Adams -v- Galway County Council, [2008] IEHC 57 (2008)

Docket Number:2001 4672 P
Party Name:Adams, Galway County Council
Judge:Peart J.
 
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THE HIGH COURT 2001 No. 4672P

Between:

David Adams

Plaintiff

And

The County Council of the County of Galway

Defendant

Judgment of Mr Justice Michael Peart delivered on the 12th February 2008:

For eighteen years prior to 23rd April 2000, being the date on which the plaintiff states that he received an injury for which he seeks damages in these proceedings, he was, amongst other things, employed by the defendants as a part-time fireman. At that date he was forty nine years of age. The evidence suggests that the plaintiff is an experienced fireman, including in relation to dealing with bog fires at night. Over his eighteen years it would appear that the records indicate that he has been called out on about forty nine occasions to deal with a night-time bog fire.

In addition to serving the community as a fireman, he was a teacher of arts and crafts to traveller families, and also to young offenders. In addition to those activities, he had about two weeks' employment per year with Lydons Catering during Galway Races week.

The plaintiff has given evidence of receiving basic training after he joined the fire service, and that there has been ongoing training from time to time thereafter. But he says that none of this training was related specifically to dealing with fires on a bog.

However, in the evening of 23rd April 2000, a '999' call was received by the Galway fire service, because a bog-fire had been reported as burning in the area of Glenamaddy in Co. Galway. The local fire service to which the plaintiff was attached at Mountbellew was alerted, and the plaintiff and three others attached to that station responded to the call and attended for duty at the fire station. They were the Station Officer, Michael Hughes, Eamonn Colleavy who was the driver of the fire appliance, Pat Keating, who was a sub-officer, and the plaintiff, who was a fireman. The plaintiff says that he was alerted by bleeper at about 8.40pm.

Having loaded up the appliance at the station with what equipment was required they set off to the fire, arriving at the bog at about 9pm. It was not yet dark at that stage, but clearly must have been getting dark.

While each of these men had many years' experience of bog fires, they do not appear to have been out on this particular bog before. They arrived and parked the appliance at a point where the public road ended, and where a small lane leading around the bog commenced. A local man met them where they parked, and offered to bring them and their equipment in his car along that lane, and appears to have suggested to them that he would bring them to a convenient point so that they could commence tackling the fire from the back of the fire from that position. The size and weight of the appliance meant that it could not have safely travelled along this particular lane.

The plaintiff's evidence was that he laid three large torches on the ground, as well as some beaters and a bucket. According to the plaintiff he assembled the equipment on the ground prior to the party setting off into the bog to extinguish the fire. He say that he himself picked up a beater and the lamp, but that the officer in charge, Michael Hughes directed him to bring the bucket, and that upon being told to do so he handed over his lamp to Mr Hughes and proceeded with a beater and the bucket. The presumption from the plaintiff's evidence at this stage is that the others each took up a torch and a beater, but it appears from Mr Hughes's evidence later that only one large torch was taken into the bog, and that was carried by Mr Hughes. It would appear that the other men carried only a beater.

In addition to this equipment each man had his own personal small torch. I am satisfied that this personal torch is intended to enable a fireman to illuminate instruments such as a gauge on a breathing apparatus or to read a map. It is part of standard equipment, and while it has the capacity to provide some light for these purposes, it was clearly never designed or intended to provide sufficient light to illuminate a path along a bog, as the single larger torch which was brought onto the bog. This personal torch fitted into a small pocket on the foreman's uniform. I will for convenience refer to the larger torch as a lamp in order not to confuse it with the smaller personal torch.

This night was described by the plaintiff as being a "mucky night". It was not raining at the time but he described the bog as being very wet. In fact he described this bog as being the wettest that he had ever been in over his eighteen years' experience, and he found the terrain difficult to negotiate.

