An Ennis man and his uncle "came to grief" in the same one-foot-wide garden hole in an Ennis housing estate 10 weeks apart, a court has heard.
At Ennis Circuit Court, Judge Brian O’Callaghan has ordered Irish Water to pay Jim McDonagh (aged 20) damages of €6,000 for the left knee injury he sustained when his left foot slipped into the seven-inch (175mm) deep hole on a November night in 2016.
Counsel for Jim McDonagh, Lorcan Connolly BL, told the court that his client “was not the first person to come to grief in that hole and indeed a family relation came to grief in the same hole”.
Mr McDonagh’s injury came 10 weeks after his uncle, Patrick McDonagh, slipped into the same hole on August 26, 2016, where he sustained a broken leg.
Counsel for Irish Water, Ciara Daly BL, told the court that Patrick McDonagh has lodged personal injury proceedings concerning his injury in the High Court and that case has yet to be heard.
Ms Daly told the court that “it is simply not credible that Jim McDonagh’s foot would go into the exact same hole as his uncle’s only two months prior”.
In response, Jim McDonagh formerly of Dun na hInse, Lahinch Rd, Ennis, said: “It happened - the hole was there.” Under cross-examination from Ms Daly, Jim McDonagh told the court that he didn’t know how his uncle had broken his leg at the time of his own accident with the hole on November 4, 2016.
In response, Ms Daly stated that Jim McDonagh’s sister was aware of his uncle’s fall into the hole as she had come to the uncle's assistance on the August date.
Ms Daly said: “It is simply not credible that a member of your family suffered such a significant injury at the same hole and you were not aware of it at the time. You were well aware of that hole.” In response, Mr McDonagh - who was aged 16 at the time of the accident - said: “I was not.”
The hole was created by the removal by a third party of a hydrant marker from a private garden in the Dun hInse estate in Ennis. The hydrant was installed by the developers of the estate.
Judge O’Callaghan found that Irish Water was 50% in breach of its duty in the case.
The hydrant is an asset of Irish Water and Judge O’Callaghan made the ruling after stating that the hole for the hydrant was not dug to a sufficient depth of 450mm.
He stated that instead the hydrant marker was placed into a hole of no more than 175mm depth and not in compliance with regulations.
Judge O’Callaghan said that, as a result, this made the hydrant marker much easier to remove.
The judge stated that this created a hazard in which Jim McDonagh stepped into, causing him an injury.
Judge O’Callaghan said: “This hole created a trap for Mr McDonagh and it shouldn’t have been there.” Judge O’Callaghan stated that the damages in the case would be €12,000.
However, Judge O’Callaghan reduced Mr McDonagh’s award by 50% to €6,000 after stating that he was 50% responsible for the injury sustained.
The judge said that Mr McDonagh was walking on a six-foot-wide footpath with good lighting while on his way to a relation's house.
Judge O’Callaghan stated that it was unwise of Jim McDonagh to be stepping off a footpath onto grass when he had a clear path in front of him.
Judge O’Callaghan made his ruling after technical evidence was provided in the case by an engineer, Michael Flynn, who examined the hole in November 2016 on behalf of Mr McDonagh.
Mr Flynn told the court that the hole was one foot by a half foot and 175mm deep. He stated that there was no concrete to hold in the hydrant marker.
A CT Scan had found bruising to Mr McDonagh’s knee and Mr McDonagh stated that the injury stopped him from playing soccer and boxing for a while but he had made a good recovery.
Judge O’Callaghan stated that Jim McDonagh had been “very fair and honest in his own evidence on the injuries”.
Ms Daly had argued that her clients should not be liable for the actions of an unknown third party who removed the hydrant.
Ms Daly argued that the hole was dug and the hydrant installed in compliance with standards.
Judge O’Callaghan also awarded costs against Irish Water as part of his order and put a stay on his order in the event of an appeal.
The hydrant has since been re-installed and the hole is no longer there.