Fitzsimons v Telecom Éireann

JurisdictionIreland
JudgeMr. Justice Barron
Judgment Date01 January 1991
Neutral Citation1990 WJSC-HC 1858
CourtHigh Court
Docket Number[1982 No. 118P],No. 118P/1982
Date01 January 1991

1990 WJSC-HC 1858

THE HIGH COURT

No. 118P/1982
FITZSIMONS v. TELECOM ElREANN

BETWEEN

BRIDGET FITZSIMONS
.v.
BORD TELECOM EIREANN AND THE ELECTRICITY SUPPLY BOARD

Citations:

KELLY V ST LAURENCES HOSPITAL 1988 IR 402

MCNAMARA V CIE 1975 IR 1

HUGHES V LORD ADVOCATE 1963 1 AER 705

SMITH V LITTLEWOODS 1987 1 AER 710

CONOLE V REDBANK OYSTER CO 1976 IR 191

GALLAGHER V ELECTRICITY SUPPLY BOARD (ESB) 1933 IR 558

BLAKE V MIDLAND RAILWAY CO 18 QB 93

DALTON V SOUTH EASTERN RAILWAY CO 4 CB (NS) 296

FRANKLIN V SOUTH EASTERN RAILWAY CO 3 H & N 211

TAFF VALE RAILWAY V JENKINS 1913 AC 1

PYM V GREAT NORTHERN RAILWAY CO 4 B & S 396

HULL V GREAT NORTHERN RAILWAY CO OF IRELAND 26 LR (IR) 289

MURPHY V CRONIN 1966 IR 699

BYRNE V HOULIHAN 1966 IR 274

DAVIES V POWELL DUFFRYN ASSOCIATED COLLIERIES LTD 1942 AC 601

CIVIL LIABILITY ACT 1961 S49(1)(a)

HAY V HUGHES 1975 1 AER 257

REINCKE V GREY 1964 2 AER 687

GOODBURN V THOMAS COTTON LTD 1968 1 AER 518

BUCKLEY V JOHN ALLEN & FORD (OXFORD) LTD 1967 1 AER 542

MEADE V CLARKE CHAPMAN & CO LTD 1956 1 AER 44

PEACOCK V AMUSEMENT EQUIPMENT CO LTD 1954 2 QB 347

BAKER V DALGLEISH STEAM SHIPPING CO 1922 1 KB 361

Synopsis:

DAMAGES

Assessment

Death - Dependants - Loss - Calculation - Widow - Remarriage - Benefit to dependant - Whether benefit to be taken into account - Children's benefits from remarriage - (1982/118 P - Barron J. - 31/7/90) - [1991] 1 I.R. 536 - [1991] ILRM 276

|Fitzsimons v. Bord Telecom Eireann|

NEGLIGENCE

Public service

Electricity - Supply - Telephone wire - Storm - Broken wire looped over power cable - Death cause by trailing end of live wire - Dependants of deceased - Damages - Assessment - Remarriage of deceased's widow - Whether benefit of remarriage to be taken into account - Children's benefits from remarriage - Civil Liability Act, 1961, ss, 48, 49 - (1982/118 P - Barron J. - 31/7/90) [1991] 1 I.R. 536 [1991] ILRM 276

|Fitzsimons v. Bord Telecom Eireann|

1

Judgment of Mr. Justice Barron delivered the 31st day of July, 1990.

2

On Saturday the 10th February 1979 the telephone line running along the Oldcastle to Ballyjamesduff main road broke in a severe storm. This severe storm continued all that day Saturday and all the following day Sunday. Broken wire was first seen on the ground at about 1 p.m. on the Saturday and was then across the road. At that time it must have been still attached to the nearest pole since it was seen in that position by the deceased's brother at about 10 a.m. the following morning. Sometime that day it was coiled up by the deceased and left beside the telephone pole from which it had fallen. At about 6.30 p.m. on the Sunday evening the deceased's brother who lived about a quarter of a mile up the road left his home to visit his brother. As he walked down the road he saw a flash of lightening on the hill six to eight feet above the ground and similar flashing continued for some minutes. After he had reached his brother's house, both of them went out onto the road. A length of wire was hanging down onto the road with about four to five feet of it actually on the road. It was being blown about violently in the wind and it was sizzling. A fire started on the grass margin and it was stamped out. At this stage the deceased's brother had a flashlamp and the deceased himself had got a stick. A fresh fire started on the other grass margin. The deceased tried to pull the wire away with the stick. As it touched the end of the wire he was electrocuted and died instantly.

