IpsofactoJ.com: International Cases [2008] Part 4 Case 5 [SCIre]


SUPREME COURT OF IRELAND

Coram

Cosgrove

- vs -

Ryan

DENHAM J

GEOGHEGAN J

HARDIMAN J

14 FEBRUARY 2008


Judgment

Geoghegan J

(with whom Denham J and Hardiman J concurred)

  1. This is an appeal from an order of the High Court (Murphy J.) dismissing an action for damages for personal injuries arising out of an accident involving ESB power lines above an agricultural field.

  2. On the face of it the case was quite a simple one based on the pleadings but it developed into a four day hearing. The appellant is an agricultural contractor living in County Clare. The first-named respondent was the owner of lands at Castleconnell, Co. Limerick who had engaged the appellant to harvest some silage on a field owned by him. Above the field and across it were electric power lines installed, owned and under the control of the second-named respondent.

  3. On the 29th August, 1998 the appellant while driving a harvester designed for the purpose was allegedly injured as a consequence of the harvester coming into contact with the electric wires. It is sufficient for the purposes of this judgment to refer to injuries arising as a consequence of this impact rather than be specific as to the nature of those injuries. Because of the dismissal of the action there was no decision on this aspect of the case which is itself in some controversy and, therefore, it would be inappropriate for me to express any views on the nature of the alleged injuries. For some reason, the learned High Court judge did express views by way of obiter dicta on items of special damage but those remarks would seem to me to be irrelevant to the issues on this appeal and not binding on any court addressing the issue of damages.

  4. I intend dealing with only one issue namely, was the learned High Court judge correct in finding that the appellant had not established as a matter of probability that the accident was caused by the negligence of the ESB? In this connection, I have deliberately not mentioned the first-named respondent. He was originally joined in the proceedings because he had told the plaintiff that he had previously reported to the ESB that the wires were too low. Shortly before the hearing of the case, he admitted that he had never done so. In those circumstances an arrangement was arrived at whereby the ESB became the only defendant.

  5. The principle of res ipsa loquitur has featured in this action. It is clear from the textbook writers that the precise parameters of that principle have never been conclusively determined. I am in the happy position that I find myself able to avoid their consideration because I, at any rate, consider that the appellant in this case on the evidence, as it ran, established a case of negligence against the ESB and I am therefore of opinion that on that account the appeal should be allowed. The words “on the evidence as it ran” should be noted because it may well be that, if appropriate employees of the ESB or indeed appropriate outside technical witnesses had given evidence, the appellant’s case might have been successfully answered.

  6. There is, of course, no law which requires a defendant to give any evidence at all, to say nothing of any particular evidence. But if a plaintiff puts forward a prima facie case which has not been answered he is usually entitled to succeed. In this case, the ESB clearly made a decision not to enter the witness-box through the agency of any of their employees. This they were entitled to do but it was a strategy attended with considerable risk. For a long time the case was run on the basis of various theories put forward in cross-examination of the plaintiff which I will outline in due course. It was only at a late stage in the case and long after the plaintiff had left the witness-box that a new theory was put forward on behalf of the ESB and which in the event was the one which attracted the learned trial judge and led him to dismiss the action. I will come to that also in due course. There were experienced litigation engineers engaged by both sides but neither of them was an electrical engineer and neither showed any intimate knowledge of the ESB safety policy. There was made available to the plaintiff’s legal team, however, internal ESB documentation that indicated that a normal height for a line of the kind which was in place in this case would be fifteen feet. There was evidence that the machine at its highest point was thirteen feet. Though in fairness to the ESB, the case was run on behalf of the plaintiff on a more or less acceptance of the fifteen foot norm, it seems clear that that figure has no statutory basis and that there remains a legal obligation of the ESB under its ordinary duty to take care to make sure that such lines are at a reasonable height above a field so that normal farm machinery will not come into contact with them.

