Electricity
Cases
Hogan v. E.S.B.
[1999] IEHC 64
Mr Justice O’Higgins
“1. The Plaintiff at the time of the accident was working as a general operative in the ESB. He had been employed as such as such for over 17 years prior to the date of the accident. On Monday 27th February, 1995 the Plaintiff and another general operative were working at the ESB’s 38KV station in Roscommon. The person in charge of work was Mr Paschal Macken an electrician.
2. The Plaintiff’s duties involved cleaning a house transformer in the station with a wire brush with a view to painting it later. This transformer was enclosed in a cubicle made of wire grill. In the morning the transformer had been taken out of commission prior to the commencement of work on it. At lunch time the house transformer had been put back into commission and was energised with electricity. Shortly after 2 o’clock, following his lunch break the Plaintiff returned to the transformer, unbolted the mesh grill and suffered very serious burns and shock when he came into contact with the live transformer. He was fortunate to survive the accident, and is left with very nasty scarring as described in the medical reports. He also suffered from post traumatic stress disorder and from depression.
THE FACTS
3. There is a serious conflict in evidence on a number of vital matters in this case. The Plaintiff’s case is that he was not present at lunch-time when the transformer was put back into commission and that he was not told that it had been energised. He says that at that time he had gone to a hut to get some paint to have it ready for the afternoon and that Mr Macken, who was in charge, and Mr Westman, the general operative stayed back in the cubicle. The Plaintiff says they came in around 1 o’clock for their tea. He maintained that he did not see what was done at the cubicle nor did he see the connection being made or the earths being taken off. He was in the hut at the time. The Plaintiff’s evidence was to the effect that he came out of the hut with Mr Macken and he said to Mr Macken “I’ll take you out of bad humour, Packie, I’ll go and do the painting now.” This was an indication that he was going back to work and Mr Macken did not prevent him from so doing, notwithstanding the fact that the transformer was live.
4. Mr Macken said however, that at about 1 o’clock he told both the Plaintiff and Mr Westman to clear the cubicle and that he was going to put the house transformer back into commission. He saw Mr Hogan leave the cubicle. Moreover, he saw Mr Hogan in the process of bolting back the screen. Mr Hogan seemed to be struggling with the screen and Mr Macken asked “are you okay?”. Mr Macken also denied that he left the hut with the Plaintiff and denied that the Plaintiff told him that he was going down to paint the transformer.
5. The account given by Mr Macken is substantially corroborated in its essentials by the evidence of Mr Westman. He had no doubt that the Plaintiff was present when Mr Macken said that he was going to put the transformer back into service. Moreover, he said that Mr Macken went off first to make a telephone call after lunch leaving the Plaintiff and Mr Westman in the hut. He left the hut at about the same time as the Plaintiff, he then returned to get warmer clothing.
6. Mr Macken gave evidence that after coming upon the appalling scene of the accident that the Plaintiff was conscious and said to him twice, “sorry Packie, I just forgot”. The Plaintiff has no recollection of such conversation. Mr Relihan the surgeon says that one should be cautious in placing reliance on what a person says when they are in severe shock.
7. Angela Dobson, sister of the Plaintiff said that she had a conversation in the hospital with Mr Macken and she said “whatever happened?”, and he said “I am so sorry Angela” , either “ I didn’t know the power was on ”, or “ he didn’t know the power was on”. She cannot be sure which was said. Mr Macken says he may have spoken but he did not have any conversation about who was at fault or that type of thing.
8. While I find Mr Macken to be a truthful conscientious witness I believe he is wrong in this respect, and that a conversation did take place between himself and Angela Dobson. However, in my view,the conversation was more likely to be that he, the Plaintiff, did not know the power was on, rather than that Mr Macken did not know that the power was on. In my view, it is extremely unlikely that Mr Macken would have told Mrs Dobson that he, Mr Macken, did not know that the power was on since the factual position was manifestly otherwise.
9. There is no animosity between Mr Macken and the Plaintiff. In fact they are friends. No reason has been suggested why Mr Macken should be inventing his account. It is not likely to be a mistaken recollection. In my view the evidence of Mr Macken and Mr Westman is more likely to be correct than the evidence of Mr Hogan. I therefore, accept the account of the accident given by them rather than the account given by the Plaintiff
10. Mr. Tennyson, the engineer for the Plaintiff, made a number of criticisms of the Defendant’s system of work. They are as follows:
1. The failure to have task specific, easily understood instructions.
2. The failure of Mr. Macken, the electrician, to supervise the tightening of the bolts on the screen.
3. The failure to fully implement the “declaring off” procedure.
4. The failure to implement a “roping off” procedure.
5. The turning on of the transformer at lunch.
6. The breach of statutory duty.
1. The failure to have task specific, easily understood instructions . While there is a “Distribution procedure; safety on switch out” document, the fact that there is no mention in it either of temporary restoration of power or of refixing the screens is criticised. In my view it is not negligent of the Defendant not to have the procedures set out in the detail stipulated by Mr. Tennyson. The Plaintiff had seventeen years experience and he was familiar with the dangers of live electricity. He does not make the case that he did not know how to do his job. In any event such failure did not cause or contribute in any way to the accident herein.
2. The failure of Mr. Macken to supervise the tightening of the bolts . The Plaintiff maintains that in view of the very dangerous nature of the equipment that Mr. Macken should have supervised the tightening of the bolts by Mr. Hogan. I cannot agree with that contention. In my view, when a general operative of seventeen and a half years experience is asked to tighten a bolt on a screen, it is reasonable to assume that he is capable of so doing and that he will do so properly.
