The Liability of EirGrid – Part 2

In Part 1 of this series of blogs, I contemplated that awful question: “If my child develops cancer from the overhead lines, can I sue EirGrid?”

As I said then, and do so again now, I no longer practice, and I am therefore prohibited from giving legal advice. 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.

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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 has been negligent and caused harm to your family, including psychological harm, please go and get legal advice from a registered solicitor or barrister.

In Part 1 we looked at the question of whether EirGrid might owe you a duty of care. This is the first, and often the most difficult, hurdle to jump over. There are three more hurdles and the second of those requires the plaintiff (that’s you) to show that the defendant (that’s EirGrid) has not acted in a reasonable fashion in their attempt to avoid harm coming to you and your family.

This is called the standard of care – essentially it means that you would need to show that the defendant’s (EirGrid) conduct has fallen short of the standard that is expected of it.

When talking about a breach of a duty of care, we are actually covering two issues – firstly, what is the content of the duty of care, and secondly, has the defendant discharged that duty of care? The first question is legal in nature, and the second question is factual.

Put more simply, if we recognise that a duty of care is owed by one person to another person, the question that we need to ask is just how good must that care be? This measure of care is called the standard of care. Once this standard is determined, we must look at the facts and ask whether the defendant has measured up to this standard.

The usual standard of care recognised by the law is that of the reasonable person.

In the case of Kirby v Burke [1944] IR 207, the test in regard to a reasonable person was stated as follows:

‘the foundation of liability at common law for tort is blameworthiness as determined by the average standards of the community; a man fails at his peril to conform to these standards. Therefore, while loss from an accident generally lies where it falls, a defendant cannot plead an accident if, treated as a man of ordinary intelligence and foresight, he ought to have foreseen the danger which caused injury to his plaintiff.’

The ‘reasonable person’ is a fictitious person who represents a standard of conduct that must be regarded as a goal to be worked toward. It is an objective standard or measurement of conduct, against which the actual conduct of the defendant is compared. Put simply, it is like asking ‘the average bloke in the street’, after describing and explaining the surrounding circumstances, whether he or she thinks that the defendant’s performance was acceptable.

A reasonable person is expected to know the facts of common experience and the laws of nature. A reasonable person is expected to know and appreciate his or her personal limitations and act accordingly.

That objective standard of behaviour is raised where a person possesses or claims to possess special skills or qualifications, which introduces an element of subjectivity into an objective test, as the performance of that person with skills or qualifications will be measured against that of a reasonable person with those skills or qualifications.

In looking at the liability of EirGrid, this is a challenge as it is an organisation rather than a person. As it is essentially an engineering company dealing with the transmission of electricity, perhaps the test to be used in determining an appropriate standard of care would be “the reasonable electrical engineer” test. This invariably means that expert witnesses will need to give their evidence to court – these expert engineers being persons qualified to give an expert opinion on the subject matter before the court.

The question posed is whether a defendant engineer, whose actions or inactions are being examined, exercised the appropriate standard of care expected of a reasonable engineer. In other words, a reasonable engineer must practice the degree of skill that a member of the public would expect from a person in his or her profession.

One must also remember that as something becomes more dangerous (‘the risk’), the measures that are put in place to protect the public must also increase. The magnitude of the risk, in turn, is affected by the likelihood of injury occurring and the extent of the threatened harm. This is important in the field of electricity transmission as electricity is inherently dangerous and accordingly decisions that are made often carry a high degree of risk and accordingly a high standard of care will be imposed. Here we are not only talking about the obvious things like an electric shock, but also the effects caused by electricity, like EMF which can cause cancer.

A well-known decision of the High Court which stresses this heightened standard of care is Keogh v Electricity Supply Board and Eircom Ltd [2005] I.E.H.C. 286. Although this concerned the ESB, the case is still useful as it looks at the duties related to the maintenance of power lines.

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The facts were relatively straightforward: The plaintiff was speaking on the telephone on Christmas Day 1997 when she received an electric shock through the receiver which she was holding to her ear. She was knocked unconscious and severely burned on her finger-tips, her neck and her right hip, which had been in contact with a metal sink at the time.

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On Christmas Eve weather conditions in the area of the plaintiff’s home at Redcross had been severe, resulting in extensive damage to electricity cables and supply to homes, including the plaintiff’s.

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A medium-voltage cable and its bushing became detached from the transformer and it came into contact with a neutral terminal which enabled a 6kV current of electricity to go to the earth, and via the earth into the plaintiff’s home, causing metal objects to become live with 6kV. When the plaintiff’s hip came into contact with the “live” kitchen sink, the current also passed to the telephone handset, causing her the electric shock and the other injuries.