  7. It is important that I should now cover the evidence of the appellant in some detail. After introductory evidence in which he explained how he began in the agricultural contracting business starting with a digger but later purchasing a harvester until he finally had a self-propelled silage harvester. He was asked how often he had worked with the harvester on the lands of the first-named defendant, Mr. Ryan, and he answered that he was there two or three times before. It was not with the identical machine but with a similar machine. He then explained that while the harvester is working there is a trailer beside it and that upon entering the field the operator picks up the two strokes on the outer side going in an anti-clockwise direction to make room for the trailer that is beside the harvester. When that is done you turn around and go clockwise. By a stroke the witness meant a row of grass. After the machine has passed by, the width of the cut grass is ten feet. The machine does not leave the grass but it picks it up. The grass is then processed through the machine and comes out of a chute or funnel straight into the trailer. From the trailer it is brought to the silage pit. The appellant affirmed that he had never had any difficulty or worry about overhead wires in the field either in connection with working on previous occasions or on that occasion. When asked in what circumstances would he be alerted to a danger of overhead wires he said that if he saw they were “really low” he would avoid going near them. On the day in question the appellant had done two anti-clockwise sways and had then started to do it in a clockwise direction. In doing the two anti-clockwise sways he had gone under the cable without difficulty. Photographs of the field were produced and the appellant agreed that the field included a slope in two directions. The appellant explained that when he turned around and went in the clockwise direction he suddenly heard a “big bang” and it threw him back a bit from the cab. He thought he was going to die. He saw a blaze on the chute of the harvester. He remained stopped as he was afraid to touch anything. The chute would have been out directly to the left of him. Eventually, when the blaze had stopped, the appellant got out of the machine deeply shocked and dazed. The machine was not live at that stage because the arc from the chute to the wire had stopped. The appellant knew how to work the machine manually and without the electrics and this he did. At a certain stage the appellant left the field to get a shaft. When he eventually returned a job had been done on the wire. When he was leaving it had been slightly ravelled but when he returned it was fixed and risen. He assumed the ESB had been called out.

  8. The appellant was cross-examined at some length. The general thrust of the cross-examination was that he was the cause of his own accident or in other words that the accident was caused exclusively by the appellant’s own negligence. Essentially, the cross-examination took the form of putting forward theories as to what the appellant himself should have done with no suggestion at any stage (which in fact proved to be the event) that anybody from the ESB would be giving evidence.

  9. The following points were put in cross-examination:

    1. That there were no procedures in place in the appellant’s enterprise relating to safety of workers including the appellant himself.

    2. That there was no “mystery” in “checking the height of something” to which the appellant replied “how can we measure?”.

    3. That the appellant could have attached an insulated rod that was a little bit higher than the machine and hold that underneath the wire or near the wire so as to judge the height.

    4. That on a more sophisticated basis he could have used one of the “super rule devices” that architects use to measure the width of a room, it being suggested that there was a particular one “a super rule 600 series cable height meter”.

    5. That he could employ a paid observer.

    6. That there was nothing to stop the appellant as he drove the machine turning his head and watching the chute before it reached the wires so as to make sure that it did not hit the wire.

  10. The most interesting feature of these six criticisms is one to which I have already briefly adverted. They do not include the suggestion which afterwards featured heavily in the cross-examination of the appellant’s engineer that even assuming the machine was thirteen feet high and the wires were not lower than fifteen feet the machine at the time of the accident might have been driven on a hilly bit of ground with the effect that the chute reached a height of fifteen feet. I draw the inference and I think I can legitimately draw the inference from that, that whatever investigation was done by the ESB (if any) prior to the trial of the action did not include this explanation and that this was a suggestion thought up by counsel either on his own or more likely after consultation with the outside engineer called on behalf of the ESB. I will, of course, be returning to this subject when covering the cross-examination of the engineer called on behalf of the appellant and the examination and cross-examination of the engineer called on behalf of the ESB. In the meantime, I intend to comment in turn on each of the six above listed theories or suggestions put to the appellant in cross-examination.

