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Cite as: [1998] IESC 56

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O'Sullivan v. Bord Gais Eireann [1998] IESC 56 (7th December, 1998)

THE SUPREME COURT

O’Flaherty J.

Murphy J.

Barron J.

69/97

O’SULLIVAN

BORD GÁlS ÉIREANN AND

DUBLIN CORPORATION

JUDGMENT delivered on the 7th day of December 1998 by Barron J. [Nem Diss.]

1. The plaintiff while walking on the public pavement tripped on a hole, fell awkwardly and damaged her arm. The only issue on this appeal is whether the learned trial judge was correct in apportioning liability equally between the two defendants.

(2)

2. The circumstances in which the hole came to be in the pavement were contested. What is common case is that the Gas Company had been carrying out works across the road and that they had inserted in the pavement a valve on the pipe leading to the premises where they had been working. The purpose of the valve was to enable the gas supply to be turned off at that point.

3. The practice as between the Gas Company and Dublin Corporation was as follows. The Gas Company would make a temporary repair on the pavement, this would then be followed by a permanent repair carried out by Dublin Corporation. There was a contractual relationship between the two parties whereby the Gas Company paid money to the Corporation to have such work carried out.

4. The evidence showed that when the Gas Company carried out its temporary repair it failed to include a necessary sleeve and valve cover

(3)

which would have been required by the Corporation when carrying out its final works. When the Dublin Corporation came to carry out the permanent reinstatement, they did not, as they could have done, obtain the necessary materials from the Gas Company store. It is said that they laid concrete across the whole area which had been excavated having first protected the valve so that the concrete would not damage it. They then crudely scratched the word gas in the wet concrete so that the Gas Company would know where to dig up the path in the event that it needed to get at the valve. Having done this work, the “yard” was notified that there was no proper cover on nor access to the valve. The yard did nothing. This the Gas Company disputed.

5. The learned trial judge found that both defendants were negligent and apportioned blame equally. The Gas Company have appealed against this finding.

(4)

6. The case for the Gas Company is that having contracted with Dublin Corporation to carry out the work the failure by the Corporation to do so properly meant that the sole responsibility to the plaintiff lay upon the Corporation. The case for the Corporation was that the witness who gave evidence as to the work carried out was not cross-examined on the issue of leaving the hole and that accordingly the decision must depend upon the basis that the hole was created subsequently.

7. Nevertheless the entirety of the Gas Company’s case was that the hole had been there from the beginning and the absence to put this specific question cannot really detract from that issue. In any event, such considerations are immaterial. The learned trial judge found that the Corporation had left an incomplete footpath.

8. Even on its own case the Corporation acknowledges that it cannot have done a good job. The purpose of its contractual obligation to the

(5)

9. Gas Company was to leave some form of cover in the pavement which could be lifted if it was necessary to get at the valve. This quite plainly the Corporation failed to do. Equally, the witness for the Corporation acknowledged that such cover was missing since he indicated that he had informed the yard that that was so. At that point in time clearly the yard had an obligation to get the cover and to send its men out again to do the job properly.

10. On the findings of the learned trial judge there is no need to speculate whether anybody did any work at the site subsequent to the concreting by Dublin Corporation. He has in effect found that the last persons at the site were the Corporation. Their negligence overrides any negligence of the Gas Company and accordingly they must be held ultimately responsible for the accident which occurred. The appeal will

(6)

be allowed and liability will be apportioned as to 100 % against the Corporation and nothing against the Gas Company.

11. This case is yet a further example of the seeming general failure by large public bodies to have proper procedures in place or, if they have, to observe them. In the instant case, such procedures were in place, but there appears to have been no one with authority to ensure that they were followed. The evidence shows that the Gas Company stores provided all necessary materials to the Corporation when required. Yet in the present instance, the workmen who carried out the permanent repair either had no instructions that necessary materials could have been obtained from the Gas Company or disobeyed them. This is apparent whether they concreted over the valve or left the hole. In so far as one of them informed the yard as to what had been done, there was no one there who appears to have had the authority to reprimand him for not doing the job

(7)

properly and to instruct him to get the necessary materials from the Gas Company and to go back to do the job properly.

12. What is needed to prevent repetitions of these situations is a liaison system between the Corporation and the utility companies supervised by officials whose duties require them to ensure the smooth operation of such a system. I would be surprised if complete and detail systems to this effect were not already in place. The problem I suspect is lack of will to ensure their smooth operation. Certainly, the costs incurred in so doing would be far less than the sums which are annually wasted on this type of litigation.