3. The “declaring off” procedure . The yellow book of safety rules of 1993 at page 32 contains the following rule:
4.11.1 Declaring off; and removal of Local Earths . When the work is completed and the person in charge of the work has checked that all the persons under his/her charge have been declared off and that the appartus for which he/she is responsible is ready for operation he/she shall personally remove or supervise the removal of all local earths put on by him/her, or under his/her supervision.
11. Earlier at page 6 of the book “declared off” is defined as:
“Confirmation that all persons who had been engaged in work on a particular apparatus are now clear of same and have been instructed to remain clear.”
12. The Plaintiff puts great stress on the formality of this procedure. The Plaintiff maintains that this procedure was not carried out with sufficient formality, and that it was not carried out in full because the Plaintiff was not specifically instructed to remain clear. The Defendants maintain that the ‘declaring-off’ procedure was not necessary at the time because the work was not completed. Furthermore they say that since the accident did not take place at that time that another safety rule applies. In particular they maintain that the Plaintiff is in breach of rule 6.1.3 which says:
“No person shall commence or recommence work on H.V. or L.V. apparatus unless he/she complies with the following requirements:
(1) he/she has been instructed by the person in charge of the work, who shall be of known identity, that he/she may commence, or recommence work ”
13. In my view, the declaring off procedure is appropriate not only on completion of the entire work, but also on completion of a session of work involving a change such as re-energising the transformer in the cubicle. The above rule contemplates the situations where the apparatus is being re-energised. I accept that the procedure takes place before the removal of the earth wires and that the order to clear the cubicles was part of the declaring off procedure. The Defendants were in default, however, in not fully complying with that procedure. Although the Plaintiff was told to clear the cubicle he was not specifically told to remain clear of the installation. In my view, it is likely that such failure contributed, albeit to a relatively small extent, to the accident which took place, particulary in view of the fact that during that tour of duty at the transformer station, the house transformer was probably the only item which was put back into commission at lunch-time.
4. The roping-off procedure . The roping off procedures are described in a document called D.O.M. 5.45. The procedures for roping off are described as necessary precautions for the safe execution of work in stations, but are not to be regarded as a substitute for the safety rules. The procedure of roping off is in preparation for work on equipment which has been taken out of service and otherwise made safe for work. It is a procedure to be used when the equipment within the roped off area is de-energised. Mr. Tennyson maintained that it could have been used as “a poor substitute” for a fully secured screen or as a “poor alternative”. However, if the system of roping off the area had been used, it would have been the proper practice to remove the roping once the system had been re-energised. If that procedure had been followed therefore, there would have been no roping off at the time of the accident. While some adaptation of the roping off procedure could have been used, I do not consider that the Defendants through Mr. Macken were negligent in failing to have one on that day. Likewise, while it would have been possible to put up a red flag on the recently re-energised house transformer – I do not consider it negligent of Mr. Macken not to have done so. There was no rule or special practice if the screen was in place and the Plaintiff had been made aware approximately 45 minutes prior to the accident of the re-energising of the house transformer.
5. Turning on of the transformer at lunch . Insofar as it may be suggested that it is negligent of the Defendants to turn on the transformer at lunchtime for relatively trivial purposes, that in my view,does not constitute negligence on the part of the Defendants. It is a quite valid operation for them to turn on the transformer. If the prime purpose, or even the sole purpose of doing so was to supply electricity for the kettle and the heating of the hut, there is nothing dangerous about the procedure if properly carried out. Indeed I do not think this point has been pressed by Counsel.
6. The breach of statutory duty .
14. It is alleged that the Defendant was in breach of the provisions of Section 52(1) the Safety Health and Welfare at Work (General Application) Regulations, 1993. S.I. No. 44 of 1993. Section 52(1) reads as follows:-
“Fencing of Outdoor Equipment
“Whenever a transformer or switch gear, in which high voltage is used is installed otherwise than in a building, the transformer or switch gear shall be adequately protected either by suitable fencing not less than 2.4 metres high or by some other effective means for preventing any unauthorised person from gaining access to the equipment or to have anything connected thereto which is used as a conductor.”
15. While Section 52 of the Regulations is primarily directed at outside persons gaining access to equipment, there is nothing in the wording of the section to indicate that it is confined to such people. There is no doubt at the time in question that the Plaintiff was not authorised to go into the cubicle, in fact he was expressly forbidden to do so by Rule 6.1.3 of the Safety Rules which states as follows:-
“No person shall commence or recommence work on HV or LV apparatus unless he/she complies with the following requirements:
1. He/she has been instructed by the person in charge of the work, who shall be of known identity that he/she may commence or recommence work.
16. The transformer was not adequately protected as all that was necessary for the Plaintiff to do was to open the bolt which was only hand tightened. The Plaintiff therefore prima facie comes within the ambit of Section 52. However, in this case the breach of Section 52 of the Regulations was caused by the act or default of the Plaintiff himself whose job it was to tighten the bolts on the screen. The Plaintiff cannot take advantage of his own negligence to attach liability to the Defendant.
17. This accident occurred largley through the Plaintiff’s own fault. He was told that the house transformer was being re-energised. He bolted the screen in the context of that transaction. Unfortunately he forgot about it. He was responsible for tightening the bolt and failed to do so properly. He was prohibited by Rule 6 from recommencing his work after lunch without being specifically told to do so. He failed to comply with this requirement. He failed to advert to the significance of the screen (albeit not fully tightened) and he failed to appreciate the significance of the earths not being connected and the disconnection bars being in the live position – even though these matter were apparent. Because of the foregoing, the Plaintiff must bear most of the responsibility for the unfortunate accident.
18. However, because of the failure to comply fully with the declaring off procedure, the Defendant must bear some share of liability for the accident, which I would assess as being fifteen percent. The Plaintiff is, accordingly, eighty-five percent at fault.