  11. First of all what I might call the “employer point” is, in my view, entirely irrelevant. A negligence action must be considered by a court in the context only of the actual facts of the case. Even as a contributory negligence point, an alleged failure to have in place safety precautions for the appellant himself as though he was one of his own employees is entirely irrelevant. In placing an electric line across a field in rural Ireland, the ESB must have in contemplation not the employee following the rules of the perfect employer but the typical self-employed contractor that one finds all over the country who will carry out this kind of work for local farmers. Nobody would dispute that an abnormally high machine brought in close to power lines is the responsibility of the owner of the machine and the ESB cannot be to blame if such a machine strikes its cable. This would apply to high excavators or cranes being used in building operations etc. It is clear from the evidence and indeed from common knowledge that these harvesters would have widespread day to day use in the appropriate seasons and if there was nothing abnormal on appearance in the wires or abnormal about the ground the ESB would be under a duty to ensure that the lines were at such a height as to avoid contact with any part of such machine. It would be absurd to suggest that the ESB’s duties as to fixing the height of wires applied only to a notional flat field (somewhere in the evidence indeed there was a suggestion of something like a football field). Fields all over the country have inclines and humps and are by their very nature uneven. Unless therefore there was something quite unusual about the levels on this field, the ESB would owe a duty of care to ensure that a standard machine such as the appellant was using could safely go under the wire. Some of the points which I have just been making are relevant also of course to the other five criticisms but I will nevertheless go through them in turn.

  12. The second point made was that the appellant should have measured the height before he attempted to bring the machine under the cable. This would seem to me to be wholly unreal. As was pointed out in the evidence, the appellant would have had no way of measuring the height and there was also abundant evidence to the effect that measuring height by the eye is a very inexact science and not at all reliable. I accept, of course, that any contractor using machinery should have some concern about overhanging wires. That concern cannot be met on any reasonable basis by some kind of device for measuring heights. If, with good reason, the appellant was doubtful as to whether the machine could go under the wires then of course he would be reasonably expected to avoid doing so without first checking with the ESB. But in this connection, common sense must be applied. The appellant brought machines onto numerous fields and presumably numerous fields that would have had overhanging wires, but more importantly he had worked on this field both immediately before the accident and in previous years and there was nothing unique about his machine. In those circumstances he argues and I think, reasonably, that he had no reason to believe that there was any danger. If every contractor in such a situation had to first contact the ESB and have an inspection carried out by the ESB a hopelessly impractical situation would arise both from the point of view of the contractor and even more so from the point of view of the ESB itself. Although the ESB, as it was perfectly entitled to do did not put any of its own employees into the witness-box the failure to do so is not irrelevant when considering the weight to be attached to theories being aired in cross-examination.

  13. The next suggestion put forward by Mr. Punch, S.C., cross-examining on behalf of the ESB was that a contractor should have in his possession some kind of insulated rod at a height slightly more than the chute and that if he had that he would then have an indication as to whether there was danger or not. This suggestion seems to me to be equally unreal and is certainly not supported by any evidence called on behalf of the ESB. The evidence did not indicate that it was ever the practice to have such a rod.

  14. There was then an even more far-fetched suggestion made that some kind of what was described a “super rule device” used by architects could have been availed of with a view to measuring the height. It was quite clear from the evidence that the appellant and I suspect most other agricultural contractors of his kind, knew nothing about such a device and it was never the practice to have one.

  15. It was then suggested that the appellant should have had a paid observer at all stages. Fairly and squarely, the appellant made the point that it would be uneconomic. He was heavily criticised for this approach by Mr. Punch on the basis that he was putting money before his own life. I think that this is a false equation in that if the kind of business which the appellant was carrying out would have been wholly uneconomic if he had to pay a second man as an observer, then this very necessary business could not in fact be carried out. In those circumstances, the ESB could not reasonably have contemplated in fixing the height of their lines that such a practice would be adopted.

  16. The sixth and last point that was made in the cross-examination of the appellant is the only one that might have some possible validity in it. There is no doubt that in theory, at least, the appellant could have turned his head and looked at the chute before approaching the wire and if he had done that he might have realised that there was going to be a problem. The appellant’s answer however is that he had passed under these wires many times before and had not the slightest reason to suspect that there was any danger. In my view, this point really only sounds in contributory negligence and not on the issue of liability of the ESB. I will return to it when dealing with the question of contributory negligence.

