McTigue v Connacht Gold Co Operative Society Ltd & ors [2017] IEHC 852 (22 June 2017)

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CONNACHT GOLD CO OPERATIVE SOCIETY LIMITED, CONNACHT GOLD LIMITED AND

JUDGMENT of Mr. Justice Tony O’Connor delivered on the 22nd day of June, 2017 at

1. I start with a saying often attributed to Mark Twain: “If I had more time I would have

written a shorter letter”. That might be applied to this judgment which is delivered the

day after the three-day trial which concluded at 15:15 yesterday and before I took up a

further trial which was finished this morning. Having said that, it helps, wherever

possible, to deliver a judgment, when matters remain fresh in everyone’s mind and to

2. The plaintiff, who is a tall, nearly 60-year-old bachelor, took over a farm from his parents

outside Westport about 30 years ago. He has rented and continues to rent a further 100

acres. He now has 75 cattle. His farming activities may be described as fattening cows

and rearing sheep. He buys cattle in regularly and sells his livestock to factories and

3. On Wednesday 15th June, 2011, the plaintiff drove his jeep and trailer to the defendant’s

mart premises at Ballinrobe (“the mart”), which is a mart attended by him regularly. He

ended up on that day buying five one-year-old heifers of varying weights for between

€515 to €680 each, which went through the selling ring and onto a holding pen in the

mart pending their collection. He separately agreed to buy a then nearly seven-year-old

cow with a three-week and four-day-old calf for €1,050. There is a copy of a buyer’s

statement with these details issued on the 15th June, 2011, to the plaintiff. Nothing

turns, for the purposes of these proceedings, on the time of legal ownership transfer of

the cattle, or whether title in the cow ever vested in the defendant.

4. The mart started around 11.00 that day and, according to Mr. Thomas McGuire, (manager

for nine years at Ballinrobe Mart and having worked at the mart for 41 years) was not

busy, relatively speaking. Some 215 cattle arrived for sale and 175 were sold.

5. After the plaintiff finished his bidding, he went off to nearby Kilmaine for some repair job

and came back after “the dinner”, as he said, to collect the heifers, cow and calf. The

heifers had been brought to one holding pen and the cow with calf afoot to another

holding pen, where there were other cows with calves. Mr. Paddy Conroy, who did not

give evidence, had the task at the mart of checking the lot number and tag of each

animal against the paperwork before the animals were released to the plaintiff. The

plaintiff had a running account with credit facilities from the defendant.

6. On Tuesday last, 20th June, 2017, the defendant produced in Court, and for the plaintiff’s

legal team, a manuscript list of fourteen employees, of which there were ten who were

termed “yardmen”, identified by Mr. McGuire in evidence. Mr. McGuire explained last

Tuesday that by the time of the collection by the plaintiff around 15.00 on the 15th June,

2011, he had already let three of those yardmen go home. He was candid in his

recollection of what little was going on in the mart and mentioned that it was now nearly

7. The plaintiff had backed his trailer into pen 3 in the loading area, opened the gates and

let down the ramp of the trailer. He then went through the process described earlier with

Paddy Conroy before bringing the animals from their holding pen into pen 3 with the hope

of driving them out onto the trailer at the other exit of pen 3. In the course of this

operation, the cow reacted to him in pen 3 in such a way as to cause him to be knocked

8. Mr. Dixon is a cattle agent for some 35 to 40 years. In addition to rearing cattle like the

plaintiff, he travels to marts in Mayo and Galway for the cattle factory firm, Dawn Meats,

and other farmers to buy cattle. There is no dispute that Mr. Dixon, who was nearby,

admirably rescued the plaintiff from the menacing cow. He pulled the plaintiff out of the

9. The remaining salient features, which are not in dispute, arise from the description of the

plaintiff’s injuries by the plaintiff and in the following medical reports admitted into

(i) Mr. Alan Hussey, consultant plastic surgeon, 27th November, 2013, to the

(ii) Mr. Ken Carr, consultant orthopaedic surgeon, 20th September, 2016, to the

(iii) Mr. Aidan Devitt, consultant orthopaedic surgeon, to the defendant’s

10. The plaintiff was brought by ambulance to the Accident and Emergency Department of

University College Hospital Galway, where he was seen at 17:40, with excruciating pain

from his severely fractured right forearm, more particularly the right radius and ulna.

