Phillips v Durgan

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,GRIFFIN J.,[HEDERMAN CONC]
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-SC 2925
• Docket Number: [S.C. Nos. 78 & 189 of 1989]
• Court: Supreme Court
• Date: 01 January 1991

1990 WJSC-SC 2925

THE SUPREME COURT

Finlay C.J,

Griffin J.

Hederman J.

78 & 189/89

79 & 190/89

PHILLIPS v. DURGAN

SADIE PHILLIPS

Plaintiff/

Respondent

and

JAMES DURGAN

Defendant/

Appellant

AND

LIAM PHILLIPS

Plaintiff/

Respondent

and

JAMES DURGAN

Defendant/

Appellant

Citations:

OGWO V TAYLOR 1987 3 AER 961

O'DONOHOE V GREENE 1967 IR 40

MORLEY V EYE EAR & THROAT HOSPITAL 1967 IR 143

VIDEAN V BRITISH TRANSPORT COMMISSION 1963 3 WLR 374

FOLEY V MUSGRAVE CASH & CARRY LTD UNREP SUPREME 20.12.85 1985/8/2145

Synopsis:

NEGLIGENCE

Fault

Apportionment - Householder - Kitchen - Cleansing - Cleaner - Invitee - Danger - Foresight - Gas cooker - Surrounds covered in grease - Accidental fire - Plaintiff cleaner injured - Husband of cleaner injured in going to her aid - Rescuer acting in emergency - Cleaner partially at fault - (78,189/89 - Supreme Court - 14/12/90) - [1991] 1 I.R. 89 - [1991] ILRM 321 - [1991] I.L.T. 147

|Phillips v. Durgan|

NEGLIGENCE

Occupier

Householder - Kitchen - Cleansing - Cleaner - Invitee - Danger - Foresight - Gas cooker - Surrounds covered in grease - Accidental fire - Plaintiff cleaner injured - Husband of cleaner injured in going to her aid - Rescuer acting in emergency - Supreme Court - Substantive issue - Determination - Issue not remitted to High Court - Fault - Apportionment - (78,189/89 - Supreme Court - 14/12/90) - [1991] 1 I.R. 89 - [1991] ILRM 321 - [1991] I.L.T. 147

|Phillips v. Durgan|

1 JUDGMENT delivered on the 14th day of December 1990by FINLAY C.J. [HEDERMAN CONC]

2 These are two appeals against two awards made at the hearing of actions heard together by Egan J. in the High Court on the 16th February 1989.

3 The two Plaintiffs in these proceedings are husband and wife, and claim damages against the Defendant in respect of personal injuries suffered by them in a fire which occurred in the Defendant's house on an occasion when, as the result of a contract made between the Defendant and the Plaintiff Sadie Phillips, she and her husband, the Plaintiff Liam Phillips, were commencing to carry out the work of cleaning the kitchen prior to painting and decorating it. In the High Court the learned trial Judge found that the Defendant was liable, refused to make any finding of contributory negligence against either Plaintiff and assessed damages in the case of Sadie Phillips in a sum of £100,000, and in the case of Liam Phillips, in a sum of £34,000.

4 The Defendant has appealed against the finding of liability in each case, and against the failure to make a finding of contributory negligence in each case.

5 Each Plaintiff has appealed against certain individual findings made in the judgment of the learnedtrial Judge concerning the issue of liability, and, in addition, the Plaintiff Sadie Phillips has appealed against the assessment of her damages on the grounds that they are inadequate.

The facts

6 The accident out of which this litigation arose occurred on the 19th day of January 1981. The facts leading up to the happening of the accident and the incurring of the injuries by each of the Plaintiffs were not in dispute at any time during the hearing before the High Court. The only version of the happening of the accident and the condition of the premises, all of which were matters relevant to the issue of liability, came from the evidence of the two Plaintiffs,

7 These facts were

8 The Plaintiff Sadie Phillips is a sister of the Defendant, and in 1981 the Defendant who had after the death of his mother in 1975 lived on his own in the family house, which was his property, decided to sellit.

