Cosgrove v Ryan
THE SUPREME COURT
Torts - Negligence - Contributory negligence - Causation - Legal and factual - Res ipsa loquitor - Proof - Overhead cables - Liability of ESB - Contractor - Remittal of case to High Court for assessment of damages
JUDGMENT of Mr. Justice Geoghegan delivered the 14th day of February 2008
This is an appeal from an order of the High Court (Murphy J.) dismissing an action for damages for personal injuries arising out of an accident involving ESB power lines above an agricultural field.
On the face of it the case was quite a simple one based on the pleadings but it developed into a four day hearing. The appellant is an agricultural contractor living in County Clare. The first-named respondent was the owner of lands at Castleconnell, Co. Limerick who had engaged the appellant to harvest some silage on a field owned by him. Above the field and across it were electric power lines installed, owned and under the control of the second-named respondent.
On the 29th August, 1998 the appellant while driving a harvester designed for the purpose was allegedly injured as a consequence of the harvester coming into contact with the electric wires. It is sufficient for the purposes of this judgment to refer to injuries arising as a consequence of this impact rather than be specific as to the nature of those injuries. Because of the dismissal of the action there was no decision on this aspect of the case which is itself in some controversy and, therefore, it would be inappropriate for me to express any views on the nature of the alleged injuries. For some reason, the learned High Court judge did express views by way ofobiter dicta on items of special damage but those remarks would seem to me to be irrelevant to the issues on this appeal and not binding on any court addressing the issue of damages.
I intend dealing with only one issue namely, was the learned High Court judge correct in finding that the appellant had not established as a matter of probability that the accident was caused by the negligence of the ESB? In this connection, I have deliberately not mentioned the first-named respondent. He was originally joined in the proceedings because he had told the plaintiff that he had previously reported to the ESB that the wires were too low. Shortly before the hearing of the case, he admitted that he had never done so. In those circumstances an arrangement was arrived at whereby the ESB became the only defendant.
The principle ofres ipsa loquitur has featured in this action. It is clear from the textbook writers that the precise parameters of that principle have never been conclusively determined. I am in the happy position that I find myself able to avoid their consideration because I, at any rate, consider that the appellant in this case on the evidence, as it ran, established a case of negligence against the ESB and I am therefore of opinion that on that account the appeal should be allowed. The words “on the evidence as it ran” should be noted because it may well be that, if appropriate employees of the ESB or indeed appropriate outside technical witnesses had given evidence, the appellant’s case might have been successfully answered.
There is, of course, no law which requires a defendant to give any evidence at all, to say nothing of any particular evidence. But if a plaintiff puts forward aprima facie case which has not been answered he is usually entitled to succeed. In this case, the ESB clearly made a decision not to enter the witness-box through the agency of any of their employees. This they were entitled to do but it was a strategy attended with considerable risk. For a long time the case was run on the basis of various theories put forward in cross-examination of the plaintiff which I
will outline in due course. It was only at a late stage in the case and long after the plaintiff had left the witness-box that a new theory was put forward on behalf of the ESB and which in the event was the one which attracted the learned trial judge and led him to dismiss the action. I will come to that also in due course. There were experienced litigation engineers engaged by both sides but neither of them was an electrical engineer and neither showed any intimate knowledge of the ESB safety policy. There was made available to the plaintiff’s legal team, however, internal ESB documentation that indicated that a normal height for a line of the kind which was in place in this case would be fifteen feet. There was evidence that the machine at its highest point was thirteen feet. Though in fairness to the ESB, the case was run on behalf of the plaintiff on a more or less acceptance of the fifteen foot norm, it seems clear that that figure has no statutory basis and that there remains a legal obligation of the ESB under its ordinary duty to take care to make sure that such lines are at a reasonable height above a field so that normal farm machinery will not come into contact with them.
It is important that I should now cover the evidence of the appellant in some detail. After introductory evidence in which he explained how he began in the agricultural contracting business starting with a digger but later purchasing a harvester until he finally had a self-propelled silage harvester. He was asked how often he had worked with the harvester on the lands of the first-named defendant, Mr. Ryan, and he answered that he was there two or three times before. It was not with the identical machine but with a similar machine. He then explained that while the harvester is working there is a trailer beside it and that upon entering the field the operator picks up the two strokes on the outer side going in an anti-clockwise direction to make room for the trailer that is beside the harvester. When that is done you turn around and go clockwise. By a stroke the witness meant a row of grass. After the machine has passed by, the width of the cut grass is ten feet. The machine does not leave the grass but it picks it up. The grass is then processed through the machine and comes out of a chute or funnel straight into the trailer. From the trailer it is brought to the silage pit. The appellant affirmed that he had never had any difficulty or worry about overhead wires in the field either in connection with working on previous occasions or on that occasion. When asked in what circumstances would he be alerted to a danger of overhead wires he said that if he saw they were“really low” he would avoid going near them. On the day in question the appellant had done two anti-clockwise sways and had then started to do it in a clockwise direction. In doing the two anti-clockwise sways he had gone under the cable without difficulty. Photographs of the field were produced and the appellant agreed that the field included a slope in two directions. The appellant explained that when he turned around and went in the clockwise direction he suddenly heard a “big bang” and it threw him back a bit from the cab. He thought he was going to die. He saw a blaze on the chute of the harvester. He remained stopped as he was afraid to touch anything. The chute would have been out directly to the left of him. Eventually, when the blaze had stopped, the appellant got out of the machine deeply shocked and dazed. The machine was not live at that stage because the arc from the chute to the wire had stopped. The appellant knew how to work the machine manually and without the electrics and this he did. At a certain stage the appellant left the field to get a shaft. When he eventually returned a job had been done on the wire. When he was leaving it had been slightly ravelled but when he returned it was fixed and risen. He assumed the ESB had been called out.
The appellant was cross-examined at some length. The general thrust of the cross-examination was that he was the cause of his own accident or in other words that the accident was caused exclusively by the appellant’s own negligence. Essentially, the cross-examination took the form of putting forward theories as to what the appellant himself should have done with no suggestion at any stage (which in fact proved to be the event) that anybody from the ESB would be giving evidence.
The following points were put in cross-examination:
1. That there were no procedures in place in the appellant’s enterprise relating to safety of workers including the appellant himself.
2. That there was no “mystery” in “checking the height of something” to which the appellant replied “how can we measure?”.
3. That the appellant could have attached an insulated rod that was a little bit higher than the machine and hold that underneath the wire or near the wire so as to judge the height.
4. That on a more sophisticated basis he could have used one of the “super rule devices” that architects use to measure the width of a room, it being suggested that there was a particular one “a super rule 600 series cable height meter”.
5. That he could employ a paid observer.
6. That there was nothing to stop the appellant as he drove the machine turning his head and watching the chute before it reached the wires so as to make sure that it did not hit the wire.
The most interesting feature of these six criticisms is one to which I have already briefly adverted. They do not include the suggestion which afterwards featured heavily in the cross-examination of the appellant’s engineer that...
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