Liability
Cases
Keegan v Sligo County Council
Contributory Negligence
[2019] IECA 245 (
Page 1 ⇓THE COURT OF APPEALCIVILNeutral Citation Number: [2019] IECA 245Record No. 2018/9Peart J.McGovern J.Baker J.BETWEENTHOMAS KEEGANPLAINTIFF/RESPONDENT- AND–SLIGO COUNTY COUNCILDEFENDANT/APPELLANTJUDGMENT of Mr. Justice McGovern delivered on the 10th day of October 20191. This is an appeal from a decision of Barr J. delivered on the 30th November, 2017 in apersonal injury action where liability and quantum were both in issue.2. The claim arose from a slip and fall accident that occurred on the 18th November, 2013while the respondent was returning to his home at Cranmore, Sligo. He was a tenant ofthe house which was let by the appellant, the housing authority for the relevant area. Therespondent had resided at the premises for approximately nine years prior to theaccident.3. The accident occurred at around 5 p.m. as the respondent was about to enter his halldoor. He had been at a funeral during the afternoon and between 1 p.m. – 5 p.m. admitsto having consumed approximately four or five pints of Guinness having visited threedifferent pubs in that period. As he went to open the hall door, he claims that his left footslipped on the tiles which were wet as a result of the weather conditions on that day. Theporch faced in a south-westerly direction and was therefore open to the prevailing wind inthe area. The respondent gave evidence that the tiled surface of the porch wouldfrequently get wet.4. In the High Court the trial judge heard evidence from consulting engineers that the tilesprovided good slip resistance when dry but presented a moderate risk when wet. Itappears from the evidence in the High Court that the tiles were of a standard type thatwas provided in such locations at the time when they were laid.5. The plaintiff suffered a pilon fracture to his left ankle which required surgical fixation. Hewas unemployed at the time of the accident and the special damages were agreed in asum of €650.6. Having heard the evidence, the trial judge determined the liability issue in favour of therespondent and awarded general damages of €50,000 to date and €55,000 into the futureand the agreed special damages making in all a total of €105,650. He declined to makeany finding of contributory negligence.Page 2 ⇓7. Although the appeal in this case was in respect of liability and quantum, the issue ofquantum was not pursued with any great vigour. The thrust of the oral submissions madeat the hearing of the appeal by both parties concerned the issue of liability.Liability and related issues8. The appellant sets out its principal grounds of appeal in the following terms:-(i) Whether the respondent’s house is unfit for human habitation so as to triggerliability under Siney v. Dublin Corporation [1980] I.R. 400 and Burke v. DublinCorporation [1991] 1 IR 341?(ii) Whether the trial judge took the correct approach in deciding to impose liabilityunder the Occupiers Liability Act 1996?(iii) Whether the trial judge erred in law in his approach to the evidence of themechanism of the accident as described by the respondent and erred in fact in hisfinding as to that evidence?(iv) Whether the trial judge erred in law in declining to make a finding as to priorcomplaints?(v) Whether the trial judge erred in law in his treatment of the effect of alcohol on theability of the respondent to take reasonable care for his own safety?(vi) Whether the trial judge erred in law and in fact in not finding the respondent guiltyof contributory negligence?Unfit for human habitation9. The trial judge held that the use of the particular ceramic tiles in the porch of therespondent’s house rendered that house “unfit for human habitation”. In respect of thisfinding the appellant has concerns on a number of grounds. In the first place, it claimsthat this point was not pleaded as part of the respondent’s claim. Secondly, it says thatsuch a finding has significant and serious implications for the appellant in a way whichtranscends this particular case. The respondent argues that when the case came on forhearing the point was raised in submissions and was not objected to by the appellant.10. It seems to me that this is an issue which gives rise to a number of legal questions ofsome complexity, including the legal relationship between the respondent and appellantFor example, is the respondent to be considered a “visitor” in the usual sense or is thiscase one where there is more than one “occupier” of the premises as understood underthe Occupiers Liability Act 1995 having regard to the fact that the respondent had residedin the house for approximately nine years prior to the accident? What is the meaning of“unfit for human habitation” within the meaning of the Housing Act 1966?11. In my view, it is not at all satisfactory that a finding of the trial judge on an issue of suchimportance should be made where it has not been pleaded by the respondent and arosein circumstances which required the appellant to deal with it on an ad hoc basis in thecourse of the trial. I do not think it matters whether or not the appellant engaged with thePage 3 ⇓issue at the trial. While the particulars of negligence in the personal injuries summonsincluded a plea of “failing to comply with the provisions of the Occupiers Liability Act 1995and the Housing Acts 1966” the respondent did not furnish further particulars of samealthough asked to do so in a notice for particulars dated the 26th August, 2016. Both theSiney and Burke cases involve claims regarding the interior condition of dwellings. Thisappeal however concerns an external surface on the porch where one enters the dwelling.Under the Housing Act 1966 a housing authority has a duty to inspect houses in theirfunctional area and ascertain the extent to which they are in any respect unfit orunsuitable for human habitation. The second schedule of the Act sets out matters towhich a housing authority ought to have regard in considering whether a house is unfit forhuman habitation and the list of matters is stated to include “safety of stair cases andcommon passages including the state of paving in any yard or open space pertinent to thehouse”. That schedule has, below its heading, a reference to “Section 66”. That sectiondeals with the power of a housing authority to serve a notice on the owner of the houseor any other person having an interest in the house whether as mortgagee, tenant orotherwise a notice under the act requiring certain works to be done where the authoritiesis of the opinion that the house is unfit for human habitation. While it may well be thatthis also applies to the housing authority itself this is not something that was canvassedin either Siney or Burke or in this case when the matter was before the High Court.Though it is not for this court to express any view on these issues, I have concluded thatit was unsatisfactory for the trial judge to make a finding that the house was unfit forhuman habitation having regard to the fact that the matter was not specifically pleadedand therefore had to be dealt with in an ad hoc way at the trial and in circumstanceswhere the legal issue could be properly argued and considered.The Occupiers Liability Act 199612. Section 3(2) of the Act of 1996 states:-“In this section “the common duty of care” means a duty to take such care as isreasonable in all the circumstances (having regard to the care which a visitor mayreasonably be expected to take for his or her own safety and, if the visitor is on thepremises in the company of another person, the extent of the supervision andcontrol the latter person may reasonably be expected to extend over the visitor’sactivities) to ensure that a visitor to the premises does not suffer injury or damageby reason of any danger existing thereon.”13. In Allen v. Trabolgan Holiday Centre Limited [2010] IEHC 129, Charleton J. stated:-“As to that duty, it is clear that merely establishing that an accident occurred onpremises is not enough. The plaintiff must show that a danger existed by reason ofthe static condition of the premises; that in consequence of it he/she suffered injuryor danger; that the occupier did not take such care as is reasonable in thecircumstances to avoid the occurrence.”Page 4 ⇓14. In this case, the trial judge held that the mosaic ceramic tiles in the porch of the premisesheld by the respondent as a local authority tenant were “inappropriate” and “unsuitable”.The appellant argues that the test was whether or not they constitute a “danger”.15. I think it is fair to say that the judgment of the trial judge makes it clear that he regardedthe tiles as being a danger on account of the fact that, when they were wet, theypresented a moderate risk of slipping. It seems to me the question which has to beconsidered is whether or not on the facts of this case the respondent took reasonable carefor his own safety. This may also include a consideration of the question as to whether hewas a “visitor” or “occupier”. The evidence established that the respondent was awarethat in wet conditions the porch tiles could become somewhat slippy and to prevent thatdanger he placed a rubber backed mat on the tiles. He gave evidence that on the morningof the accident the mat was extremely wet so he lifted it out and hung it over his sidegate before proceeding into town to attend a funeral. On his return, he said the mat wasgone and on entering the porch he slipped and met with his accident. He described howhe proceeded down the garden path and came to the tiled porch area in front of the halldoor and that the tiles were wet as it had been raining all day. It is clear therefore thatthe respondent, in those circumstances, must have anticipated that the tiles would besomewhat slippy as (a) he could see they were wet, and (b) the mat which he normallyused to prevent anyone slipping on the tiles was not available to put down on the tiles.16. The trial judge does not appear to have considered that evidence and whether or not, inthose circumstances, the respondent had exercised reasonable care for his own safety.Nor does he appear to have given any consideration as to whether he was a “visitor” inthe normal sense or whether, having regard to his occupancy of the house forapproximately nine years, he should in some way be considered differently, and indeedwhether he could be considered an “occupier”. Some of these matters are relevant to theissue of contributory negligence. It seems to me that the trial judge did not sufficientlyengage with these issues before concluding that there was no contributory negligence.17. Another issue which falls to be considered under the question of whether the respondenttook reasonable care for his own safety concerns the amount of alcohol he