THE INJURIES
19. Following the accident the Plaintiff was brought in a shocked but conscious state to Roscommon County Hospital. He had very severe burns to his back, both arms and legs. He was detained in Roscommon County Hospital from the 27th day of February 1995 until the 16th day of March 1995 and he was then transferred to St. James’s Hospital, Dublin where he was an in-patient until the 27th day of March 1995. He had skin grafts on his back, both arms and on his right leg. On the 6th day of April 1995 he was still having his dressings changed three times a week. On the 12th day of April 1995 he had extensive itchiness. He was reviewed on the 20th day of June, the 18th day of July, the 14th day of August, 29th day of September and the 10th day of October 1995 during which period recovery continued and on the 10th day of October 1995 he was given a certificate to allow him to return for work.
20. He was seen by a doctor on behalf of the Defendants on the 31st day of May 1996 and was suspended from work on full pay for a year and afterwards suspended without pay. Following his suspension his mental health began to deteriorate and he suffered from insomnia, irritability and depression. Doctor Brennan saw him on the 20th day of December 1996, the 5th day of April 1997, the 21st day of November 1997, the 10th day of March 1998, the 24th day of September 1998 and the 5th day of June 1999 and on all those visits found him to be suffering from depression.
21. The scarring has been described in the various medical reports. On the 15th day of June 1995, Mr. McHugh found:-
1. The whole of the back of the left forearm was completely scarred stretching from his elbow down to his wrist and involving almost half of the circumference of the forearm,
2. On his back he had three areas of scarring:
(a) an area over the left shoulder measuring two inches in diameter
(b) an area just inside of this measuring two inches in diameter
(c) an area on the right shoulder measuring two inches in diameter.
3. He had an area of scarring over the right elbow joint.
22. The only area for the skin graft was on the back of the right thigh stretching from his buttock to his knee and covering half the circumference of this thigh. This was red and raw as of the 14th day of June 1995, but has healed very well since then. He had a scar on the outside of his right leg, half way down, measuring four inches by four inches. He had an area of scarring inside of the right arm measuring two inches by one inch and he had a small area of scarring outside of his right forearm measuring two inches by one inch. On inspection, the scars, particularly on the back and the left arm, are very unsightly indeed.
PSYCHOLOGICAL SEQUELAE OF THE ACCIDENT
23. After his return from hospital to his parents, the Plaintiff could not sleep at all and he got constant flashbacks to the accident and could hear the bang and revisualise the scene. It is fair to say that these flashbacks have diminished in frequency. As of the 23rd day of June 1995, his sleep pattern was still badly disturbed. He suffered from occasional depressive episodes and was conscious of the scars on his body. He was diagnosed as suffering from Post Traumatic Stress Disorder of severe degree and was also diagnosed as having some symptoms of depression. There was a report on the 19th day of December 1996 which assessed him as being depressed. His sleep was disturbed and he had little energy or motivation. The problems of a psychological nature were ongoing.
24. In short, Mr. Hogan, following the accident, developed symptoms of a psychological nature including depression, exacerbation of alcoholism and post traumatic stress disorder symptoms; these symptoms have now settled down to some extent and his psychiatrist considers that they should further improve. He still has flash backs to the accident and some disturbance of his sleep pattern.
25. The Plaintiff suffered terribly in this horrific accident. He continues to suffer. While the prognosis is relatively good, the Plaintiff is left with permanent unsightly scarring.
26. In my view the proper compensation on the basis of full liability would be £70,000 for pain and suffering to date and £20,000 for pain and suffering in the future, and accordingly the Plaintiff is entitled to fifteen percent of that sum. In addition, the Plaintiff is entitled to fifteen per cent of the special damages. In my view, the suspension from work of the Plaintiff was not caused by or contributed to by the accident, but to a long standing and pre-existing problem in respect of which the Plaintiff had been repeatedly warned. In those circumstances the Plaintiff’s special damages amount to £4,325.75. The Plaintiff is entitled therefore to fifteen per cent of £94,326.00 which is a sum of £14,148.00.
Keane v. Electricity Supply Board
[1981] IR 47
O’Higgins C.J.
This appeal concerns an accident and personal injuries suffered and sustained by the plaintiff on the 23rd May, 1965. On that day the plaintiff, being then eleven years of age, entered, as a trespasser, a sub-station which was maintained by the defendants at Cloyne in the county of Cork. Having entered the sub-station, the plaintiff proceeded to climb an electricity transformer and, in the course of doing so, he came in contact with live electrical equipment and received very serious shock and burning. The shock and burns received by the plaintiff have resulted in his left arm being so disabled that, in effect, he is now a one-armed man. This action was commenced by the plaintiff on the 3rd June, 1977, which was two years after he attained the age of 21 years but it was within the term, following cesser of infancy, which is permitted by the Statute of Limitations. The action is founded on negligence and breach of statutory duty. These allegations have been denied by the defendants and they have pleaded contributory negligence.
A trial of the plaintiff’s action took place in Cork on the 24th and 25th January, 1979, before Mr. Justice McMahon and a jury. At the conclusion of the entire of the evidence, Mr. Justice McMahon acceded to an application made by counsel for the defendants that the case be withdrawn from the jury and that a verdict be entered for the defendants. Mr. Justice McMahon acceded to this application on the basis that there was no evidence upon which the jury could find for the plaintiff. The plaintiff has brought this appeal from the trial judge’s decision to accede to that application, and against the verdict so entered for the defendants.
While it is necessary on this appeal to have regard to the legal principles which apply in a case of this nature, the main consideration must be to ascertain what was, or was capable of being, established by the evidence adduced at the trial. If this evidence (or proper inferences to be drawn from it) could sustain the allegation of negligence made by the plaintiff, then, irrespective of the evidence of the contrary adduced by the defendants, the finding and verdict of the jury, not of the judge, ought to have been taken.