  17. At this stage, I move to the evidence of Mr. Hassett, an experienced engineer though not an electrical engineer called on behalf of the appellant. He gave evidence that the height from the top of the chute on the machine to the ground was thirteen feet. He then referred to a document which had been produced by the ESB, though never proved in evidence, showing various approved heights in various situations. In this context, the ESB’s own declared appropriate height would be fifteen feet. This would be at what is described as “the very worst condition”. Mr. Hassett gave evidence that even in relation to work with high machines on a building site, it is never suggested by the ESB that an insulated pole should be used but rather that the ESB itself be contacted. He was then asked about the electronic measuring device that had been suggested and he said that he had never heard or seen anybody use it in relation to discovering heights of wire. He went on to say that he would not indeed like to use it for that purpose. Mr. Hassett then painted the general picture of what happens with contractors going into fields all over the country. He said that everywhere there were silage contractors. He was asked by Mr. McMahon, S.C., counsel for the appellant whether in the absence of anything that drew attention to a low wire, was there any practice of phoning up the ESB before going into a field that appeared to be perfectly normal. Mr. Hassett said that he was not absolutely familiar with what contractors do exactly but his view was that it would be unusual because wires are in most fields on the roadway. That would seem to conform with the ordinary common sense knowledge of anyone familiar with rural Ireland. He went on to say that unless a person had reason to suspect, he would not have thought that any special precaution was required. Mr. Hassett went on to express the opinion that the arcing of the wires could not have happened if the wires were above the minimum clearances recommended by the ESB. When asked was there a “phenomenon” known to engineers in relation to measuring heights from the ground, he answered that it was difficult and that you could be quite wrong to the nearest couple of feet. He was satisfied that on the day in question the clearance of fifteen feet was not there. He said that the wires may have been stretched or there may have been high winds causing them to drop a bit or sag over a period of time. Interestingly, Mr. McMahon’s last question and Mr. Hassett’s answer to it in direct examination were the following:

    (Q)

    Are you aware of whether there is a system or not, may you are not (sic) but we will hear from the ESB in this regard, of checking them or of ensuring that they are at the minimum clearances?

    (A)

    I do not know what procedures they have My Lord for checking them on a periodic basis.

  18. It is clear from that exchange that Mr. McMahon quite reasonably assumed there would be evidence coming from the ESB itself. As I have already made clear, of course, the ESB were not under any obligation to put one of its witnesses into the box but it does have to live with consequences of that decision which may affect the inferences to be drawn from the evidence.

  19. Mr. Punch for the ESB opened his cross-examination of Mr. Hassett by suggesting that the essence of Mr. Hassett’s evidence was that because it was difficult to measure the height of wires that it was reasonable for an employer of workers not to measure them at all or as he put it to “to throw your hat at it” because it is difficult. It my view, this is a wholly incorrect and misleading inference to draw from Mr. Hassett’s evidence but be that as it may, his answer was that these were wires erected by the ESB, that they were recognised wires and that they were not “any old wires”. The learned trial judge seems to have objected to this answer and seems to have suggested that the question related to an employer of workers which of course it did up to a point and to the responsibility of an employer working under those wires. Mr. McMahon, in my view, correctly pointed out to the learned judge that none of that arose for the simple reason that the appellant was not an employer in his own case. The trial judge then made the following observation:

    I will allow the question. We are trying to get a general obligation on employers. I presume we will deal with the individual in a moment.

