Cunningham v MacGrath Bros

• Jurisdiction: Ireland
• Judgment Date: 01 January 1965
• Date: 01 January 1965
• Court: Supreme Court

Cunningham v. MacGrath Bros.

ELIZABETH CUNNINGHAM

Plaintiff

and

MacGRATH BROTHERS, Defendants (1)

Supreme Court.

Negligence - Nuisance - Personal injuries - Ladder on footpath in city street - Ladder falling on plaintiff - Ladder unattended - Reason for fall unknown - Novus actus interveniens - Ladder moved by unknown person - Obstruction of highway - Whether obstruction continued for longer than necessary - Whether chain of causation broken.

C. was employed by B. and left B.'s premises to go to her lunch. M. had been doing work on B.'s premises necessitating the use of double ladders. The work had been commenced in the morning on a blind outside B.'s premises. The blind was removed, the ladders being used in this operation. The blind was taken away for repairs but the ladders were left in position and unattended outside B.'s premises, causing a partial obstruction on the footpath. Some unknown person moved one of the ladders round a corner of B.'s premises into a small side street. C. was passing the ladder on her way to lunch fromB.'s premises when the ladder fell and she received personal injuries. She suedM. and was awarded damages. M. appealed to the Supreme Court.

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery, Kingsmill Moore, Haugh and Walsh JJ.) 1, that the ladders on the highway constituted a nuisance;

2, That a person responsible for creating a nuisance should anticipate as a reasonable and probable consequence of the nuisance that some person in pursuance of his rights would attempt to abate the nuisance and in so doing would create a danger;

3, Applying the above test, M. should have anticipated that some person would remove the ladder and put it somewhere where it would be less of an obstruction but might constitute more of a danger, which was what in fact happened.

The appeal was accordingly dismissed.

Appeal from the High Court.

The plaintiff, Elizabeth Cunningham, brought an action for damages for personal injuries suffered as a result of alleged negligence or nuisance by the defendants, MacGrath Brothers, and was awarded by the jury the sum of £5,250 as damages, the jury having found for the plaintiff on the issue of nuisance. From that verdict the defendants appealed to the Supreme Court. The grounds of their appeal were:—1, that the learned trial Judge was wrong in law in not withdrawing the action from the jury (a) at the close of the plaintiff's case, and (b)at the close of the defendants' case, on the application of counsel for the defendants on the grounds that there was insufficient evidence to go to the jury of negligence or the creation of a nuisance or that the negligence or nuisance alleged against the defendants was the effective cause of the accident to the plaintiff;

2, That on the return of the jury to ask a question, when the learned trial Judge was asked by a member of the jury whether unattended ladders on the footpath constituted a public nuisance, the learned trial Judge in his reply to the said question failed to differentiate between the position of the ladders in which they were left by the defendants and the position which they subsequently reached prior to the accident

to the plaintiff, and on the application of counsel for the defendants refused to recall the jury to differentiate accordingly;

3, That the failure of the jury to answer the first question, namely, "Were the defendants negligent?", was totally inconsistent with their affirmative answer to the second question, namely, "Did the defendants commit a public nuisance which caused physical injury to the plaintiff?"

4, That the said finding of the jury that the defendants did commit a public nuisance which caused physical injury to the plaintiff was not in accordance with the evidence;

5, That there was no evidence to support the answer of the jury to the question, "Did the defendants commit a public nuisance which caused injury to the plaintiff?" and the finding of the jury in answer to the said question was against the weight of the evidence.

6, That the damages awarded were excessive and unreasonable.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

I have read the judgment which is...