3

The immediate cause of the accident was that the telephone wire was live because portion of it had hooked itself on to an overhead 10 kv power line. After the accident it became caught in a car driven by a neighbour and part of it broke off. This did not apparently break its contact with the power line since when the E.S.B. electrician arrived sometime after 9 p.m. he found a lenght of wire hooked around the power line and falling to within five feet of the ground. There is no evidence to suggest other than by inference how the two lines came into contact. The evidence as to when this happened and when the wire ceased to be live is conflicting. It seems that probably the wire became live when the deceased's brother saw what he thought was a flash of lightening. This was about 6.30 p.m. The deceased was electrocuted at around 7 p.m., the power was not switched off until around 9 p.m. Garda Flynn gave evidence that when he arrived at the scene at that time, there was no sizzling. However, the electrician who turned off the power did not hear of the incident until 8.30 p.m. and then had to drive 25 miles to the substation to turn it off.

4

The relevant officials of An Bord Telecom who investigated the incident came to the conclusion that the most likely cause was that the line had whiplashed. The most likely reason for it to do so was that the trailing wire caught in a passing car and that as the movement of the car pulled it taut, instead of breaking, it was suddenly freed, whiplashed and ended up over the power line.

5

The telephone line which came down was the line which spanned between poles 63 and 64 which were at a distance of 164 feet 7 inches from each other. The high tension cable was 25 feet six inches from the ground, clearance between it and the telephone line being 8 feet 6 inches. Only parts of the telephone wire were found after the accident. These measured 51 feet and 30 feet respectively and one length at least showed scorch marks on its insulation. The particular line was laid with a lighter gauge wire for about 10 feet at either end of the span. It was uninsulated and was twisted around each pole. The main span of wire was of heavier gauge and was insulated. The break which caused the wire to fall occurred where it was twisted around the pole. The purpose of the lighter gauge wire, which in the evidence was referred to as a mechanical fuse, was to ensure that the line would break if the high tension cable fell on it. Only one of these mechanical fuses was recovered. It was unbroken, the break having occurred at the pole. The other fuse would seem not to have broken either in the wind since the cable when first seen to be down was still connected at the other pole.

6

The two lines crossed at the scene of the accident. The point at which telephone lines cross under E.S.B. power lines is referred to as a special crossing. Special precautions are taken at these crossings to ensure that if the power line falls on the telephone line injury will be avoided. The danger against which precautions are taken is that contact by a broken power line with the telephone line underneath it will make the telephone line live with the result that anyone actually using that line would be electrocuted. This danger continues until the power line falls to the ground. When that happens there will still be a low pool of electricity in the ground where the broken end has fallen. This is not dangerous to humans, but is dangerous to animals which are regularly killed in such situations. The reason for this is that the power of this pool of electricity is increased the greater the distance over which anything comes in contact with it. The stride of a human being is not sufficient to cause any danger, but that of a large four-legged animal is. However such a line, unless the power is switched off would remain lethal to anyone lifting it off the ground since such person would then act as an earth and the power would surge through them.

7

The nature of the precautions taken depends upon whether the telephone line or the power line is already erected when the second authority arrives on the scene. Such authority is referred to as the second comer. In this case, it was An Bord Telecom. Each authority meets the situation in a different manner. The safety measures which are adopted are such as will ensure that both sets of wires will fall to the ground as soon as possible. Until 1959, when An Bord Telecom was the second comer, it always put its lines underground. Since then it does so only when there are more than eight wires. This is because its line would then be too heavy to break. With eight wires or less, the wires are insulated. This insulation is good only for six minutes. To ensure that the wire will break within this period, mechanical fuses are inserted at the end of the span. These cannot be insulated so they must be at least a distance from the power line of one and a half times the height of the power line from the ground. This method is in accordance with an instructions manual introduced by An Bord Telecom in 1975 and adduced in evidence. When the E.S.B. is the second comer, it insulates its power line over the relevant span and for some part of the next span on either side. The relevant span is made as short as possible and the relevant poles do not carry any other wires.

8

The E.S.B. was at all material times unaware that the telephone line was down. An Bord Telecom on the other hand was aware that its line was down and had been so aware from as early as 10 p.m. on the Saturday night. It had an emergency crew who could have reached the line within an hour of receiving the information that it was down.

9

The Plaintiff claims that the Defendants were in breach of duty towards the deceased in three respects:

10

(1) Both Defendants failed in their obligations to ensure that the proximity of the two sets of lines would not create a danger to the public;

11

(2) An Bord Telecom failed to take any steps to repair its line or otherwise to make it safe once it was aware that the line had fallen; and

12

(3) the E.S.B. failed to have a cut-out system on any line upon which a fault was detected.

13

An Bord Telecom denies liability upon the ground that the test of liability is reasonable foreseeability and that it could not reasonably have foreseen what occurred. The E.S.B. denies...

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