Open reduction and fixation of the fractures were performed in surgery. A skin graft from

his right thigh was required. Suffice to say that the continuing most visible scar of 21cm

by 6cm and contour effect indicate the extent of the procedures undertaken.

11. The earlier amputation of the plaintiff’s right thumb in 1999, for which he received

£105,000 in damages, according to the replies to particulars delivered in 2015, had no

12. The plaintiff’s recovery was slow and he had difficulty in mobilising due to the soft tissue

injuries to the lower extremities and pelvis. He was given a splint and discharged from

hospital on the 2nd July, 2011, which was removed on the 3rd August, 2011. By

September 2011, he was encouraged to actively use his right upper extremity but to

13. The plaintiff, although challenged about his general claim for loss of opportunity as

opposed to specific loss of earnings, estimates that he has lost 50% of his power in that

arm. Remarkably, he can lift animal feed bags but this can cause pain later. It is the

difficulty with the fertiliser bags and other chores which require more strength and for

which he gets help from what he describes as “obliging friends”. His sister and her

husband helped out and it is testament to the community spirit, which thankfully survives

in Mayo, that the plaintiff is offered such help, including the driving home of his jeep and

trailer with the heifers without the cow and calf after the incident.

14. The plaintiff complained about the continuing pain from his cervical spine which he

attributes to the incident. Radiological evidence from June 2011 reveals that the plaintiff

had pre-existing degenerative disease throughout his cervical spine. One CT scan showed

a possible undisplaced fracture of the lamina of the C5, according to Mr. Carr’s report of

the 20th September, 2016. In short, the plaintiff’s principal injury linked to this incident

is that to his right forearm. He has other complaints, the serious and permanent

condition description for the right forearm. The plaintiff is entitled most of which could

have been temporarily exacerbated by the incident. The plaintiff’s sequelae fall within to

damages if liability is established for an additional amount for specific interference in

15. I preface this part of the judgment by mentioning the Latin maxim procul ad urbe, which

was mentioned by Kearns J. in the Court of Criminal Appeal in 2006 in the Nally case

(DPP v. Nally [2006] IECCA 128; 4 I.R. 145) but this is not to take away from the erudite

and helpful submissions made by senior counsel for the plaintiff and the defendant.

16. Mr. Jordan, senior counsel for the plaintiff, succinctly focused the Court’s attention on the

overlap between the common law cause of action in negligence with the specific statutory

duty in s. 15(3) of the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”), the

relevant excerpt of which might be paraphrased as follows: the defendant shall ensure, so

far as is reasonably practicable, that the means of access or egress from the place of

17. Throughout the questioning of Mr. Moloney, (agricultural consultant) called by counsel for

the plaintiff, along with Mr. McGuire, (manager of the mart), and Mr. Geoffrey Fitzjohn,

(surveyor and land management consultant with experience in Scotland and Ireland),

called by counsel for the defendant, views were expressed about the import and effect

(i) The Health and Safety Authority booklet on ‘Guidance on the Safe Handling of

Livestock at Marts and Lairages’ published in 2010, (“the 2010 HSA

(ii) The HSA guidance booklet on ‘Safe Handling of Cattle on Farms’ published in

18. Counsel for the plaintiff in that context suggested two propositions:-

(i) keep farmers away from the loading areas and let trained mart operatives

(ii) ensure mart employees are charged with assisting loaders who are in that

19. He also posed two particular periods when the plaintiff’s injury could have been avoided in

(i) at the time when the plaintiff failed to drive the animals through loading pen

20. Counsel for the plaintiff rightly acknowledged that a breach of statutory duty does not

take away from a claimant’s own breach of duty per se when one is considering the issue

of contributory causes for an incident giving rise to a claim for damages. However, he

emphasised that if the plaintiff established that the defendant had failed in its statutory

duty to provide safe egress as submitted, then the breach of duty of the plaintiff at the

time of his specific effort causing the cow to react would not have occurred and there

would be no need for this Court to decide upon the most controversial dispute as to fact

in the trial concerning whether the plaintiff cruelly treated the cow which was protecting

21. Mr. McCarthy, senior counsel for the defendant, stressed that no action or omission would

have warded off the unanticipated and surprising actions of the plaintiff and the cow while

he relied upon the established custom and practice of the plaintiff, Mr. Roper of

Ballyglass, and Mr. Dixon, concerning the loading of animals purchased at the mart, on

22. Mr. Roper struck me as a decent neighbour who cares properly for animals. He was

asked by Mr. Armstrong, who sold the cow (while Mr. Armstrong was waiting in Knock

Airport for a flight to the UK), to collect the cow and calf after the incident. He did not

remember any problem with the specific injuries to the cow’s head or an ingrown horn.

