The Liability of EirGrid – Part 1

A question that I dread hearing but that is often asked of me is: “If my child develops cancer from the overhead lines, can I sue EirGrid?”

The reason I dread hearing such a question is because there is no amount of money in the world that can compensate a parent for the loss of their child or their child’s ill health, but there is no nice way of saying that.

I usually take the coward’s way out by explaining that I am a retired barrister and I am no longer registered to practice law, but rather teach the law (for twelve years now). This obviously disappoints a lot of people but it would be unethical and unprofessional of me to make anybody believe otherwise.

For the purposes of this blog, the best I can do is set out as clearly as I can the general principles of law and what the court will consider if such a claim, God forbid, were ever brought to court. Please note this is not legal advice. It is (hopefully) an easy-to-understand explanation of the principles the court will look at if you were to sue EirGrid.

If you think that EirGrid have been negligent and caused harm to your family, including psychological harm, please go and get legal advice from a registered solicitor or barrister.

Having said that, your claim might be heard by the Injuries Board, rather than going to court, depending on how the harm caused to you is categorised. For an excellent and accessible guide to bringing a claim to the Injuries Board, get yourself a copy of Make Your ClaimA Consumer’s Guide to the Injuries Board by John McCarthy (2014) (www.mcccarthy.ie).

It is also important for the reader to understand that we are talking about a civil claim. Tort is a word used to describe a wrong committed by one person against another person, causing personal injury (both physiological and/or psychological), physical damage to property or financial loss to that person, which entitles that injured person to be compensated by the person who committed the wrong. It covers situations where a duty, which is imposed by law, is breached (broken). This is in contrast to the breach of a duty that is imposed by a contract.

In summary, a tort is a civil wrong as opposed to a criminal wrong, for which the usual remedy is damages. This means an amount of money is awarded to the injured party as compensation for their injuries.

Negligence

In bringing a claim against EirGrid, the plaintiff (that’s you) will have to prove negligence on EirGrid’s part. Negligence is not the same as carelessness.

A person is negligent in a legal sense when their actions fall short of what is determined as acceptable behaviour, and as a result of that action (or inaction) a person is harmed in some way.

The harm that is suffered by the plaintiff can be personal injury (physical and/or psychological), physical damage to property, or financial loss.

The level of care required from EirGrid or EirGrid’s officials is described as being ‘reasonable care in the circumstances’. The difficult part is deciding which circumstances are relevant in any given situation and whether the actions of the defendant (EirGrid) were reasonable or unreasonable. For the most part, we look to previous legal decisions and writings for guidance, but it is possible to lay down some general principles.

The five elements in the tort of negligence are as follows:
 a duty of care;
 a failure by the defendant (that’s EirGrid) to perform at the required level or standard of care (breach of duty);
 actual loss or damage to the interests of the plaintiff;
 a sufficiently close causal connection between the conduct of the defendant and the resulting injury to the plaintiff;
 the lack of any defence available to the defendant.

The plaintiff (that’s you) is the person alleging the negligence. If you allege, you must prove. In other words, you must prove the first four elements of negligence in order to have even a chance of successfully suing EirGrid. And four means four out of four in the right order: If you can’t prove the first element, you do not even get the chance to prove the second, third or fourth.

This is a long and sometimes complicated process, and so in this this blog I will just look at the first requirement, which is that EirGrid must owe you a duty of care. I will cover the other three elements in subsequent blogs.

The Duty of Care

As a rule, there is no general duty of care. In other words, there is no general legal duty that says you must look out for or care for anybody else. In a broad sense, as long as you were not the creator of the harm, there is no duty of care on you to save or protect others from that harm.

For a long time, the only way to create a duty of care was through a contract or the existence of some sort of professional relationship (like doctor and patient) which was often based on a contract anyway. Early in the last century, the courts realised that there might not be a pre-existing relationship (like a contract) between a wrongdoer and the victim of that wrongdoing, and that it was necessary to extend the law of negligence to include actions between strangers.

The neighbour principle was invented and this says that reasonable care must be taken to avoid acts or omissions that can reasonably be foreseen as likely to injure a ‘neighbour’. In this case, the neighbour is not necessarily the person who lives next door to you, but rather your neighbour in the wider sense of the word – a person who might be harmed by something you do or something you fail to do in situations where you should have realised that somebody could get hurt by what you did or did not do.

An everyday example is the Council working on the pipes under the pavement. They dig up the paving stones, and leave a big hole where people are used to walking. The Council does not know who will walk there, or exactly when people might walk along there, but despite that the law expects the Council to foresee that somebody is going to fall into the hole if they do not make it safe. And so the Council put up barriers around the hole with signs and lights warning you to walk on the other side. The Council does not do this because they want to, they do it because they have to – they have a duty of care to any pedestrian walking towards that hole. They put up the barriers and signs and lights because it would be negligent not to do so and they will end up being sued for a lot of money if somebody fell into the hole.

In other words, when EirGrid build the pylons and string up the electric lines, they must foresee that the pylons and the lines will impact on the people in the vicinity. If they do, or should, foresee that what they are doing might harm somebody, they must take steps to avoid harming anybody, pretty much along the lines of the ‘look before you leap’ principle (which has been strengthened by the ‘precautionary principle’ of EU law). The failure to take those reasonable steps to avoid the foreseeable harm is negligent.

This means that the plaintiff (that’s you) will have to argue that EirGrid created a hazard by erecting pylons and electricity cables nearby, and so EirGrid had a duty of care to make sure that the pylons or electric lines did not harm you.

Essentially, three requirements need to be established before it can be said that there is a duty of care in existence:

Foreseeability – a person owes a duty of care to anyone they can reasonably foresee could be injured by their acts or omissions. The plaintiff will need to argue that EirGrid knew, or should have known, that EMFs cause cancer and other illnesses yet went ahead and built the pylons and put up the lines anyway.

Proximity – there must be some connection between the parties. This is often a policy decision, where the court might decide that the existence of a duty of care in a particular situation is just a bad idea for society at large, or conversely, that it is important to create a duty of care between parties where no previous connection had been recognised. The plaintiff will need to argue that as a body funded by the taxpayer, EirGrid should be held accountable to the taxpayer / Irish citizen, particularly in regard to that citizen’s constitutional right to bodily integrity (the right to live a healthy life).

Just and reasonable – it must be shown that it is just and reasonable to impose that particular duty of care on the defendant in the circumstances. Again, this is often a policy decision where the court decides if it is necessary to draw a line in order to stop the uncontrolled growth of the duty of care to new areas. In other words, the plaintiff needs to show that it is just and reasonable to hold EirGrid, the national Transmission System Operator, liable for the harm caused by the electricity it provides, or liable for the harm caused by the apparatus used to carry that electricity. This is often influenced by the politics of the time and the general public sentiment (although judges will often deny that public opinion affects their rulings, they are only human). This is why EirGrid spends so much on glossy advertising, which is certainly not to create more business, given that they have a captive market. It is to create a good public image – can you feel the love?

In the next blog in this series I will look at the second element that the plaintiff must prove: That EirGrid’s conduct did not measure up to an acceptable standard.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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2 Responses to The Liability of EirGrid – Part 1

  1. It has been suggested to me that EirGrid will not erect the pylons and lines, ESB will do that, and therefore they are the people to sue. This might very well be correct, as the functions of ESB and EirGrid are so seamless and indivisible that it is difficult to decide where one ends and the other begins, which questions the need for separate companies in the first place. A plaintiff would be well advised to sue both companies as co-defendants.

  2. Pingback: The Liability of EirGrid – Part 2 | The Law is my Oyster

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