Mullan and Others v Forrester

• Jurisdiction: Ireland
• Court: King's Bench Division (Ireland)
• Judgment Date: 14 June 1921
• Date: 14 June 1921

Mullan v. Forrester.

MULLAN and Others

and

FORRESTER (1)

K. B. Div.

Nuisance - Negligence - Highway - Unnecessary to prove defendant's knowledge of nuisance - Fall of wall on persons lawfully using highway.

A wall on the land of the defendant abutting on a public highway was blown down during a severe storm, and killed three persons. The plaintiffs claimed damages under the Fatal Accidents Act (9 & 10 Vict. c. 93), and the jury negatived negligence on the part of the defendant.

The Judge at the trial declined to direct the jury on the question of nuisance.

Held, per Pim and Gordon JJ., that the wall being a nuisance it was unnecessary for the plaintiff to prove that the defendant knew, or ought reasonably to have known, of its defective condition; and accordingly that a new trial should be ordered.

Per Moore J., dissentiente, following the judgment of Blackburn J. inTarry v. Ashton(1 Q. B. D. 314), and the judgment of the Court in Palmerv. Bateman ([1908] 2 I. R. 393), that where the occupier of premises is sued in nuisance, and where (a) he is not the original creator or introducer of the nuisance, (b) where the matter or thing was not at the time of its creation or introduction dangerous per se, (c) where the matter or thing subsequently becomes dangerous through defects not reasonably to be discovered, the plaintiff to succeed must establish actual or imputed knowledge in the occupier of the existence of the nuisance.

Motion to set aside a verdict and judgment for the defendant, Alexander Forrester, or in the alternative for a new trial.

These actions were brought under Lord Campbell's Act by the dependants of three persons killed by the fall of a wall which abutted on the highway on the land of the defendant.

The father of the present defendant was the owner of a dyeworks on the Shankhill Road, Belfast, called the Glenwood Dyeworks. They passed to the present defendant on his father's death.

In the year 1897, the Corporation of Belfast widened the Shankhill Road, and in the course of such widening the street wall of the dyeworks was pushed back some 10 feet or so. The new wall was built by the Corporation, and was bonded into the side walls of the building and roofed by the defendant. There

was a basement under the building, and the height of the wall between the foundation and the level of the footpath was 6 feet 6 inches, and from the level of the footpath to the top of the wall, 15 feet 6 inches. The wall was 14 inches in thickness and over 70 feet in length. In the year 1910 the works were closed down, and, practically speaking, nothing in the way of repairs was done to them from that time down to the present.

In the month of May, 1920, notice was served on the defendant by the Corporation of Belfast to take down such portions of the building as were dangerous, and a second notice to the same effect was served on him on the 24th September, 1920. Neither notice specifically mentioned what particular portion of the building was dangerous.

In consequence of these notices, at the end of September or the beginning of October, 1920, the defendant took down the roof of the building and the walls, other than the street wall. This action of his left the street wall exposed from both sides; the support it got from the bonding into the side walls was gone, the roof was gone, and the protection afforded by the parallel wall on the opposite side of the building was gone.

On the 3rd December, 1920, during the course of a tolerably heavy storm, the whole wall was blown down into the street, and three men were killed. Three actions have been brought against the defendant under Lord Campbell's Act, and in the particular case with which we have to deal, an action was brought by the widow of William Mullan, one of the men killed by the wall, suing on behalf of herself and her five children.

The actions were tried before the Rt. Hon. Mr. Justice Dodd and a special jury of the County of the City of Belfast, on March 31st and April 1st, 1921, as one action pursuant to an order of the King's Bench Division, dated the 8th day of April, 1921.

It was not disputed that the wall was on the land of the defendant, nor was it disputed that it fell. It fell during a severe storm, being unable to resist the force of the gale; but counsel for the plaintiff contended that there was an absolute duty on the defendant, and that liability did not depend upon the degree of care necessary in the circumstances.

The questions submitted to the jury and their findings were as follows:—

1. Did the defendant know that the wall was dangerous? No.

2. Ought he to have known that the wall was dangerous? No.

3. Was the defendant negligent (a) in not taking due care to see that the premises were safe? No. (b) In not having the premises inspected from time to time with a view to the safety of the public? No. (c) In not reasonably anticipating that the wall might be thrown down by the wind? No.

