Wednesday 22 November 2017

Woman who sued partner's parents after losing eye fails in High Court action

Elaine Newman
Elaine Newman

Tim Healy

A WOMAN who sued her partner's parents after she lost an eye in a horrific domestic accident has had her action dismissed by a High Court judge.

If Elaine Newman (27) had won her case, agreed damages of €200,000 would have had to have been paid to her arising out of the accident at the home of Marie and Patrick Cogan at Delganstown, Delvin, Co Westmeath on June 22,2007.

In what was described in court as a "horror story" by Ms Newman, her eye was catastrophically damaged when her partner Emmett Cogan fell and a piece of frozen meat in his hand hit and smashed the glass pane in a door causing pieces of glass to hit her eye.

Ms Newman, originally from Mullingar but now living with Mr Cogan in Australia, claimed Mr and Mrs Cogan failed, under Section 3 of the Occupiers Liability Act 1995, to take reasonable care to ensure that she (Newman) as a visitor to the house did not suffer injury by reason of any existing danger.

The Cogans did not contest her status as a visitor but denied liability.

Dismissing her case yesterday, Mr Justice Iarfhlaith O'Neill said the Cogans could not have been reasonably said to have failed in their duty of care by choosing the type of non-shatterproof glass which was in the door.

Patrick Cogan, a farmer, had replaced the glass himself in 2000/01, the glass having been broken on a number of occasions when Emmett Cogan and his siblings were children playing hurling and football around the house, the judge said.

The standard of work to be expected of a householder who has taken on a repair of this kind is not quite the same as that to be expected from a qualified glazier who is performing the task for reward and who is subject to contractual obligations and a much higher standard, the judge said.

While Patrick Cogan did not give evidence, the judge was satisfied he installed the replacement glass competently and the only complaint that could arise was about the type of glass used.

He was also satisfied, from the evidence of two engineers, that a professional glazier would not have installed the type of glass Mr

Cogan put in. However, it does not follow at all that Mr Cogan's

choice of glass "is to be condemned" for this reason.

The evidence to court did not go so far to suggest that a reasonably competent amateur glazier could not have reasonably believed the glass he obtained was adequate or suitable. Mr Cogan had bought it from a retail glass supplier.

While professionals would be expected to be familiar with various regulations governing such matters as the type of glass used in doors, the same could not be expected of a householder carrying out a relatively simple repair, "as is done by householders day in and day out up and down the country", the judge said.

It could not be said that Mr Cogan, as a householder and a reasonably competent glazier, could not have reasonably believed the glass he chose was other than suitable.

To hold him and his wife liable, in negligence, for choosing the particular glass he did "would be to impute to him knowledge of the technical aspects of glazing" which could not be expected of someone not involved in the building or glazing trades, he said.

To do this would be to impose on the Cogans a duty of care which would "be artificial and which, in all probability, they had no real chance of discharging.

In choosing the glass he did, which is "in common usage in dwellings", it could not be reasonably said Mr Cogan failed in his duty to Ms Newman to take reasonable care to protect her from dangers on the premises, he added.

In her action, the court heard Emmett Cogan, who was on crutches at the time of the incident, had come into the farmhouse after getting a 2lb bag of meat from the freezer.

He came in behind Ms Newman, when he tripped and fell over clutter in a porch area. The hand with the meat in it crashed through a glass panel in the door with considerable force.

Ms Newman had just turned around as the glass shattered and a shard or shards of glass shot into her right eye.

As a result, she lost the eye and now has an artificial eye.

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