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Thomas v Leitrim County Council, [1992] IESC 19; [2001] 1, was a Irish Supreme Court which considered the liability of a park owner and a tourist.

Background
The Plaintiff and four others traveled from England to take part in a ballooning event in Sligo. Weather conditions prevented the event from taking place on the 1st May, 1995 and the party went sight-seeing instead. They had read about Glencar Waterfall in Co. Leitrim in the Michelin Guide and decided to go there.

The area around Glencar Waterfall had been purchased by the Defendant in 1986. It is a well known place of resort and an area of considerable natural beauty. In private ownership a concrete footpath was laid thirty or forty years ago. The local authority developed a car park with toilet facilities across the road from the area of the waterfall and renewed all the footpaths. They made the area accessible, up to a point, to disabled persons. This occurred in 1991/92. The local authority also had the trees on the site inspected by Coillte Teoranta which meant that four trees were removed. The premises were visited by or on behalf of the area Engineer “on a reasonably regular basis” and had been last visited on the 6th April, 1995. A lady was employed on a part time basis who looked after the toilet facilities. There was no full time maintenance staff.

Holding of the Supreme Court
The High Court held that the Plaintiff was an invitee on the premises, on the basis that there was a material benefit to the Defendants in having Glencar Waterfall opened to the public.

The case was an appeal of a High Court decision that divided blame between the Plaintiff and defendant at two thirds to one third respectively.

The main issues were:

1)     If the Plaintiff’s status on the lands around Glencar Waterfall was that of an invitee or a licencee?

2)     If the Defendant was in breach of its duty to her as an invitee or a licencee?

3)     If there was a breach, was the damage suffered by her caused partly by her own negligence and if so in what proportion?

The Court found both parties liable for the accident that took place.

The Supreme Court divided liability as one third to the Defendant and two thirds to the Plaintiff.

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Manufacturing B.V. t/a Wyeth Medica Ireland v. DHL Worldwide Network N.V
APH Manufacturing B.V. t/a Wyeth Medica Ireland v. DHL Worldwide Network N.V. is an Irish Supreme Court case that related to a damages claim made under the provisions of the Warsaw Convention.The Warsaw Convention as has the force of law in Ireland by virtue of certain provisions of the Air Navigation and Transport Acts. Section 17(1) of the Air Navigation and Transport Act, 1936

 THE HIGH COURT JUDGMENT 

The learned trial judge reviewed authorities on the normal meaning of the term “recklessness.”The review of the authorities on the interpretation of the Warsaw Convention led him to conclude that, while the test for recklessness was an objective one, the test for knowledge is subjective. The conclusions on the law have been accepted at the hearing of the appeal. The judge stated the following:

1. The consignment was carried on a wooden pallet by forklift without being secured.

2. The nature of the consignment was such it was likely risk (sic) that it would be dislodged by movement of the forklift.

3. It was likely that if dislodged the consignment would be run over by another vehicle having regard to the heavy volume of vehicular traffic, the speed at which that traffic traveled and the constraints under which the drivers operated….

In consequence of these findings the Defendants are not entitled to rely on the limitation of liability under the Convention."

It was held that the effect of the air-waybill was to render the Appellants liable if damage was caused by gross negligence. It was found that gross negligence covered both the subjective and objective tests of liability. The Appellant was also found guilty.

THE APPEAL

The challenge to the High Court ruling are that there was no direct evidence and no evidence from which inferences could reasonably be drawn as to:

(a) how that container came to be on the roadway;

(b) where it was coming from and where it was going to;

(c) the manner in which the container was loaded or stacked, including whether there was any other article on the pallet;

(d) what caused the container to fall to the ground.

The Appellants argued that it was impossible to draw inferences from the facts of the fall of the container to the ground as to knowledge of the person involved. The respondent was relying on the same conclusions drawn from the fact that the container was carried unsecured on the pallet of a fork-lift truck to infer recklessness (objectively) and knowledge of probability of damage (subjectively).The trial judge appeared to shift the burden of proof to the Appellants, whereas it should always rest on the claimant, i.e. the respondent. The respondent fully supported the  judges approach and said that he was entitled to infer knowledge from the evidence of the experts called for the respondent and from certain admissions made by Mr Sodergard, particularly that it was not rational to carry the container in the manner described. As to the proof of knowledge of probable damage, the respondent argued that the learned trial judge did not impose any legal burden of proof on the Appellants. The facts of how the accident happened were at all times exclusively within the control of the Appellants. At a certain point, where evidence was given from which it was reasonable to infer knowledge in the absence of an explanation, the learned trial judge was entitled to draw that inference from the failure of the Appellants to give evidence.

Holding of the Supreme Court
The core conclusion of the judge was that the carriage of the package on a wooden pallet by forklift without its being secured was likely to lead to the package being dislodged and severe damage was highly likely. However, nothing was known about how or where the package was placed on the pallet or how it was dislodged. The evidence is as consistent with its having been placed alone on the pallet as with or surrounded by other consignments and as consistent with its being placed at the back as at the front or side of the pallet. This was no enough for the Court to justify an inference of recklessness, i.e. a conclusion that some unnamed servant or agent of the Appellants behaved not merely carelessly but with indifference as to the risk of damage to the goods. A conclusion of recklessness would not be an inference but would be speculation. The appeal was allowed on these grounds.

External Links

https://www.bailii.org/ie/cases/IESC/2001/71.html