consumedbetween approximately 1 p.m. and 5 p.m. on the day of the accident. This will beconsidered in more detail later.Mechanism of the accident18. The issue which attracted the greatest deal of attention during the appeal was themanner in which the judge addressed the way in which the accident occurred and inparticular what the appellant described as conflicting and improbable accounts of whathappened. The transcript shows that the respondent gave a number of accounts of hisaccident not all of which were consistent. At one point he stated that, as the door opened,he fell forward and inserted the key into the lock before he started to slip. At anotherpoint he stated that he was slipping before the key went into the lock. Then he said “As Iapproached, I stood in with my right foot, then my left foot, key in. As I got the key in Iput the handle down at the same time, it happened together at the same time”. On thatversion of events he had the key in the door and his hand on the handle yet he managedPage 5 ⇓to slip and fall forward into the hall. But then the following question and answer emergedfrom the transcript:-“Q. And it is applying pressure to the handle to open the door. It is only then that youstarted to slip. Isn’t that right?A: No, I had already slipped.”Then a few moments later he said that he slipped as he entered the porch and he put thekey in and opened the door and that is when he went forward. He agreed that this meantthat he managed to get the key into the lock while he was slipping. He agreed that thisaccount sounded “a bit strange”. At an earlier point in his evidence he accepted that anaccount he had given did not make sense and at another point he admitted that he couldnot explain how he had fallen while getting the key into the keyhole and his hand on thehandle.19. In the course of his judgment the trial judge described the accident in the followingterms;-“When he arrived at his house, he noted that the mat had been removed from hisside gate. He did not know who had removed it, or to where it had been taken. Heproceeded down the garden path and came to the tiled porch area in front of hishall door. He stated that it had been raining that day and the tiles were wet. Heplaced the key into the lock of the front door with his left hand and depressed thehandle with his right hand. While moving forward his left foot slipped on the tilesand he fell forward, through the partially opened hall door landing in his hall…”(para. 10 judgment).20. While the trial judge noted that the respondent was questioned at length in relation to theexact mechanisms of the slip and fall and that it would not have been possible for him tohave been moving at the time when he inserted the key into the keyhole with the lefthand while depressing the handle with his right hand, he remarked that the respondentsaid that it had happened in that way.21. Later at para. 62, the trial judge referred to the submission of the appellant that therespondent’s account as to how the accident occurred was totally implausible and that itwas not possible to put the key into the lock, turn the key and depress the handle and slipand fall through the door.22. When it came to the trial judge’s conclusions on causation at para. 71 he stated:-“…I do not think that it is possible to break down the mechanics of a slip and fallinto neat sequences which lawyers, or others, may think convenient, at aconsiderable remove from the time of the accident. It would have been different ifthere had been medical evidence to the effect that such an injury could not havehappened from the circumstances of the accident as described by the plaintiff.However, there was no such evidence.”Page 6 ⇓23. There was no serious attempt by the trial judge to analyse the various and somewhatconflicting accounts of the accident given by the respondent. Furthermore, it was not forthe appellant to call medical evidence to show that such an injury could not havehappened in the manner as described by the respondent. The burden of proof at all timesremained on the respondent. In my view the trial judge was in error in failing to properlyapply the burden of proof and in neglecting to analyse in any meaningful way thediscrepancies in the evidence given by the respondent. This is especially in light of thefact that the respondent admitted in cross-examination that it was “extraordinary” and“strange” but “a fair summary” that he commenced slipping, managed to insert his keyinto the lock of the hall door, turn the key, open the door with his other hand, push thedoor open and then fall inside, see transcript, day 1, pp. 49-51.24. Furthermore, the engineer called on behalf of the respondent gave evidence that theaccount of the accident given by the respondent to him was that he had slipped and fallenon his porch and outside his door and not that he had slipped, opened the door and fellinside.25. Effectively, the outcome of the case turned on the account giving by the respondent as tohow the accident occurred. If the account had been deemed implausible or unreliable bythe trial judge than it is likely that the action would have been dismissed. In thosecircumstances the trial judge ought to have conducted an analysis of the evidence andstated why he accepted a particular version of the accident as given by the respondentand rejected the thesis postulated by the appellant that the account was entirelyimplausible.26. To reach such a conclusion is not to call into question the law as well established in Hay vO’Grady [1992] I.R. 210. While an appellate court cannot substitute its view of theevidence for that of the trial judge this does not absolve the trial judge from carrying outa proper analysis of the evidence where there are issues in controversy so that it ispossible to see why he preferred or accepted one account or one piece of evidence overthe other.Evidence of prior complaints27. There was conflicting evidence as to whether the respondent had made complaints aboutthe tiles prior to the accident. It is important to note that this was not pleaded in thepersonal injuries summons. The respondent gave evidence that he had complained to theappellant’s regeneration office on several occasions and asked that the tiles be taken upand the area replaced with concrete. He also stated that he regularly complained to staffon the street and he referred to a conversation with Mr. Noel Mehigan, the estatemanager, about replacing the tiles and enclosing the porch when works were done on thehouse. A reading of the transcript shows that any such discussion of that nature with Mr.Mehigan involving an alteration to the porch was not a complaint, as such, about thecondition of the tiles but rather a request for an enclosed porch. It was explained to therespondent that this could not be done because of the existence of a services meteroutside the hall door which had to be available for inspection. The appellant had recordsof extensive complaints made by the respondent in respect of various matters but none inPage 7 ⇓respect of the porch tiles. The trial judge decided that it was not necessary to resolve thisissue but referred to the evidence called by the appellant as “reasonably strong” andsuggested that the appellant did not submit records in evidence to establish that therewere no complaints.28. At para. 70 of his judgment, the trial judge incorrectly characterised the evidenceconcerning the records as given by Ms. Marissa Moran. She was not challenged in herevidence as to what was in the records and what (if anything) was missing.29. The appellant submits that the evidence which was described by the trial judge as“reasonably strong” raised credibility issues for the respondent and that the trial judge didnot give any reason for declining to take that into account. It seems to me that theappellant is entitled to feel that a credibility issue which might have had an impact on thedetermination of liability was ignored by the trial judge in circumstances where he hadaccepted the evidence of the appellant on this issue was “reasonably strong”. In doing sohe fell into error. While the issue of prior complaint had not been pleaded the trial judgeallowed the issue to be canvassed in evidence and, having done so, ought to haveexplained why he decided to ignore evidence from the appellant which he described as“reasonably strong” when it could have had a bearing on the respondent’s credibility.The issue of alcohol30. The respondent admitted that he had attended a funeral on the afternoon of the accidentand that between 1 p.m. and 5 p.m. he had consumed four or five pints of Guinness. Thetrial judge dismissed this as a factor to be considered either in terms of the issue ofnegligence or contributory negligence. On the first day of the trial, the judge remarked“[b]ut also five pints for a man who has done physical work all his life, unless you aregoing to allege that he in fact had considerably more, I wouldn’t take five pints as being aparticularly large amount over a number of hours”. At para. 73 of his judgment hestated:-“…Having regard to the fact that this is a man who has worked in manual labouringjobs all his life, I decline to make any adverse finding against him having regard tothe level of alcohol consumed by him that day.”31. It has to be said that there was no specific plea in the personal injury defence that therespondent’s actions on the day of the accident were impaired by alcohol. However, theissue was clearly canvassed in the exchange of particulars before trial and therefore therespondent was aware that it might become a feature in the case. It seems that anobjection was taken to the matter being raised in cross-examination and the issue wasnot pursued. But the pleadings did encompass an allegation that the respondent failed totake reasonable care for his own safety. Since the matter had been canvassed in theexchange of particulars prior to trial and since the issue was raised before the judge inthe course of the trial, it seems to me that it was a factor which he ought to have takeninto consideration having regard to the duty of the respondent to take reasonable care forhis own safety and given the conflicting accounts given as to how the accident thatoccurred. Furthermore, the judge’s remarks as to how alcohol would affect “a man whoPage 8 ⇓has worked in manual labouring jobs all his life” was unsupported by any evidence givenat the trial and was no more than the expression of his opinion. Such an opinion shouldnot play a part in the trial judge’s decision to rule out alcohol as relevant.Contributory negligence32. The issue of alcohol was a relevant matter for the judge to take into account indetermining whether there was any contributory negligence on the part of therespondent. But he declined