Therefore, I propose to set out in recitation form the matters which appear to me to be supported by the evidence and then to consider whether, if such were accepted and acted upon by the jury, a claim in negligence could be sustained.
The sub-station at Cloyne was an open-air station which was not under the control of a resident staff. It was inspected weekly by a station attendant who lived nearby. It was sited in a field off a country road at about one quarter of a mile from the village of Cloyne. Access to the field was by means of a standard stock or agricultural gate by the side of the road. The station had an outer fence which was some 3 feet 8 inches in height, in which there was a second standard stock gate. Neither this fence nor either of the gates constituted any obstruction to anyone who wished to enter the sub-station.
Within the outer fence was a second one, which was known as a security fence. The security fence was constructed of strong wire-mesh which was chain-linked in 21/2 inch squares; the squares were, as it were, standing on a corner. The diagonal width across the squares was 31/2 inches which could accommodate easily the toe of a child’s shoe or sandal. The security fence was supported by vertical poles and was 5’9″ high. Over the security fence, and as an addition, there were three strands of barbed wire at heights, respectively, of 6’1″, 6’41/2″ and 6’9″. In the security fence there was a wire-mesh and steel gate; this gate was higher than the surrounding fence and was spiked at the top. The gate had wire-mesh squares which were somewhat smaller than those in the fence and were parallel to the ground. A gap of 4″ existed between the upright of this gate and the vertical pole in the fence beside it; the gate catch in this gap provided a suitable toehold.
Inside the security fence, and visible from some distance outside, was the defendants’ 2kV electricity transformer. This machine changed an input of 38,000 volts into 10,000 volts and was an extremely dangerous and lethal piece of equipment to anyone without technical experience or knowledge who touched or handled it. It was mounted on a wheeled chassis which ran on tracks or rails. To an immature or childish observer it was quite capable of appearing to be a strange but interesting mobile engine or carriage.
The object of the security fence which surrounded the transformer was, of course, to keep out unauthorised persons. Its purpose was not merely to protect the defendants’ equipment within the sub-station but also to safeguard the public and, in particular, children from trespassing and from coming in contact with the high-tension cables of the transformer. That this was so was made quite clear by the defendants’ design engineer, Mr.
O’Sullivan. Therefore, the defendants, in the construction of the sub-station, recognised the danger of trespass by children; the defendants contemplated the risk thereby involved and accepted the obligation of taking all reasonable steps to prevent such trespass taking place. Since the transformer was surrounded by a fence with a long gate, the only means of trespass, apart from a person entering with tools or a ladder, was by climbing over either the fence or the gate. The defendants, accordingly, in view of the risk and danger which they contemplated, accepted the obligation of erecting a fence which could reasonably be said to be a hindrance to trespass. The type of fence which the defendants erected was of a design which was commonly used by them in some 180 similar sub-stations.
The design of the security fence was criticised by two engineers. These witnesses asserted that the 31/2 inch diagonal width between the corners of the squares of the fence meshing, the 4″ gap with the gate catch and the vertical poles made climbing by young children an easy task. These witnesses further stated that, at the time that this fence was constructed, an alternative design with 1″ squares and with cranked or overhanging tops was readily available; they said that the alternative design was well known, that it did not involve greater cost and that, if used, it would render climbing by children extremely difficult.
On the day of the accident the plaintiff, being curious to examine the transformer, climbed the security fence nearest the gate without the slightest difficulty. He was accompanied by a boy of the same age who also climbed the fence without difficulty. After the plaintiff’s accident this boy climbed again over the fence to report what had happened. When the other boy had gone, the plaintiff, although badly injured in one arm and alone, climbed over the fence to return home. Some days later, in a demonstration to the defendants’ engineers, the plaintiff’s companion again climbed the fence. Therefore, the fence which the defendants constructed was easily and readily climbable by children of the plaintiff’s age. It should be added that the plaintiff and his brother had gone to this field on the day of the accident for the purpose of gathering bulrushes with which they used to play; they had done this many times on previous occasions. It was the fact that bulrushes were not available at the time that turned their interest towards the sub-station. The trial judge noted this evidence and accepted that from such evidence a jury could reasonably infer that other boys from the neighbourhood would also have been in the habit of going to this field for the purpose of collecting such bulrushes. Nevertheless, he withdrew the case from the jury because there was no evidence that the plaintiff, his brother or any other boy had ever before trespassed or attempted to trespass on the sub-station itself.
The view that an occupier’s liability to an injured trespasser depends on positive misfeasance or recklessness is no longer tenable in our Courts. This has been made clear by many decisions in recent years: see Purtill v. Athlone U.D.C. 8 and McNamara v. Electricity Supply Board .3 These cases applied the neighbour principle, or the notion of proximity, to liability in such circumstances. As Mr. Justice Griffin pointed out at p. 35 of the report of McNamara v. Electricity Supply Board 3 , the application was “restorative rather than revolutionary.” It is as well, therefore, to recall the words of Lord Atkin in Donoghue v. Stevenson 9 at p. 580 of the report:
“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 bepersons who are so closely and 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.”