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Judge Peart was very clear that there could be “no room for doubt” that the ESB owed a duty of care not only to its customers but to the public generally with regard to the safety of its installations and the manner in which it delivered that service to the general public. The judge was quite satisfied that a sufficiently close relationship existed (“proximity”) between the injured lady and the ESB to say that the ESB owed her a duty of care:

“She is firstly a customer, but as far as this case is concerned she is someone living in close proximity to an ESB supply pole and cables attached thereto, and therefore someone whom the  ESB must be regarded as having in their consideration when ensuring the safety of installation in question close to her home. It would also have in mind the general public who may use the roadway on which the pole exists. This duty of care both to this plaintiff and the public at large extends to ensuring that all reasonable steps are taken by it to ensure that the pole, transformer and cables attaching thereto are properly maintained in a safe condition. A safe condition must take reasonable account of weather conditions which are reasonably foreseeable in the area. The fact that the  ESB may have a great number of individual poles across the length and breadth of the country cannot in any way operate to reduce or dilute the level of vigilance to be exercised by the  ESB in and about the safety of its installations, particularly since the danger of serious injury or death from coming into contact with a live cable, either directly or, as in this case, indirectly, are well known, obvious and completely foreseeable. This ever present and real danger is one which requires a very high standard of vigilance, before it could be said that reasonable care had been taken for its avoidance. The greater the danger the greater the level of care which must be expected from the person or body in whose charge the dangerous situation rests.”
(my bold)

The ESB tried to argue that the atrocious weather conditions meant they could not be held liable but Judge Peart was having none of it. He was clear in his ruling that the  ESB had a duty to ensure that its installations were maintained sufficiently to make sure that they could withstand that type of weather.

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Not only that, but the ESB should have immediately acted on the plaintiff’s call:

“But in the present case I am satisfied that the repair was not dealt with within a reasonable time given the danger which should have been apparent to the  ESB. I accept that their resources were stretched and seriously stretched, but in a situation where it has responsibility for a very dangerous service, namely electricity, it cannot be an adequate defence to a claim to say that it could not deal with that call at about 7pm dated 24th December 1997 until the 27th December 1997. The  ESB say that it was dealt with on the 26th December 1997, rather than the 27th, but either way in my view it was not reasonable to leave that danger in existence since the evening of the 24th. To do so increased the danger that someone in the plaintiff’s home would receive the sort of injury that the plaintiff sustained on the 25th.”

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The judge made it very clear that given the nature of the service provided and the dangers known to exist from live cables/bushings coming loose from the transformer, it was “fair and reasonable, indeed absolutely necessary” for such an obligation of safety to be imposed on the ESB, even in adverse weather conditions. The  ESB was the organisation charged with this responsibility and it had the expertise and the resources available to it to both anticipate and foresee the dangers and to remedy defects when they came to light. The public was dependent upon that expertise and those resources for its reasonable safety.

In other words, where a potentially dangerous service like electricity transmission is concerned, there is a corresponding high standard of care imposed on the organisation delivering that service. This is where factors like distance guidelines and best international practice also become relevant in assessing the level of EirGrid’s performance, but first and foremost the actual conditions on the ground are crucial. If there are 400kV lines running close to peoples’ homes, the standard of care must be very high indeed.

As a starting point, in deciding what is a reasonable standard of care the court will be guided, but not ordered, by comparable engineers and what those engineers view as a ‘general and approved practice’. This might be fun as the EirGrid engineers all seem to belong to Engineers Ireland, whereas the engineers opposed to their policies and practices seem to belong to Irish Academy of Engineers, a seemingly more objective and certainly more ethically-conscious body.

One must understand that this practice of asking similarly qualified professionals for their opinion is only a starting point. It is most certainly not the end-all or be-all. So, for example, if there is a common practice which has inherent defects that ought to be obvious to any person who gives the matter careful thought, the fact that this defective practice has been used by many people for a long time does not make the practice any the less negligent. This is important, as EirGrid continue to rely on the WHO studies, and the ICNIRP guidelines, when these studies have been roundly condemned and dismissed as a result of their fundamental methodological defects and omissions (and lack of peer review). Furthermore, if there is a dispute of fact as to whether or not a particular practice is a general and approved practice, it is a matter for the court (and not the professional witness) to determine whether or not the practice is acceptable.

In other words, it is a legal question, and not an engineering question, as to whether EirGrid exercised the requisite standard of care. Clearly the court will be guided, but not ruled, by what other members of the engineering profession would regard as a generally approved practice.