to make any adverse finding having regard to the level ofalcohol consumed by him that day. There was no evidence as to what effect four or fivepints of Guinness might have on the respondent in the period between 1 p.m. and 5 p.m.In O’Flynn v. Cherry Hill Inns Limited [2017] IECA 211 Irvine J. stated “adult members ofsociety are obliged to take care for their own safety and cannot divest themselves ofresponsibilities for their actions”. That was in the context of a claim made under theOccupiers Liability Act 1996. In Lavin v. DAA [2016] IECA 268 Peart J. referred to s. 3 ofthe 1996 Act and stated at 56:-“…Under s. 3 that question is part and parcel of the consideration of whether theoccupier complied with its statutory duty or common duty of care imposed upon itby s. 3. The occupier must take such care as is reasonable in all the circumstancesto protect the visitor, but having regard also to the duty of care upon the visitorherself.”33. The respondent met with his accident after consuming four or five pints of Guinness thatafternoon in circumstances where he knew the tiles were wet and that a mat which hehad used to prevent slipping had been removed by him earlier in the day. He had hungthat mat over a gate and it had been removed by some person unknown. In my view thetrial judge did not give proper consideration to the issue of contributory negligence. Hediscounted alcohol as a factor purely on the basis of his own opinion and not on the basisof evidence and did not consider the question of the respondent’s own knowledge of thetiles on his porch in premises where he had lived for nine years and which he knew couldbe slippy when wet.34. Furthermore, the trial judge did not properly apply the provisions of s.3 of the OccupiersLiability Act 1996 by considering whether he had taken reasonable steps for his ownsafety.Quantum35. The trial judge pointed out that the appellant did not call any medical evidence although ithad retained the services of Mr. Brendan Healy, orthopaedic surgeon, who had examinedthe respondent. The judge accepted the evidence of Mr. William Gaine, the orthopaedicsurgeon called on behalf of the respondent, that he has developed mild to moderateosteoarthritis in the ankle joint with evidence of osteopenia (a weakening of the bones).The medical evidence was to the effect that the respondent would only be capable of lightwork. He was forty-nine years of age when the judgment was delivered and the trialjudge held that should be taken into account. He had also been unemployed for sometime prior to the accident and the trial judge had regard to that fact. The trial judge alsoPage 9 ⇓took into account the fact that he had a limited capacity for work in the future and tookthe view that this could be taken into account in the assessment of general damages. In abrief submission on quantum counsel for the appellant pointed out that the Book ofQuantum provides a range of damages of €79,900 to €89,300 in respect of a moderatelysevere ankle injury being one which involves ongoing pain and stiffness which impacts onmovement of the ankle. Although the trial judge was obliged to have regard to the Bookof Quantum he did not make any reference to it in his judgment. In neglecting to do so hewas in error. While he was entitled to take into account the factors that are referred to inhis judgment, it is not clear to me how he related the figure of €105,000 for generaldamages to the ranges provided for in the Book of Quantum.36. The Book of Quantum puts an upper limit of €89,300 for a moderately severe ankleinjury. The judge built into his award for general damages the respondent’s limitedcapacity for work in the future. In all the circumstances it seems to me that the differencebetween the higher figure provided in the Book of Quantum and the damages determinedby the trial judge (being just over €15,000) is not so significant as to warrant this Courtinterfering with it.Conclusions37. This court is not entitled to substitute its view on the facts for that of the trial judge andHay v. O’Grady still remains the law. But in my view there are a number of matters whichhave been referred to in this judgment which make the trial unsatisfactory and which canonly be put right by a re-trial on the liability issue. In particular, the failure of the trialjudge to engage in a meaningful way with the conflicting accounts of the accident givenby the respondent before reaching his conclusions on liability fell short of what wasrequired. There was no proper analysis of the conflicting evidence which would point tothe reason why he was satisfied, on the balance of probability, that the incident happenedin the manner as described in para. 10 of the judgment.38. The trial judge was also in error in failing to properly examine and analyse the evidencebefore ruling out contributory negligence by failing to address the question as to whetherthe respondent had taken reasonable care for his own safety as required under theOccupiers Liability Act 1996. He also erred in law in holding, at para. 71 of his judgment,that the onus was on the appellant to call medical evidence to show that the accidentcould not have occurred in the manner claimed by the respondent.39. The trial judge’s finding that the respondent’s house was not reasonably fit for habitationis one which could have far reaching consequences for the appellant. The trial judge erredin making such a finding in circumstances where it had not been pleaded thereby givingrise to a situation where the appellant had to deal with the matter on an ad hoc basisduring the course of the trial. This gave rise to an entirely unsatisfactory situation. It isnot for this court to express its view on the issue in circumstances where it should nothave been dealt with by the trial judge.40. The trial of the liability issue was unsatisfactory and I would allow the appeal. I woulddirect that the issue of liability be remitted back to the High Court for a re-hearing.
Result: Appeal allowed
Stewart -v- Electricity Supply Board
[2018] IEHC 30 (26 January 2018)
Twomey J.
[2018] IEHC 30
DEFENDANT
JUDGMENT of Mr. Justice Twomey delivered on the 26th day of January, 2018.
Summary
1. This is a very unfortunate case since it involves the plaintiff, a woman who is in her sixties (“Ms. Stewart”), who was badly electrocuted on a lane leading to her house in Cahersiveen, Co. Kerry some 13 years ago on Saturday the 5th November, 2005. At the time of the accident, tree-felling was going on in the lane and Ms. Stewart was struck by a falling electricity wire, owned and operated by the ESB. Ms. Stewart is suing the ESB for the significant personal injuries which she suffered.
2. The primary function of this Court, in a personal injuries action, is to decide whether a defendant’s acts or omissions caused the personal injuries in question and if so, if these acts or omissions amounted to negligence. This particular case turns on causation, namely whether the electrocution was caused by the ESB. This issue can only be determined by a consideration of all of the circumstances in and around the time of the accident.
3. Although Ms. Stewart was a very convincing witness, her testimony regarding the causation issue is of limited assistance. This is because she has very little recall of the events of the day of the accident. This is understandable since she is suffering from serious memory loss which she attributes to the electrocution. In essence, she testified that she was on the laneway close to her house with Mr. Karyl Houston who along with Mr. Batt O’Shea was felling trees on the lane. The next thing she remembers is waking up in hospital after being electrocuted.
4. This Court must decide on the balance of probabilities whether the fracturing of the electricity wire, which led to her electrocution, was a spontaneous fracturing of the overhead wire which led to the wire falling to the ground to electrocute Ms. Stewart or whether, as claimed by the ESB, the plaintiff’s electrocution was caused by the fact that Mr. Houston and Mr. O’Shea caused a tree of 11 metres to be felled, which tree struck the outer of three electricity wires, which led the outer wire to strike the middle wire. This, the ESB claims, caused a short circuit, which led to the fracturing of the middle wire and the loose middle wire then fell to the ground and in the process of being ‘earthed’ by making contact with the ground, it electrocuted Ms. Stewart (and Mr. O’Shea).
5. For the reasons set out in this judgment, this Court concludes that the plaintiff has failed to establish on the balance of probabilities that the accident occurred as she describes.
Relevant facts
6. Mr. Houston is a very good friend of Ms. Stewart and at the time of the accident, he used to visit her twice a week. On the day of the accident he was using a chainsaw to cut down trees on one side of the narrow laneway leading to Ms. Stewart’s house, which is just over 5 metres in width. He is not a qualified tree surgeon nor did he have any specialist equipment, apart from a chainsaw. The trees were growing beside and in some cases on a raised bank which was 1.7 metres or so above the level of the laneway. On the other side of the laneway were the electricity wires running parallel to the laneway. This relevant span of electricity wires consisted of three wires running parallel with each other and the middle wire was slightly elevated from the two outer wires between two poles about 80 metres apart.
7. Assisting with the operation was a local farmer and neighbour, Mr. O’Shea. Before the accident, Mr. Houston had cut down two trees and chopped them into firewood. He planned to do likewise with the third tree. His evidence was that the first two trees were of sufficient girth that once he had made the appropriate cuts in the trees, the trees’ own weight would cause the trees to fall. As regards the third and final tree he was felling,, his evidence was that this was of a lesser girth and so he made two cuts on either side of the tree and attached a blue rope to this tree with a view to attaching the rope to his van and pulling the tree down. His evidence was that this was the only tree to which he attached a blue rope. His evidence was that this tree was no more than six metres in height. Mr. Houston also gave evidence that all the trees on the bank were of a height that if they fell they would not touch the electricity wires.The evidence was that that the electricity wires opposite this tree were at a height of 8.8 metres. It follows that if that tree was only six metres in height, it would not make contact with the electricity wires even if it fell directly across the narrow lane towards the electricity lines, instead of falling along the bank, parallel to the electricity wires.
