O'Riordan v Clare County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 21 May 2019
• Neutral Citation: [2019] IEHC 330
• Court: High Court
• Docket Number: [2015 No. 9346 P]
• Date: 21 May 2019

[2019] IEHC 330

THE HIGH COURT

Barniville J.

[2015 No. 9346 P]

BETWEEN

EDWARD O'RIORDAN

PLAINTIFF

AND

CLARE COUNTY COUNCIL

AND

RESPONSE ENGINEERING LIMITED

DEFENDANTS

Negligence – Nuisance – Damages – Plaintiff seeking damages – Whether the defendants were liable in negligence

Facts: The plaintiff, Mr O’Riordan, on 3rd August, 2014 in the late morning or early afternoon, was out for a leisurely cycle on a bicycle. Having set out in a particular direction from his home in Shannon, he decided to change course and to head towards an area outside Shannon known as Clonmoney South. He proceeded down the public road at Clonmoney South which was also under the ownership of the first defendant, Clare County Council. The road led to a waste water treatment plant operated by the second defendant, Response Engineering Ltd, and a cul-de-sac at the end of the road. As the plaintiff attempted to negotiate his bicycle over a cattle grid which had been constructed or installed on the road, he fell from his bicycle suffering a very serious injury to his left ankle which left him with permanent damage to the ankle and requiring a fusion of the ankle or a replacement of the ankle joint. The cause of and responsibility for the plaintiff’s fall and consequent serious injuries were at the heart of this case which was heard by Barniville J in the High Court in Limerick over five days in February 2019.

Held by Barniville J that the plaintiff was entitled to succeed in his case against the Council in negligence and nuisance. Barniville J found that the state of the concrete surround at the cattle grid amounted to a danger or hazard for persons such as the plaintiff using the road. Barniville J concluded that the Council was liable in negligence in its capacity as the road authority. Barniville J concluded that the state of the concrete surround at the cattle grid was caused by misfeasance rather than nonfeasance in the initial construction or installation of the concrete surround at the cattle grid by the Council’s predecessor in title, Shannon Development, who transferred the road including the cattle grid and concrete surround to the Council in 2004. Barniville J held that there were defects in the construction and installation of the cattle grid and that those defects were present at the time the Council designated the road as a public road in 2011. Barniville J also found that the condition of the concrete surround at the cattle grid amounted to a public nuisance which was created by the Council’s predecessors in title and continued or adopted by the Council. Barniville J also concluded that the plaintiff must bear some responsibility for the accident and that the plaintiff was guilty of contributory negligence to the extent of 25%.

Barniville J held that, having regard to the very serious injuries sustained by the plaintiff and the impact of those injuries on him, he assessed general damages for pain and suffering to date at €95,000 and into the future at €45,000 giving a total for general damages in the sum of the €140,000; special damages were agreed at €11,206.50. Taking account of the plaintiff’s contributory negligence, Barniville J held that there would, therefore, be an award in favour of the plaintiff of €113,404.87.

Award granted.

JUDGMENT of Mr. Justice David Barniville delivered on the 21st day of May, 2019

Introduction

1 On Sunday 3rd August, 2014 in the late morning or early afternoon, the plaintiff, who was then aged 64 years, and living locally in Shannon, was out for a leisurely cycle on a bicycle his adult children had purchased for him about three years previously in anticipation of his pending retirement at age 65. It was a fine summer's day and the plaintiff having set out in a particular direction from his home in Shannon decided to change course and to head on his bicycle towards an area outside Shannon known as Clonmoney South, which was well known in the locality as a beauty spot frequented by generations of families from the area and by walkers, runners and cyclists of varying ages and abilities. The plaintiff proceeded down the public road at Clonmoney South which in addition to being a public road is also under the ownership of the first defendant, Clare County Council (the ‘Council’). The road is known locally by some as the ‘Diamond Road’ (as the diamond company, DeBeers, operates or operated a facility at the end of the road). The road leads to a waste water treatment plant operated by the second defendant, Response Engineering Ltd (‘Response’), and a cul-de-sac at the end of the road. As the plaintiff attempted to negotiate his bicycle over a cattle grid which had been constructed or installed on the road, he fell from his bicycle suffering a very serious injury to his left ankle which has left the plaintiff with permanent damage to the ankle and requiring a fusion of the ankle or a replacement of the ankle joint. The cause of and responsibility for the plaintiff's fall and consequent serious injuries are at the heart of this case which was heard by me in the High Court in Limerick over five days in February 2019.

