McNamara v Electricity Supply Board

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1975
• Date: 01 January 1975
• Docket Number: [1965. No. 1745 P.]

Supreme Court

[1965. No. 1745 P.]

McNamara v. Electricity Supply Board

Dominic McNamara, an Infant, suing by his father and next friend, John McNamara

Plaintiff

and

Electricity Supply Board

Defendants.

Negligence - Occupier - Child trespasser - Electricity sub-station - Allurement - Adjoining housing estate - Damages - Double amputee - Statutory duty - Electricity Regulations, 1932 (S.R.&O. No. 7), art. 30 - Factories Act, 1955 (No. 10), ss. 8, 71.

Appeal from the High Court.

The facts have been summarised in the head-note and appear in the judgments, post. The plaintiff was born on the 13th June, 1954, and he was injured in the accident on the 9th July, 1965. The plaintiff's injuries are described at pp. 36-7, post. The plaintiff's action for damages for negligence, and for breach of statutory duty, was tried before Butler J. and a jury on 23rd-25th, 28th, and 29th February, 1972.

Article 30 of the Electricity Regulations, 1932, provides (inter alia)that:—

"Every sub-station shall be substantially constructed, and shall be so arranged that no person other than an authorised person can obtain access thereto otherwise than by the proper entrance . . ."

"Sub-station" is defined in the Regulations as meaning:—"any premises or that part of any premises in which electrical energy at high pressure is distributed, or in which electrical energy is transformed or converted to or from high pressure, except for the purpose of working instruments, relays, or similar auxiliary apparatus."

"Authorised person" is defined as meaning:—"(a) the occupier, or (b) a contractor for the time being under contract with the occupier, or (c) a person employed, appointed, or selected by the occupier, or by a contractor as aforesaid, to carry out certain duties incidental to the generation, transformation, distribution, or use of electrical energy, such occupier, contractor, or person being a person who is competent for the purposes of the regulation in which the term is used."

These regulations had been made pursuant to s. 79 of the Factory and Workshop Act, 1901, and were continued in force subsequent to the passing of the Factories Act, 1955, by s. 8 of that Act. The trial judge was satisfied that the regulations did not apply to the plaintiff's case and, accordingly, declined to leave the issue of breach of statutory duty to the jury.

The first four questions on the issue paper, and the jury's answers, were as follows:—

"1. Were the defendants aware or should they have known that children were liable to cross the wire and trespass on the sub-station? Answer: Yes.

2. If so, should they have foreseen the risk of injury to such children by coming into contact with electric wires? Answer: Yes.

3. If so, were the defendants negligent in failing to provide and maintain proper fencing at the sub-station? Answer: Yes.

4. Was the plaintiff negligent in (a) crossing the wire when he knew or ought to have known that the sub-station might be a dangerous place? Answer: No.

(b) descending the flat roof without paying due regard to the risk of injury if he came into contact with electric wires? Answer: No."

Question 5, which related to the apportionment of fault, was not answered by the jury in view of their answers to question 4.

At question 6, the jury assessed damages under the following headings:—

• (i) Future cost of artificial limbs —

  • (a) provision of limbs until the plaintiff attains the age of 21 years —£2,320;

  • (b) provision of limbs thereafter —£3,250;

  • (c) repairs to limbs —£3,872.

(ii) Future loss of earnings —£25,060.

(iii) General damages —£40,000.

On these findings, the trial judge gave judgment for the plaintiff for £74,772 with costs. The defendants appealed to the Supreme Court on the grounds (a) that the trial judge was wrong in law in directing the jury that the defendants owed any duty of care to the plaintiff, as a trespasser, in respect of the permanent dangers of the sub-station, other than the duty not to act with reckless disregard for his safety; (b) that the trial judge ought to have withdrawn the case from the jury in the absence of evidence to support the answers to questions 1, 2 and 3, which answers were, accordingly, perverse and contrary to the evidence; (c) that there was similarly no evidence to support the jury's finding that the plaintiff was not negligent, and that their answer to question 4 was also perverse and contrary to the evidence; and (d) that the damages awarded were excessive.

The plaintiff cross-appealed on the ground that the trial judge was wrong in law in failing to direct the jury that the defendants were in breach of their statutory duty to the plaintiff, as detailed in the Electricity Regulations, 1932.