8. The ESB’s claim is that the third tree felled by Mr. Houston was 11 metres in height, which was a sufficient height to make contact with the electricity wires if it fell towards those wires, which the ESB say is what happened.
9. Although Mr. Houston intended to use his van to pull down the tree, this was not what happened because Mr. Houston stated that Mr. O’Shea ending up pulling the rope and this caused the tree to fall. Mr. Houston’s evidence was that the tree fell parallel to the bank (and thus parallel, rather than perpendicular to the electricity wires) and that it bounced on the bank before the top part of the tree ended up on the laneway and that he kicked the bottom part of the tree onto the laneway so as to chop it up into firewood.
10. Mr. Houston gave evidence that he had made cuts in that tree in such a way that it would fall on the bank and not on the laneway. He also stated that he intended for the rope to be pulled in a direction, such that the tree would fall on the bank, and thus parallel to the electricity wires.
Inconsistent evidence
11. One inconsistency with Mr. Houston’s evidence in this regard is that, if the tree was only six metres in height as he claims (and as the wires were 8.8 metres off ground level), and it was his intention to have the tree on the lane (since he says he kicked it onto to the lane), there was no reason for him to be concerned about the tree falling on the bank (parallel to the wires) rather than on the lane (perpendicular to the wires). His concern about the direction in which the tree fell is consistent with the tree not being six metres, but being tall enough to touch the electricity wires if it did not fall in the manner he intended, i.e. onto the bank and not across the lane in the direction of the wires.
12. Another inconsistency with Mr. Houston’s evidence is his statement that he would have preferred if Mr. O’Shea had not helped him in felling the tree. If there was no causal connection between the felling of the trees and the electrocution, as alleged by Mr. Houston, it is difficult to see why he would regret Mr. O’Shea’s involvement in the pulling down of the the third tree, since it is Mr. Houston’s case that the felling of the tree had nothing to do with the falling of the electricity wire.
13. While Mr Houston gave evidence that the felled tree did not touch the electricity wires, his evidence was that about one minute, or a minute and a half, after the tree fell, he saw blue sparks coming from the wires at the bottom of the lane. The lane way is 60-70 metres in length and the bottom of the laneway was 30-40 metres from where Mr. Houston was felling the tree as he was at about the midway point in the lane. Then he says a loose electricity wire “recoiled” up to the top of the lane at huge speed to where Ms. Stewart and Mr. O’Shea were standing. Both Ms. Stewart and Mr. O’Shea were electrocuted and suffered significant injuries.
14. To enable the emergency services access the laneway, Mr. Houston removed the tree from the laneway by cutting it into three sections and tossing those sections onto the bank.
The basis of the claim being made by Ms. Stewart
15. It is Ms. Stewart’s case, in reliance primarily on the evidence of Mr. Houston, that her electrocution, was not caused by the tree striking the overhead wire, but by a spontaneous snapping of the electricity wires and based on Mr Houston’s evidence this occurred not opposite where he was cutting trees, but at the bottom of the lane. In support of this claim, Ms. Stewart claimed that prior to the accident, the lines had previously fractured, although she could not be sure whether this was before or after 2003 (two years prior to her accident in 2005). This is relevant because the wires in question were replaced in 2003 and so were relatively new wires. She also relied on the evidence of her daughter (Ms. Amy Myers) who gave evidence that in 2009 or 2010 she witnessed an electricity wire on the laneway hanging loose and she produced a photograph from that time of a loose hanging wire. To explain this, counsel for ESB put to Ms. Myers a record of a call from Ms. Stewart to Ms. Caitriona O’Regan of ESB on the 17th February, 2009. Ms. O’Regan confirmed that she had received a call from Ms. Stewart to the effect that a tree had brought down a cable in her driveway. Ms. Myers was asked if this was the incident to which she was referring. However Ms. Myers stated that she did not witness a tree striking the wire that she saw hanging loose and which she photographed on the day in question.
Analysis
16. If Ms. Stewart’s claim in this case is to be successful it would mean that it was a complete coincidence that the electricity wire snapped at the same time as the trees were being cut down within the vicinity of the cables. While this is no doubt a possibility, it is this Court’s task to determine whether it is more probable, than not, that this did in fact occur. Thus, this Court must decide whether on the balance of probabilities it was simply a coincidence that Mr. Houston (with Mr. O’Shea’s assistance) cut down a tree within the vicinity of the electricity wires at almost the exact same time as the electricity wire unilaterally snapped so as to cause Ms. Stewart’s electrocution or whether there is a causal connection between the two events.
Eye-witnesses
17. As regards the eye-witnesses on the day, Ms. Stewart was a calm, compelling and convincing witness, particularly when one considers the trauma she went through. However, her evidence in determining the causation issue is of little assistance, since she remembers little or nothing of the day of the accident.
18. The other eye witness is Mr. Houston and he gave evidence that the tree did not fall anywhere near the electricity wires. Mr. Houston was not as clam or or as convincing a witness as Ms. Stewart and he was at times agitated and emotional.
The other eye-witness
19. It is relevant to note that the only other eye witness to the electrocution, Mr. O’Shea, who had himself been electrocuted in the incident, issued proceedings not just against the ESB but also against Mr. Houston in relation to his electrocution. Mr. O’Shea was not called to give any evidence. However, Mr. Houston accepted during his cross examination that Mr. O’Shea had issued proceedings against Mr. Houston in relation to the electrocution. Mr. Houston’s evidence was that these proceedings although issued against him had not been progressed.
20. Although not in any sense determinative of the causation issue, it is nonetheless the case that the issue of these proceedings by Mr. O’Shea against Mr. Houston lends some support to the view that Mr. O’Shea, the other eye-witness on the day, felt there was a connection between the felling of the tree and the fracturing of the electricity wires, while of course the plaintiff’s case is that there is no such causal connection..
Evidence of ESB personnel
21. In considering whether it was simply a coincidence that Mr. Houston was involved in felling a tree at the same time as the electricity line snapped, as he alleges or whether the tree hit the electricity wire and caused it to snap, regard must also be had to the evidence of ESB personnel who attended the scene of the accident .
22. Mr. Cormac Collins was at the time of the accident a supervisor with ESB for the area. He was a convincing witness. He gave evidence that the applicable safety regulations required there to be a two metre radial clearance between electricity wires and all trees, so that the natural movement of trees in the wind would not lead to contact between the trees and the wires. He explained that, from a safety standards perspective, there was no prohibition on tall trees being in the vicinity of electricity wires such that if they fell they would touch the wires, since as he explained it, if the ESB was to cut down all trees that were within the falling distance of electricity wires, it would lead to a huge cull of trees in the country. However it was the case that those tall tress should not be within 2 metres of the electricity wires.. Evidence was given that when the accident site was inspected two days after the accident none of the trees on the lane were within two metres of the electricity wires at the time of the accident.
23. Mr. Collins gave evidence that he arrived on the site on the day of the accident just at the time of the arrival of the rescue helicopter. He gave evidence that on that day the trees on the bank were high enough that if they fell they would make contact with the electricity wires as they were a number of metres over the wires. He stated that this was very different from the photograph taken on behalf of the plaintiff in 2015, some ten years after the accident, which showed a section of the trees ‘topped’ to height of some six metres, which was below the height of the wires, which were at 8.8 metres.
24. His evidence was that on the day of the accident the middle wire was broken and that this had broken at about the half way mark up the lane, midway between the electricity pole at the top of the lane and the electricity pole at the bottom of the lane. This mid-way point is roughly opposite where Mr. Houston accepts that he was cutting the third and final tree.
25. In order to restore the electricity supply, which had been cut off by the accident, Mr. Collins arranged for the middle wire to be completely replaced on the day of the accident. To do this, the middle wire was cut at the bottom pole and a new wire attached there using a connector. As this wire was not long enough to cover the full span, it was connected to another wire mid way along the span, using a second connector, which was then connected close to the top pole using a third connector. He gave evidence that the presence of a connector close to the bottom pole therefore was not an indication that the wire had fractured at that juncture, as claimed on behalf of the plaintiff.
Mr. Houston meets Mr. Collins, Mr. Tapely and Mr. Murray at accident site
26. Two days after the accident, Mr. Collins met Mr. Houston at the scene of the accident along with Mr. Brian Tapely and Mr. John Murray. Mr. Brian Tapely is an engineer with the ESB and at the time of the accident he was area manager for that part of Kerry, which included Cahersiveen. Mr. Murray was a Safety and Technical Services Supervisor with the ESB at that time.
