Rooney v Connolly

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,HEDERMAN J.
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-SC 1655
• Court: Supreme Court
• Docket Number: [S.C. No. 340 of 1985]
• Date: 01 January 1987

1986 WJSC-SC 1655

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

340/86

ROONEY v. CONNOLLY

BETWEEN

MARIA JEANETTE ROONEY (AN INFANT SUING BY HER FATHER ANDNEXT FRIEND EAMONN ROONEY)

Plaintiff

and

THE REVEREND FATHER PHILIP CONNOLLY,P.P.

Defendant

Citations:

ANIMALS ACT 1985 S3

BOHANE V DRISCOLL 1929 IR 428

BOUGHTON V BRAY UDC 1949 IJ 57

BRADLEY V CIE 1976 IR 217

CHARLESWORTH ON NEGLIGENCE 6ED 1977 PARA 2103

CONSTITUTION SAORSTAT EIREANN ART 73

COOKE V MIDLAND GREAT WESTERN RAILWAY

DONOGHUE V STEVENSON 1932 AC 562

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

INDERMAUR V JAMES LR 1 CP 274

MCCOMISKEY V MCDERMOTT 1974 IR 75

MCMAHON & BINCHY IRISH LAW OF TORTS P230

MCNAMARA V ELECTRICITY SUPPLY BOARD (ESB) 1975 IR 1

O'DONOVAN V CORK CO COUNCIL 1967 IR 373, 102 ILTR 169

PURTILL V ATHLONE UDC 1968 IR 205

ROCHE V PEILOW 1985 IR 232, 1986 ILRM 189

RSC 0.58 r7

SALMOND & HEUSTON TORTS 16ED P278

Synopsis:

LICENCE

Licensee

Church - Occupier - Parish priest - Child licensee burned when placing votive candle on stand - Duty of parish priest - Concealed danger - ~See~ Negligence, occupier - (340/86 - Supreme Court - 19/12/86) - [1986] IR 572 - [1987] ILRM 768

|Rooney v. Connolly|

NEGLIGENCE

Occupier

Church - Licensee - Votive candles - Concealed danger - Absence of warning - Duty of parish priest - Plaintiff girl aged nine years when she entered church for devotional purposes - Plaintiff wished to light a candle and place it on the candle stand before a shrine - All three rows of candles on stand were already alight save for vacant candle socket near right-hand end of middle row - Plaintiff's arm was burned when the sleeve of her blouse caught fire as she stretched her arm over the first row of candles to place her candle in the vacant socket - The trial of the plaintiff's claim to damages, and the subsequent appeal, proceeded on the basis that the plaintiff was the licensee of the defendant parish priest when the plaintiff was injured - The parties agreed that the defendant's duty had been to act so as not to expose the plaintiff, without warning, to a concealed danger of which the defendant actually knew; and that knowledge of a concealed danger could be established by proof of knowledge of the physical facts from which the danger arose - At the trial the jury found (1) that the candle stand was a concealed danger for the plaintiff; (2) that the defendant had been negligent and (3) that the plaintiff had not been negligent - The jury awarded the plaintiff substantial damages - Counsel for the defendant had not asked the trial judge to include in his charge to the jury a direction to find some degree of negligence on the part of the plaintiff - The defendant appealed against the order of the High Court - Held, in dismissing the appeal, that there was evidence to support the finding that the candle stand constituted a concealed danger to a licensee of the plaintiff's age - Held that the jury's findings that the defendant had actual knowledge of the concealed danger and that the plaintiff had not been negligent should not be disturbed - (340/86 - Supreme Court - 19/12/86) - [1986] IR 572 - [1987] ILRM 768

|Rooney v. Connolly|

1 JUDGMENT delivered on the 19th day of December 1986 by FINLAY C.J.

2 This is an appeal brought by the Defendant against the Order of the High Court dated the 7th November 1985 which awarded damages to the Plaintiff consequent upon the finding of a jury in an action for negligence.

3 On the 13th April 1983, when the Plaintiff was nine years of age and attending school at Clontibret in the County of Monaghan, during the luncheon break she with other girls attending the same school, entered the Catholic Church at Clontibret and went to light a candleat a shrine adjacent to the altar.

4 The shrine was a marble-topped construction with brass candlesticks in three rows. It was 3 ft. 3 ins. wide and 1 ft. 2 ins. deep. The top of the marble slab was 38½ ins. above the ground. There was a difference in height between the front row and the middle row of½ ins. and between the middle row and the back row of 1 3/8; ins. The distance from the front of the marble slab to the first row of candles was 2¾ ins. and there was a gap of 4½ ins. between the two rows. The candles supplied for insertion into the shrine measured 3¼ ins., of which approximately 1¼ ins. was, when they were fully in position, inserted into the sprigget of the candle-holder. There was evidence that there was some difficulty in so inserting them.

