The Gazette 1975

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-