  20. I have the firm impression reading the transcript that the learned High Court judge was heavily attracted by the duty on employers argument and that this coloured his whole view of the case but I would respectfully disagree with him. In my view, it was an irrelevant factor introduced by counsel for the ESB. The employer point was developed at some length then in the next sequence of questions in cross-examination but for the reasons which I have indicated I do not intend to comment on them. I would observe, however, that in the course of that questioning, Mr. Hassett made the perfectly obvious point that as to what, if any, precautions a person would have to take would depend on the circumstances and he gave the example of somebody who knew that he was going to have large equipment or large cranes. In that situation, contact with the ESB would be appropriate. When Mr. Hassett was asked had he heard the appellant saying that he had not carried out any visual inspection prior to the incident Mr. Hassett gave the simple answer “I have heard his evidence, My Lord, that he cut four or five rows and all was well.” In the course of the cross-examination Mr. Punch asked Mr. Hassett what “foolproof system” would he advise to make sure that people are safe. At that point, Mr. McMahon made what I think was a well-founded objection to that line of questioning. He pointed out to the judge that the ESB had the monopoly of wires across the country and that if Mr. Punch was going to put questions as to foolproof systems it was incumbent upon him to put to the witness his own clients’ recommended system. Effectively, the objection was overruled by the learned trial judge but I would respectfully take the view that it was a fair objection. The basis of the judge’s view was that the witness was an expert witness but it was accepted that he was not an electrical engineer. Even if he had been, cross-examination as to safety systems that did not include what the ESB recommended was both unreal and unfair. Mr. McMahon pursued his objection pointing out that the plaintiff was being criticised for not observing and for not taking two steps that had been mentioned in cross-examination the previous day neither of which had been pleaded in the particulars, one of them being a suggestion of the insulated pole and the other that he would have a sophisticated measuring machine. Ultimately, Mr. Punch put to Mr. Hassett that apparently in Mr. Hassett’s view the only precaution he would advise someone in the position of the appellant to take in relation to employees (a scenario which I have already dismissed as irrelevant) would be to make a visual observation from the ground. Mr. Hassett gave an answer which was in line with the case made by the appellant from beginning to end. He said that on entering different sites for the first time where he would not be used to, something more might be required. But he went on to observe that somebody like the appellant would be going to umpteen different places in the course of a season. As a matter of common sense it would seem reasonably obvious that the ordinary agricultural contractor with a silage machine would assume he was safe if he was well used to working on a particular field. I think that he would be entitled to make that assumption. That does not mean, of course, that if there was an accident of the kind that happened in this case, the ESB would necessarily be liable but they would have to meet what would be a strong prima facie case. As the evidence continued, it was clear that Mr. Hassett’s view was that either quite reasonably the contractor had no fears because of previous usage or alternatively if he had good reason to have such fears he ought to contact the ESB. A safety booklet of the ESB was then put to the witness who said that he was familiar with it but that it related to building sites and in particular to working with cranes and machinery of that kind.

  21. It was not until the 468th question was asked of Mr. Hassett that a new point was raised on behalf of the defence and which was the point which for all practical purposes ultimately led to the action being dismissed. The question was:

    At a height of thirteen feet from the ground if that vehicle goes on a slope that goes down from left to right the end of the jib goes up, is that right?

  22. Mr. Hassett agreed. The thrust of Mr. Hassett’s evidence in answer to a number of questions which followed was that while the jib could kick marginally up the height difference would be very small. He took the view based on the photographs that the slopes were mild. He conceded though, that he did not measure the slope. Ultimately, the learned trial judge seems to have taken the view that in the absence of evidence coming from the plaintiff as to the measure of the slope and establishing that it could not have led to the chute being as high off the ground as the wires the appellant could not succeed. It will be clear when I come to deal with the law that I do not accept that proposition. When asked by the trial judge whether Mr. Hassett had considered taking levels on the ground and the relevance of this point he told the judge that he did not “because it is a gentle slope”. When pressed by Mr. Punch as to whether Mr. Hassett could assist the court in any scientific way in saying what height the jib was at when the accident occurred, Mr. Hassett’s reply was quite simple.

    Thirteen feet, My Lord, give or take a couple of inches having regard to the slope as shown in photograph No. 1.

  23. In re-examination, Mr. Hassett reiterated that on his estimate the difference of height because of a slope would be marginal. When asked his overall view of the tipping point he said that the appellant would have had reason to believe that there was no difficulty with the wire in relation to the height of the chute. This was in the context of the fact that the appellant had such previous experience of driving the harvester or a similar one on previous occasions on this field.

  24. Mr. Hassett was recalled with a view to giving more evidence as to what effect a slope would have having regard to the cross-examination which had taken counsel for the plaintiff by surprise. There was then further cross-examination and I do not propose to go into it in detail. It is sufficient to say that Mr. Punch put forward theoretical scenarios to Mr. Hassett with a view to demonstrating by mathematics that if the slope was of a certain degree the chute could come into contact with wires which complied with the ESB’s criterion of fifteen feet. It is sufficient to state that Mr. Hassett continued to assert that on the basis of the photograph on which he was relying and on which he considered he could rely any slopes were minor. I will, however, quote the final question put to Mr. Hassett by Mr. Punch and Mr. Hassett’s answer.

    (Q)

    And fields will naturally, apart from having slopes in them, they will have bumps and dips in them anyway in shorter areas; isn’t that right?

    (A)

    Well this field, My Lord, my evidence was that it is a fairly level field. It is a meadow field. I have no other evidence to give on the surface of the field My Lord.