5 Shortly after the accident the Plaintiff was measured with a shoulder measurement of 44 ins. and an overall measurement of 52¼ins.

6 At the trial the Plaintiff was adjudged unable to understand the meaning of an oath and could not giveevidence, but one of her companions who was an eye-witness of the accident did give evidence and described in detail the accident.

7 There was no conflict of evidence as to what occurred and it would appear that when the infant Plaintiff came to her turn, after five other girls, to light and place a candle on the shrine, that all the candlesticks in the front and back rows were filled and that the only vacant candlestick was inside on the middle row, one in from the righthand outside. The Plaintiff in placing her candle across the front row from the front of the shrine apparently set alight the sleeve of her blouse and suffered extensive burning. At the trial in the High Court it was agreed by Counsel for both the Plaintiff and the Defendant that the case was one of a licensee and that the duty owed by the Defendant to the Plaintiff was that of an occupier to a licensee and was properly expressed as being a duty not to expose her without warning to a concealed danger of which he actually knew. It was further agreed that knowledge of the concealeddanger could be established by proof of knowledge of the physical facts from which it arose, being facts which the jury were satisfied a reasonable person ought to have a known created a concealed danger to the Plaintiff. Furthermore, there was no issue at the trial or in this Court as to the fact that the duty owed by the Defendant to the Plaintiff was a duty owed specifically to a child of nine years ofage.

8 Counsel on behalf of the Defendant at the trial sought a direction on the grounds that the evidence adduced on behalf of the Plaintiff was not prima facie evidence of a concealed danger and, secondly, on the grounds that there was no evidence that even if the shrine in its then condition was a concealed danger it was a danger of which the Defendant had actual knowledge. This application was rejected and the learned trial Judge left to the jury the issue of negligence and an issue of contributory negligence in the following questions:

9 1. Was the candle stand a concealed danger for the Plaintiff?

10 2. Was the Defendant negligent?"

11 3. Was the Plaintiff guilty of contributory negligence?"

12 To these questions the jury answered 1 and 2 in the affirmative and No. 3 in the negative. They awarded to the Plaintiff agreed special damages of £345 and damages for pain and suffering to date of£20,000 and damages for pain and suffering in the future of£54,000. The Defendant has appealed

13 (1) Against the failure of the learned trial Judge to withdraw the case from the jury.

14 (2) Against the failure of the jury to make any finding of contributory negligence against the Plaintiff.

15 (3) Against the amount of the award for general damages both up to the present and in the future on the grounds that they areexcessive.

16 Having regard to the fact that at the trial it was accepted that the duty of the Defendant to the Plaintiff was that of an occupier to a licensee expressed in the manner which I have indicated and having regard to thefact that on the hearing of this appeal no arguments were submitted to this Court as to the existence of any other or different duty on the part of the Defendant to the Plaintiff it is not necessary for me to consider whether the principles set out in the decision of this Court in McNamara v. The E.S.B. 1975 I.R. dealing with a case of a trespasser are applicable to this case of a licensee or would lead to any variation in the duty of an occupier to a licensee as above stated. I am aware that in a judgment about to be delivered McCarthy J. deals with this issue. My understanding of the established jurisprudence of this Court, however, is that it should not pronounce on issues which have not been debated before it. I therefore expressly reserve my view on the question of the existence of any different duty on an occupier to a licensee than that upon which this case was tried in the High Court and which Counsel for both parties requested this Court to accept in relation to the appeal.

The liability of the Defendant

17 The main submission made on behalf of the Defendantagainst the leaving to the jury of a question as to the shrine constituting a concealed danger, was that any child of nine years of age is and must be presumed to be aware that fire is a danger. That the uncontradicted evidence was that the fire which caused the damage to the Plaintiff presumably coining from the candles in the front row was apparent to the Plaintiff and that therefore the danger could not be found to be concealed. In support of this contention the Defendant relied on the decision of the former Supreme Court in Bohane v.Driscoll 1929 I.R.

18 That was a case where a child of six years of age having been permitted by the principal teacher to enter his classroom at the luncheon break as a licensee was burned by an open fire in the grate. The evidence was that the fire was usually protected by a firescreen which prevented the children from coming too close to it, but that on this particular occasion the teacher had removed the firescreen for the purpose of melting...