Boylan v.Dublin Corporation

JurisdictionIreland
Judgment Date15 June 1949
Date15 June 1949
CourtSupreme Court

Supreme Court.

Boylan v. Dublin Corporations
JOHN BOYLAN
Plaintiff
and
THE RIGHT HONORABLE THE LORD MAYOR, ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN,Defendants (1)

Negligence - Rooms hired for entertainment - Defective flag-pole - Injury to person attending entertainment when leaving premises - Injured person at time of injury using proper means of egress from hired rooms - Invitee or licensee - Liability of occupiers of premises.

New Trial Motion.

The plaintiff, John Boylan, brought an action to recover damages for personal injuries and loss sustained by him as a result of the negligence of the defendants, their servants and agents, in the construction, maintenance, care and control of a flag-pole which fell and struck him at the Mansion House, Dublin, on the 1st December, 1946. The evidence has been summarised in the headnote and is more fully set out in the judgment of O'Byrne J. (post). At the close of the plaintiff's case, application was made to the trial Judge (Haugh J.) for a direction on the ground that the plaintiff, in attending the entertainment at the Mansion House, was a licensee of the defendants, and not an invitee and, consequently, the obligation of the defendants was only to protect him from dangers of which they were in fact aware.

This application was refused, the trial Judge ruling that the plaintiff was an invitee. At the close of the defendants' case the application for a direction was renewed and the trial Judge acceded to it on the ground that the defendants, by employing a competent firm of contractors to paint the flag-pole at stated intervals, had discharged their obligation to the plaintiff.

The plaintiff appealed to the Supreme Court.

K. as secretary of a charitable society, hired rooms in the Mansion House, Dublin, from the defendants, for a whist drive, to be held on the 1st December, 1946. The hiring was effected by an agreement in writing under which,inter alia, the defendants were to be paid a sum of money for the use of the rooms and the hirer was to employ certain attendants to be designated by the defendants. The plaintiff attended the whist drive, having purchased a ticket from the organisers. At the conclusion of the entertainment, he left the said rooms and, while walking along a passage-way, the appropriate means of egress from the Mansion House, he was struck by a flag-pole which fell from the roof of the premises and sustained injuries in respect of which he claimed damages from the defendants, as owners and occupiers of the premises. At the trial before Haugh J. and a jury there was evidence that in the years, 1940 and 1943, the defendants had employed a competent firm of contractors to paint the flag-pole, and on this evidence the trial Judge, holding that the plaintiff was an invitee, acceded to an application for a direction in the defendants' favour, and entered judgment for them accordingly.

On appeal:

Held by the Supreme Court (Murnaghan, Geoghegan, O'Byrne and Black JJ.; Maguire C.J. dissenting) that the defective flag-pole constituted an unusual danger and, as there was evidence which would justify the jury in finding that the said danger was discoverable by the exercise of reasonable skill and care by the defendants and that the defendants had failed to take reasonable, precautions for the plaintiff's safety, the said judgment must be set aside.

The appeal was accordingly allowed and a new trial ordered.

Cur. adv. vult.

Maguire: C.J. :—

This appeal arises out of an action for damages for negligence. Mr. John Kenny hired from the respondents the use of two rooms in the Mansion House, Dublin, for the purpose of running a whist drive to raise funds for a charitable object. The appellant took part in the whist drive. While he was on his way from the Mansion House to the public street along a passage which was not included in the letting and was in the possession of the respondents, a flag-pole fell from the roof of the Mansion House. In falling, it struck and seriously injured him. He brought this action claiming damages for negligence. The action was tried by Haugh J. with a jury. Holding that the appellant was an invitee of the respondents, the trial Judge refused an application for a direction made at the close of the appellant's case. At the close of the evidence for the defence the application for a direction was renewed on the grounds that, even if the appellant was an invitee, the respondents-were not liable because they had entrusted the painting of the flag-pole to a competent contractor. The learned trial Judge, holding

that there was no evidence upon which the jury could find for the appellant, gave judgment for the respondents. The appellant moves this Court that the judgment so entered be set aside and a new trial ordered.

