Clancy v Commissioners of Public Works in Ireland

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy J.
• Judgment Date: 12 March 1991
• Neutral Citation: 1991 WJSC-SC 180
• Court: Supreme Court
• Docket Number: [S.C. Nos. 389 and 390 of 1987]
• Date: 12 March 1991

1991 WJSC-SC 180

THE SUPREME COURT

Finlay C.J.

Hederman J.

McCarthy J.

389–390/87

CLANCY v. COMMISSIONERS OF PUBLIC WORKS

BETWEEN

DAMIEN CLANCY (AN INFANT) SUING BY HIS FATHER AND NEXT FRIENDLEO CLANCY

Plaintiff/

Respondent

and

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND AND THE ATTORNEYGENERAL

Defendants/

Appellants

Citations:

ANCIENT MONUMENTS (PROTECTION) (IRL) ACT 1882

ANCIENT MONUMENTS (PROTECTION) (IRL) ACT 1892

NATIONAL MONUMENTS ACT 1930

NATIONAL MONUMENTS ACT 1930 S2

NATIONAL MONUMENTS ACT 1930 S6

NATIONAL MONUMENTS ACT 1930 S12

NATIONAL MONUMENTS ACT 1930 S16(1)

NATIONAL MONUMENTS ACT 1930 S16(2)

Synopsis:

NEGLIGENCE

Fault

Apportionment - Occupier - Invitee - Proof - Burden - Accident - Witnesses - Absence - Inference from facts - Plaintiff injured in fall- Facts proved insufficient for inference that plaintiff negligent - (389,390/97 - Supreme Court - 12/3/91) [1992] 2 I.R. 449

|Clancy v. Commissioners of Public Works in Ireland|

NEGLIGENCE

Occupier

Guardian - National monument - Commissioners - Statutory duty - Admission of the public - Area of invitation - Restriction - Opening in floor of Donegal Castle - Obvious danger - Contributory negligence - Burden of proof on defendant - National Monuments Act, 1930, ss. 2, 12, 16 - (389,390/87 - Supreme Court - 12/3/91) - [1992] 2 I.R. 449 - [1991] ILRM 567

|Clancy v. Commissioners of Public Works in Ireland|

1 JUDGMENT delivered on the 12th day of March 1991by FINLAY C.J. [HEDERMAN CONC]

2 This is an appeal brought by the Defendants against an order of the High Court dated the 8th July 1987, made by Barr J., in which

3 (a) He found the Defendant guilty of negligence and breach of duty to the Plaintiff;

4 (b) He found the Plaintiff guilty of contributory negligence;

5 (c) He apportioned fault as to two-thirds against the Defendants and one-third against the Plaintiff; and

6 (d) Assessed total damages in the sum of £120, 120.

7 The Defendants appealed against the finding that they were guilty of negligence or breach of duty towards the Plaintiff at all; against the proportion of fault, in two-thirds, which was placed upon them in the alternative, and against the assessment of damages on the basis that they were excessive. The Plaintiff served a notice of cross appeal against the finding of contributory negligence made against him and in the alternative against the proportion of fault apportioned to him, and also appealed against the assessment of damages in so far as the learned trial Judge failed to award any loss of earnings to date of the trial, and against the alleged inadequacy of the sum assessed for loss of earnings in the future.

The facts

8 By Indenture of the 3rd March 1898 the Earl of Aran pursuant to the powers contained in the Ancient Monuments (Protection) Act 1882 and 1892 constituted the Commissioners of Public Works in Ireland guardians of the ancient monument consisting of the Castle of Donegal and the walls surrounding the same which is situated in the Town of Donegal, in the County of Donegal. In that indenture it is recited that the Commissioners were of the opinion that the preservation of that ancient monument was a matter of public interest by reason of the historical interest attaching to it.

9 By August of 1980 the Commissioners had apparently placed a railing fence around the site of the castle, and employed a caretaker who locked the only gate in that railing each evening, and opened it in the morning. Upon the gate being opened, members of the public could gain access to the site of the castle. When they did, they entered into the ground floor of thecastle through an open archway and then climbed a set of stairs to a first floor portion of the castle. There they entered upon a stone floor, and to their right there was an ope as for a window, which had a balcony beside it. Apparently, between the head of the stairs and that ope there was an aperture in the floor which was approximately 2 feet wide and something over 7 feet in length.