Here the defendants brought on to the field in question a highly dangerous piece of electrical machinery. They left it unsupervised, in the sense of there being no resident supervisory staff, but it was surrounded by a fence. The field which they selected on which to site their sub-station was off a country road and was easily accessible to people and children passing by. The field was about one quarter of a mile from the village of Cloyne. Who ought reasonably to have been in the defendants’ contemplation as being so affected by their action that injury to them required to be guarded against? In my view, that question was answered with clarity by the defendants’ own site engineer in the course of his evidence at the trial. As already indicated, he stated that the purpose of the security fence was to hinder or prevent trespass into the sub-station by members of the public and, in particular, by children. In view of this evidence, it appears to me that the absence of evidence that children had trespassed or tried to trespass on the sub-station previously is immaterial. Such evidence, as in Purtill’s Case 8 and McNamara’s Case 3 ,would have been relevant only to establish that such trespass was likely to occur and, therefore, ought to have been contemplated. Such evidence was unnecessary in this case because the danger was contemplated.
In my view, the liability of the defendants depended on whether they had taken reasonable steps to avert the kind of trespass which they contemplated, namely, trespass by children who were unlikely to be aware of, or to appreciate, the danger to which they were exposing themselves. There was evidence that the fence which was constructed was readily climbed by the plaintiff and by another boy of the same age. There was also evidence that another type of fence, generally known and easily available, would have rendered such climbing extremely difficult, if not unlikely. In the light of such evidence it seems to me proper that the jury’s verdict should have been taken as to whether or not the defendants, in all the circumstances of this case, had taken reasonable steps in the construction of this fence to avoid or hinder trespass of the kind which they contemplated, namely, trespass by children.
In my view, the trial judge was unduly affected by the facts of McNamara’s Case 3 and, because these differed from the facts in the case before him, he erred in concluding that the decision in McNamara’s Case 3 did not apply. I would allow this appeal and direct that the case go back for a retrial before a jury.
Henchy J.
This case seems to have its origin in the decision, in July, 1974, of this Court in McNamara v. Electricity Supply Board .3 In that case an eleven-year-old boy, notwithstanding warning notices, had climbed as a trespasser into an electricity sub-station over a surrounding wire-mesh fence which was 5’3″ high, with a topping of barbed wire which brought it to a height of 6’8″. In doing so the boy’s hands came in contact with an uninsulated high-voltage conductor, resulting in severe injuries to both his hands. The boy was awarded damages in the High Court and the defendants appealed. The appeal was allowed by this Court and a new trial was directed because the boy had been wrongly acquitted of contributory negligence and because the damages awarded were excessive. In allowing that appeal this Court decided that (to use the words of the head-note) “the issue of the defendants’ liability at common law should be determined by deciding whether the defendants, who had created and maintained a source of danger on their premises, couldreasonably have foreseen that a child trespasser might attempt to enter those premises and that, having entered, he might be injured by reason of that danger, and by deciding whether the defendants had failed to take reasonablesteps to avert such injury.”
That important decision represented a departure from earlier authorities as to the principle on which the liability of an occupier of premises to a trespasser, especially a child trespasser, should be determined. As the headnote correctly summarizes the effect of the judgments, in order to succeed in an action against the occupier for negligence such a plaintiff must be able (inter alia) to get an affirmative answer from the jury to the dual test:1. Could the occupier have reasonably foreseen that the child trespasser would try to make an entry into the area of danger. 2. Did the occupier fail to takereasonable steps to prevent the entry and the consequent injury?
This Court’s ruling in McNamara’s Case 3 against the defendants on those questions rested on special circumstances which need to be stressed. With the passage of time, the sub-station in question had become surrounded by a large housing estate in the city of Limerick. Children by the score had come to use the area immediately around the sub-station as a playground. The sub-station itself had become a regular target for stone-throwing children and much damage had been done to it and to the fence surrounding it. The risk that some youngster would get into the sub-station over the perimeter fence was brought so much to the mind of the defendants, because of its run-down condition, that they issued orders that it was to be raised by the addition of barbed wire at the top. The workmen doing the job were told to render the sub-station so impregnable that it would be “like a concentration camp.”
But was the obvious need for deterrent precaution, thus vividly expressed, observed? Far from it. The barbed wire was put on top of the wire-mesh fence, but the fence itself was left in a dangerous and alluring condition. It was described by that plaintiff’s architect as “very temporary, very rickety;” his engineer went so far as to say that it was “laughable” as a deterrent; the diamond-shaped apertures in its chain-link structure formed openings into which the toecaps of a boy’s shoes would fit easily; the posts holding up the wire fence were so unsteady that, if a boy began to climb it, it leaned backwards from him, thus giving him a ladder-like support and helping him to gain access to an area of lethal danger. All this occurred in the middle of a large housing estate. The fence which thus stood faintly and ineffectually as an intended barrier to fend off the crowds of children who were known to play there regularly was foreseeable as a risk of death or serious injury if any one of the children should succumb as one of them was bound toto the obvious temptation of disregarding the warning notices and climbing over the fence. Even an observant layman who was passing by, and who stopped for a moment to observe the situation, could not have failed to see that the defendants were forewarned of danger to children and had failed to take the obviously needed preventive actionaction which would have entailed little cost or difficulty. Small wonder that this Court held that the jury were justified in holding the defendants guilty of negligence. But I stress again that that result flowed from the special features of the case which showed that, in the light of the known circumstances, the defendants were wanting inreasonable foresight and in failing to take reasonable steps to avert the injury.
Were it not for the new turn that the law had taken in McNamara’s Case 3 ,the present action would scarcely have seen the light of day. This plaintiff, being 23 years old, instituted these proceedings in June, 1977 (three years after the decision of this Court in McNamara’s Case 3 ) in respect of an injury which he had suffered 12 years earlier when he was almost 11 years old. By any standards of the reasonably expeditious prosecution of a claim for damages for negligence, this was a stale action. It did not come on for hearing until January, 1979, which was nearly 14 years after the accident. Such delay, for which no explanation has been vouchsafed, could hardly be described as providing the ideal route to a just and fair trial. For one thing, the attendant at the electricity sub-station where the accident took place had died by the time of the trial. In the event, the plaintiff lost his case in the High Court for, at the end of the evidence for the defence, the trial judge withdrew the case from the jury on the ground that the evidence would not warrant a finding in the plaintiff’s favour on the issue of negligence. It is from that ruling that the present appeal has been taken by the plaintiff.
