Cosgrove v Ryan

 
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[1999 No. 11074P]; [2008] IESC 2

High Court

Supreme Court

[S.C. No. 358 of 2003]
Cosgrove v. Ryan
Thomas Cosgrove
Plaintiff
and
John Ryan and Electricity Supply Board
Defendants

Cases mentioned in this report:-

Buckland v. Guildford Gas Light and Coke Co.ELR [1949] 1 K.B. 410.

C.I.E. v. Carroll and Wexford County CouncilDLRM [1986] I.L.R.M. 312.

Duffy (a minor) v. Rooney (Unreported, Supreme Court, 23rd April, 1998).

Dumphy v. Montreal Light, Heat and Power CompanyELR [1907] A.C. 454.

Geddis v. Proprietors of Bann ReservoirELR (1878) 3 App. Cas. 430.

Guilfoyle v. Linders (Unreported, Supreme Court, 23rd November, 1979).

Hanrahan v. Merck Sharp and Dohme Ltd.DLRM [1988] I.L.R.M. 629.

Higgins v. PattersonIR [1971] I.R. 111.

Lindsay v. Mid Western Health BoardIRDLRM [1993] 2 I.R. 147; [1993] I.L.R.M. 550.

Manchester Corporation v. FarnworthELR [1930] A.C. 171.

Northwestern Utilities, Ld. v. London Guarantee and Accident Co.ELR [1936] A.C. 108.

Rylands v. FletcherELRELR (1866) L.R. 1 Ex. 265; (1868) L.R. 3 H.L. 330.

Scott v. London and St. Katherine DocksENR (1865) 3 H. & C. 596.

Negligence - Duty of care - Proof - Onus of proof - Requirements of proof - Dangerous substance - Res ipsa loquitur - Rylands v. Fletcher - Causation - Statutory authority - Whether statutory authority conferred on defendant shifts burden of disproving negligence to defendant - Whether burden of proving causation can ever shift in negligence case - Whether plaintiff must prove causation - Whether plaintiff must negative every possibility of absence of negligence - Whether obligation on defendant to give evidence - Whether duty on defendant to ensure electricity lines at reasonable height - Whether obligation on contractor to take precautions for himself as if employee - Whether accident caused by negligence of plaintiff - Whether contributory negligence.

Cur. adv. vult.

R. Murphy J

18th December, 2002

Facts

The plaintiff, an agricultural contractor, was harvesting silage on the 29th August, 1998, with a Claas silage harvester on lands owned by the first defendant which were traversed by a low voltage electricity line of the second defendant. The action proceeded as against the second defendant only.

The plaintiff had previously harvested silage on the same field some years beforehand.

The plaintiff cut some two swaths in an anti-clockwise direction from the perimeter of the field to make room for a tractor and trailer to travel along side collecting the grass. The plaintiff then cut some three to four swaths in a clockwise direction. On the upper portion of the field the funnel or chute of the silage harvester thirteen feet (circa four metres) high came into contact with the overhead electricity line causing a shorting of the electrical current. The plaintiff claimed that he suffered an injury to the left shoulder as a result of the discharge and the jolt received which injury has resulted in a loss of earnings and in damage to the harvester.

The shorting caused damage to the electronics of the silage harvester resulting in the failure of the detection mechanism to the front thereof. Having disengaged that unit the plaintiff proceeded to harvest the remainder of the field with the assistance of fellow workers operating two tractors and trailers in series to bring the cut grass back to the first defendant's silage pit.

As a result of the failure of the electronic detectors two shafts were broken and were replaced by the plaintiff during the operation. While the plaintiff was away locating the replacement shafts a repair crew from the second defendant came to replace the fuse on the nearby pole.

Pleadings

By summons dated the 5th November, 1999, the plaintiff claimed damages for personal injury, loss, damage, inconvenience and expense arising from the negligence and breach of duty (including breach of statutory duty, on the part of the defendants, or one of them, their respective servants or agents). The claim, accordingly, arises in negligence.