27. Mr. Collins gave evidence that Mr. Houston pointed out the three sections of the tree that he had cut (the “Felled Tree”) and the stump which was approximately at the midway point up the lane. Mr. Collins gave evidence that he carefully re-assembled the tree and measured the tree and the stump which came to a length of 11 metres. The engineering evidence was that a tree of 11 metres on the bank was of sufficient height to make contact with the electricity wires if it fell. Mr. Collins also recalls burn marks on the tree and that the Felled Tree was consistent in height with the height of the line of trees on the bank, contrary to Mr. Houston’s claim that all the trees on the bank were six metres in height.
28. It was his view that the skid or scrape marks along the bark of the Felled Tree were consistent with the falling of that tree on the wire. He did not accept that these scrape marks could have been caused by the wire coming into contact with the tree on the ground as it recoiled up the lane after a unilateral fracturing of the wire, since in his view to cause this degree of scraping would have required a tree (which Mr. Byrne, the expert engineer employed by ESB, estimated could have a weight of between 50 and 100 kg) falling against tense wire before it fractured.
29. Mr. Tapely was a convincing witness and he was of the view that the scrape marks on the tree were caused by the weight of the tree as it moved along the wire as it fell. He also gave evidence that Mr. Houston pointed out the three pieces of the tree to him, which was measured at 11 metres and that photographs were taken of the re-assembled tree and that they had shown Mr. Houston the re-assembled tree that they had measured.
30. Mr. Tapely’s evidence was as follows regarding his discussion with Mr. Houston two days after the accident:
“When I spoke to him he told me that Ms. Penny Stewart and Mr. Batt O’Shea were holding the blue rope and pulling the blue rope. He told me that he was cutting or had been cutting a tree and that they were trying to pull the rope to direct the fall of the tree. He told me that the tree fell into the power line. He told me that there was a blue flash up on the power line. He told me there was a blue flash along the boherenn and all that went into my report. I didn’t speak to the other two witnesses to corroborate that, but that’s what he told me.”
31. This evidence is also consistent with the accident report which Mr. Tapely prepared and is dated 24th November, 2005, within a few weeks of the accident, Both his oral evidence and his written report are also consistent with the computer records of the ESB of the accident. The computer read-outs of the incident taken at the local sub-station and the control centre in Cork indicated that there was a short circuit caused by the outer and middle wire making contact (as was clear from the sudden change in flow of electricity at the relevant time in those wires), followed by an earthing (which occurs when the middle wire hits the ground and its flow of electricity reverts to zero) followed by a shut off of the electricity in all three wires as a safety precaution. Mr. Collins’ evidence was that such a short circuit could not occur without some external interference, such as a tree touching one wire and forcing it into contact with another wire. This leads to a short circuit which the computer records show happened first. Then, next in time is the earthing, which is when the fractured wire touches the ground, which is consistent with those computer records.
32. In this regard, expert evidence was given by an electrical engineer, Mr. Kevin O’Connor who indicated that if a wire fractured unilaterally it is of such weight, and because of the forces of gravity, that it would fall vertically to the ground and would not make contact with the outside wires which are 0.75 metre from the middle wire. On this basis, a short circuit was highly unlikely if there had been a unilateral fracturing of the wire in his view.
33. Like Mr. Collins, Mr. Tapeely also gave evidence that the line of trees on the lane when he visited two days after the accident were tall enough for a felled tree to fall on the electricity wires, contrary to Mr. Houston’s evidence.
34. Mr. Tapely also gave evidence that Mr. Murray used binoculars to examine the other two wires at the mid-way point along the lane roughly opposite the stump of the Felled Tree and he noticed some bubbling on the wire closest to the trees. Mr. Tapely also gave evidence that there were burn marks on the Felled Tree and he pointed to such marks in photographs which were taken by him when he visited the accident site in 2005. Accordingly, the following week Mr. Collins arranged for a two metre section of wire at this mid way location to be replaced and the replaced wire had evidence of bubbling caused by extreme heat which Mr. Collins indicated was consistent with the two wires touching each other leading to a short circuit. This was consistent he said with a tree causing the outer wire to come in contact with the middle wire.
35. As regards the suggestion on behalf of the plaintiff that the wire had unilaterally fractured, without any contact from the Felled Tree, Mr. Collins gave evidence that these were copper wires that had been installed two years previously and that they had a minimum lifespan of 40 years and that he had no experience of copper wires spontaneously breaking. Mr. Tapely also gave evidence that he had never heard of, or come across, spontaneous fracturing of such wires without outside interference.
36. Mr. Collins also gave evidence that anyone cutting down trees within the vicinity of electricity wires should have contacted the ESB to switch off the electricity as this was the only way of dealing with this risk.
37. Mr. Murray was also a convincing witness and he gave evidence that Mr. Houston told him that he attached the rope to the trees in order to pull the Felled Tree parallel to the tree line (and thus also parallel to the electricity wires) and that as the tree was being pulled, there was a huge flash. This contradicts Mr. Houston’s account that there was about a minute time-lag between the pulling of the tree and the flash.
38. Mr. James O’Connell is the Timber Clerk of Works employed by the ESB before and since the accident and so he has extensive experience of trees growing close to electricity wires. He gave evidence that based on his experience of trees falling against electricity wires, the scrape marks on the Felled Tree were consistent with the type of scraping marks on trees that hit wires.
Expert evidence
39. In addition to employees of ESB, expert evidence was provided on behalf of Ms. Stewart and the ESB.
40. Mr. Tony O’Connor is an independent electrical engineer on behalf of the ESB and his evidence was that the wire in question was copper wire which has a minimum life of 40 years and in some instances lasts 80 years. Evidence was provided to the Court that the wire in question had only been installed on the site two years previously. He also provided evidence that there are 10,000 kilometres of electricity wire in Ireland and he stated that there is no evidence of copper wire spontaneously fracturing.
41. Mr. Michael Byrne was the civil engineer on behalf of the ESB and his evidence was that he had never investigated anything as dangerous as the accident in this case. This was because he stated that Mr. Houston was working on a bank without proper equipment (e.g. he did not have a felling bar to control the direction of the fall of the tree), he was not a qualified tree surgeon and he had untrained personnel (Ms. Stewart and Mr. O’Shea) in the fall zone of the tree, all of this when, based on the evidence of the ESB personnel, the trees at the relevant time were of sufficient height to touch the electricity wires if they fell towards the electricity lines ( and when he visited the site in 2010 the trees were of a sufficient height to touch the wires if they fell). He also gave evidence that Mr Houston, as someone cutting trees in the vicinity of electricity wires should have contacted the ESB to have the supply turned off.
42. Mr Frank Curran was the engineer engaged by the plaintiff and he bases his conclusion that the Felled Tree did not make contact with the electricity wires on the height of the trees in 2015 when he visited the site and when all the trees were six metres in height. However the height of the trees in 2015 is of limited relevance to an accident that occurred 10 years previously. In further support of his conclusion he relies on a statement of Mr. O’Connell, the ESB Timber Clerk, that he had topped the trees before the accident occurred. However, this statement does not in fact state that Mr. O’Connell topped the trees. It states that “two meters minimum radial clearance” from the electricity line was applied when he cut the trees in 2003. This has no relevance to the height of the trees, but rather is the size of the clearance between the trees and the wires. Accordingly, this Court would treat with caution the conclusion reached by Mr. Curran in his report since trees could be 11 metres in height and still comply with the two metres minimum radial clearance.
Conclusion
43. This Court concludes on the basis of the foregoing evidence that the probability of the electricity wire fracturing spontaneously is very low. The probability of this happening at the exact same time as trees were being cut in the vicinity of the electricity wires (an operation which one expert engineer described as one of the most dangerous things he has ever come across) is even lower again.
44. For this reason and based on the convincing nature of the evidence provided by the employees of the ESB who met with Mr. Houston two days after the accident, the expert evidence provided on behalf of ESB and the inconsistencies in Mr. Houston’s evidence, this Court concludes that on the balance of probabilities the electrocution was caused by the Felled Tree striking the wires and so the plaintiff has failed to convince this Court that on the balance of probabilities, the accident occurred as she alleges and so this Court must dismiss her claim.
