Walsh v Kilkenny County Council

• Jurisdiction: Ireland
• Judge: Gannon J.
• Judgment Date: 23 January 1978
• Neutral Citation: 1978 WJSC-HC 1017
• Docket Number: No. 2535P/1976
• Court: High Court
• Date: 23 January 1978

WALSH v. KILKENNY COUNTY COUNCIL

BETWEEN:

EDWARD J. WALSH

Plaintiff

and

THE COUNTY COUNCIL OF THE COUNTY OF KILKENNY

Defendants

1978 WJSC-HC 1017

No. 2535P/1976

THE HIGH COURT

1 Judgment of Gannon J. delivered the 23rd day of January 1978

2 This is a claim for £2,480, the agreed value of the loss sustained by the plaintiff upon the occasion of the death by poisoning of eight milch cows, his property, on the 11th November 1975. These animals were from a herd of 130 cows that had free-run grazing upon a substantial area of pasture which was bounded at a short stretch by a cemetery in which two yew trees were growing. The cattle had gained access to the yew trees by passing through a gap in the boundary wall between the cemetery and the plaintiff's pasture and by going across some 70 to 77 yards of the cemetery.

3 The plaintiff said in evidence that he had this farm at Danesfort County Kilkenny, which adjoins the old graveyard or burial ground, for 27 years. He said he never knew that there were yew trees in the cemetery. The maintenance of the wall which separated the cemetery from his land was always understood by him to be the responsibility of the County Council. At one portion there was a small gap in the wall for some years, but the wall at this point was sufficient to prevent cattle from going through. About twelve months prior to the occasion giving rise to the claim he had observed that in a storm portion of the wall had split along its length. The effect was to cause a portion of the split wall to spill in on his land while the corresponding portion innermost to the cemetery remained standing. He expressed the opinion that ivy growing along the wall kept the damaged portion standing. It was this portion which collapsed and left the gap through which his cows had gone into the cemetery on the morning of the 11th November 1975. There was no evidence of any particular incident which might have caused this damaged portion of wall to collapse. The plaintiff said that during the twelve month period prior to that morning he did not think his cows would go into the cemetery or that it was necessary to tell the County Council of the condition of the wall or that it would be necessary to take any steps to prevent his cows going into the cemetery. He said he knew that yew was poisonous to cattle and that the cattle were fond of eating ivy. He thought that if there was ivy near the yew the cattle while eating the ivy might also eat yew. The cows at that time were left out for grazing day and night but were fed at the yard when milked morning and evening, and the plaintiff considered that they had plentiful grazing pasture at that time.

4 On behalf of the defendants, the County Council of Kilkenny, evidence was given by Peter Doran who stated that the cemetery was maintained by the County Council and the damaged wall has since been repaired by the County Council. He produced a plan of the location. He stated that the cemetery was inspected and cleaned up annually, the grass was usually cut in the summer months, probably in July, and any repairs required were done. He said that if the County Council had known of the split in the wall they would have repaired it, and if it had appeared to be in danger of collapse they would have repaired it immediately. It was his evidence that the portion of wall of which the plaintiff complains on inspection had appeared to be all right on the defendants' side.

5 The following facts which appear to me to be material were proved to my satisfaction in evidence. The defendants accepted and the plaintiff's pasture in a state of repair sufficient to prevent entry by cattle from the pasture into the cemetery. For a period of about twelve months prior to the 10th November 1975 portion of this wall was in a damaged state to the knowledge of the plaintiff but unknown to the defendants. During this period the plaintiff did not think it necessary to inform the defendants of the condition of the wall, nor did he think his cows would break into the cemetery, nor did he think it necessary to take steps to prevent his cows getting into the cemetery. During this period the damaged portion of wall was effective to prevent the plaintiff's cattle getting into the cemetery. Between the 10th and 11th November 1975 the plaintiff's cows did get into the cemetery through a gap in the wall corresponding to the damaged portion which was then found to be collapsed. The plaintiff's cattle were poisoned by eating yew in the cemetery. How or why the damaged portion of the wall ceased on the night of the 10th November 1975 to continue to be effective to prevent the plaintiff's cattle getting into the cemetery has not been proved. Other than to suggest that that portion of wall collapsed without some force or activating agency the plaintiff, on whom the burden of proof lies, gives no answer to this query. On the evidence I have heard I think the inference most consistent with probabilities is that some of the plaintiff's cattle commenced eating ivy growing along the damaged portion of the wall and in the course thereof caused that portion of the wall to collapse. No evidence was given to establish whether or not the cemetery is a burial ground attached to or contiguous to a church, chapel or place of worship. The plan and photographs admitted in evidence seem to indicate that the cemetery was a burial ground which had been attached to and contiguous to a church, chapel or place of worship.

6 On these facts the plaintiff seeks to establish liability in the defendants for the amount of his loss on the basis either of breach of the statutory duty imposed on the County Council as the Health Authority by section 185 of the Public Health (Ireland) Act 1878, or alternatively under the Statutory Rules made pursuant to section 181 of that Act on the 6th July 1888, or in the further alternative on the basis of negligence at common law.

7 In relation to the statutory duty the plaintiff contends that under Rule 1 of the regulations for burial grounds dated 6th July 1888 made pursuant to section 181 of the Public Health (Ireland) Act 1878 the defendants were obliged to maintain the cemetery "sufficiently fenced". Rule 1 of the 1888 regulations is as follows: "Every burial ground shall be kept sufficiently fenced, and, if necessary, shall be underdrained to such a "depth as will prevent water remaining in any grave or vault". The plaintiff contends that the defendants failed to maintain the cemetery "sufficiently fenced" and that the plaintiff is a person for whose benefit the duty was created by Statute and who has suffered damage from the failure of the defendants to perform this duty. It was submitted that, in the absence of any statutory penalty prescribed for failure to perform the duty, the remedy in damages lies for any person damnified by the breach of statutory duty. The defendants in answer, on this aspect, submit that the injury alleged to have been sustained by the plaintiff is not attributable to any breach of this statutory duty, and further that the plaintiff is not a person within the ambit of the purposes of the statutory duty imposed upon the County Council by the Public Health (Ireland) Act 1878.

8 Not every failure to comply with a statutory duty from which damage ensues entitles a person damnified to recover compensation from the party in breach of the Statute in a claim for damages founded on that ground alone. As stated by Maughan L.J. in Monk and Warbey 1935 1 K.B. 75 at page 85

9 "The Court has to make up its mind whether the harm sought to be remedied by the Statute is one of the kind the Statute is intended to prevent; in other words it is not sufficient to say that harm has been caused to a person and to assert that the harm is due to a breach of the "Statute which has resulted in the injury."

10 Furthermore the fact that the Statute does not exact a penalty from the defaulting party is not the only factor which signifies that damages...