By statement of claim delivered on the 1st February, 2000, the negligence as against the first defendant, the owner of the lands, included, inter alia:-

"(iv) failing to follow through on the earlier complaints (the first defendant) had made to the second defendant, its servants or agents, in relation to the low hanging electrical wires traversing his lands."

As against the second defendant the plaintiff had particularised the allegation of negligence as erecting and/or maintaining high (sic) voltage electrical cables on the first defendant's agricultural lands at a height which was too low for certain farm machinery to pass safely thereunder and failing to heed the complaints made by the first defendant in relation to the low hanging, high voltage electrical currents on his land. In particular, the plaintiff claimed that the second defendant was negligent in:-

"(vii) maintaining or permitting the said electrical wires, traversing the first defendant's lands, to drop to a height above ground of less than fifteen feet, being the minimum working standard used by the second defendant for electrical wires crossing agricultural lands."

As a result of the negligence and breach of duty on the part of the defendants the plaintiff claims that he received a severe jolt and shock to his system, was dazed, and extremely shaken and in the aftermath experienced the onset of severe and debilitating headaches and aches and pains generally but, in particular in the region of his left arm. The plaintiff claimed that due to the particular pain to the flexor aspect of his left elbow he was unable to use his left arm for any heavy work after the incident. He further claimed that he experienced the onset of severe pain in the region of his neck radiating down his left arm giving a sense of weakness to that arm. He suffered a disturbed sleeping pattern which resulted in tiredness and irritability which continues.

Two items of special damage were particularised:-

  • - Repairs to forage harvester £9,400 (A receipt numbered 1655 for that amount dated the 20th April, 1999, issued by Pat Horan Motors Ltd. was enclosed with a subsequent reply to particulars);

  • - a second item of special damages particularised is in respect of loss of earnings in the sum of £26,132 in respect of which an accountant's report was enclosed with the reply to particulars. Two further accountants' reports were subsequently furnished.

The plaintiff declined to specify, in answer to a notice for particulars, whether or not the incident was witnessed. These details in relation thereto do not appear to have been furnished subsequently pursuant to Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements) 1998. The plaintiff specified the height of the electricity wires above ground level as approximately thirteen feet (circa four metres), being the height of the chute or funnel of the silage harvester, from the ground.

Defence

The defence of the second defendant, delivered the 26th June, 2000, denied the plaintiff's claim and alleged contributory negligence and breach of duty, including breach of statutory duty, of the plaintiff. It was claimed by the second defendant that the plaintiff was negligent in operating the vehicle at a higher level than the minimal clearance for low voltage lines over fields. The plaintiff was negligent in failing to have any or adequate regard to warnings published regarding dangers to working near electricity lines and failing to comply with the Construction (Safety, Health and Welfare) Regulations 1975 and, in particular, reg. 132 thereof. Contributory negligence was pleaded.

Disclosure

The second defendant disclosed:-

  • - a "view call" sheet dated the 29th August, 1998;

  • - a copy of the Avoidance of Electrical Hazards booklet;

  • - extracts from Low Voltage Line Design Summary; and

  • - a copy of the Linesman's Manual and Overhead Line Maintenance Manual.

The view call sheet referred to a sub-fault type and to a call received at 12.30 hours on the 29th August, 1998. The plaintiff's replies to particulars, in reply to a request for the precise time of day the accident allegedly occurred replied "approximately 2.30 p.m." Nothing turns on this discrepancy. In reply to the request to give the precise and exact location of where the accident allegedly occurred reference was made to a set of photographs in which the locus in quo is marked with an "X" in photograph number one. This marked photograph was not put in evidence.

In respect of clearances, the second defendant's standard for minimum clearances in respect of low voltage lines over fields is 5.5 metres (18 feet) at erection and 4.5 metres (15 feet) at worst conditions.

Evidence

The plaintiff described coming into contact with the overhead line after cutting some six to seven swaths of grass. He was incapacitated for a time and was jolted backwards on his left shoulder in the cab. When the arching ceased he alighted and disengaged the electronic detector and continued cutting the grass. When two shafts broke later, each time he got a replacement, repaired the harvester and finished the cutting.

Evidence was also given by engineers on behalf of the plaintiff and on behalf of the second defendant and by the plaintiff's...

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