This case shares certain features with McNamara’s Case .3 Each boy was about 11 years old at the time of his accident; they each managed to climb over a wire-mesh fence which was topped with barbed wire; they each disregarded boldly-displayed warning notices; each of them, as a trespasser, got into a danger area where there was an uninsulated high-tension cable or conductor; and each of them, by coming into contact with the cable or conductor, suffered severe arm injuries. In almost every other respect, I find crucial differences between the two cases.
I have already indicated the salient feature in McNamara’s Case 3 that made a finding of negligence sustainable against the defendants in that case. By way of distinction and contrast, let me point to certain factors that put the present case in a different category. The sub-station where the accident happened was not situate in a city, let alone in the middle of a densely populated urban housing estate; it was in the middle of a field in the country at about half a mile from the small town of Cloyne in the county of Cork.
There was no history of the field having been frequented previously by children to the knowledge of the defendants. To get into the field from the road the plaintiff had to climb over a locked gate. The occasion of his visitto look for fluffy-topped bulrushes as playthingswas not to be expected by the defendants; it was out of season for bulrushes in that state of bloom. In the field there were two fences surrounding the transformer where the plaintiff was injured. He got over the first or outer fence by climbing over a six-bar iron gate. He then was faced with the inner or security fence which was 5’9″ high and was made of 21/2 inch square chain links. On the security fence were mounted three strands of barbed wire which made the total height 6’9″ at the point where he climbed over. The inner gate at this point, up which the plaintiff clambered, carried a large notice which read “Electricity Supply Board. H.T. Sub-Station. No Unauthorised Persons Admitted.”Having disregarded or not observed this notice, the plaintiff managed to get over the 6’9” fence in his unlikely search for bulrushes. Diverting himself from that search, he proceeded to do something no less unlikely and no less outside the reasonable foresight of the defendants: he climbed on to the transformer and then clutched one of the high-tension cables. The serious injury to his left hand was the inevitable consequence.
Bearing in mind that the legal test was whether it was reasonably foreseeable that a youth such as the plaintiff would attempt to get inside the security fence and, if so, whether the defendants had, in the light of all the prevailing relevant circumstances, taken reasonable steps to keep him out, and assuming for the purpose of this appeal that the plaintiff satisfied the first part of that test, let us see how the evidence went at the trial as to the second part. In this context I repeat what I said in my judgment in McNamara’s Case 3 (at pp. 24-5):
“It needs to be stressed that the existence of, or failure to observe, a duty of care should not be determined with the hindsight derived from the accident but in the light of the circumstances, actual and potential, that ought to have been present to the mind of a reasonably conscientious occupier of property before the trespass took place.”
The plaintiff’s advisers relied on the evidence of two engineers to prove that the defendants had failed to take reasonable steps to prevent the plaintiff’s entry into the area of danger. The evidence of the first of these witnesses (Mr. Tennyson) as to the defendants’ alleged default might be summed up in the following replies he gave to questions put to him about the
adequacy of the security fence:”This fence wouldn’t be regarded as being sufficiently child-proof to protect a high-tension station to make a fence child-proof . . . It is climbable by children . . . As I said, the criterion you should use is one of preventing access so that people cannot get in without tools [to cut their way in].” The evidence of the other engineer (Mr. Brennan) was to the effect that the fence would not be adequate or effective unless the posts, on which the barbed wire at the top was strung, were cranked outwards, thus debarring ingress to everybody, child or adult, who did not use a wire-cutting implement or a ladder. In other words, he postulated a fence that would be proof against access by young or old, or, at least, a child-proof fence.
In my judgment, that evidence pitched the test for negligence higher than that laid down by McNamara’s Case 3 and by the relevant modern decisions which are mentioned in that case. An occupier of dangerous premises, even when he has reason to foresee the possibility of an attempted trespass, is bound to do no more than to take all reasonable steps to prevent the trespass or the injury likely to result from it; he is not bound to render the premises so safe that they will be immune from intrusion by the trespasser: see Videan v. British Transport Commission 10 ; Pannett v. McGuinness & Co. 11 and Herrington v. British Railways Board .12 To impose such a duty on the occupier would be akin to making him an insurer of the trespasser’s safety.
By way of rebuttal of the plaintiff’s case, the defendants adduced expert evidence that the security fence was of a standard design and construction; that it was supervised and maintained adequately; that there are about 180 similar stations in the State; that from the time of the construction of this sub-station in 1961 until the trial of the action in 1979 there was (apart from this case) no known trespass or attempted trespass there; that it is only in the case of sub-stations in urban areas where attempted trespass or vandalism is to be expected that, in recent times, the extra precautions suggested by the plaintiff’s engineers are considered advisable (i.e., the outward overhanging barbed wire on top), but that even that precaution has not succeeded in preventing trespass; that at the relevant time security fences of this kind were to be found in use by electricity boards in England, Wales, Northern Ireland and elsewhere; and that experience had shown that this security fence was an adequate precaution because, up to the time of this accident and later, the design of such a fence in 180 sub-stations had led to no such accident; in short, that at the time of this accident there was nothing to suggest that it would be reasonable to take any precautions against trespass other than those taken.
