THE HIGH COURT
			1995 No. 822P 
BETWEEN
RONAN GILL
			PLAINTIFF
AND
JAMES EGAN
			defendant

JUDGMENT delivered by O'Sullivan J. on 16th October, 1998.

	The Defendant seeks to non-suit the Plaintiff on four grounds.  Mr. Bourke S.C. for the Defendant has made it clear that if the application to non-suit fails he intends to call evidence both as to liability and quantum.  In those circumstances it is clear from the Supreme Court judgments in O'Toole -v- Heavey (1993: 2: I.R.: 544) that the issue which now arises as a matter of law before me is whether the Plaintiff has made out a prima facie case as distinct from whether the Plaintiff has established as a matter of probability on his case the facts necessary to support a verdict in his favour - a distinctly different question.

GROUND 1
	Mr. Bourke says that the Plaintiff has given his client an indemnity against this action.  There are two separate indemnities as follows:-

	"Furthermore, for the consideration aforesaid the vendor, Ronan F. Gill, for himself, his successors and assigns does hereby covenant with the purchasers, James Egan and Mary Egan that he will pending the taking over by the local authority of the roads, sewers, footpaths, kerbs, public lighting, water mains and open areas, construct and maintain and keep the same in proper working order and condition at his own expense until the same are taken in charge by the local authority and that the vendor, Ronan F. Gill will indemnify and keep indemnified the purchasers, JAMES EGAN AND MARY EGAN, their mortgagees, executors, administrators and assigns, against all actions, proceedings, costs, damages, claims and expenses in which they may be involved or (in) which they may incur arising out of the non-construction, non-maintenance of the said roads, footpaths, kerbs, sewers, public lighting, water mains and open areas or any of them."

	The second indemnity is in the following terms:- 

	"I, RONAN GILL of Ballagh, Bushy Park, Galway, the vendor under contract dated the 15th day of September, 1989, of part of the lands the subject of 
	Folio  4059F of the Register County Galway to James Egan and Mary Egan DO HEREBY INDEMNIFY the said James and Mary Egan from and against any costs, claims, damages and expenses arising out of the breach, non-performance or non-observance of me in respect of any further development of the lands the subject of Folio 4059F of the Register of Freeholders Co. Galway as authorised by the relevant planning permission dated the 24th day of July 1988 Ref: (                       )".

	In my opinion the first indemnity relates to the roads and so on identified in the text of the covenant and to the non-construction and non-maintenance of those items.  The Plaintiff's case relates to allegedly unauthorised material deposited on the area reserved for open space and to an accident on that material.  If the Plaintiff is correct, then the material in question is not the same as that identified in the covenant.
	In the case of the second shorter form indemnity, a similar situation arises in my opinion, namely, the covenant relates to "further development" of the identified lands by the covenantor (the text refers to "... the breach, non-performance or non-observance of me in respect of any further development ...") and not by anyone else.  It is clear, in my view, that the Plaintiff has made out a prima facie case that the indemnities do not apply.

GROUND 2
	Secondly it is submitted, in so far as the Plaintiff's accident is concerned, that the chain of events leading to it were not foreseeable and that, accordingly, the Defendant is not liable in tort.  In addition it is submitted that it was obviously dangerous for the Plaintiff to attempt to walk on the rocks and boulders which he says he did walk on and that the accident was caused by his own negligence.  There is also a plea of contributory negligence.
	It is further submitted that others, and in particular Mr. Elwood, deposited material at the accident location and that therefore the case is not made out against the Defendant.  I do not agree with the submission on forseeability as applied to the facts of this case.  I consider that it was reasonably foreseeable that if someone attempted to traverse the rocks and boulders by foot they could fall and hurt themselves.
	I do not consider I am concerned with the Defendant's defence in this application and accordingly I am not prepared to non-suit the Plaintiff on the basis that his accident was caused by his own negligence - still less on the basis that he was guilty of contributory negligence.

GROUND 3
	The third ground is that the statement of claim alleges that complaints of threat to the boundary wall and enjoyment of land made particularly at paragraphs 7 and 8 of the Statement of Claim relate to rock and rock only whereas since January 1998, the Plaintiff was aware that the cause of these complaints was the depositing of sub-soil and top soil on top of these rocks.
	This submission is based on the evidence of Mr. Michael Cooke, engineer, who gave evidence on behalf of the Plaintiff and who did indeed say that the pressure on the adjoining wall was caused by the earth fill and that he was not sure that the "self-weight" of the rocks (on their own) put horizontal pressure on the wall.  However, this submission ignores the evidence of the Plaintiff himself, who is an engineer, and that of Mr. James Hassett, also an engineer, to the effect that the rocks did threaten the wall.  The latter was quite specific saying that the wall was breached in a number of places for a distance of some 200 yards and needed to be rebuilt and that the fill should be removed from the bottom of the wall.
	In my opinion the Plaintiff has made out a prima facie case that the rocks, as distinct from the rock and the earth fill, threatens the stability of the adjoining wall and the enjoyment of the land of the Plaintiff and his neighbours.
	Furthermore, this particular matter is so closely linked with the case on flooding and the case made out in relation to the proper landscaping required by the planning permission that I think it would be unsatisfactory to attempt at this stage to excise it from the case even if there were no prima facie evidence in relation to it, which in any event, in my view,  there is.

GROUND 4
	It is submitted, fourthly, in relation to the Plaintiff's accident, that there was evidence that others apart from the Defendant had deposited material in the location, namely, Mr. Elwood and even Mr. Wynne, who was employed by the Plaintiff himself.
	In my view, whilst there is evidence of material being deposited by other parties, there is sufficient evidence that the rocks in the location of the Plaintiff's accident were dumped there by the Defendant to establish a prima facie case against him.
	In view of the foregoing, I decline to non-suit the Plaintiff on any of the grounds advanced.