University College Cork – National University of Ireland v The Electricity Supply Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 25 March 2021
• Neutral Citation: [2021] IESC 21
• Court: Supreme Court
• Docket Number: [Appeal No: 78/18]
• Date: 25 March 2021

Between/

University College Cork – National University of Ireland

Plaintiff/Appellant

and

The Electricity Supply Board

Defendant/Respondent

[2021] IESC 21

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

[Appeal No: 78/18]

THE SUPREME COURT

Negligence – Contributory negligence – Civil Liability Act 1961 s. 35(1)(i) – Respondent seeking to reinstate a finding of the High Court – Whether the appellant was guilty of contributory negligence

Facts: The Supreme Court allowed the appeal of the plaintiff/appellant, University College Cork (UCC), ([2020] IESC 38) against the judgment of the Court of Appeal ([2018] IECA 82), which had overturned the decision of the High Court finding the defendant/respondent, the Electricity Supply Board (the ESB), negligent ([2015] IEHC 598). There was also a cross appeal brought by the ESB which sought, in substance, to reinstate in one form or another an additional finding of the High Court to the effect that UCC was guilty of contributory negligence which contribution had been measured by the High Court at 40%. The issues which remained for determination by the Supreme Court on the cross appeal were as follows: (i) whether the ESB was entitled to rely, on the cross appeal, on the provisions of s. 35(1)(i) of the Civil Liability Act 1961; (ii) if so, whether contributory negligence could be found against UCC on that basis; (iii) the resolution of those issues between the parties concerning elements of the contributory negligence found against UCC by the High Court which were appealed to the Court of Appeal but which were not the subject of a determination or comment by that court and which, therefore, remained open for debate between the parties before the Court; (iv) in light of such elements of contributory negligence as may remain held against UCC, either by virtue of findings of the High Court which were not appealed or such matters, if any, as the Court may determine were properly held against UCC notwithstanding the disputes between the parties in that regard, whether it was possible, and without knowing the precise findings which the High Court may make on those matters which had been remitted back to it, to reach a conclusion as to the appropriate determination of the extent of any contributory negligence which was held to lie against UCC; and (v) in the event that the Court was persuaded that it could reach such a conclusion, then it would be necessary for the Court to determine the appropriate percentage.

Held by Clarke CJ that it was appropriate to permit the ESB to seek to place reliance on the provisions of s. 35(1)(i) of the 1961 Act as a means of seeking to fix UCC with liability in contributory negligence for the actions of UCC’s professional advisers. Having regard to that finding and of the view expressed by the Court of Appeal that UCC could not be found liable for any negligence determined by the High Court in respect of those professional advisers on the basis of agency, he proposed that no regard could be had to any such negligence in determining the extent of contributory negligence on the part of UCC. He concluded that some, but not all, of the bases on which the High Court determined that UCC was guilty of contributory negligence were sustained on the evidence. He set out his views on the scope of the matters which had properly been remitted back to the High Court as a result of the majority judgments given by the Court on the appeal in this case. He was satisfied that it was possible (although it was not necessarily the case) that the question of causation may have to be revisited by the High Court having regard to the fact that the majority judgments of the Supreme Court imposed a different duty of care on the ESB than that found originally by the High Court and it followed that it was possible that the consequences caused by a breach of that duty of care may differ from the consequences caused by the duty of care identified by the High Court.

Clarke CJ held that it would not be appropriate for the Court to seek to reach a definite conclusion as to the apportionment of liability between the parties and proposed that that matter also be remitted back to the High Court. He set out the matters which he considered remained for debate when these proceedings were back for hearing before the High Court in the hope that this may prove of assistance in ensuring that the proceedings were brought to a close as quickly as possible.

Matters remitted to the High Court.

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 25 ^th of March, 2021.