Susan O’Mahoney v Tipperary County Council (HC)
, Kevin Kiely and Joseph Corbett
Kennedy v Tipperary County Council, Kevin Kiely and Joseph Corbett
[2018 No. 548 P], [2018 No. 1850 P]
High Court [Approved]
18 June 2021
unreported
[2021] IEHC 643
Mr. Justice Twomey
June 18, 2021
JUDGMENT
SUMMARY
1. In 2008, in the Supreme Court case of O’Keeffe v. Hickey and Ors., [2009] 2 I.R. 302Hardiman J. referenced the practice where parents take claims for personal injuries suffered by their children while playing in a playground. He was particularly critical of the view that every injury is compensatable and the eternal quest for a ‘deep pocket’ (such as a business, an insurance company, a local authority etc.) which could be made liable for an accidental injury. He expressed concern, at that time, that such claims were occurring at an ever-increasing pace and referenced the negative effects that they were having on the freedom of children to play. He quoted with approval the prediction that ‘ if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards. ’ (at pp. 321-322)
2. Hardiman J. might be more than a little disappointed to learn that not only had claims by parents for injuries to their children in playgrounds continued apace since 2008, but that now, some thirteen years later, there is a new type of claim regarding playgrounds, namely a claim for injuries to adults when they are using swings, not in a hotel, bar or gym, but rather in a children’s playground. This and the other issues which arise in this case can be summarised as follows:
(i) Adult injured while on a child’s swing
3. This case concerns a claim by two adults who were injured when using a swing, not in an adult location, but in a children’s playground. It considers the ‘ chilling effect’ of claims such as these on the provision of play or adventure facilities for children (and indeed the provision of goods/services generally to all citizens) and the application of what is ‘ universally known by reasonable adults of normal intelligence’ , in other words, common sense, (as highlighted by the Court of Appeal in Cekanova v. Dunnes Stores[2021] IECA 12) to such a claim.
(ii) A claim that €54,700 is fair compensation for a ‘minor’ injury
4. This case also considers a claim made by the plaintiff through her lawyer that an injury which her counsel categorised as a ‘ minor’ ankle injury that kept someone out of work for just 10 weeks would nonetheless merit damages for ‘pain and suffering’ (in addition to any out of pocket expenses) of up to €54,700 under the non-binding Book of Quantum (assuming, of course, negligence was established), even though:
• the binding case law from the Supreme Court (in Simpson v. Governor of Mountjoy[2021] IESC 81) regarded the sum of €7,500 as appropriate compensation for a person who was wrongfully required to slop out for 7.5 months in a prison, and,
• it would take a person on the average wage in the State over 1.5 years to earn €54,700 (applying the binding principles adopted by the Supreme Court in McDonagh v. Sunday Newspapers[2018] 2 I.R. 79 for assessing the reasonableness of damages, i.e. ‘how long and how hard an individual would have to work to earn’ the proposed sum), and
• the amount of damages for the ‘pain and suffering’ caused by a minor injury to an ankle is required to be proportionate to the pain and suffering cap of €500,000 for quadriplegia/catastrophic injuries (according to the binding principles set down by the Court of Appeal in Nolan v. Wirenski[2016] IECA 56), yet a sum of €54,700 is almost 1/9th of the cap, which cannot in this Court’s view be regarded as proportionate in light of the huge difference between the pain and suffering involved in quadriplegia/catastrophic injuries on the one hand and the pain and suffering involved in a minor ankle injury on the other.
For this reason, as noted below, when the foregoing principles for the assessment of damages set down by the Supreme Court and the Court of Appeal (which, unlike the Book of Quantum, are binding on this Court) are applied, this Court concludes that a more appropriate sum for fair compensation for a minor ankle injury would be between €5,000 and €7,500, thus illustrating that in some cases the non-binding Book of Quantum will be of little or no assistance to a court in calculating damages. Accordingly, this claim, if it was to be brought at all, should have been brought in the District Court.
(iii) Minor injury claims instituted in the High Court rather than the District Court
5. This case also illustrates that there may be financial reasons why some claims, for minor and moderate injuries taken by impecunious plaintiffs may be brought in the High Court, rather than the District Court or Circuit Court. It is important to emphasise that it is not being suggested that this is what happened in this case and there is no suggestion that the plaintiffs’ lawyers did not bona fide believe that their client was genuinely entitled to compensation in excess of €60,000 (the floor for High Court damages), even though it is this Court’s view that the appropriate compensation for her injury was €5,000 – €7,500. Indeed, it is clear that the plaintiffs’ lawyers were making the best case possible for them.
6. Rather the point that is being made is that it is clear that issuing proceedings for minor injuries in the High Court, rather than the District Court, by an impecunious plaintiff may amount to greater leverage upon the defendant to settle that claim. This is because, where a plaintiff is not in a position to pay legal costs, if he or she loses, the Supreme Court in Farrell v. Bank of Ireland[2012] IESC 42 observed that litigating may be part of an ‘unfair tactic little short, at least in some cases, of blackmail’ to force a defendant to ‘buy off the case’, even if the claim is ‘ unwholly unmeritorious’. If one accepts therefore the Supreme Court’s conclusion that an impecunious plaintiff may, in some cases, be using his impecuniosity as leverage, it seems clear that instituting a minor claim in the High Court increases that leverage. This is for the simple reason that a defendant will make a much greater saving on legal costs (which he would not recover from an impecunious plaintiff) by settling a High Court action, than settling a District or Circuit Court action.
7. Accordingly, logic would suggest that the amount which a defendant will pay to settle a claim is much greater in the High Court, than in the District Court, since the saving on legal costs is so much greater. For example, in the case of Condon v. Health Service Executive, Szwarc v. Hanford Commercial Ltd. T/A Maldron Hotel Waterford[2021] IEHC 474, submissions were made to this Court that the price for buying off that High Court personal injury case, which was described as a nuisance claim, was €20,000, with the plaintiff’s lawyers getting €10,000 and the plaintiff getting €10,000.
8. When one considers that legal costs in the District Court are likely to be in the hundreds of euro, one can see the much greater ‘nuisance value’ of an unmeritorious claim for a ‘minor injury’ which is brought by an impecunious plaintiff in the High Court, than the same claim brought in the District Court. This is because the defendant will ‘only’ save say €500 – €1000 in legal costs by settling a District Court claim for minor injury, but could save €50,000 – €100,000 in legal costs by settling the same claim for damages for minor injury, if brought in the High Court.
9. Thus, for an impecunious plaintiff with an unmeritorious claim for say a minor ankle injury who hopes to get a settlement, instituting the proceedings in the High Court, rather than the District Court, would appear to increase the ‘nuisance value’ of the claim by circa €10,000 and thus make financial sense from his perspective (since as an impecunious plaintiff he will be unlikely to be paying the legal costs of the defendant, if he loses).
10. It is important to note that there is currently no legal bar on claims for minor injuries being taken in the High Court. It is a matter for the plaintiff to decide in which court he wishes to take his claim for a minor injury. For a plaintiff, the choice of the High Court for a minor injury will in many cases be of little import because, as noted below, 99% of cases settle (e.g. with the defendant buying off the cost of having to fight a High Court claim), and this is particularly the case, if the plaintiff is impecunious as he will not be paying the expensive High Court costs, even if the he loses. However, for the defendant, who is subjected to a claim for a minor personal injury in the High Court rather than the District Court, this choice is of huge importance, since in order to defend a claim for minor injury in the District Court, it will cost him €500-€1,000 in legal fees, a fraction of the €50,000-€100,000 which it will cost him to defend the exact same claim for a minor injury in the High Court.
11. It is important to emphasise of course that even though the lawyers’ fees will be greater in the High Court, than in the District Court, it is not being suggested that the lawyers in this case instituted the proceedings in the High Court for anything other than bona fide reasons. In any case, the decision to institute the proceedings, and in which jurisdiction they are instituted, is the decision of the client and lawyers act on the instructions of their clients.
Causing delays for plaintiffs with serious and catastrophic injuries?
12. The taking of a minor injury claim in the High Court, rather than the District or Circuit Court is relevant because there is a well-publicised delay in having cases heard in the High Court at present. As a result, plaintiffs who have serious and catastrophic injuries, and whose cases should unquestionably be dealt with by the High Court, are being delayed in receiving their urgently-needed compensation. To the extent that ‘minor’ injury cases are instituted in the High Court, this is a matter of general concern because it would be contributing to that delay for those plaintiffs with life threatening and life altering injuries.
13. However, the incentive to take unmeritorious claims for minor injuries in the High Court, rather than the District Court or Circuit Court, is likely to continue in the absence of objective criteria for the classification of those injury claims which are permitted to be brought in the District or Circuit Court (so it is not simply at the choice of a plaintiff) or, failing that, a financial disincentive for impecunious plaintiffs (who are unlikely to be paying the defendant’s legal costs if they lose and so for whom the choice of the High Court, with its considerable legal costs, is irrelevant), while of course at all times recognising a plaintiff’s right of access to the courts.