He readily agreed that a cow can be expected to protect a young calf and he carries an

ash stick for herding and driving cattle. A stick is not used to strike but to be waved and

tapped, as one often sees in a scene of taking cattle home or out.

23. Similarly, Mr. Dixon impressively came to the plaintiff’s rescue and communicated with

the defendant as to the circumstances of the incident. Mr. Dixon struck me as having no

agenda and must be credited with recollecting what can only be described as disturbing

activity on the part of the plaintiff. He outlined how his antennae were tuned into the

plaintiff’s loss of reason and respect for animals by his words and actions because he was

dealing with his own animals in the very next loading pen, which is pen 2 on drawing

number 20309/L001 produced for the Court. I am satisfied on the balance of probabilities

that the plaintiff, in colloquial language, “lost the head” when the cow did not enter the

trailer. He was impatient, certainly, and I was indeed taken by the evidence of Mr. Dixon

that he would have considered transporting the cow and calf separately. It was only a

few miles and the plaintiff’s trailer was not as big as that of Mr. Dixon. Instead of seeking

assistance, the plaintiff went to his jeep and took out a metal bar as opposed to a stick or

brush handle before getting back into pen 3. It is disconcerting to think that the plaintiff

has given a contrary impression under oath about a handle not produced at pretrial

inspections but only produced in Court for the first time since six years ago for

consideration by the defendant and its advisers as to what he allegedly used in the pen.

24. It is not for me today to decide on whether the plaintiff deliberately contrived and

identified a handle which was not present at the time of the incident. It remains for me

to decide on the balance of probabilities as to whether the handle produced in Court was

used on the cow or whether the plaintiff used a steel tubular object. I have no hesitation,

having listened carefully to all of the witnesses, that Mr. Dixon’s account is more

accurate. He gave a graphic account of the plaintiff holding a bar and of the plaintiff

cruelly abusing the cow before she jammed the plaintiff and got down on her two knees

25. Apart from the fact that the plaintiff was seriously injured and brought away by

ambulance, followed by serious surgery, which must have a natural effect on memory, his

priority was to get away from the cow and get help. How did the handle produced get

back into the jeep and how can I square an account from an independent impressive

witness who rescued the plaintiff with a version or impression sought to be given by the

plaintiff? I cannot do so. I cannot square the plaintiff’s account and this thereby affects

26. The plaintiff told the court that he expected Mr. Conroy, the mart employee, who checked

the tags and lot numbers against documentation before releasing the animal, to follow

him down. This is at odds with the account of usual practice given by other witnesses.

The defence concentrated on the fact that the plaintiff could have asked for help and was

an independent minded person. Mr. Dixon, in answer to myself, described how he had

sought assistance in similar circumstances. He usually does not seek assistance. Cows

and heifers follow the path of least resistance and the railings in the mart also direct

them. The use of a sorting paddle, mentioned on p. 17 of the 2010 HSA booklet, or an

ash stick, as mentioned by Mr. Dixon and Mr. Roper, together with the availability of two

or more people to drive cattle, are methods which might be described as best practice. I

do not accept that the plaintiff expected Mr. Conroy to follow as it would have left Mr.

27. The plaintiff, like the other witnesses who use the mart, know employees and others to

28. Counsel for the plaintiff submitted that s. 15(3) of the 2005 Act imposes a positive

obligation upon the defendant mart to take measures. The 2010 HSA booklet at para. 4.1

requires someone to be in charge and to have management authority in order to achieve

safe systems of work. As stated “management control is a key role and responsibility for

safe handling of livestock ...” and ultimately rests with management. There are no

29. This type of guidance, as opposed to a specific directive for every case, is one way by

which the safety and health at workplaces under EU and national legislation is driven.