9 He requested the Plaintiff Sadie Phillips to paint and decorate the house, and he paid her a sum of £100 to do so. The evidence was that neither of the Plaintffs had been in the kitchen of the house since some time before the death of Sadie Phillips" mother in 1975. The Defendant, upon requesting the work to be carried out by the Plaintiff Sadie Phillips, did not give any form of warning of any description to either of the Plaintiffs concerning the condition of the house and, in particular, concerning the condition and situation in the kitchen.

10 On the 19th January 1981 the Plaintiff Sadie Phillips went to the house in the evening. She was driven there by her husband Liam Phillips, and as the house was some distance from the place where Mr. and Mrs. Phillips then lived, and since Mrs. Phillips did not drive a car herself it is clear that it must have been within the contemplation or knowledge of the Defendant that Mr. Phillips would at least be involvedin coming with his wife to the house to drive her there and probably would also take part in carrying out the work. The Defendant was not present in the house when they arrived. They went first into the kitchen of the house to start the preparatory cleaning prior to painting. The kitchen was in a condition of extreme dirt and filth, most of which consisted of many years" accumulation of grease from constant frying on a gas cooker which was situate in the kitchen. On the floor was a linoleum which was broken in one particular place, in front of the cooker and out of which there was protruding newspapers which had been originally put as a lining between the linoleum and the tiles below it. Loose on the floor were an accumulation, apparently arising over a long time, of paper bags which were greasy as the result of having contained fried chips or fried fish purchased in them. The cooker itself was deeply embedded with grease on all parts of it, and the wall immediately adjoining it and at the side of it washeavily coated with grease as well.

11 The Plaintiff Sadie Phillips commenced the task of cleaning, as might be expected, by trying to provide herself with hot water, having brought detergents, wire wool and other pieces of equipment with her. The geyser did not work and could not be made to work, and after trying all four of the jets on the cooker, she succeeded in getting one to light in a defective fashion. Upon that jet, which was described by her as stuttering, she placed a kettle of water to boil. There was no hot water running in any system in the house. Having done that, Sadie Phillips commenced with her right hand to scrape with a tool the side of the cooker and the wall beside it to try and start removing grease from it. In her left hand she had a cloth which was for the purpose of following up the scraping with a cleaning or rubbing movement. She described being down on her "hunkers" and standing up, steadying herself whilst so doing, on the cooker. She apparently slippedor stumbled, due probably to the greasy condition of the floor, and in so doing the cloth in her left hand came in contact with the flame under the kettle. It immediately took light because of the grease which had already accumulated on it, and she dropped it straight away onto the floor, and attempted to put it out by stamping on it. In what is described by both the Plaintiffs as an extraordinarily short time, the whole area around the cooker, including the floor, the papers on it and the cooker itself, appeared to be on fire, and the Plaintiff Sadie Phillips was extensively burned as a result of the fire on the floor catching, in the first instance, onto her slippers which she was wearing, and thereafter her clothes as well. She was dragged out by her husband who in the process of dragging her out and also in having attempted to put out the fire in which in effect she was standing, was also injured.

The Judgment

12 On those facts the finding of the learned trial Judge on the issue of liability is contained in a judgment in the following terms:

"Now it is suggested that the Defendant in this case should have warned the Plaintiffs as to the dirty condition of the floor and, because I regard the floor as being really the relevant dirty thing in this case, but when both Plaintiffs arrived they could see quite clearly that the floor was greasy, so his failure to warn them of the greasiness was in my opinion irrelevant, but we are still in the position that a fire started in this dwellinghouse which was the property of the Defendant and presumably of some value, and the Plaintiff was his sister. This fire started - I am not holding the fire started because of the immediate negligence of either party - I am certainly not holding that the fire started because of the negligence of either Plaintiff because it didn't. But, the fire did start and I think on a principle which has been used in other countries and which is akin to a rescue principle that here they are situate in a house belonging to the Plaintiff's brother where a fire has startedand a fire is spreading, that in my view they are under a moral, if not a legal, but certainly a moral obligation to do the best they can in the face of this fire to prevent it spreading, to try if possible to put it out because it may well be that the house could have been in peril of going completely up in flames. Fortunately it didn't, but no one can have known that at the particular time.

On that principle, because it was the Defendant's brother's house and because the dirty condition of it in some way contributed to this fire occurring, I think these Plaintiffs are entitled to...