Brady v Moore

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 05 July 2022
• Neutral Citation: [2022] IEHC 420
• Court: High Court
• Docket Number: Record No. 2018 / 3726P

Between

Séamus Brady

Plaintiff

and

Peter Moore and Paul Scanlon

Defendants

[2022] IEHC 420

Record No. 2018 / 3726P

THE HIGH COURT

Personal injuries – Damages – Liability – Plaintiff seeking damages for personal injuries – Whether the defendants were liable

Facts: The plaintiff, Mr Brady, claimed damages for personal injuries arising out of an accident which occurred on 26 September, 2015, when the plaintiff was removing slates from the roof of a clubhouse at the premises occupied by St. Mary’s Donore GAA Club, which are situate at Staleen, Donore, County Meath. The work was being done on a voluntary basis by members of the GAA Club, including the plaintiff and it seemed that little or no regard was paid to health and safety. The plaintiff was on the roof of the one storey building when he fell through the felt to the ground and suffered very serious injuries. The proceedings were brought against the defendants, Mr Moore and Mr Scanlon, as representatives of the GAA Club. The proceedings were based on the claim that the plaintiff was a “visitor” within the meaning of the Occupiers’ Liability Act 1995, and that the Club consequently owed him a duty of care pursuant to s. 3 of that Act.

Held by Stack J that there was no basis for imposing liability on the defendants. She held that the usual situation applied which was that the plaintiff, as a member of the Club, participated freely in a joint activity by the club membership which was done in pursuit of the common interest of the Club. She held that the plaintiff was, in his capacity as member, the “occupier” of the premises for the purpose of the 1995 Act, and he could not sue himself. She held that there was no basis established in evidence or indeed even suggested which would justify the imposition of an additional liability on any particular individual involved in the Club.

Stack J dismissed the claim.

Claim dismissed.

JUDGMENT of Ms. Justice Stack delivered on the 5 ^th day of July, 2022 .

Introduction

1 . This is a claim for damages for personal injuries to the plaintiff, arising out of an accident which occurred on 26 September, 2015, when the plaintiff was removing slates from the roof of a clubhouse at the premises occupied by St. Mary's Donore GAA Club, which are situate at Staleen, Donore, County Meath.

2 . The work was being done on a voluntary basis by members of the GAA Club, including the plaintiff and it seems that little or no regard was paid to health and safety. Unfortunately, construction work of any type is inherently dangerous, and health and safety regulations and procedures are all there for a good reason, as the incident giving rise to this case demonstrates. In this case, the plaintiff was on the roof of the one storey building when he fell through the felt to the ground and suffered very serious injuries.

3 . The proceedings are brought against the defendants as representatives of the GAA Club, but the problem for the plaintiff is that, on the date of the accident – and indeed for some time previously and since – he himself was a member of the Club. Indeed, he seems to have been a member of the Committee, but nothing turns on that for the reasons set out below.

4 . The proceedings are based on the claim that the plaintiff was a “visitor” within the meaning of the Occupiers' Liability Act, 1995, and that the Club consequently owed him a duty of care pursuant to s. 3 of that Act. However, the plaintiff's counsel frankly acknowledged that there might be a legal difficulty for him in seeking to make this claim and I am grateful to him for discharging his duty to the court as counsel by providing me with the relevant authorities, particularly given that the Club has turned out to be unrepresented, as the insurance which it held — and which it believed could cover the events giving rise to these proceedings — did not in fact cover this claim. Although the terms of the insurance policy were not put in evidence, I am told that it was a standard policy, widely used by GAA clubs throughout the country.

Evidence

5 . Only the plaintiff gave evidence as to fact. Members of the Club appeared in court and set out the position of the Club, which was, in effect, that they did not want to dispute anything the plaintiff said, were grateful for his contribution to the Club over the years, and that they acknowledged the seriousness of his injuries. There was only one point of dispute raised but, as the Club gave no evidence and did not seek to cross examine the plaintiff, the only evidence I have is that of the plaintiff. I return to this issue below.