  25. During a second re-examination following this second cross-examination, the learned trial judge suggested that the theoretical increase created by the slope of the kind adumbrated theoretically by Mr. Punch would be a 12.5 per cent. Mr. Hassett agreed and said effectively it would be a ramp. He added that it would be something like the ramp coming into the courthouse. Mr. McMahon then asked Mr. Hassett was the field, in his view, anything like the ramp coming into the courthouse and his answer was “absolutely, not My Lord, absolutely not.”

  26. On behalf of the ESB, Mr. Sullivan, a self-employed engineer whose qualifications were in engineering mechanics was called. He gave some measurements in relation to the machine. He said that the overall machine was sixteen foot five inches in length, that the top of the cab was ten foot three inches, the top of the exit chute in transport position was eleven foot one inch. He said that he could not measure the machines specifically with the chute up because he had been informed by the appellant that the machine could not be started. He went on to confirm however that from examining similar machines he was satisfied that the height of the chute in the working position would be in the order of thirteen feet. Mr. Sullivan confirmed that he could not say anything about the slope in the field in question. He had no evidence to give about that. On the general obligation to take care on the part of the driver of the machine, Mr. Sullivan was asked was it sufficient to take a prior look at the wires from the ground. He said it was not because it would be difficult to gauge heights which of course was the evidence also of Mr. Hassett. He said that that person would want to do a bit more than that and when asked what that was he said that the person should keep an eye on the chute to see if there is any problem coming close to the wires. That particular exchange begged the question of whether the position might be different if, as alleged by the appellant, he had safely gone under the lines on several occasions and could reasonably assume he could do so again. I have already indicated that I will be returning to this issue when I deal with any question of contributory negligence. In fact Mr. Sullivan dealt with the suggestion that there would be no need to watch out if there was sufficient previous experience in cross-examination by Mr. McMahon. He thought that the driver should check each time because the wires are not at the uniform height from pole to pole, that there are dips to some degree and that they are not even exactly dead taught in his experience. It was put to Mr. Sullivan by Mr. McMahon that the unchallenged evidence was that any slope on the field was “extremely slight” and around 2 per cent and he was asked as to whether he had seen the field. He conceded that he had not and furthermore he conceded that he had not been asked to go out to the field at any stage even after the controversy emerged in evidence. Mr. Sullivan further confirmed that in his experience, contractors such as the appellant do not normally contact the ESB.

  27. In the context of the slope controversy, Mr. Sullivan was asked by Mr. McMahon the very relevant question as to what baseline was used by the ESB in calculating the fifteen feet. Mr. McMahon developed this point in the following question and answer exchange:

    (Q)

    I mean there would not be much point in running it across a field where it is fifteen feet in one corner but it is down to five feet where the land slopes upwards?

    (A)

    I would agree, My Lord.

    (Q)

    So the fifteen feet must be above the top of whatever the contour is of the lands are, isn’t that right?

    (A)

    I would expect that to be the case, My Lord, but I could not conclusively say because I do not do those measurements for the ESB, so I do not specifically know.

  28. The thrust of these questions by Mr. McMahon were with a view to suggesting that as a matter of common sense the ESB would have to take into account normal humps in a field when calculating the fifteen feet. In the absence of evidence from the ESB itself, I find that argument wholly persuasive.

  29. I think that I have reasonably summarised the evidence on liability and I will proceed now to discuss the legal principles involved. The law of England in relation to liability for injury resulting from electricity is well summarised in the 9th edition of Charlesworth & Percy on Negligence. I am satisfied that there is no material difference between Irish law and English law in this respect. At paragraph 12-152 of Charlesworth the following is stated:

    When electricity is carried overhead by wires or cables, in addition to any precautions required by statute, great care must be taken to see that it is not likely to become a source of danger. In Buckland v Guildford Gas Light & Coke Co. high voltage electric wires were routed across a field, immediately over the top of a tree, part of which had been cut down to permit the passage of the wires. A girl of thirteen climbed the tree when it was in full leaf, came into contact with the bare wires and was electrocuted. The electricity undertakers were held liable on the ground that they should have foreseen that someone might climb the tree and being unable to see the wires nubilated by the dense foliage, accidentally came into contact with them.

