Court of Appeal awards Plaintiff €200,000 for loss of vision in one eye.

In my BLOG written some years ago subsequent to the Decision of the High Court in 2012 in the case of Newman v. Cogan [2012] IEHC 528 (High Court, Ó Néill J, 5 December 2012) I outlined that the High Court had dismissed a Claim against Patrick and Marie Cogan, the occupiers of a dwelling house arising from a Claim by their daughter-in-law, the plaintiff Elaine Newman, over injury to her eye from shattering of a glass door, on grounds that the occupiers could not be held liable for the selection of the glass in the door which was prone to shatter.

The Plaintiff suffered the loss of an eye

This was a personal injuries claim where the plaintiff suffered the loss of an eye arising from an accident at the home of her partner’s parents. There was an opaque glass panel in the door. At the time, the plaintiff’s partner was recovering from an injury to his right foot and was either hobbling about or using crutches to get about. The glass panel was broken accidentally by the plaintiff`s partner who stumbled into and broke the glass, when a shard of glass in flew into the Plaintiff`s eye.

The plaintiff sued the parents of partner (as occupiers of house) under sect. 3 of the Occupier’s liability Act 1995 on the basis that the plaintiff was a visitor on the premises. What was at issue was whether reasonable care had been taken of the visitor by the occupiers to ensure that no injury or damage was suffered by her by reason of any danger existing on the premises and whether the type of glass in panel was unsuitable in that it was a type of glass prone to shatter.

Whether the occupiers failed in their duty of care to their visitor

The glass panel had been installed by way of repair previously by the occupiers and the question was whether the occupiers failed in their duty of care to their visitor by having this type of glass in this door. It was agreed that a glazier would have insisted on installing a more suitable type of glass, but what standard of work was expected of a householder?

High Court Decision

 

As to whether it was reasonable to have installed that type of glass the High Court Judge, O’Neill J., was of the view that one cannot expect a householder to have knowledge of technical aspects of the glazing trade. This was a type of glass in common usage in dwellings. O’Neill J. accepted that the duty of care owed by the defendant Mr Cogan Snr to the plaintiff Ms Newman at the time he replaced the glass panels in 2000/2001 was to be assessed in accordance with the test suggested by the English Court of Appeal in Wells v. Cooper [1958] 2 QB 265. He stated that it could not reasonably be suggested that a householder who elects to carry out a relatively simple repair could be expected to be familiar with the technical standards in Building Regulations.

Therefore the defendant had not failed in his duty as occupier by selecting this type of glass. Accordingly the plaintiff had failed to demonstrate that the occupiers had taken reasonable care in all the circumstances and the plaintiff’s action dismissed. The Plaintiff appealed this Decision and ultimately it came for hearing before the Court of appeal.

Court of Appeal Decision

Ms Justice Irvine stated that it was of significance that ‘the duty of care under consideration by the Court of Appeal in Wells, namely, that owed by an invitor to an invitee, is described by the Court in precisely the same terms as that which is stated to govern the relationship between the occupier and the visitor in s. 3(2) of the Occupiers Liability Act 1995’. Justice Irvine was satisfied that the High Court Judge made a mistake in his failure to faithfully apply the test as advised in Wells to the evidence.

The uncontested evidence in the High Court was that no reasonably competent tradesman would have used anything other than safety glass – and this was a standard that was not met by Mr Cogan Snr when he undertook the task. Accordingly, Justice Irvine allowed Ms Newman’s appeal – finding that Mr and Mrs Cogan were in breach of their obligations under s. 3(2) of the Occupiers Liability Act 1995 such that they were liable to Ms Newman who was injured due to the installation of glass that did not comply with the standard of care of a reasonably competent tradesman.

Prior to the High Court hearing, the parties had agreed that, in the event of liability being found in favour of Ms Newman, the appropriate award of damages would be a sum of €200,000.

Comment

 

In concluding her Judgment, Mr Justice Irvine stated that “Mr. Cogan Snr.’s duty of care as an occupier of the premises when he changed the glass in the door in question … was to carry out that task with the level of care and skill to be expected of a reasonably competent tradesman. Whilst many a householder may consider himself or herself capable of performing this type of task, when they do so they assume a duty to all who might subsequently be affected by their actions to carry out that task with the care and skill that is required to complete the task safely. If a visitor later suffers injury as a result of a danger caused by the act or omission of the occupier their liability for such a consequence will be judged against the standard of care that would have been expected of the reasonably competent tradesman asked to carry out the same task.”

This Judgment represents a word of caution to all those budding handymen around the home who think that no job is too complicated. Maybe, it will be appropriate to get the job done professionally? What might seem like a cheap alternative at the time could turn out subsequently to be very expensive!

28th June 2017

Brian Morgan
Morgan McManus Solicitors,
The Diamond,
Clones,
Co. Monaghan.

 

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