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New trial ordered where plaintiff infant trespasser
gravely injured by electric conductor was awarded
£40,000 general damages..
The accident occurred in July, 1965, when the
plaintiff was 11 years old. The action for personal
injuries was heard before Butler J. and a jury in
February, 1972. The jury held the defendant com-
panv alone negligent, and assessed damages for
£74,770. Judgment was accordingly entered for the
Plaintiff.
The plaintiff's injuries were sustained when he
came into contact with electricity conductors of
10,000 volts at a sub-station at Garrvowen, Limerick.
A new housing estate was erected in the area between
1960 and 1964 around the sub-station. This sub-
station had already been damaged by children throw-
ing stones and breaking glass; they also played near
the sub-station. The plaintiff's experts alleged that
the fence erected to prevent children from trespassing
Was quite unsuitable for keeping persons out; as the
fence posts were loose and the barbed wire was slack.
The children had constantly been told to go away
from this fence. The plaintiff alleged he had often
played cowboys and Indians there and gone across
the wire; he had taken no notice of the warning
notice posted around the fence.
On the day of the accident, the plaintiff climbed
over the fence with his younger brother on to a flat
roof. When coming down, he accidentally grasped
an electric conductor, and was very severely injured.
In answer to set questions, the jury stated that the
defendants were aware that children were liable to
trespass through the fence, that they should have
foreseen the risk of injury to children, and that they
were negligent in failing to provide proper fencing.
The defendants contend that, as the plaintiff was a
trespasser, they owed no duty of care towards him;
this contention was rejected by Butler J., as in Purtill
v. Athlonc U.D.C. — (1968) I.R. 205 — the Supreme
Court laid down that an occupier of premises could
not claim exemption from liability on the ground that
the person injured was a trespasser, when the
occupier's act was not done with the deliberate inten-
tion of doing harm to the trespasser, or done with
reckless disregard of the presence of the trespasser.
In this case, in erecting the sub-station with the
exposed conductors carrying high voltages, the defen-
dants created something in respect of which the
likelihood of danger to parties coming in contact with
It was foreseeable. Undoubtedly it was reasonably
foreseeable to the defendants that children might
enter the premises unless steps were taken to keep
them out, and furthermore these steps were not
reasonable as they did not ensure that the children
Would not enter the danger area. The statements of
Lavery J. and of Kingsmill-Moore J. in Donovan v.
Landys Ltd. — (1963) I.R. 441 — that the only duty
owed in law to a trespasser was a duty not to act
with reckless disregard of his presence or safety is
incorrect: The test to be applied is that of O'Byrne
I- in Fleming v. Kerry Co. Council — (1955-56) Ir.
Jur. 71 — that it is for the jury to determine whether
toe boy fell short of the standard which might be
reasonably expected from him, having regard to his
age and development. In this case the jury was
entitled to accept that the plaintiff did not aclualh
know the danger, and that the defendants had not
discharged the onus of prooving that the plaintiff was
negligent.
The damages of £74,770 were divided up as follows:
(1) £9,910 for supplying artificial limbs; (2) £25,060
for loss of future earnings, and (3) £40,000 for general
damages. But for the accident the plaintiff intended
to become a chef. The jury were entitled to conclude
that the boy would have no earning capacity of any
significance for the rest of his life, and consequently
the sum of £25,000 for loss of future until 65 vears
of. age on actuarial evidence was reasonable. The sum
of £40,000 for general damages, represented damages
for past and future pain and suffering, loss of pleasure
in life, and mental anguish. In Doherty v. Bowater,
the Supreme Court held £34,000 excessive in the case
of a man of 33 who had permanent quadraplegia ten
years ago, and directed a new trial; this case is not
comparable to a condition of permanent quadriplegia
despite the intervening fall in the value of money.
Consequently there will be a new trial confined to
the issue of general damages. So held by Walsh
J„
(Budd J. concurring). Henchy
J.
stated that the prin-
ciple laid down in Addie v. Dumbreck — (1929) A.C.
358 — that the occupier owes no duty to care for
the. protection of a trespasser, or even to protect him
from a concealed danger, as the trespasser comes on
to the premises at his own risk, — unless the wilful
act is done with the deliberate intention of doing
harm to the trespasser or some act done with reckless
disregard of the trespasser, which had been followed
in O'Leary v. Wood — (1964) I.R. 269 — had created
palpable injustices. In Ireland, the Court has to choose
between the Addie principle and the "neighbour
principle" stated by Lord Atkin in Donoghue v.
Stevenson — (1932) A.C. 580 — "You must take
reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your
neighbour". Trespassers do not normally come within
this principle, unless the following rules apply: (1)
That the injury was caused by a hidden or unexpected
danger; (ii) that such danger was created and main-
tained by the occupier; (iiB that the circumstances
would not entitle a reasonable occupier to disregard
the risk of injury to trespassers; (iv) that, in relation
to the expense or impracticability of eliminating the
danger, the occupier should have done his utmost in
the interests of safety; and (v) that the occupier's
failure to take due precaution contributed to the
accident. The direction of Butler J. that it was for
the jury to decide the defendant's negligence was
correct.
There was ample evidence to support the case that
a boy like the plaintiff could without difficulty sur-
mount the fence and get on to the flat roof. The
defendants were maintaining inside the wire fence an
unguarded, live, high-voltage conductor capable of
causing serious injury. The defendants maintained an
inadequate fence and merely put up warning notices.
The jury were entitled to find them negligent.
Henchy J. also held that in the circumstances pre-