In those circumstances, I am of the opinion that the judge was correct in holding, in effect, that a jury which was properly directed as to the law would be bound to find for the defendants on the basis of the uncontroverted evidence that was given on their behalf, and to which I have referred. Of course, as the two engineers who gave evidence for the plaintiff said, the security fence could have been made higher and more complex and, therefore, more likely to repel trespassers. But that is not the test. The test is whether the occupier did all that he could reasonably be expected in the circumstances to have done to avert the trespass and injury that followed on it. The defendants adopted what was then considered (justifiably, on the basis of standard design and widespread experience) the mode of deterrence (i.e.,by warning notices and attempted physical exclusion) which could reasonably have been expected to avert this kind of accident.
Counsel for the plaintiff, in suggesting that the defendants’ duty was to go further and to take all such precautions as would have made this kind of accident, as he put it, “almost impossible,” places the duty of an occupier vis- -vis a trespasser on too high a plane. Where the default complained of is not obviously risky or imprudent, and is no more than an adherence to a widely observed practice which has hitherto proved safe, to hold the occupier liable for injury to a trespasser would impose a higher duty of care on an occupier towards a trespasser than the law imposes on an employer1 towards an employee. That would be both illogical and unfair, having regard to the respective social relations and obligations of such parties in the eyes of the law. As Lord Reid said in his speech in the House of Lords in M’Glone v. British Railways Board 13 at p. 13 of the report:”It would put occupiers in an impossible position if, having provided adequate protection, they then had to weigh possible further reduction of risk of accidents against the trouble and expense of taking further precautions. An occupier must do what he is bound to do, but he is not in fault in failing to do more, however easy it might have been to do that.”
I would uphold the ruling of the trial judge and dismiss this appeal.
Griffin J.
The facts are set out in the judgments of the Chief Justice and Mr. Justice Henchy and it is not necessary to repeat them. The sole question for determination on this appeal is whether the learned trial judge was correct in
holding that there was no evidence upon which the jury could find that the defendants were negligent.
The duty owed by an occupier to a trespasser was considered and laid down by this Court in McNamara v. Electricity Supply Board .3 As is to be expected, the plaintiff’s counsel in the present case relied on the judgments in McNamara’s Case 3 to support their submission that there was evidence upon which the jury could reasonably have found that the defendants were negligent. Although in that case the tests to be applied were stated in slightly different ways by the members of the Court who constituted the majority, there is no essential difference between them on the principles involved. Mr. Justice Walsh stated the test as follows at p. 14 of the report:
“Was it reasonably foreseeable to the defendants that children might enter their premises unless reasonable steps were taken to keep them out? On the evidence placed before the jury, I think they were quite entitled to answer that question in the affirmative. The question must then arise of whether the steps taken by the defendants to keep out children were reasonable in all the circumstances.”
Mr. Justice Henchy at p. 25 stated:
“I would hold that the defendants, having created and maintained the danger, are liable if the plaintiff was one of a class of persons whom they ought reasonably to have foreseen as being likely to be injured by the danger, and if they failed to take reasonable steps to avert the injury.”
In my judgment, I stated (p. 35) the test as being “. . . whether the defendants could reasonably have foreseen that child trespassers were likely to climb the fence at their sub-station, gain access to the roof, and sustain injury there; and whether, in all the circumstances of the case, the defendants took reasonable care to see that child trespassers were not injured.”
Therefore, unless the occupier could reasonably have foreseen that a child trespasser would attempt to enter the premises, and in addition failed to take reasonable steps to keep out children in all the circumstances, the occupier is not liable.
The duty of the occupier is to take reasonable steps to deter trespassers from going into situations of danger, and this is done by providing reasonable physical obstacles to keep the child trespasser away from the danger. In the evidence led for the plaintiff, in the cross-examination of the defendants’ witnesses, and in argument in the High Court and in this Court, the obligation
which the plaintiff sought to have imposed on the defendants was the obligation to erect a “child-proof fence,” by which was meant a fence which a child could not climb or surmount. This is, however, casting the duty on the occupier much too high; it is tantamount to making the occupier an insurer for the safety of child trespassers, and it is not supported by authority.
M’Glone v. British Railways Board 13 was a case in which a boy aged twelve years climbed on to an electricity transformer and was injured; at p. 12 of the report Lord Reid said:”In a case like this an occupier does in my view act reasonably if he erects an obstacle which a boy must take some trouble to overcome before he can reach the dangerous apparatus.”
In Herrington v. British Railway Board 12 Lord Pearson said at p. 925 of the report:
“It would in many, if not most, cases be impracticable to take effective steps to prevent (instead of merely endeavouring to deter) trespassers from going into or remaining in situations of danger. The cost of erecting and maintaining an impenetrable and unclimbable or, as it has been put, ‘boy-proof’ fence would be prohibitive, if it could be done at all.”
Lord Pearson then cites a number of cases which illustrate the agility, ingenuity and persistence of boy trespassers.
Therefore, the questions which must be considered in this case are whether the defendants should reasonably have foreseen that children might enter their premises and, if so, whether the steps taken by the defendants to keep children out were reasonable in all the circumstances. Even though this sub-station was in a remote area which was just under one mile from the village of Cloyne and although the field in which it was situate was not known by the defendants to be frequented by children, granted the foreseeable possibility or even probability of children being tempted to climb on to the transformer, the real question is whether the steps taken by the defendants to keep children out were reasonable in all the circumstances.
The fence which in evidence was called “the security fence” was composed of upright metal posts embedded in the ground and to these metal posts there was attached a 21/2 inch chain-link fencing, which was also embedded in the ground. The chain-link was 5’9″ high, and there were three strands of barbed wire affixed to the metal posts at heights of 6’1″, 6’41/2″, and 6’9″. Two engineers were called to give evidence on behalf of the plaintiff. Mr. Tennyson, a mechanical and electrical engineer, would not consider this fence as being “sufficiently child-proof.” He gave evidence to the effect that
the fence should have a small 1″ X 1″ mesh, and should be 8′ high and be surmounted by barbed wire curved outwards from posts that are cranked outwards. His criticism was that the mesh was too wide and that a child could get a toe hold in the mesh and hence climb the fence. At question No. 561 he said:”The practice which is currently recommended would include the use of 1″ mesh.” The accident happened in 1965 and Mr. Tennyson was giving evidence in 1979. However, there was evidence that 1″ mesh was available and that cranked posts were also available in 1965.