Counsel for the plaintiff submitted that the defendant mart cannot abrogate this positive

duty by relying on users of its mart to call for help. It must be proactive. Senior counsel

for the defendant concentrated on the plaintiff taking responsibility for the consequences

of his own action and referred to s. 13 of the 2005 Act. In fact, s. 13(1)(e), which

prohibits improper conduct, is the most relevant statutory provision.

30. As far as this Court is concerned, there is considerable merit in the submission made on

behalf of the plaintiff. Mr. McGuire, the manager of the mart, was the only person called

to give evidence as to fact of management and rosters on the day of the incident.

Although he accounted for the number of employees on the premises and his knowledge

of the defendant’s concern about safety, I am satisfied that there were no staff present

around the loading pens which were used by the plaintiff and Mr. Dixon. It has to be the

case that if there were employees floating around in such a manner to be of ready

assistance that they would or should have intervened to prevent the plaintiff from “losing

the head”. Mr. McGuire cannot be everywhere but no attempt was made by the

defendant to identify which employees were tasked to be in and around the loading pens.

If such an employee was there, he would have been able to speak to the plaintiff and to

assist Mr. Dixon in rescuing the plaintiff. In this day and age, it behoves an enterprise

like the defendant, which operates a mart, not only to maintain safety standards but to

promote safe and humane handling of animals also. The story relied upon by the defence

in these proceedings is a story which does not favour the plaintiff specifically, but also

does not favour the agriculture industry which prides itself in compliance with EU and

31. Having said that, and lest any inference to the contrary be taken, it is this Court’s view

that the other men who gave evidence of farming, including the agricultural consultants,

demonstrated their understanding and adherence to the principles which are now part

32. In short, I find that the defendant abrogated its duty by not having employees tasked

specifically to supervise or assist in the loading of cattle by new owners.

33. The plaintiff had the opportunity to seek help and was so cruel to the cow as to cause a

situation where the foreseeable event to protect the young calf arose. On the other hand,

the defendant had no specific warning that either the plaintiff or the cow would have

reacted as they did. But having considered the evidence of Mr. Dixon about seeking help

and the general situation in the mart that has emerged from the evidence of other

witnesses, I find that the defendant’s abrogation of its duty contributed to the foreseeable

event of the plaintiff “losing the head” and acting in a way which created a dangerous

situation. If the defendant had specifically tasked employees to assist in or around the

loading bays, neither the plaintiff nor Mr. Dixon, on the balance of probabilities, would

34. I am conscious of the Supreme Court’s decision in Conole v. Redbank Oyster Co. 1976 1

I.R. 191, and the oft quoted passage of Henchy J. at pp. 196-197 about the direct and

proximate cause of the accident. The plaintiff initiated the event which caused the cow to

react, but the failure to fulfil the positive statutory obligation of the defendant to manage

and take charge led to the plaintiff foreseeably losing control of his own situation. In the

circumstances the Court apportions 75% of the liability to the plaintiff and 25% to the

35. As for damages, the effects on the plaintiff have been outlined already. The Court takes

into account the plaintiff’s his reliance on his sister, brother-in-law and neighbours,

particularly for a year after the dreadful injury he suffered. General damages from 2011

to date are assessed at €65,000 and into the future at €30,000. I should say that I heard

the plaintiff’s account concerning his reduced power but weigh that against the opinion

expressed in the medical reports having regard to the plaintiff’s credibility. The Court

concludes that the plaintiff would have modified his work in any event. His age and pre-

existing degenerative change contributed to the pain and ongoing restriction.

36. There is an agreed amount of special damages of €1,000. Therefore, the plaintiff is

37. The Court, at the request of counsel for the parties defers making any order until they

38. On 28th June, 2017, an order was made by consent striking out the proceedings with no

further order.

Result: Plaintiff most proximate to cause of his own injuries from cow at mart 75% and mart 25% liable under s. 15(3) of Safety, Health and Welfare at Work Act 2005

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McTigue v Connacht Gold Co Operative Society Ltd & ors [2017] IEHC 852 (22 June 2017) URL: http://www.bailii.org/ie/cases/IEHC/2017/2017_IEHC_852.html Cite as: [2017] IEHC 852

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