According to the plaintiff they all set out in the local man's car and at a convenient point they alighted and made their way to the fire across the bog. He thinks that it took about fifteen minutes to reach the fire. Mr Hughes led the team across the bog, and the plaintiff was at the rear of the party of four. He recounted that he fell onto his knees at one stage on the way across to the fire and into about three inches of water. He sustained no injury as a result of this fall, which I shall refer to as 'the first fall', because it is as a result of a second fall into a ditch or drain that the plaintiff sustained the injuries complained of herein, and for which he seeks to recover damages.

I should refer to the fact that there has been some dispute arising from the history of the incident as taken from the plaintiff his expert fire engineer, Mr Williamson, as to whether the first and second fall occurred on the return rather than that the first being on the way to the fire and the second on the way back. I do not find it necessary to dwell on that aspect of the disputed evidence. In my view nothing turns on that question.

The plaintiff stated that they walked about a quarter of a mile to the fire, which was burning on the top of the heather on the bog at this time. The plaintiff stated that there was no house in the immediate vicinity of the fire, although he saw some people at a grassy area at the edge of the fire, and these people appear to have been beating the fire at that position with some bushes. The fire appears to have been progressing in the direction of that grassed area.

He says that on the way to the fire itself they had to cross a number of ditches, and, as I have said, he fell on one occasion as the party made their way to the back of the fire. The party extinguished the fire in due course, and then commenced the journey back to the fire appliance. The journey back did not retrace the route taken to the fire along the laneway in the local man's car, but rather took a route directly across to where the fire appliance had pulled up at the end of the road.

Even though the plaintiff's evidence was that he had put three lamps on the ground at the appliance before they set off across the bog to the fire, his evidence was that as they travelled across the bog and on the return journey, Mr Hughes held a lamp, that Mr Colleavy and Mr Keating each held a beater and a lamp, and that he himself was carrying the bucket and a beater. Each man also had the personal torch in their uniform pocket. As I have said none of these men had been on this particular bog before and were therefore unfamiliar with it, and of course by the time they had extinguished the fire a couple of hours had passed and it was dark. Since the fire was extinguished they no longer had the benefit of the light from the fire.

The journey back to the appliance was therefore in complete darkness, save for any light available from the lamp being carried by Mr Hughes. I have stated that the plaintiff has assumed in his evidence that all these men apart from himself carried a lamp. But in fact I am satisfied from the evidence of Mr Hughes the officer in charge of the party that in fact only one lamp was brought onto the bog and that this was held at all relevant times by him. He said that it was normal practice to carry one lamp into a situation like this. If the plaintiff is correct that he placed three lamps on the ground before they set out in the car, two must have been left behind. That is improbable, and I conclude that the plaintiff's evidence is the less reliable in that respect. In fact, as it turns out, it is in ease of the plaintiff that I so conclude as will become apparent.

As the party made its way back across the bog to the fire appliance parked on the road, they were in single file, with the plaintiff at the rear. The leader was Mr Hughes, and there is no doubt from the evidence that the distance between Mr Hughes at the front and the plaintiff at the rear was about twenty to thirty feet. The plaintiff states that the journey back across the bog to the fire appliance involved negotiating various ditches or drains in the bog. He described these as being two to three feet wide and filled with water, but that he had no knowledge about this in advance. He was asked if there was any plan discussed in relation to negotiating this terrain, and he stated in reply that no plan was discussed, and that it was a matter simply of following the leader i.e. Mr Hughes. The plaintiff was at the rear of this party as they went back. There has been some evidence from the plaintiff that at this time he was not fully fit, though not in the sense of having any injury. He described himself as being a little overweight, and not as fit as in earlier years. He stated in his evidence in this regard that he did not feel 'right' going into the bog and that he felt tired and overweight, and had difficulty keeping up with the others. He accepted in cross-examination that he had not mentioned to anybody that night that he did not feel 'right' or that he was tired.

Nonetheless the undisputed evidence is that a distance of only twenty or so feet separated him at the rear from Mr Hughes at the front as they made their way back across this bog to the fire appliance.

The second fall:

In spite of the fact that...

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