2 While the facts of the case are relatively straightforward, the case gave rise to a number of difficult legal issues on which counsel made very helpful oral legal submissions and provided me with numerous cases in support of their respective positions at the conclusion of the evidence. The legal issues required careful consideration. Having done so, I have concluded that for the reasons set out in this judgment, the plaintiff is entitled to succeed in his case against the Council in negligence and nuisance. It has not been necessary for me to resolve other difficult legal issues which arise under the Occupiers” Liability Act, 1995 (the ‘1995 Act’) or under the Roads Act, 1993 (as amended) (the ‘1993 Act (as amended)’). I have also concluded that the plaintiff must bear some responsibility for the accident and I have concluded that the plaintiff is guilty of contributory negligence to the extent of 25%. Having regard to the very serious injuries sustained by the plaintiff and the impact of those injuries on him, I have assessed general damages for pain and suffering to date at €95,000 and into the future at €45,000 giving a total for general damages in the sum of the €140,000. Special damages were agreed at €11,206.50. Taking account of the plaintiff's contributory negligence, there will, therefore, be an award in favour of the plaintiff of €113,404.87.

Structure of judgment

3 I will adopt the following structure in this judgment. First, I will provide a summary of the plaintiff's claim against the Council and the Council's defence to that claim. I will then consider the liability issues, outlining first the evidence and then my findings of fact in relation to liability. I will then consider the legal issues which arise before setting out my conclusions on those legal issues and on the liability issue. I will then proceed to consider the question of quantum, looking first at the evidence relating to quantum and then the relevant legal principles applicable to quantum before setting out my conclusions on quantum. I will then summarise my overall conclusions and the award which I propose making.

Summary of claim and defence

4 In summary, the plaintiff contends that his fall and consequent injuries were caused by the negligence, nuisance and breach of statutory duty on the part of the Council and/or Response, their respective servants or agents, by reason, principally, of the condition of the cattle grid where the plaintiff fell and, in particular, by reason of the state of the concrete area surrounding the grid. The plaintiff claims that the state of the concrete surround (or ‘ramp’ or ‘dome’ as it was described on behalf of the plaintiff) was such that there was a rise and then a sudden drop from the concrete surround onto the metal bars of the grid which was unexpected and caused the plaintiff to lose control of his bicycle as he proceeded cautiously from the paved surface of the roadway over the concrete surround or ramp and onto the start of the metal bars of the cattle grid itself. The plaintiff claims that the Council and/or Response, their respective servants or agents, were responsible for the condition of the concrete surrounding the grid and the grid itself and that it was caused to be in the condition it was in at the time of the accident with a drop of about one inch (25mm) from the concrete surround or ramp onto the first of the metal bars of the grid as a result of the defective and negligent design, construction and installation of the grid and, in particular, the concrete surrounding it. In the alternative, the plaintiff claims that the concrete surround or ramp immediately before the grid which led to a sudden drop of the type referred to amounted to a danger to the users of the public roadway and, therefore, a public nuisance. The plaintiff advanced additional claims under the 1995 Act to the effect that he was either a ‘visitor’ or a ‘recreational user’ within the meaning of those terms in the 1995 Act and that the Council/Response are liable to him under the relevant provisions of that legislation. Additional or alternative claims were advanced (but not really pursued with any vigour) under the 1993 Act (as amended).

5 The proceedings were defended by the Council on its own behalf and on behalf of Response and it is appropriate, therefore, to refer only to the Council in terms of the liability and other issues in the case. The Council denies liability under each of the heads of claim advanced by the plaintiff. The Council rejects the contention that the concrete surround was or could properly be classified as a ‘ramp’ or that it posed a danger to the users of the road, such as the plaintiff. The Council contends that the plaintiff ought not to have had any difficulty in negotiating the cattle grid on his...