10 On the 18th August 1980 the Plaintiff who was then a boy of thirteen and a half years of age went with three other young members of his family, ranging from ten years of age to something over seventeen years of age, to visit the castle. They were not accompanied by any adult. Upon entering the castle, it would appear that the group of four young persons went up the stairs to the first floor, and that the Plaintiff was the last to arrive at that level. The evidence was that shortly after arriving on that floor of the castle the Plaintiff's brothers heard a shout and on looking sawthe Plaintiff having fallen down to the ground floor and lying, very gravely injured, underneath the aperture in the upper floor of thecastle.

11 The Plaintiff suffered severe injuries, including concussion, and had no recollection of the events preceding his fall, and in fact had no recollection of entering the town of Donegal on that day.

Proceedings in the High Court

12 The Plaintiff's claim against the Commissioners was laid on the basis that they were the occupiers of the castle and owed him a duty as an invitee; that they were in control of the castle and owed a duty of reasonable care to him as a person to whom they granted access to the castle, and that on either basis they were wanting in care in failing either to warn him against the existence of this aperture in the floor or to fence it off in some way.

13 The Commissioners in their defence contended that having regard to the provisions of the NationalMonuments Act 1930that they were not occupiers of the castle and that they owed no duty to any member of the public in relation to it other than a duty to preserve the fabric of the castle as an ancient monument. They asserted that, having regard to the statutory provisions which appointed them as guardians and the powers and duties vested in them, they had no obligation to take any care for the safety of members of the public who had access to the castle.

14 Barr J., who tried the action in the High Court, directed that the evidence on that issue should be had as a preliminary issue in the course of the trial, and submissions on the legal situation made at the commencement. That having been done, the learned trial Judge ruled that he was satisfied that on the facts of the particular case the Commissioners are and were in control of the castle and that they had invited the Plaintiff thereon, and that therefore the relationship of invitor and invitee arises between the parties andthat the duty of the Defendants therefore was to take reasonable care in respect of unusual dangers on the premises over which they hadcontrol.

15 The appeal of the Defendants against that finding was dealt with first in the submissions before this Court, as a preliminary issue, and I will accordingly deal with that question first. I am satisfied that there is an obligation on the facts of this case upon the Commissioners to take reasonable care for the safety of members of the public to whom they permit access to the national monument. The provisions of the Ancient Monuments (Protection) Act 1882 and the Ancient Monument (Protection) ( Ireland) Act 1892, have both been repealed by virtue of the provisions of the National Monuments Act 1930.By virtue of the provisions of Section 2 of the 1930 Act, every monument to which the Ancient Monuments (Protection) Act 1882 applied immediately before the passing of that Act is deemed to be a national monument.

16 By virtue of Section 6 of the 1930 Act, where immediately before the passing of that Act the Commissioners are the guardians of a National Monument by virtue of a deed executed under one of the repealed Acts, certain provisions apply, inter alia, granting to theCommissioners

"all such powers, privileges and duties as are by this Act conferred or imposed on them in respect of national monuments of which they are guardians".

17 By virtue of Section 12 of the Act of 1930, where the commissioners are the guardians of a national monument, they shall maintain such monument and have right of free access to it for the purpose of so doing. Maintenance is defined in Section 2 of the Act to include

"the cleaning, repairing, railing or fencing, and covering in of such monument, and the doing of all such other acts and things as may be necessary or expedient for the preservation or protection thereof, and cognate words should be construed accordingly."

18 The provisions of Section 16, subsections (1) and (2) of the Act of 1930 are of particular relevance to the issues arising in this part of this case, and those subsections are as follows:

19 2 "16. (1) Where the Commissioners or a local authority are the owners or the guardians of a national monument, the Commissioners or such local authority (as the case may be) shall, subject to the provisions of this section, admit the public to enter on and view such monument upon payment of such (if any) charge for admission and subject to such conditions and limitations as the Commissioners or such local authority shall prescribe.

20 (2) Where the Commissioners or a local authority are the...