1. Introduction

1.1 This Court has already given judgment on the appeal brought by the plaintiff/appellant (“UCC”) arising from the decision of the Court of Appeal to reverse a High Court finding of negligence against the defendant/respondent (“the ESB”). For the reasons set out in the majority judgments (a joint judgment of Clarke C.J. and MacMenamin J. together with a separate concurring judgment of Charleton J.), the Court allowed UCC's appeal (see- University College Cork v. Electricity Supply Board [2020] IESC 38) against the judgment of the Court of Appeal (see- University College Cork-National University of Ireland v. Electricity Supply Board [2018] IECA 82), which had overturned the decision of the High Court finding the ESB negligent (see- University College Cork-National University of Ireland v. Electricity Supply Board [2015] IEHC 598). As noted in the judgments in this Court, there was also a cross appeal brought by the ESB which sought, in substance, to reinstate in one form or another an additional finding of the High Court to the effect that UCC was guilty of contributory negligence which contribution had been measured by the High Court at 40%.

1.2 Obviously, in light of the view which the Court of Appeal took on the negligence claim brought by UCC, the question of contributory negligence did not arise. It should be pointed out that UCC did not contest all of the findings of fact made by the High Court which gave rise to its conclusion that UCC was guilty of contributory negligence measured at 40%. However, there was argument before the Court of Appeal on at least some of the bases on which the High Court had found and assessed contributory negligence. Notwithstanding the fact that contributory negligence was no longer relevant, the Court of Appeal did make some observations concerning two elements of the finding of the High Court in that regard. While it will be necessary to refer to those matters in due course, the views expressed by the Court of Appeal were to the effect that the High Court was in error to hold UCC guilty of contributory negligence on those specific grounds. The ESB does not seek to go behind the finding by the Court of Appeal to the effect that the High Court was incorrect in law in respect of the two matters to which reference has been made. However, the facts which underlay those findings are said by the ESB to remain relevant to this appeal for reasons to which it will be necessary to turn.

1.3 In all those circumstances it would appear that there are three categories of findings of fact, or of mixed law and fact, which were made by the High Court and which remain relevant to the cross appeal brought by the ESB to this Court. That appeal seeks, as already noted, to reinstate the finding of contributory negligence made by the High Court. The findings in question are:-

• (i) Findings of the High Court against UCC which were not the subject of an appeal to the Court of Appeal and which must now be taken to stand;

• (ii) Findings of the High Court which were appealed to the Court of Appeal but which were not the subject of a specific determination by the Court of Appeal so that those issues remain alive before this Court; and

• (iii) The two findings of the High Court to which reference has already been made which were overturned by the Court of Appeal and in respect of which no appeal has been brought to this Court so that those findings can no longer provide a basis for a determination of contributory negligence at least in the manner held by the High Court.

1.4 Before going on to canvas the issues which do remain alive before this Court, it is necessary to comment on a ruling made as a result of a case management hearing which was conducted before the full panel of this Court assigned to hear both the appeal which has already been determined and this cross appeal (see- University College Cork v. Electricity Supply Board [2020] IESC 66, (“the case management ruling”)).

1.5 In addition, it is important to note that, prior to the hearing of the cross appeal, the parties also raised with the Court certain questions concerning the scope of the issues which were intended to be remitted back to the High Court in light of the majority judgments given in respect of the appeal. For reasons which I hope will become clear, there is at least some interaction between those questions and one of the issues which the Court will have to consider on this cross appeal. A hearing in respect of the issues raised concerning the remittal took place at the same time as the hearing of the cross appeal and it is, therefore, convenient to set out my views on the questions thus raised in respect of the remittal in the course of this judgment.

2. The Case Management Ruling

2.1 As appears from the case management ruling, a number of issues were canvassed before the Court. One issue concerned whether the cross appeal should go ahead at all. For the reasons set out in the case management ruling, the Court determined that the cross appeal should go ahead as planned although it was acknowledged that there might be some issues, depending on the view which the Court takes on certain questions, which could not properly be finally determined at this stage.

2.2 Next the Court considered the question of whether the ESB is...