  30. It is explained in Charlesworth in an earlier paragraph that where electricity is supplied under statutory authority which it is here, it is a question of construction of the statute whether strict liability has been preserved or in other words whether Rylands v Fletcher applies. But the learned editors go on to state that if the statute is silent, the usual rule is that the supplier is liable only upon proof of negligence. In the next paragraph it is stated that “the standard of care required of a supplier of electricity is a high one reflecting the intrinsically dangerous nature of electricity itself.” The passage goes on to state that all reasonable known means of keeping the electricity harmless should be used. There is then reference to a case where an electricity supply company had erected two overhead cables carrying a high tension current and, in a wind, a tree branch snapped and brought them down, permitting current to escape along a low tension cable and cause a fire in the plaintiff’s home, the company was liable. It is well established, of course, that it is not negligent for an electricity company to place lines overhead even if they could have placed them underground because of the danger of electricity, electricity supplier obviously owes a heavy duty of care even if it is not strictly liable under the rule of in Rylands v Fletcher.

  31. Although the onus of proof is always on a plaintiff to prove negligence the requirements of that proof may vary. It would seem that those requirements would not be high where a dangerous substance such as electricity or gas is involved. Indeed quite apart from any special principles relating to dangerous things a plaintiff in a negligence action does not have to negative every possibility of absence of negligence. This does not mean that in answer to the plaintiff’s claim the defendant may not demonstrate that he was in no way to blame. In the 21st edition of Salmond & Heuston on the Law of Torts, the learned editors under the heading “The proof of negligence” at p. 240 say the following:

    It is not necessary for the plaintiff to show that the defendant must be found guilty of negligence, or to eliminate every conceivable possibility by which the accident may have been caused without negligence on the defendant’s part.

  32. This sentence is particularly apposite to the case in hand. Although the learned trial judge delivered a most erudite and elaborate judgment dealing primarily with the law of causation, stripped to its essentials the reason that he held against the plaintiff was because the plaintiff was not in a position to give precise measurements of any slopes in the field. The evidence of the plaintiff’s engineer that the field was a meadow and a relatively flat field even though there were some slopes of a minor kind was quite sufficient prima facie proof on the part of the plaintiff. Since the defendant produced no contrary evidence there was no reason, in my view, for the learned trial judge not to hold that there was no relevant slope.

  33. At any rate, as I have already made clear, the slope point like most of the other points by way of defence which were put forward in the case were done so as theories only and indeed in the case of the slope point, it was done at a very late stage no doubt by way of afterthought. Engineers’ reports had been exchanged in accordance with the modern rules and apparently the slope point had never been mentioned in the report of the defendant’s engineer. Mr. Punch argued that this was not necessary. I do not find it necessary to adjudicate on this argument as at any rate it does not appear to be a ground of appeal. It is sufficient to state that in any action for negligence but particularly one relating to dangerous things it is not incumbent on a plaintiff to negative every conceivable possibility provided he puts forward reasonable proof.

  34. I will now comment briefly on the authorities submitted to the court by both parties and (although I have partly done so already) on the general approach of the learned trial judge.

  35. I do not intend to refer to each of the authorities as a number of them did not seem to me to be of much assistance. The case of Coras Iompair Éireann v Carroll [1986] ILRM 312 involved facts which had a superficial resemblance to the facts in this case. I have come to the conclusion, however, that no assistance can be gained from it. An accident involving an excavator on a low loader striking an urban bridge because it was too high is of a wholly different nature than an accident involving an ordinary agricultural contractor working with a perfectly normal machine in a field with overhead electric wires. In the CIE case the driver had never before travelled under the bridge with the same load and the Supreme Court held that there was no evidence of any kind establishing negligence against the County Council. Indeed the court took the view that even if some warning notice had been on the bridge the driver would still have attempted to go under it. A small bit of assistance can be gained from the well-known case of Hanrahan v Merck Sharpe & Dohme (Ireland) Ltd [1988] ILRM 629 but only to a limited extent because that was treated as a case of nuisance. Furthermore, unlike this case there was a genuine difficult issue of causation. Henchy J. said the following:

    There are, of course, difficulties facing the plaintiffs in regard to proof of those matters, particularly as to the question of causation, but mere difficulty of proof does not call for a shifting of the onus of proof. Many claims in tort fail because the plaintiff has not access to full information as to the true nature of the defendants conduct. The onus of disproof rests on the defendant only when the act or default complained of is such that it would be fundamentally unjust to require the plaintiff to prove a positive averment when the particular circumstances show that fairness in justice call for disproof by the defendant. The argument put forward in this case for putting a duty of disproof on the defendants would be more sustainable if the plaintiffs had to prove that the emissions complained of were caused by the defendants’ negligence.

