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Cite as: [1999] 2 ILRM 66, [1999] IEHC 127

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Doyle v. Magill [1999] IEHC 127; [1999] 2 ILRM 66 (11th March, 1999)

THE HIGH COURT

1994 No. 7390p

BETWEEN

JAMES DOYLE

PLAINTIFF

AND

DERMOTT B MAGILL

DEFENDANT

JUDGMENT of Mr Justice McCracken delivered the 11th day of March, 1999.

1. This is an action for damages for personal injuries suffered by the Plaintiff when he fell into a basement area forming part of the Defendant's premises. The circumstances surrounding the accident are reasonably simple. The Plaintiff is a substantial farmer and lives about a mile from the house where the accident took place. The Defendant's premises, which are known as Churchtown House, Beaufort, County Kerry, were not at the time actually occupied by the Defendant, but were occupied by a farm manager employed by him, namely a Mr Timothy Thompson.

2. To understand what occurred, it is necessary to describe the Defendant's premises. It is an old Georgian house standing three storeys over basement with a farmyard at the rear of the house. There is a driveway from the road which leads on to a large gravelled area stretching across the entire front of the house. The house itself is double fronted with a hall door in the middle. Between the gravelled area and the house itself there is a flower bed with roses in it on each side of the hall door, which at the relevant point was about three feet two inches in width. The flower bed on the gravelled side is edged with stones up to three inches in height, and on the far side of the flowerbed there is a row of bricks laid flat. Beyond this there is a sunken area, described by some witnesses as a moat, approximately three feet in width with a drop of five feet seven inches. This area is clearly there to allow light to penetrate through the windows of the basement. The entrance to the house consists of two steps up from the gravelled area onto what is in effect a bridge over the basement area leading to the front door. There are two large windows on the ground floor on each side of the entrance.

3. On the evening of 2nd January, 1992 Mr Thompson gave a New Year's party for some of the neighbours, and the Plaintiff and his wife were invited. They arrived at the Defendant's house at about 8.00 pm and parked the car on the gravel facing in towards the house in front of one of the ground floor windows. The front of the car was up against the rose-bed. It was, of course, dark when they arrived, and there were no lights on in the basement, although there were lights in the ground floor rooms. There was also a light immediately above the front door. The Plaintiff and his wife left the party at about 11.00 pm. The Plaintiff walked over to his car, leaving his wife talking to a neighbour at the front door. He opened the passenger door of the car, which was on the side nearest to the front door, and then started to walk across the front of the car to get to the driver's door. This, of course, entailed him walking on to the rose-bed and, while what happened then is not altogether clear, he either tripped or slipped on a loose stone and fell into the area in front of the basement. He suffered a painful injury to his right ankle, which fortunately has cleared up, and he also suffered injuries to his back which it is claimed have seriously restricted his farming activities since. It should be noted that this accident took place prior to the coming into force of the occupiers' liability Act, 1995, which Act does not apply to a cause of action which accrued before its commencement. Accordingly, the liability of the Defendant falls to be determined under the pre-existing common law rules.

4. It is agreed that the common law position in relation to an invitee is that set out in the judgment of Willes J. in Indermaur -v- Dames LR 1 CP 274 at page 288 where he said:-

"... with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, of which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact".

The law since Indermaur -v- Dames was considered by the Supreme Court in some detail in O'Donoghue -v- Greene [1967] IR 40, where the Plaintiff had fallen down stairs leading to the basement portion of a public house in circumstances where there was no handrail on the stairs. In the High Court, the learned trial judge had withdrawn the case from the jury, and accordingly, the decision in the Supreme Court only related to whether the case ought to have been left to the jury to decide whether, in the particular circumstances, there was an unusual danger. However, in the course of his judgment Walsh J. quoted with approval from the judgment of Kingsmill Moore J. in Long -v- Saorstat and Continental Steamship Company Limited 93 ILTR 137 where he set out the position as follows at page 145:-

"To sum up, an occupier of premises is liable for injury caused to his invitee by a danger on his premises which he knows or ought to know, if the danger is "unusual" in the sense above explained, unless he has taken reasonable precautions to safeguard the invitee, or unless the invitee has knowledge of the danger. The duty to take reasonable precautions may be discharged by taking measures which should give the invitee knowledge of the danger. But even knowledge on the part of the invitee, whether imparted to him by the occupier or independently possessed by the invitee, will not excuse the occupier unless the invitee by virtue of such knowledge can efficiently carry out the task for which he has come without exposing himself to such danger."

In O'Donoghue -v- Greene , Walsh J. then considered at page 48 the nature of an unusual danger and said:-

"As was laid down in Long's case, the question of unusualness must be decided with reference not to the knowledge and experience of the particular invitee but to the knowledge and experience which may reasonably be expected to be possessed by the class to which the invitee belongs - it is what has been called the apparent experience of the invitee."

5. Thus, the test as to whether the danger was unusual is not a subjective test, but is an objective test taking into account the class of persons to whom the Plaintiff belongs. In the present case the Plaintiff is a substantial farmer living in the locality. What is alleged to be the unusual danger is that there was an open and unfenced area in front of the basement windows which was not specifically lighted. This is a very old large house of the type which is not uncommon in rural Ireland, and a feature of which is a basement and basement area of this nature. In my view the class of persons to whom the Plaintiff belongs ought to have known this, and in my view the existence of an area of this nature is not an unusual danger to such a class of persons.

6. If I am wrong in this, I would still consider that the Plaintiff is not entitled to succeed in these proceedings. The passage from Indermaur -v- Dames which I have quoted above, and which has been accepted by the Supreme Court as a correct statement of the law, is prefaced by the words "that he, using reasonable care on his part for his own safety" . This seems to me to imply that if an injured party does not take reasonable care for his own safety, then he is not entitled to expect that the occupier will take reasonable care to prevent damage from unusual dangers. If the basement was inherently an unusual danger, nevertheless it was bordered by a three foot wide flower-bed, which clearly was a place where persons invited onto the premises were not expected or invited to walk. By walking on to the flower-bed in circumstances in which, according to his own evidence, he could not see where he was going, the Plaintiff was not using reasonable care for his own safety, and having chosen to take the risk of walking on the flower-bed, I do not think he can complain that there was something that was an unusual danger beyond the flower-bed.

7. Indeed, it might well be argued that the invitation to the Plaintiff which allowed him to be on the premises was not an invitation to walk on the flower-beds, and that in doing so he had in fact gone beyond the limits of the invitation and had become a trespasser on that part of the property, on the same basis that the Plaintiff in O'Keeffe -v- Irish Motor Inns [1978] IR 85 was considered to have become a trespasser even though he had originally been on the premises as an invitee. However, in my view it is not necessary to go that far, as I consider that this was not an unusual danger, and that even if it was, the Plaintiff did not take reasonable steps for his own safety. Accordingly, I would dismiss this action.