High Court of Ireland Decisions

THE SUPREME COURT

Chief Justice Hederman J. McCarthy J.

(56/87)

BETWEEN

THOMAS CLANCY

AND

DUBLIN CORPORATION

Judgment of McCarthy J., delivered the 22th day of November 1988

On the 26th August 1984, Thomas Clancy had spent a number of hours drinking with his brother Sean Clancy, and Sean's wife, Ellen. Sean and Ellen are tenants of. Dublin Corporation in a house at No. 18 Knockmore Green, Jobstown, Tallaght, Dublin and have lived there since 1979 having moved into the house when new.

The party returned to the house finally at about 11 p.m., when they all went upstairs and Thomas helped Sean into bed, taking off his shoes, and covering him with the bedclothes. Ellen came down the stairs leaving Thomas to go to the bathroom. Whilst in the sittingroom, she heard a noise of Thomas falling down the stairs. She went outside and found him lying in the hall, on his back, with his head against a box at the bottom of the stairs and his feet on the bottom step. He had sustained very serious injuries, although this was not realised at the time, and Ellen Clancy tried to waken him up and then covered him up and, herself, went to bed. The next morning at about 6 a.m. Thomas was still in the same position and was brought by ambulance to hospital; Ellen did not notice any scratches or bruises or any other marks on his hands before he left. She was not, however, looking for anything in particular. Noel Clancy Thomas' son, gave evidence at the trial before D'Arcy J., and a jury of visiting his father in St. Vincent's Hospital at Elm Park on the day after the accident and noticing marks on his fingers which were outside the blankets and were on the backs of the fingers.

The staircase in the house at Jobstown was 3 feet wide with risers of acceptable height and rake but was, admittedly defective in that at four different points on the stair handrail which ran the entire length of the staircase the gap on the inside of the rail varied in width from 3/8 inch to 7/8 inch. At each of these points the gap was such as to catch or impede the hand or fingers of someone using the rail.

Evidence was given that if a person were descending the stairs and caught his hand or fingers in such a gap this would have a vector effect - causing him to turn and would explain the fact that the Plaintiff was found in the position as described.

There were no eyewitnesses of whatever accident happened; but James Clancy, son of Sean and Ellen, was sitting in the sitting room with the door open when he heard the noise of someone walking down stairs, "then a bang noise, then a fall." His description of his uncle walking down stairs indicated that the fall occurred either after walking a few steps or, perhaps, after getting to halfway; this latter part of his evidence was qualified by saying that the thuds which presumably indicated the actual result of the fall were about halfway down. It was open to a jury to conclude that the fall had commenced when the Plaintiff was at the point on the staircase near to where the rail was defective. Save in respect of the evidence of Noel Clancy, the facts set out in this resume are not in dispute.

At the close of the Plaintiff's case on the issue of liability, the trial judge acceded to the Defendants' application to withdraw the case from the jury on the grounds that the Plaintiff had "failed to establish the necessary probability of any connection between the alleged defect in the construction of the handrail" and the accident. The judge held that the Plaintiff had got over the dangerous part of the stairs and that the case rested too much on speculation, taking into account the fact that the Plaintiff was drunk.

The Plaintiff points to certain facts established, admitted, or open to the jury to find, which show, he says a nexus between the negligence and the accident:-

1. A person descending the stairs would tend to use the handrail the more so in the case of a person affected by age or alcohol.

2. The Plaintiff's fall commenced at a point when he was a few steps down - ergo, in the vicinity of the defective part of the handrail.

3. He landed on or was certainly found on his back facing in the direction from which he had fallen and with his feet on the bottom stair.

4. There were injuries to his right-hand.

The Defendants concede that the accident could have been caused in the manner contended for but say that equally well it could have been caused simply as a result of having too much to drink, and they say that the net issue is whether or not the jury were entitled to take the view that the accident was caused by the first alternative.

Reference was made in the course of argument to a variety of observations made in earlier decisions [(1) O'Rourke -v- McGuinness (1944) I.R. 554 at 557. Reilly -v- Garvey (1973) I.R. at 93. Gahan -v- Engineering Products Limited (1971) I.R. 30 at 32 - 3. O'Donoghue -v- Green (1967) I.R. 40]. In a case such as this, where the circumstances of an accident are to be established by inference as well as from direct but limited eyewitness evidence, it is sufficient for a Plaintiff "to establish facts from which an inference of negligence on the part of the Defendant I may reasonably be inferred." [Gahan -v- Engineering Products Limited [1971] I.R. 30 at 32 O'Dalaigh C.J.]

This does not mean that it is sufficient to prove facts upon which a jury or, as would now be the case, a judge might properly hold that a conclusion of negligence could be inferred; it means that the facts must be such that the jury or judge may on the balance of probabilities reasonably make such an inference whether negligence ought to be inferred.

In the instant case, having regard to the first and overwhelming fact that the Plaintiff did fall on a staircase which, save in respect of the rail, was quite safe, and may well have fallen from the area where the rail was unsafe, in a fashion which could be explained by his right-hand and arm being impeded causing him to twist or turn, he had, in my judgment, established a prima facie case of facts from which a jury may properly conclude that the admitted unsafe nature of the rail caused or contributed to the accident. In my view, the trial judge was in error in withdrawing the case from the jury; the appeal must be allowed and a new trial ordered.