Mr. Brennan, the other engineer who was called on behalf of the plaintiff, would not be concerned because of the height of the vertical posts; he would consider 6′ ample, but he thought that on top of such posts there should be cranking outwards with three or four strands of barbed wire. His standard was not to deter but to prevent adults and children from entering the sub-station. He also criticised the size of the mesh and his opinion was that the mesh should be a small 1″ X 1″ mesh. His fence would make it impossible for children or adults to get in to the sub-station without wire-cutters or ladders. Both Mr. Tennyson and Mr. Brennan had a criticism in respect of a 4″ gap between the gate and the post on which it hung, but the existence of this gap is not relevant in this action as the evidence was that the plaintiff climbed up the wire mesh and did not use this gap in the course of his climb. Neither Mr. Brennan nor Mr. Tennyson had examined any other sub-stations here or in Northern Ireland, or elsewhere, for the purpose of comparing the security fence at this sub-station with other stations.
For the defendants, evidence was given that this station was one of 180 rural sub-stations in the country, all being of the same design, and that the security fence in each case was of the same design. There are 340 sub-stations in the country, of which 160 are in cities, towns or built-up areas. Although the plaintiff and his brother, and some other children, from time to time went into the field in which the sub-station was situate for the purpose of collecting bulrushes, neither they nor any other children played, as such, in the field. The station attendant lived approximately one mile from the sub-station, and he visited it at least twice weekly. None of the defendants’ staff ever saw any children in that field, and there was never any complaint of trespass at the sub-station prior to this accident. There was no apparent evidence or indication at the sub-station that trespass had ever taken place there. The security fence was of a standard design used in all the other sub-stations owned by the defendants. Stations in built-up areas (principally in Dublin) of recent construction are enclosed by walls approximately 12′ high and surmounted by barbed wire fixed to cranked posts. The reason for the walls and cranked posts in built-up areas is because in these areas vandalism takes place on occasions, particularly in Dublin.
Mr. O’Sullivan is an engineer who has been employed by the defendants since 1945; he gave evidence on their behalf. He has experience of electrical installations and works not only here but in Northern Ireland, Great Britain, Belgium, West Germany, Holland, Sweden, Switzerland and Italy. He gave evidence to the effect that prior to 1972 the standard height which was specified for a fence was 7′ including three strands of barbed wire. Fresh standards were introduced in 1972 as a result of a statutory instrument which was made in pursuance of the Factories Act, 1955, (S.I. No. 3 of 1972) and a fence erected now must be 8′ high, including three strands of barbed wire. Since then, chain-link fencing is 7′ high and is surmounted by three strands of barbed wire. There is a British Institute of Standards for the design of chain-link fencing for security purposes (B.S. 1722-1972) under which the recommendation for chain-link fencing is a height of 7′ and a mesh of 50 millimetres, which is approximately 2″. The standard of security fencing used by the defendants is in general of a significantly higher standard than that used at sub-stations which Mr. O’Sullivan had visited and inspected in the countries mentioned. In relation to cranking posts, and the use of a smaller mesh than that used in the Cloyne sub-station, the defendants’ experience is that where such have been used, particularly in Belgard in Dublin, they have not prevented trespass. Mr. O’Sullivan had experience of a special mesh called Weldmesh, which is composed of a criss-cross of wires having a very fine aperture into which a child could only fit his fingers; he said that a child had climbed the Weldmesh by using only his fingers and “the flats of his feet against the screen.”
Looked at from the point of view of foresight, and not hindsight, should the defendants in 1965 have done more than they did to deter the plaintiff from entering their sub-station? In view of the fact that 14 years elapsed between the happening of the accident and the date of the trial, it seems to me that what Lord Pearce said in M’Glone’s Case 13 at p. 17 is of particular relevance. There he said:”Where reasonable care has been taken, the fact that even greater precautions could have been adopted without difficulty does not, in general, constitute a ground for finding negligence. In the light of subsequent events it is often easy to see how precautions could have been improved. And it may be hard to clear one’s mind of subsequent events when judging the relevant question, namely, how the matter appeared before
the accident to a reasonable person in the defenders’ position. But if a person had used sufficient care before the accident, he does not become negligent because in retrospect one sees that he could easily have done even better.”
For some years prior to the year 1965, each of the 180 rural sub-stations had a fence similar in design to the fence used in the instant case. In all that time, there had never been an accident or incident in which any trespasser was involved. Indeed, between 1965 and the trial in 1979 there had been no other accident in any of the sub-stations, save for a case of suicide which had taken place in Dublin shortly before the trial. Can it be said that, in all the circumstances prevailing in 1965, the steps taken by the defendants to deter children from trespassing were not reasonable? These circumstances included the experience of the defendants in respect of this and their other rural sub-stations; the fact that only intermittently, and then only without the knowledge of the defendants or their servants, did children enter the field in which the sub-station was erected; and the fact that a fence of similar design was extensively used in the case of electrical installations in the other countries referred to by Mr. O’Sullivan.
In my opinion, it would be wrong for a jury, properly directed, to hold that, in all the circumstances then existing, the steps taken by the defendants to keep children out of the sub-station were other than reasonable. In my view the learned trial judge was correct in withdrawing the case from the jury. Accordingly, I would dismiss this appeal.