4. What sum do you award in respect of the death of William John Bell to Samuel Bell (father), £55; Hugh Bell (brother), £5; Henrietta Bell (sister), £5; Margaret Bell (sister), £5; Lily Bell (sister), £5? Total, £75.

5. What sum do you award in respect of the death of William Mullan to Margaret Mullan (widow), £150; Robert Mullan (son), £5; George Mullan (son), £5; Mary Mullan (daughter), £50; Margaret Mullan (daughter), £35; Richard Mullan (son), £5? Total, £250.

6. What sum do you award in respect of the death of Elizabeth Taylor to John Taylor (father), £25; Elizabeth Taylor (mother), £25? Total, £50.

These sums were found by the jury provisionally to avoid further trial.

The Judge gave judgment for the defendant with costs.

The learned Judge in the course of his report said:—

At the close of the plaintiffs' case defendant's counsel asked for a direction on the ground that there was no evidence of negligence, or that the defendant knew or ought to have known that the premises were dangerous. I pointed out that there was a count for nuisance. It seemed to be a case of new law . . . I referred to Tarry v. Ashton(1) and Palmer v. Bateman(2), and said that both these cases left me in doubt as to the law. No other authority was cited. Counsel for the defendant relied strongly on the judgment of the Lord Chief Justice in Palmer v. Bateman(1), and his reading of Mr. Justice Blackburn's judgment in Tarry v. Ashton(2). I declined to direct . . . I thoughtTarry v. Ashton(2). . . was based to some extent on the principle that the defendant was a trespasser, and if he erected a projecting structure over the highway that he did it at his own risk. On the other hand, I thought Lord O'Brien's judgment might be pressed too far. A slate blown off a house in a storm would be different from a wall incapable of standing a severe storm. A man must contemplate severe storms.

Serjeant Hanna's requisition was as follows:—

"I ask your Lordship to direct the jury that in the case of a nuisance the duty of the landowner is an absolute one, and that the liability therefor does not depend upon the degree of care necessary to be used under the circumstances. I also ask your Lordship to direct the jury that the wall in this case was a nuisance, if they are of opinion that it was a danger to passers-by on the footpath. I also ask your Lordship to direct the jury that the occupier of property cannot get rid of his liability by employing a contractor."

The difficulty I had as to these requisitions was that they did not raise a distinct issue for the Judge. I was with the first requisition, but it was conditioned by the words "in the case of a nuisance." The question at issue was: "Is this a nuisance?"

The difficulty as to the second was caused by the words "if they are of opinion that the wall was a danger to passers-by on the street." There was no controversy; it was not dangerous to passers-by on the street except in the case of a high wind. It was dangerous to passers-by in a high wind, or rather in a wind of the velocity of the wind on the day of the occurrence. I was quite in accordance with the third, that the occupier of property cannot get rid of his liability by employing a contractor. But that again was possibly subject to the qualification "with knowledge of the defect." It might be evidence of negligence. I said all I could do was to get every controverted issue of fact determined by the jury.

Serjeant Hanna then asked me to leave the following questions:—

1. Was the wall after the removal of the roof in June, 1920, and having regard to its construction and situation, in a dangerous and unsafe condition so as to become a nuisance to ordinary passers-by?

2. Was it in that sense a nuisance on 3rd December, 1920?

3. Was it by reason of its dangerous and unsafe condition that it fell?

4. If the wall was in a dangerous condition on 3rd December, 1920, could the defendant by the exercise of reasonable care have ascertained the condition of the wall between June and December?

5. Could the Corporation official have discovered its unsafe condition by a reasonably efficient examination?

These questions did not remove my difficulty. In form the first question was objectionable in the "having regard," a form objected to successfully in former cases. But in form also it amounted to the general issue. I should have to frame questions from which the inference would necessarily follow. If I had left a question, "Was it a nuisance?" I should have been obliged in point of law to direct what would in law amount to a nuisance. And I would have met with the same difficulty. Was knowledge of the defect a necessary factor in a nuisance?

In the end I said I would not leave any questions on two matters, each of which was conceded, or on which, if I put them to the jury, I should direct:—

1. Was the wall dangerous to passers-by, in an ordinary state of the wind?—to which the answer would be "No."

2. Was the wall dangerous to passers-by in a wind of the...