  36. This passage is only relevant in so far as the learned judge refers to negligence and in that sense any remarks relevant to this case must be classified as obiter dicta. But there does appear to be a clear hint in that passage that it was the view of the learned judge that the degree of proof required from a plaintiff in a negligence action may, to some extent, at least depend on what fundamental justice should require.

  37. While there was undoubtedly no obligation on the part of the ESB to give evidence through any of its staff, an outsider unversed in the law of torts might reasonably consider that given the nature of the accident, there was something unfair in the company’s failure to do so. The fact that it can happen in a case such as this highlights the importance of the principle that a plaintiff does not have to disprove every possibility on liability and that in relation to dangerous things at least the standard of proof will be reasonably low.

  38. Finally, I will refer briefly again to the judgment of the trial judge. Although he has given a learned treatise on the law of causation, rightly or wrongly, I view this case in rather simpler terms. As all the textbook writers point out and not least McMahon and Binchy all kinds of problems can arise in connection with causation and, of course, it also has different meanings. There is on the one hand the meaning - what was the cause of the accident and on the other hand there is the meaning did the proven negligence cause the accident? There are then, as pointed out in the case, distinctions between factual and legal causation. Factual causation may involve what might be described as “but for” events which are far too remote to be legally relevant. “Legal causation” requires proximity. I do not think that any of these problems arise in this case. There is no controversy as to how this accident was caused. It was caused by the jib or chute coming into contact with electric wires. If the wires were at a reasonable height in all the circumstances then there was no negligence on the part of the ESB. If they were not there was in the absence of some exonerating explanation by the ESB. There can be contributory negligence on the part of the driver even if the lines were too low. But the cause of the accident is quite clear. The only matters in controversy is whether that cause involved blame on the part of the ESB and then the subsidiary question of whether even if it did there was a negligent failure on the part of the driver to look after his own safety.

  39. For the reasons which I have been indicating, I believe that on the case made out, the learned High Court judge should have held that there was negligence on the part of the ESB. It may well be that if the ESB had run the defence differently it would have been able to absolve itself of negligence. But on the case as it ran, negligence was established by the plaintiff. The question of whether there was contributory negligence has caused me considerable difficulty. On the one hand, the plaintiff to his own belief at least quite reasonably, considered that he had not to worry about the lines as he had gone under them a number of times with the machine that day and had worked with a similar machine in previous years. On the other hand, it is suggested by the defence and indeed supported by the evidence of the defendant’s engineer that no matter how many times a contractor with a chute of this kind has gone under lines, he should nevertheless keep an eye on the chute just before he is going to do so so as to avoid any danger of contact arising from some rise in the ground or some sagging in the line. Most of the suggestions put in cross-examination to the plaintiff as to what he should have done were farfetched and wholly unreal as I have already indicated. But I have come to the conclusion that the particular suggestion that a contractor should always keep an eye out just before he goes under the lines if he has a jib or chute at a reasonable height is a valid submission and I have, therefore, come to the conclusion that there ought to be a finding of contributory negligence on the part of the plaintiff on that account only. Given the understandable assumptions which he made having regard to his previous experience of the land, I would not put the apportionment of liability at more than 25 per cent. I would, therefore, hold that the ESB was 75 per cent responsible for this accident on the evidence as it ran and I would, therefore, allow the appeal and substitute that order of apportionment. I would also order that the case be remitted to the High Court for the assessment of damages.


Cases

Rylands v Fletcher (1868), L.R. 3 H.L. 330; [1861–73] All E.R..

Coras Iompair Éireann v Carroll [1986] ILRM 312

Hanrahan v Merck Sharpe & Dohme (Ireland) Ltd [1988] ILRM 629

Authors and other references

Charlesworth & Percy on Negligence, 9th ed.

Salmond & Heuston on the Law of Torts, 21st ed.

Representations

Mr. McMahon, for the appellant.


all rights reserved