The Supreme Court has ruled the ESB is 75 per cent liable for injuries suffered by an agricultural contractor when the silage harvester he was driving came into contact with overhead power lines.
The three-judge court yesterday allowed the appeal by Thomas Cosgrove, an agricultural contractor in Co Clare.
He had appealed against a High Court decision that he had failed to show the accident on August 29th, 1998, in a field in Castleconnell, Co Limerick, was probably due to the negligence of the ESB in not having the wires at a reasonable height.
The Supreme Court ruled the ESB was 75 per cent liable and Mr Cosgrove was 25 per cent liable on the basis that a contractor with a jib or chute should always keep an eye out before going under power lines.
Mr Cosgrove had claimed that, while driving the harvester around the field, he had twice gone under the ESB cables without difficulty but later suddenly heard a "big bang" which threw him back a bit from the cab. He said he saw a blaze on the chute of the harvester and he thought he was going to die. He remained stopped, was afraid to touch anything and only got out when the blaze stopped.
The Supreme Court ruled the ESB has a duty to ensure that power lines were at such a height as to avoid contact with agricultural machinery. There was nothing unique about Mr Cosgrove's machine, he had used it in the same field previously without incident and had reasonably argued he had no reason to believe there was any danger, it found. It also noted an engineer had told the High Court that, on the day of the incident, the overhead wires may have been stretched or have sagged as a result of high winds.
It was "far-fetched" to suggest, as had counsel for the ESB, that a contractor should have a "super rule device" to measure the height of cables or a paid observer on site, the court said.
The only point of any validity made was that, before approaching the wire, Mr Cosgrove could have turned his head and looked at the chute, the Supreme Court said. The court also stressed the ESB cannot be held responsible if an abnormally high machine strikes power lines.
The court directed the case should go back to the High Court to assess damages. A dispute over the specific nature of the injuries sustained by Mr Cosgrove has yet to be decided.
Mr Justice Hugh Geoghegan was delivering the Supreme Court judgment on the appeal by Mr Cosgrove. Ms Justice Susan Denham and Ms Justice Adrian Hardiman agreed.
The High Court had ruled Mr Cosgrove failed to establish negligence by the ESB because he called no evidence of precise measurements of slopes in the field which the High Court deemed necessary to show the chute could not have been as high off the ground as the wires.
In the Supreme Court ruling rejecting that finding, Mr Justice Geoghegan said the evidence was that the field was a relatively flat meadow with minor slopes and there was no reason for the High Court to rule there was no relevant slope.