This is because an expert witness is giving an opinion, as opposed to factual evidence, and therefore this opinion can be rejected by the judge if considered illogical or fanciful. Having said that, it must be recognised that in practice the court must rely on expert witnesses to form opinions and judgments on complex scientific issues and draw inferences from evidence of professional practices. The court must remain in control of the process by applying common sense to conflicting theories and arrive at conclusions as to what probably happened.

Accordingly, the law regarding the standard of care can be stated as follows:

 there is no breach of the standard of care if the engineer has acted in accordance with the practice accepted as proper by a responsible body of professional skill in the engineering profession, and this practice was appropriate (in other words, reasonable and logical) in the circumstances of the case, and not obviously defective. The fact that EirGrid do not have a doctor or medical specialist on their team must mean they fall short of the conduct expected of a reasonable person.

 there is no breach of the standard of care if there is no acceptable body of opinion covering the situation at hand, but what the engineer did was considered reasonable and logical in all the circumstances. The protests against EirGrid have been many and varied, and if EirGrid cannot show that they considered these contrary views based on solid research before embarking on the erection of 400kV lines near populated areas, they will have a hard time proving that their overhead line strategy was reasonable and logical under the circumstances, given the alternatives available to them, and the known impact it will have on the population.

 there is no breach of the standard of care if the engineer did not follow the accepted practice, but his or her actions were reasonable and logical in all the circumstances and would be supported by competent professional opinion. Let the battle of the expert witnesses commence.

 On the question of foreseeability, the law recognises that precautions can only be taken against reasonably known risks. If a risk is not known at the time, precautions cannot be taken against an unforeseeable possibility. However, once that risk is known, the standard of care increases as the defendant is then expected to know of the risk. EirGrid have been made aware about the numerous studies linking EMF and cancer, and until now have chosen to ignore them, rather relying on outdated and discredited research to back up their denial of the dangers of power lines.

 Engineers must ensure that they are always aware of standing instructions and accepted Codes of Practice, as these often contain the latest information on accepted procedure. A failure to follow a standing instruction or Code of Practice without some exceptional justification would usually mean negligence, unless it can be shown that the Code or procedure was obviously defective.

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In Part 3 of this series, we will look at the very tricky area of causation.

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 2

  1. Pat Swords says:

    An interesting and thought provoking article; thought I might add my tuppence worth as an engineer, who deals with issues such as above, although not specifically power lines. First of all a significant percentage of engineers in Ireland simply have nothing to do with Engineers Ireland, it’s a matter of choice – some of you might now have an inkling why. Instead many are chartered or even engineering fellows with the main UK based engineering institutions for civil, mechanical, chemical, electrical and electronic, etc.

    For those of you who know me, you will know that I continually preach that negative environmental impacts are not a grounds for refusal of planning permission, operating permits, etc. This applies equally to those negative impacts related to health. An interesting insight to this is the EU’s thematic strategy on air pollution. We have legislation and measures to reduce the impacts from air pollution but not in any respects to eliminate those impacts, which if you care to delve into the below are still quite considerable:

    http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52005DC0446&from=EN

    Neither can we shut down electricity grids.

    However, professional and legal responsibilities as an engineer engaged in such matters is to;

    (a) have a documented assessment of the impacts / risks and;
    (b) to document competent and appropriate measures to reduce (note not eliminate) those impacts / risks – this has to consider the reasonable alternatives available.

    What is competency in the above? First of all when you are writing (a) and (b) you are actually writing it for a Judge. It may never come in front of a Judge, but that is who you are ultimately preparing it for. The Judge in turn will rely for assistance on expert witnesses provided by both sides, who are expected to provide impartial evidence to assist the Judge – if they are ‘hired guns’ they will be quickly ‘weeded out’ by the opposing barrister. The fact that (a) and (b) are based on and reference relevant legislation, established technical standards, Member State guidance, industry guidance, etc will all help. Furthermore, the expert witness will most likely be cross examined in relation to competency, i..e that he or she has the ‘recognition of established peers in this field’.

    My final conclusion on this, is that as a result of the massively expensive legal costs here (not unintentional) access to justice simply hasn’t been available to the ‘reasonable man’ in Ireland. As a result standards in relation to (a) and (b) with regard to Irish public authorities have simply been appalling. A recent example of this is the Kelly Judgement on the wind farm in Roscommon. The political appointees on the board of An Bord Pleanala see an entitlement to approve huge developments with only one or two sentences of exalted opinions to justify it. In fairness the Judge quickly dispatched them on that issue, but can you imagine how long they have been getting away with that carry-on and how much damage it has caused.

  2. You might want to get your expert witness hat on Pat. I can see it might be needed.

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