14. Of course, in referencing the right of a plaintiff to access the courts, it is important to note that the Supreme Court has pointed out that the more appropriate characterisation of this litigation right is not merely a right of access of a plaintiff to the courts, but rather the right of plaintiffs and defendants ‘ to have litigation fairly conducted’ ( per Farrell v. Bank of Ireland[2012] IESC 42 at para. 4.6). In this regard, having litigation fairly conducted for a plaintiff and defendant is arguably having a level playing field between defendants and plaintiffs regarding legal costs, so that as regards legal costs, it is not ‘lose-lose’ for a defendant sued by an impecunious plaintiff, yet ‘no lose’ for that plaintiff (as apparently in this case), or at least that there is some sufficient financial disincentive to a plaintiff in taking unsuccessful litigation.
BACKGROUND
15. This was a hearing involving a claim by two adults, for personal injuries which were sustained on two separate occasions when using the same swing in the same community playground. The swing in question is designed for children and is located in a children’s playground in Newcastle, Co Tipperary. It is relevant to note that there was a sign on the fence of the playground which provides that:
“This playground is for the use of all children 12 years and under.”
16. The swing is a basket swing, which is commonly to be found in modern playgrounds. It is also referred to as a bird’s nest swing, as a child can sit or lie in the centre of the swing, which is circular in shape with a diameter of 1.25 metres, with a rigid rim circumference and with lattice rope or webbing in the centre of the circular basket, which operates as the swing’s sitting or lying area.
17. Evidence was provided that the bird’s nest swing does not swing up or down to a high degree like the older traditional swings, because of the weight of the basket. Instead it sways back and forth relatively close to the ground. The plaintiffs’ engineer provided evidence that this swing was designed for children from age 1 up to adolescence.
18. To their credit, the residents of Newcastle, Co. Tipperary raised funding for the building of the playground, in which the swing is located, in order to provide what was recognised by the plaintiffs as an impressive amenity for the children of the locality. It is the local authority, Tipperary County Council (the “Local Authority”), which has responsibility for the maintenance of the playground and so it is being sued in these proceedings and it has taken over the defence of the action on behalf of the second and third named defendants.
19. It is not claimed by the two plaintiffs that the swing is not a child’s swing. Nor do they claim that it is an adult’s swing. However, in March 2016, one plaintiff decided to join the child under her care on the swing, and the other plaintiff decided to do the same thing with the child under her care in July 2016. The plaintiffs do not claim that they did so for their own enjoyment or the enjoyment of the children, but rather they both claim that they got onto the swing as they felt it was safer for the children, even though the swing is designed for use by children on their own and, as mentioned above, the swing is not designed to behave in the same way as a traditional swing and so does not swing up in the air to a high degree, but sways from side to side.
20. As regards the details of the two separate accidents, on 30th March, 2016, the plaintiff in the first set of proceedings (“Ms. O’Mahoney”) decided to accompany a boy of 2 years and 10 months of age, who she was childminding at the time, on the swing. Ms. O’Mahoney caught her right ankle on the underside of the swing as she attempted to get off the swing and she suffered an undisplaced fracture to her ankle as a result. She was in a cast for 6 weeks and then in a boot for 4 weeks and within 2.5 months she was back working as a carer.
21. An almost identical accident happened to a different woman, the plaintiff in the second set of proceedings, on 13th July, 2016, (“Ms. Kennedy”) when she decided to accompany her cousin, a boy of 16 months at the time, onto the swing. Ms. Kennedy confirmed in her evidence that Ms. O’Mahoney and herself know each other as acquaintances. Ms. Kennedy’s injury occurred when she had her young cousin in her arms when she was attempting to get off the swing, when she caught her right ankle in the underside of the swing. She suffered an undisplaced fracture of her ankle and some ligament damage. She was in a cast for four weeks and was out of work for eight weeks and had some ligament damage for a short time thereafter for which she wore an ankle support.
22. It was possible for Ms. O’Mahoney’s case and Ms. Kennedy’s case to be heard together, as they both sought advice from the same solicitor regarding their almost identical claims for personal injuries and he instructed the same expert engineer and counsel. Hence judgment is being delivered in both cases at the same time.
ANALYSIS
23. Both plaintiffs seek compensation at the High Court level (i.e. more than €60,000) from the local authority on the grounds that it set the height of the swing at a level that was too low and as a result of this alleged negligence/breach of duty, the local authority created an entrapment risk. As a result of this negligence, the plaintiffs claim that they caught their ankles under the swing when trying to get off and thereby suffered injuries. It is the plaintiffs’ case that they were recreational users under s. 4(1) of the Occupiers Liability Act, 1995 when sitting on the swing, on the basis that they were entitled to use the swing for the purpose of accompanying the children in their respective care, and that therefore they were both entitled to rely on the swing being kept in a safe condition for their use.
24. In essence therefore, the plaintiffs are claiming that the swing, which was designed for use by children under 12, was hung too low to the ground for use by them. In this regard, they are both adults of similar heights, 5 ft 5 inches in Ms. Kennedy’s case and 5ft 6 inches in Ms. O’Mahoney’s case. They claim therefore, that the swing was not safe for their use and this caused their respective ankles to get caught between the swing and the ground when they were getting off the swing.
Appropriate clearance for the swing
25. There is a dispute between the engineers as to whether in fact the swing was set at too low a level in breach of the relevant British Standard applicable at the time (BS EN1176). The plaintiffs’ engineer claims that the clearance of 350 mm (set down in that British Standard – ‘BS’) should be measured from the lowest point of the basket (in the centre of the ring) to the ground, while the defendant’s engineer claims that it should be measured from the hard edge of the circular rim of the basket (which is higher from the ground).
26. The applicable BS at the time states that the clearance is to be measured
‘between the lowest part of the seat or platform and the playing surface when the swing is at rest’
which the plaintiffs claim supports their contention that it should be measured from the flexible netting in the centre of the swing.
27. However, the defendants’ engineer points out that this is not a traditional swing and that the most appropriate place to measure the clearance is from the hard rim, since this is the point from where one gets on or off. He supports this interpretation by referring to the revisions to the BS made in 2017 (EN 1176-2: 2017). While this revised BS did not apply at the relevant time of the accidents, he relies on this change to support his interpretation of how the original BS should be applied to non-traditional swings, such as the bird’s nest swing. This revised BS provides that the clearance (which had increased to 400mm in the revised BS) is to be taken from the ‘underside of the rigid part of the seat in its most onerous position’.
28. While the clearance from the underside of the rigid part of the seat of the bird’s nest, namely the hard rim circumference of the bird’s nest swing, exceeded the minimum 350mm (and this was accepted by the plaintiff’s engineer), the clearance from the interior flexible netting did not do so, as it was 187 mm, which is almost 8 inches less than the clearance required under the BS.
29. It follows that the plaintiffs’ engineer claims that the swing should have been raised by approximately 8 inches and this would have avoided the entrapment. The defendants’ engineer disagrees and claims that the swing was set at the right height and in compliance with the relevant BS, since the clearance must be measured from the hard rim i.e. the rigid part of the seat.
30. It seems to this Court that there is logic in the interpretation proposed by the defendants’ engineer, such that the appropriate point from which to measure the clearance is from the bottom of the rigid part of the swing, for the simple reason that this is the point at which a child exits the swing. If the clearance is measured from this point, then the swing is in compliance with the BS standard. That is the end of the personal injuries claim, since there is no breach of duty/negligence on the part of the Local Authority, as it complied with the BS. However, even if this Court is wrong in that regard, for the reasons set out below, it finds that, in any case, the Local Authority has not breached any duty, statutory or otherwise, to the plaintiffs.
Common sense suggests that an adult should not use a child’s swing
31. Ms. O’Mahoney accepted in evidence that her common sense would have told her not to use the swing if she were on her own, since it was a child’s swing. This is just common sense and this Court did not need Ms. O’Mahoney to make this admission, for it to reach that conclusion. However, Ms. O’Mahoney maintained that she got into the swing with the child under her care, as she felt that he might get injured otherwise.
32. Ms. Kennedy made a similar claim regarding her reason for getting into the swing with the child under her care.
33. However, in this regard it is relevant to note that there was no evidence of this swing being an injury risk for children to use on their own, without an adult. Indeed, quite the contrary assumption might be taken (i.e. that it was safe for use by children alone ) from the notice on the playground which makes it clear that ‘ the playground’ , which must mean the equipment in the playground (since it would be normal for adults to accompany children into the playground itself) is for the use of children. The corollary of this is, of course, that the equipment, and thus the swings, are not for the use of adults.
