Ronan Gill (plaintiff) v James Egan (defendant).

Practice and Procedure - Motion to non-suit the plaintiff - Test to be applied - Whether the plaintiff had made out a prima facie case.

The High Court (before Mr Justice O'Sullivan); judgment delivered 16 October 1998.

In an application to dismiss a plaintiff's claim where the defendant indicated that he would call evidence as to quantum and liability in the event of the application failing, the proper test was whether, on the facts of the case the plaintiff had made out a prima facie case.

Mr Justice O'Sullivan so held in refusing the defendant's application on all grounds.

James Macken SC and John Gibbons BL for the plaintiff; Henry Bourke SC and Marcus F. Daly BL for the defendant.

Mr Justice O'Sullivan said that the defendant's application was to non-suit the plaintiff on four grounds. Counsel for the defendant had indicated that he would call evidence in relation to quantum and liability in the event that his application was not successful. In the circumstances, the appropriate test was whether the plaintiff had made out a prima facie case: O'Toole v Heavey [1993] 2 IR 544.

The plaintiff's claim was for an order to remove rock material which had been deposited near his property, an order to repair and remedy damage to his property and damages for nuisance, trespass and negligence. It was alleged that the material deposited had damaged his boundary wall and that the plaintiff had been injured while crossing rocks and boulders deposited on the defendant's land by a third party.

The first ground advanced in the defendant's application was that the plaintiff had given the defendant an indemnity against this action. There were two indemnities in issue. By virtue of the first covenant, the plaintiff promised to indemnify the defendant in relation to the non-construction and non-maintenance of the roads, footpaths, open areas, etc., until these had been taken in charge by the local authority. Pursuant to the second indemnity, the plaintiff indemnified the defendant against all costs, claims, etc. arising out of the further development by the plaintiff of the lands in Folio 4059F of the Register of Freeholders, County of Galway. Mr Justice O'Sullivan said that a prima facie case had been made out that neither of these indemnities applied on the facts of the case.

The second ground advanced was that the plaintiff's accident was not foreseeable and that the plaintiff was guilty of contributory negligence. Mr Justice O'Sullivan said that the rocks constituted a danger and an accident was foreseeable. He was not prepared to non-suit the plaintiff on the basis of the defendant's defence and so would not non-suit the plaintiff on the grounds that he was negligent, still less that he was guilty of contributory negligence.

The third ground advanced was that the plaintiff had claimed in his statement of claim that the damage to his boundary wall was caused by rocks, when in fact any problem was caused by the deposit of soil on top of those rocks. Mr Justice O'Sullivan said that there was engineering evidence to support the view that the rocks themselves were causing damage and he declined to non-suit the plaintiff on this ground. Furthermore, even if there were no prima facie case, this claim was linked to other claims and should not be excised from those matters.

Finally, the defendant submitted that the evidence was that third parties other than the defendant had deposited the rocks. However, Mr Justice O'Sullivan said that a prima facie case had been made out that the rocks in the location of the plaintiff's accident were dumped there by the defendant.

Mr Justice O'Sullivan declined to non-suit the plaintiff on any of the grounds advanced.

Solicitors: A. F. Smyth & Co. (Dublin) for the plaintiff; Brian Doherty & Co. (Galway) for the defendant.