High Court dismisses child's negligence claim against farm gate operator for swinging open gate injury.

Neutral Citation Number: [2007 IEHC 159]

THE HIGH COURT

Record Number; 2003 No. 13762P

BETWEEN

MICHAEL RYAN [MINOR] SUING BY HIS MOTHER AND NEXT FRIEND,

BRIDGET RYAN

PLAINTIFF

AND

GOLDEN VALE CO-OPERATIVE MART LIMITED

DEFENDANT

Judgment of Mr Justice Michael Peart delivered on the 4th day of May 2007

1. On the evening of 30th December 2001, when this young plaintiff was ten years old, he was in the company of three of his friends

of similar age. His evidence is that on this date at around dusk, which I take to mean in the late afternoon, as the four boys were

making their way, by way of a short-cut, through the premises of the defendants in Rathkeale, Co. Limerick intending to get to the

library which is located on the opposite side of the street to the defendant’s premises, their intention was to exit onto that street by

means of a large metal gate onto the road.

2. This gate is a metal farm-type gate made of tubular steel and consists of two halves which join at the centre. At the centre point

there is a hasp and slide bolt mechanism, which the defendants say was always, and on this occasion was, secured by a padlock or a

chain and padlock. When not locked together they can be opened both inwards and outwards.

3. The top of the gate in question is about 42” above ground level, and the combined width of both halves of the gate spans about

24 feet. Each leaf of the gate would be very heavy.

4. The plaintiff says that on this occasion the gate was unlocked. The defendants deny that this was the case. Nevertheless that is

what the plaintiff says the situation was, and he recalls that as they approached this gate with the intention of exiting through it, the

other three boys were walking ahead of him. He described how one of these boys swung the gate inwards in his direction in such a

way that it struck him heavily on the front of his body, causing him to fall to the ground and sustain the injuries for which he seeks to

be compensated.

5. The basis of the allegation of negligence made against the defendant is that the defendants ought to have known that this gate

was an allurement for boys such as these and should have ensured that the gate was locked so that this type of incident could not

happen.

6. By way of summary of the injury, it appears that in the aftermath of the injury the other boys or at least one of them helped the

plaintiff walk back to his house which was not too far away. The evidence has been that when he arrived at the house he told his

mother what had happened, and that he vomited and was seen to be weak and unwell. His mother who gave evidence stated that

she and another woman who was in the house at the time decided that he should be brought to the Limerick Regional Hospital and a

friend of the family who was present brought him by car where he was admitted to the Accident and Emergency Department at

6.15pm. He was admitted later and underwent an operation for the removal of his spleen which had been severely damaged. This

removal has left the plaintiff vulnerable to infection in the future and to address this he is obliged to take antibiotics for the remainder

of his life. Apart from the loss of his spleen, and his predisposition to infection and the scar which he is left with on his abdomen,

there are no other sequelae reported.

7. As I have stated the defendants have given evidence through the yard manager, Mr Kett that he at all times had responsibility for

ensuring that all the numerous gates into the defendants were at all times closed and locked, and he states that at the date of this

accident the premises was closed up for the Christmas period and he is certain that on this occasion the gate in question was locked.

There is a clear conflict of evidence in this regard, and the defendants plead that injury, however it was sustained by the plaintiff on

this date, was not caused in the manner alleged.

8. At the outset of the case, Michael McMahon SC requested an adjournment of this case as it had not been possible to secure the

attendance of the three boys who were with the plaintiff on this occasion. In view of the conflict of evidence in relation to whether

the gate was locked or unlocked, he submitted that their attendance, or at least one or more of them, would reasonably be expected

to assist the plaintiff, and he had not become aware that they would not be attending to give evidence until the morning of the

hearing. It appears, according to what the Court was told, that they were working on the continent laying tarmacadam.

9. I refused this adjournment having considered the potential significance of the evidence any of these boys was likely to give. I

came to the conclusion that in all probability each would agree with the account given by the plaintiff, and that I could proceed to

hear the case on the basis of what the plaintiff might say happened. The fact that the three other boys or any one of them might

say the same thing, and were not present to do so, did not in my view cause any real prejudice to the plaintiff.