6 . Briefly, what occurred was that the Committee of the Club decided to refurbish the clubhouse and they thought that the slates might be suitable for salvage. Presumably to save money, they decided that removing the slates from the roof prior to the contractor starting the refurbishment works was a job they could do themselves, on a voluntary basis. Mr. Scanlon, the second Defendant, who was chairman of the Committee, sent a text to members on 23 September, 2015 asking that recipients would attend on 26 September, 2015 between 9 a.m. and 2 p.m. to help with removing the roof so that construction works could start.

7 . The plaintiff and others attended on the day and went up on the roof. The plaintiff's engineer gave evidence that the trusses were approximately 600 ^mm apart on average and, once the slates were removed, only felt remained. The plaintiff stepped on the felt and fell through the roof onto the ground. There was no scaffold, and no health and safety precautions of any sort.

8 . No evidence was tendered as to the rules of the Club. The Club itself produced undated minutes which it said tended to show that the plaintiff attended a Committee meeting where it was decided to carry out the works. However, the plaintiff gave evidence that he did not attend any meeting where the works were discussed. The Club members who were in court on the part of the defendant indicated that the plaintiff was present, but they did not give evidence and the plaintiff was not cross examined.

9 . The minutes which were handed in on behalf of the defendants appeared to show that the plaintiff was present as a member of the Committee and to have been signed by Mr. Scanlon but I am not sure who wrote them up and they seem to be written in a hand other than that of Mr. Scanlon. The relevant item was in the following terms:

“Roof of Clubhouse to come off – slates + timber need volunteers”.

10 . However, as counsel for the plaintiff pointed out, this appeared under a heading entitled “Next Meeting”, although this heading was scribbled out. There was no evidence as to when this heading was removed and in any event the minutes themselves were not proved in any way. As originally written up, the minutes would only ever have proven that the plaintiff attended a meeting at which it was proposed to discuss the removal by volunteers of the slates and timber at a future meeting. If Mr. Scanlon had given evidence, he may have been able to explain how the heading came to be scribbled out and it may well have been because the discussion and consequent decision were not deferred but were discussed at the meeting itself. However, I have no evidence of any of this and, as the minutes are not dated, I do not even know when the meeting took place, though the dates of various upcoming items suggest that it took place in early September, 2015 as there are various references to “Sat 12th”, “Monday 14th” and “wed 16 ^th sept”, all of which correspond to the dates and days of the week in September, 2015.

11 . In view of the fact, therefore, that the only evidence tendered was that of the plaintiff, I find that he did not attend a Committee meeting at which the proposed works were discussed.

12 . A significant issue arising in this case as to whether the claim is maintainable at law, but before turning to this, I want to acknowledge the extent of the injuries sustained by the plaintiff. In view of my conclusion on the legal issue, it is not necessary to consider these in extensive detail, but it should be noted that the injuries were serious.

13 . The plaintiff suffered fractures to his left wrist, right shoulder, right elbow, nerve damage to his left hand and soft tissue injuries to his back, left shoulder and nose. Both of his arms had to be put in plaster of Paris for six weeks. He had internal fixings in his right elbow, where the fracture was complex, but these were removed in 2016 in the hope that this would assist his range of movement. Unfortunately, it does not seem to have done so.

14 . The plaintiff suffered from anxiety and depression after the accident, and is unable to work. He continues to have difficulties with his shoulders and while his left hand has improved somewhat, he has still lost feeling in two fingers and has little or no grip. Given that he is left hand dominant, this is very debilitating and affects his ability to cope with everyday tasks. He expressed unhappiness and frustration about his dependency on others. He is unable to work and has become somewhat socially isolated.

15 . Notwithstanding the nature of his injuries, however, the plaintiff must first establish that he has a claim in law against the Club, and I now turn to that issue.

Whether this claim is maintainable at law

16 . The personal injury summons pleads that the plaintiff was present at the Club premises as a visitor. In replies to particulars, the plaintiff asserted he was under the direction and control of the defendants such that there was a contract of employment for the specific task in question. However, it was rightly conceded at hearing that the plaintiff was not an employee and the claim was confined to that basis on the plaintiff's alleged status as “visitor” within the meaning of the 1995 Act.

17 . “Visitor” is defined in s. 1 of the 1995 Act as...