to the defence of the State, such decisions would not appear to be applicable and cannot be applied to the question of service with the United Nations peacekeeping force.
S. 111 of the Defence Act 1954 provides certain conditions applicable, inter alia, to actions or other proceedings in respect of any alleged neglect or default in the execution of the Act.
No argument was presented to the court with regard to any possible relevance of this section, and these proceedings clearly do not come within it. It would appear, however, to me to be inconsistent with the existence of any common law principle giving immunity from suit for the purpose of preserving the discipline and morale of the Defence Forces.
I, therefore, conclude that an immunity from suit by or the negation of any duty of care to, a serving soldier in respect of operations consisting of armed conflict or hostilities has not been established as part of our common law.
Even if it had, I conclude that in the blanket form which has been contended for it would be inconsistent with the guarantees by the State to respect, defend and vindicate the rights of the citizens contained in Article 40.3.1° and Article 40.3.2° of the Constitution. This ground of appeal must therefore fail.
Voluntary assumption of risk
Having regard to the decision of this Court in O’Hanlon v Electricity Supply Board [1969] IR 75, for the defendants to succeed in this defence it would be necessary for them to establish that the plaintiff by enlisting and by volunteering for United Nations service, had entered into a contract waiving his right to sue if injured by the negligence of his superior officers. No express contract to that effect is suggested, and while it is correct to say that by enlisting and subsequently volunteering the plaintiff accepted the risks inherent in the possibility of being involved in armed conflict it cannot be implied that he accepted the risk of being unnecessarily exposed to injury by negligence. This ground of appeal also fails.
Prima facie evidence of negligence
Having concluded that the plaintiff’s superior officers (which must, of course, *550 include all persons with authority over him) owed a duty of care to him, it is necessary before considering the detailed facts of this case to consider the general nature and, to an extent, the parameters of that duty. In broadest terms the duty can be stated to be to take such care for the safety of the plaintiff as is reasonable in all the circumstances of their relationship and the activity in which they were engaged.
Quite clearly, those circumstances in this case are unusual for they are the circumstances of military service in which the carrying out of the task allotted to the forces concerned could involve an unavoidable risk of death or serious injury.
In such situations considerations of standards of care drawn from the experience of the workplace may be of little assistance. There could, I think, be no objective in a master and servant relationship which would justify exposing the servant to risk of serious injury or death other than the saving of life itself. In the execution of military service exposing a soldier to such risk may often be justified by the nature of the task committed to the forces concerned. Furthermore, there can in relation to armed conflict, be many situations where those in authority must make swift decisions in effect in the agony of the moment. Mere proof of error in such decisions would not of itself establish negligence. Importance may be attached, I am satisfied, in regard to alleged negligence in a military situation to the question as to whether the role of the soldier at the time of the alleged negligence is one of attack or defence, or, to put the matter in another way, whether he is engaged actively in armed operations or is only passively engaged in them.
Where, as occurred in this case, the plaintiff was, whilst on guard duty, acting in a defensive role and was in effect standing by, I am satisfied that his commanding officer owed to him a duty to take such precautions as were reasonable and practical, having regard to the functions which as a member of the guard the plaintiff was obliged to perform to try and reduce the risk of his being wounded or killed. If, it seems to me, the plaintiff has established as a prima facie matter that one or more such precautions falling within that category were omitted at a time when the commanding officers concerned had time and opportunity to consider the proper protection of the plaintiff he would have established negligence.
The facts of the case
If the plaintiff’s evidence is accepted and much of it was not in contest on the transcript before me, the situation on this day in the Lebanon was that in the early morning a member of the Christian Militia who had been displaying hostility, though not active armed conflict, to the UN Forces prior to this date was shot dead outside an Irish Army guardpost. It seems probable that he was not shot by a member of the Irish Army, but rather by one of the other national forces on the camp, but it was stated that the Christian Militia saw the Irish as their target for revenge. One of the functions of the Irish was to maintain a guard post consisting of a sandbagged gun emplacement for a machine gun, with a team of three on duty at it. This sandbag placement was sandbagged around the sides with an entrance at the back and apparently had a roof of sandbags provided for it as well. During the course of the day after the incident in which the militia man was killed, the forces *551 of the Christian Militia were seen to be gathering guns, tanks and mortars as well as men and rifles on the hills within a couple of hundred yards of the position in which the Irish were encamped. The plaintiff was on 24-hour guard duty, and during the course of the day a major attack by mortar and small arms fire was launched against the camp. During the course of that attack the evidence would establish that the plaintiff was on guard duty under cover and standing as a guard with rifles loaded and ready to fire. Some time after that attack a further mortar attack of a short duration occurred in which a number of mortar bombs were fired which cleared the entire encampment area and fell harmlessly into the sea. After that the evidence was that the plaintiff was ordeed to take a rest or go to bed in a portacabin which was his billet and which was within about ten to twenty metres of the machine gun emplacement which I have described. That portacabin was not protected by any sandbags or other protection, either over the roof or at the sides. Apparently the plaintiff was ordered prior to entering that billet to take rest, to leave his rifle some distance away, and he was still on immediate standby should a further attack occur. After he had gone to sleep a further attack did occur and he was seriously injured by a mortar which struck the portacabin in which he was.
The plaintiff asserts that there were places of safety in which he could have been put with as easy access to such duties of reinforcement of the guard or otherwise as might arise in the event of an attack. He asserts that further shelters could and should have been provided with ease by sandbagging or the creation of a bunker, and that the situation had been for a sufficient period sufficiently tense to warrant that as a reasonable precaution. He gave evidence that other forces in separate parts of the encampment belonging to the armies of other nations were better provided with shelter. He gave evidence that persons at the headquarters had shelters available, and evidence was given that a number of persons took shelter in shelters effectively protecting them against mortar fire at the time of the earlier attack.
With that evidence which I have very shortly summarised, I am satisfied that there was a case to go to the jury of breach of the standard of care which I have outlined in this judgment and that, therefore, this ground of appeal must fail.
I would, therefore, allow the plaintiff’s appeal against the withdrawal of the case from the consideration of the jury, I would disallow the defendants cross-appeal and I would direct a new trial of all issues in this case.