10. In spite of the conflict in the evidence given by the plaintiff and by Mr Kett I am prepared to proceed to my conclusions on the

basis of accepting as a matter of probability that the gate was capable of being opened on this occasion. That is not because I do

not believe that Mr Kett is an honest witness. I believe he is and I accept that he honestly and genuinely believes that this gate was

locked. But I have had regard to the notes made by the medical personnel who attended the plaintiff on his admission at the Limerick

Regional Hospital. Those notes taken in the immediate aftermath of the accident record that the plaintiff stated that he received an

injury from a gate. That account of how the injury was sustained has been consistent from the start. I confess to being very puzzled

how this could be so given the integrity of Mr Kett as a witness, but I must decide the matter on the basis of likelihood and not

mathematical certainty. I have some doubts about the matter but on balance I am prepared to accept the plaintiff’s evidence.

11. But that does not conclude the issue of liability in my view. The plaintiff must establish that the defendants owed a duty of care

to the plaintiff, that there was a breach of that duty towards him, and that as a result of that breach injury was suffered. The

ultimate question will be did the duty of care owed to the plaintiff extend to ensuring that the gate was locked. The questions of the

extent of the duty of care owed and of the foreseeability of injury to the plaintiff must be considered.

12. In his judgment in the Supreme Court in Breslin v. Corcoran, unreported, 23rd March 2003, Mr Justice Fennelly states as follows,

having first considered the well-known English authorities in the area of foreseeability of damage arising from an intervening event in

Dorset Yacht Co. Ltd. V. Home Office [1970] AC 104 and Smith v. Littlewoods Organisation Ltd [1987] AC 241:

“From all these cases I draw the following conclusion. A person is not normally liable if he has committed an act of

carelessness, where the damage has been directly caused by the intervening independent act of another person, for

whom he is not otherwise vicariously liable. Such liability may exist, where the damage caused by that other person was

the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if

he did not.”

13. I should follow the same reasoning in the present case in relation to the foreseeability of injury to this plaintiff.

14. I am satisfied that the plaintiff is within the category of person to whom a duty of care was owed, albeit that he was on the

defendant’s premises without permission. He was a trespasser. In those circumstances, the defendants are under a duty to ensure

that while on the premises he was not exposed to a danger which it could be reasonably foreseen might cause him an injury. If for

example there was something on the defendant’s premises which was inherently dangerous and it was reasonably foreseeable that a

child might be allured to it, then if injury results to such a child the defendants could be held liable. In such circumstances it would be

incumbent on the defendants to ensure that access to their premises or at least to the dangerous object upon it was not possible.

15. In the present case this injury to the plaintiff did not result from contact with an object which was a trap in the usual sense. It is

not a case where, for example, a dangerous and unprotected slurry pit was present and into which the plaintiff fell. It is not a case in

which the plaintiff climb up onto some inherently dangerous structure or piece of machinery, and which the defendants ought to have

prevented by suitable protection of same.

16. In this case there was a gate which provides access into and out of the defendant’s premises. In my view there is nothing

intrinsically alluring about such a gate. There is no evidence that it was in any way defective and that such a defect caused injury to

the plaintiff. It did not for example fall upon him causing him this injury. It was simply a gate. I cannot regard that gate as an

allurement to the plaintiff in the sense that it obliged the defendant to ensure that it was fastened with a lock at all times. As I have

said, I am assuming for the purpose of this case that it was unlocked, and I am giving the plaintiff the benefit of the doubt which I

have about that fact.

17. To find that it was foreseeable that a child would be injured in circumstances where another child or children either opened this

unlocked gate or found it open and then proceeded to swing it back in the direction of the plaintiff would be to cast an unfair and

unreasonable burden of foreseeability on the defendants and would mean that it was a requirement that at all times all gates into

premises throughout the country would have to be locked at all times to ensure that no child could open it, in order to ensure that

nobody was injured by this sort of action by another child.

18. In my view it would be unfair and unreasonable for a duty of care to be extended so wide. It was not reasonably foreseeable by

the defendants that this gate, even if left closed but unlocked or even left slightly ajar, was a trap or potential danger to someone

such as the plaintiff, or an allurement as alleged. It was an inherently safe gate without defect, and was there to enable access and

egress to and from the premises in the normal way.

19. The injury which the plaintiff sustained was serious and has left him with a permanent physical deficit. But the plaintiff must

realise that simply because he receives an injury in this way does not mean that the defendants are to be blamed for it. In my view

even if the gate was unlocked it did not present any inherent danger to the plaintiff which the defendant was under a duty to

prevent. Things may have been different if, while on the premises having entered through an unlocked gate, he had been injured by

something inherently dangerous and a trap for the plaintiff, but that is not the case here.

20. With regret I must dismiss the plaintiff’s claim.