1. The
Defendant seeks to non-suit the Plaintiff on four grounds. Mr. Bourke S.C. for
the Defendant has made it clear that if the application to non-suit fails he
intends to call evidence both as to liability and quantum. In those
circumstances it is clear from the Supreme Court judgments in
O'Toole
-v- Heavey
(1993: 2: I.R.: 544) that the issue which now arises as a matter of law before
me is whether the Plaintiff has made out a
prima
facie
case as distinct from whether the Plaintiff has established as a matter of
probability on his case the facts necessary to support a verdict in his favour
- a distinctly different question.
2. Mr.
Bourke says that the Plaintiff has given his client an indemnity against this
action. There are two separate indemnities as follows:-
4. In
my opinion the first indemnity relates to the roads and so on identified in the
text of the covenant and to the non-construction and non-maintenance of those
items. The Plaintiff's case relates to allegedly unauthorised material
deposited on the area reserved for open space and to an accident on that
material. If the Plaintiff is correct, then the material in question is not
the same as that identified in the covenant.
5. In
the case of the second shorter form indemnity, a similar situation arises in my
opinion, namely, the covenant relates to
"further
development"
of the identified lands
by
the covenantor
(the
text refers to
"...
the breach, non-performance or non-observance
of
me
in respect of any further development ..."
)
and not by anyone else. It is clear, in my view, that the Plaintiff has made
out a
prima
facie
case
that the indemnities do not apply.
6. Secondly
it is submitted, in so far as the Plaintiff's accident is concerned, that the
chain of events leading to it were not foreseeable and that, accordingly, the
Defendant is not liable in tort
.
In
addition it is submitted that it was obviously dangerous for the Plaintiff to
attempt to walk on the rocks and boulders which he says he did walk on and that
the accident was caused by his own negligence. There is also a plea of
contributory negligence.
7. It
is further submitted that others, and in particular Mr. Elwood, deposited
material at the accident location and that therefore the case is not made out
against the Defendant. I do not agree with the submission on forseeability as
applied to the facts of this case. I consider that it was reasonably
foreseeable that if someone attempted to traverse the rocks and boulders by
foot they could fall and hurt themselves.
8. I
do not consider I am concerned with the Defendant's defence in this application
and accordingly I am not prepared to non-suit the Plaintiff on the basis that
his accident was caused by his own negligence - still less on the basis that he
was guilty of contributory negligence.
9. The
third ground is that the statement of claim alleges that complaints of threat to
the
boundary wall and enjoyment of land made particularly at paragraphs 7 and 8 of
the Statement of Claim relate to rock and rock only whereas since January 1998,
the Plaintiff was aware that the cause of these complaints was the depositing
of sub-soil and top soil on top of these rocks.
10. This
submission is based on the evidence of Mr. Michael Cooke, engineer, who gave
evidence on behalf of the Plaintiff and who did indeed say that the pressure on
the adjoining wall was caused by the earth fill and that he was not sure that
the
"self-weight"
of the rocks (on their own) put horizontal pressure on the wall. However, this
submission ignores the evidence of the Plaintiff himself, who is an engineer,
and that of Mr. James Hassett, also an engineer, to the effect that the rocks
did threaten the wall. The latter was quite specific saying that the wall was
breached in a number of places for a distance of some 200 yards and needed to
be rebuilt and that the fill should be removed from the bottom of the wall.
11. In
my opinion the Plaintiff has made out a
prima
facie
case that the rocks, as distinct from the rock and the earth fill, threatens
the stability of the adjoining wall and the enjoyment of the land of the
Plaintiff and his neighbours.
12. Furthermore,
this particular matter is so closely linked with the case on flooding and the
case made out in relation to the proper landscaping required by the planning
permission that I think it would be unsatisfactory to attempt at this stage to
excise it from the case even if there were no
prima
facie
evidence in relation to it, which in any event, in my view, there is.
13. It
is submitted, fourthly, in relation to the Plaintiff's accident, that there was
evidence that others apart from the Defendant had deposited material in the
location, namely, Mr. Elwood and even Mr. Wynne, who was employed by the
Plaintiff himself.
14. In
my view, whilst there is evidence of material being deposited by other parties,
there is sufficient evidence that the rocks in the location of the Plaintiff's
accident were dumped there by the Defendant to establish a
prima
facie
case against him.