Although on the 30th July, 1974, the Chief Justice delivered orally a short judgment in this appeal, no written document recording such judgment was delivered to the editor. The version of the judgment of the Chief Justice which is printed in this report has been culled from the notes of the Council's reporter who was in court when the Chief Justice delivered his judgment. This version has not been approved by the Chief Justice, who died on the 17th October, 1974.

The order of the Supreme Court which was made pursuant to the judgments, infra, directed "that the said appeal be allowed and that the cross appeal of the plaintiff do stand dismissed out of this Court and accordingly that the said judgment and order be set aside and discharged and in lieu thereof that the case be remitted to the High Court for a new trial on all issues . . ."

The appeal was heard on 14th-18th, 21st, 22nd May, 1973.

The defendants were the occupiers of an electricity sub-station in an urban area. The sub-station was surrounded by a chain-link wire fence on which were placed numerous notices which gave warning of danger. The defendants became aware of the fact that local children were in the habit of playing in the immediate vicinity of the sub-station and the defendants started to build a wall around the sub-station. In the course of the building of the wall, the defendants placed part of the fence close to the sub-station. The plaintiff, a boy aged 11 years, climbed the fence at this point and from the top of it reached the flat roof of the sub-station across a gap of less than three feet. In order to descend to the ground, the plaintiff started to clamber down a vertical drain-pipe and, while doing so, one of his hands came into contact with an uninsulated conductor which carried 10,000 volts and which was on the outside of the sub-station. The plaintiff suffered severe injuries; it was necessary to amputate one of his arms above the elbow and to amputate the other below the elbow. On several occasions the plaintiff had been warned not to go near the sub-station. The plaintiff could read and he had seen the notices, but he said that he had not read the notices and that he did not know that the sub-station was a dangerous place.

At the hearing of the plaintiff's action in the High Court, where he claimed damages for the alleged negligence of the defendants, the jury found that the defendants had been negligent and that the plaintiff had not been negligent; the jury awarded the plaintiff the sum of £74,772 as damages, including the sum of £40,000 as general damages. The defendants appealed against the findings on the issues of negligence and against the award of damages. The plaintiff cross-appealed against the refusal of the trial judge to leave to the jury a question on the liability of the defendants for breach of statutory duty under the Electricity Regulations, 1932.

Held by the Supreme Court (FitzGerald C.J., Walsh, Budd, Henchy and Griffin JJ.), in allowing the appeal and directing a retrial, 1, (FitzGerald C.J. dissenting) that the issue of the defendants' liability at common law should be determined by deciding whether the defendants, who had created and maintained a source of danger on their premises, could reasonably have foreseen that a child trespasser might attempt to enter those premises and that, having entered, he might be injured by reason of that danger, and by deciding whether the defendants had failed to take reasonable steps to avert such injury.

Donoghue v. Stevenson [1932] A.C. 562 and Purtill v. Athlone U.D.C.[1968] I.R. 205 applied. Robert Addie & Sons (Collieries) Ltd. v. Dumbreck[1929] A.C. 358; Donovan v. Landy's Ltd.[1963] I.R. 441 and O'Leary v.Wood Ltd.[1964] I.R. 269 not applied.

2. (FitzGerald C.J. dissenting) That the jury's finding that the defendants had been negligent was supported by the evidence.

3. (Walsh and Budd JJ. dissenting) That the jury's finding that the plaintiff had not been negligent was not supported by the evidence.

4. That the jury's award of £40,000 as general damages was excessive.

Semble: No statutory duty towards the plaintiff was imposed on the defendants by article 30 of the Electricity Regulations, 1932, as the plaintiff had not been a "person employed" within the meaning of s. 71 of the Factories Act, 1955.

Cur. adv. vult.

FitzGerald C.J.39

While the law as to an occupier's liability to a licensee has been varied in Britain by the Occupiers' Liability Act, 1957, and the Occupiers' Liability Act (Scotland), 1960, a trespasser is still in the position that he

must take the premises as he finds them; that is the position in this country also. From time to time efforts have been made to promote trespassers into the same position as licensees, but in Ireland an occupier's duty to known trespassers remains the same. The defendants in Cooke v.Midland Great Western Railway of Ireland40 were held liable for injuries sustained by a child trespasser, but only because their habitual acquiescence in children trespassing was held to amount to the giving of leave and licence to the children to go on to the land. Similarly, in Herrington v. British Railways Board41 where a boy trespasser was...