Once the relationship between the appellant and the respondents in respect of which he can sue is determined, no difficulty arises about the principles applicable to the case. It is clear that the appellant was the invitee of Mr. Kenny, who had organised the whist drive and hired the rooms. The main question to be determined is:—Was he also an invitee of the respondents or only their licensee? It has nowhere been very clearly laid down how one is to distinguish between a licensee and an invitee. A passage in Indermaur v.Dames(1) affords guidance. At p. 287, Willes J. uses the case of a customer who enters a shop or business premises to illustrate the difference between the duty owing to such a person and that owing to a visitor or guest who is a bare licensee. He cites a passage from Erle J., as he then was, in Chapmanv. Rothwell(2) where Southcote v. Stanley(3) was cited:—"The distinction is between the case of a visitor (as the plaintiff was in Southcote v. Stanley(3), who must take care of himself, and a customer, who, as one of the public, is invited for the purposes of business carried on by the defendant,"Again, at p. 288, Willes J. says:—"The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied."Lord Sumner in Mersey Docks and Harbour v. Procter(4)put the matter this way (p. 272):—"The leading distinction between an invitee and a licensee is that, in the case of the former, invitor and invitee have a common interest, while, in the latter, licensor and licensee have none."

Help also is given in Latham v. R. Johnson & Nephew Ltd.(5)where the liability of an owner of premises to those who use them is carefully discussed. The statement of the Law (at p. 410) by Hamilton L.J., as he then was, is described by Lord Buckmaster in Fairman v. The Perpetual Investment Building Society(6) as a concise and accurate expression of well-known principles. It is as follows:—

"The duty which one person owes to another to take reasonable care not to cause him hurt by act or omission is relative both to the person injured and the person charged

with neglect and the circumstances attending the injury. Among other such circumstances is that of place. Where a question arises, not between parties who are both present in the exercise of equal rights inter se, but between parties of whom one is the owner or occupier of the place and the other, the party injured, is not there as of right, but must justify his presence there if he can, the law has long recognised three categories of obligation. In these the duty of the owner or occupier to use care, if it exists at all, is graduated distinctly, though never very definitely measured. The cases down to 1864 are collected in Sullivan v. Waters(1). Contractual obligations of course stand apart. The lowest is the duty towards a trespasser. More care, though not much, is owed to a licensee—more again to an invitee. The latter term is reserved for those who are invited into the premises by the owner or occupier for some purpose of business or of material interest. Those who are invited as guests, whether from benevolence or for social reasons, are not in law invitees but licensees. The law does not take account of the worldly advantage which the host may remotely have in view."

In Fairman's Case(2) a majority of the House of Lords held that the plaintiff, who was a lodger with a tenant and who suffered an injury while using a staircase which remained in the control and possession of the landlord, was only a licensee of the landlord. In a recent case in England,Haseldine v. C. A. Daw & Son, Ltd.(3), Fairman's Case(2)was much discussed. Goddard L.J., as he then was, and Clauson L.J., holding that it was binding upon them, reluctantly followed it. Scott L.J., on the other hand, took the view that the opinion of the majority of the Lords that the plaintiff was a licensee was obiter. He complained that the Lords who formed the majority, with one exception, gave no reason for their opinion. Fairman's Case(2) would appear to be binding on this Court. I find no difficulty in accepting it, nor do I see any difficulty in understanding the ground upon which the majority of the Court held that the plaintiff was a bare licensee. They clearly took the view that in order to make a person who uses premises an invitee by implication it must be shown that he went upon the premises upon some business which concerned the landlord. It is not easy to see how the defendant could be said to have an interest in the user by the plaintiff of the common staircase. In the present case I cannot see how it can be held that the respondents invited the appellant to their premises. It is true they let the rooms to Mr. Kenny for a purpose of

which they were aware and, by implication, gave permission to him and his guests to use the passage on which the appellant was at the time of the accident. They had, however, no material interest in the appellant...

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