Title: Cosgrove -v- Ryan & anor
SUPREME COURT
Judgment was given by Mr Justice Geoghegan on February 14th, 2008, Ms Justice Denhan and Mr Justice Hardiman concurring.
JUDGMENT
The ESB, which did not give evidence, was negligent in not ensuring that its power lines over a field were sufficiently high to enable a silage-maker pass freely underneath with adequate clearance. The plaintiff, who brought the appeal against a High Court decision, was liable for 25 per cent of the accident due to his not checking that the chute on his machine was clearing the lines.
BACKGROUND
The appellant, Thomas Cosgrove, had brought a case for damages to the High Court arising out of an accident involving his harvester and ESB power lines in an agricultural field. The High Court dismissed the action. He appealed to the Supreme Court. The first named respondent was the owner of the field, but during the proceedings the ESB became the only defendant.
The court was concerned with one issue only: was the learned trial judge correct in deciding that the appellant had not established, as a matter of probability, that the accident was caused by the negligence of the ESB? Mr Justice Geoghegan stressed that he was examining the case on the evidence as it ran, in a situation where the ESB had chosen not to present any evidence through its employees. Instead, its legal team sought to prove, by its cross-examination of the plaintiff, that he was responsible for the accident.
The accident happened in August 1998 when the chute attached to the harvester being driven by Mr Cosgrove hit the ESB wires, leading to him being injured. Mr Cosgrove had given evidence that he had already circled the field a number of times when the accident happened, and he had worked in this field before. He did not expect the chute to hit the wires.
The ESB put a number of hypotheses to Mr Cosgrove, including that he had no adequate safety measures in place in his business and neglected his duty as an employer (though he was self-employed); he could have checked the height of the wires; he could have attached an insulated rod to the machine or used an architect's measuring device to calculate the height of the wires; he could have employed a paid observer or he could have turned his head and examined the chute as he passed under the wires.
DECISION
Mr Justice Geoghegan examined each of these hypotheses in turn, in the light of the cross-examination that had taken place and the expert evidence given during the trial. He pointed out that this showed it was never the practice of agricultural contractors to have rods on top of machines to deal with the danger of overhanging wires, and that a more sophisticated architect's instrument for such a purpose was unheard of. He also said that the ESB should calculate the height of its wires not based on some hypothetical flat field, but on the reality of agricultural fields in Ireland, which are by their nature uneven.
"It would seem reasonably obvious that the ordinary agricultural contractor with a silage machine would assume he was safe if was well used to working on a particular field. I think he would be entitled to make that assumption," he said.
Considering the onus of proof that rested on the plaintiff, he said: "It would seem that those requirements would not be high where a dangerous substance such as electricity or gas is involved."
Referring to the lack of evidence from the ESB, he commented: "While there was undoubtedly no obligation on the part of the ESB to give evidence through any of its staff, an outsider . . . might reasonably consider . . . 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," finding there was negligence on the part of the ESB.
Referring to contributory negligence, he said that the fact that the plaintiff had gone under these lines a number of times before suggested that he reasonably believed it was safe to do so. However, evidence had been given that it was a wise precaution to look backwards to check that the chute cleared the lines. He found he had contributed 25 per cent of the negligence causing the accident. The case was remitted back to the High Court for the assessment of damages.
The full judgment is on www.courts.ie
Solicitors: S T O'Sullivan (for plaintiff); Ann Hughes (for ESB).