34. Ms. O’Mahoney accepted that she was aware of the contents of the Notice regarding the playground being for the use by children of 12 and under. However, Ms. Kennedy, despite using the playground regularly for many years, claimed that she had not seen the Notice. On the balance of probabilities however, in view of the number of times she used the playground, this Court finds that Ms. Kennedy would have been aware of its contents.
35. Yet, even if Ms Kennedy were not aware of the notice, common sense would tell any adult, including Ms. Kennedy, that she should not be using a swing which is designed for use by children. Common sense is an important, but often over-looked, factor in determining liability for accident claims, since as noted by Keane J. in Turner v. The Curragh Racecourse[2020] IEHC 76 at para. 55 (when quoting from p. 57 of the judgment of Geoghegan J. in Weir-Rodgers v. S.F. Trust Ltd.[2005] 1 I.R. 47):
“the common law is just the formal statement of the results and conclusions of the common sense of mankind.” (per Lord M’Laren in Stevenson v. Corporation of Glasgow1908, SC 1034 at p. 1039)
36. A good example of the application of common sense to an accident claimis provided by the Court of Appeal in Cekanova v. Dunnes Stores[2021] IECA 12 where a claim, for personal injuries by a plaintiff, who made tea in a glass jug which shattered, was dismissed on the grounds that:
“It is universally known by reasonable adults of normal intelligence that boiling or very hot water has the potential to shatter an ordinary glass vessel.” (at para. 31)
37. Similarly, in this case, ‘reasonable adults of normal intelligence’ know, or should know, not to use swings designed for children. The corollary of this is that if adults get injured because they use a swing, designed for children, which they claim is too low to the ground for them (and particularly where no evidence was produced of children being injured because it was too low to the ground), those adults do not have a right to damages, for any injuries suffered, against the local authority which is managing the playground (on the grounds of any alleged breach of duty by it).
38. Furthermore, there is a duty on individuals to take reasonable care for their own safety (Lavin v. Dublin Airport Authority plc[2016] IECA 268 at para. 52) and the decision by the plaintiffs to use equipment which they knew, or should have known, was designed for use by children under 12, amounts to a failure by them to take reasonable care for their own safety. Accordingly, it is not a breach of any duty on the part of the local authority not to raise the swing so as to accommodate adults.
39. If the plaintiffs decide to use a child’s swing at their own risk, they should take extra care to plant their feet, before attempting to get off the swing and in this regard, engineering evidence on behalf of the defendant was provided that the accident would have been avoided by both plaintiffs, if this had been done.
40. Indeed, in the case of Ms. Kennedy, not only did she not take extra care when getting off a child’s swing, she actually appears to have taken even less care than Ms. O’Mahoney, since Ms. Kennedy attempted to get off a moving swing while holding a child in her arms – this apparent carelessness seems to fly in the face of Ms. Kennedy’s claim that her reason for getting on the swing in the first place was to protect the safety of the child.
The social effect on children’s playgrounds of a finding of negligence
41. Although not determinative of this Court’s finding, it is nonetheless relevant to note that engineering evidence was provided that if the swing was raised by approximately 8 inches, as the plaintiffs claim should have happened, this would, firstly, make the swing much harder to access for small children.
42. Secondly, making the swing higher by 8 inches in order to make it safer for adults (or indeed in order to reduce the chances of personal injury claims by adults) would have the direct effect of making the swing scarier for young children, since engineering evidence was provided that the swing is designed to sway over the ground as close as possible to the ground to make it less scary for young children to use.
43. Thirdly, this engineering evidence was also to the effect that the increase in height would make the swing less safe for young children when, from time to time children, as would be expected, fall from the swing on to the ground, since the ground would be a further 8 inches away.
44. Yet the purpose of these changes sought by the plaintiffs to a child’s swing, to the detriment of the children who use it, would be to prevent it becoming an entrapment risk for persons such as the plaintiffs, i.e. adults, for whom the swing was not designed and where no evidence had been provided of any entrapment risk to children using the swing.
The ‘chilling effect’ of an award of damages against a provider of play activities
45. Similarly, while also not determinative of this Court’s finding, it is relevant to note that individual claims for personal injuries such as in this case, can, in certain circumstances, have a wider effect and thus a considerable social cost on the freedom of citizens in this State. This was the view of Hardiman J. in O’Keeffe v. Hickey[2009] 2 I.R. 302 where he was critical of the view that
“it is widely believed that every misfortune must be compensatable.” (at p. 320)
46. He observed that the notion that unfortunate accidents, such as this one, must be compensatable, can have a ‘ chilling effect’ on public authorities, such as the local authority in this case (or indeed privately insured businesses providing play areas or play activities for children). At p. 321 Hardiman was also critical of the:
“eternal quest for a “deep pocket” which can be made liable [for accidents] not merely proceeds apace, but at an ever increasing pace.”
47. Hardiman J.’s comments in that case seems particularly apposite for the facts of this case, since Hardiman J. went on to note at pp. 321 – 322 that:
“And on the 22nd October, 2008, it is reported in The Irish Times that a Circuit Court Judge in Cork predicted that if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards.”
48. In the 13 years since that judgment, matters are continuing to proceed at ‘ an ever increasing pace’ as regards the search for compensation from deep pockets for personal injuries, such that not only are parents suing for playground incidents involving injuries to their children, but we now have reached the stage where adults are suing for injuries to themselves where they use playground equipment intended for use by children, and the level of damages sought are such that the claims are not being made in the Circuit Court, but for the greater level of damages available in the High Court.
49. It is of course human nature, as observed by Hardiman J., to have sympathy for plaintiffs, such as Ms. Kennedy and Ms. O’Mahoney who fractured their ankles, as there is a ‘a human tendency to wish that that person should be compensated ’ (at p. 319). However, he pointed out that a finding of liability ‘is not a light thing and has an effect quite separate from its consequences in damages’ (at p. 317) since it can have a ‘chilling effect’ on the State and private initiatives. Although not determinative in this case, it remains to be observed that claims in the High Court by adults who use children’s swings in playgrounds, if they were successful, could well lead to this ‘ chilling effect’ on the provision by public authorities of playgrounds for children (or indeed adventure centres, crêches and other services for all citizens). The consequences, quite separate from an award of damages, in this instance might be an interference with the liberty of children to play in playgrounds. In this regard, it was noted by Lord Hobhouse in Tomlinson v. Congleton Borough Council[2004] 1 AC 46 at para. 81:
“The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.”
The ‘chilling effect’ arises even where the claims are dismissed
50. Indeed, even where such claims are not successful, the very bringing of them can have a negative effect on the provision of such services, particularly where the plaintiffs, as appears to be the case here, may not have the financial resources to pay the defendant’s legal costs if they lose, since it appears that one and perhaps both defendants are unemployed. Accordingly, the local authority in such situations could end up ‘winning’ the case but losing financially, with the local authority, and therefore the taxpayer, having to pay the tens of thousands in legal costs of ‘winning’ a High Court personal injuries action (as noted in Dempsey v. Foran[2021] IEHC 39 at para. 73 et seq).
51. Unfortunately, for the children who use playgrounds, one way, for providers of playgrounds and other facilities or services for children, to avoid having to fight and win unmeritorious claims (at significant irrecoverable legal costs), is to cease providing such facilities in the first place. Hence there is the ‘ interference with the liberty of the citizen’ to which Lord Hobhouse referred, that the bringing of such claims can cause.
52. It is for this reason that this Court would observe that it is not only the case that a finding of liability for personal injuries can have a chilling effect on the provision of such facilities, it is also the case that where a provider of facilities (whether a local authority or a private entity) is subject to a claim from impecunious plaintiffs, even the dismissal of those claims will be at significant cost to that provider, since there is currently no effective way for the provider to recover legal costs for winning a claim against an impecunious plaintiff. In this respect, it is not a level playing field in such litigation, since as noted in Dempsey, it is a ‘ no lose’ scenario for an impecunious plaintiff as regards legal costs, but it is ‘ lose-lose’ for the defendant.
The ‘chilling effect’ arises even where the claims are settled
53. It is for this reason that claims, even those with little prospect of success are often settled by defendants, since it makes economic sense for a defendant to ‘ buy off’ a claim from an impecunious plaintiff, that it might regard as ‘blackmail’ , to use the expressions adopted by the Supreme Court in Farrell v. Bank of Ireland[2012] IESC 42 at para. 4.12. Such claims appear to fall within the description of ‘nuisance claims’ used by counsel in Condon v. HSE[2021] IEHC 474. This court understands this term to mean cases which have a low probability of success (say 10% or less), but which make economic sense for the defendant to buy-off. This is particularly so if it will cost the defendant more to ‘win’ the case (since it is unlikely to recover its legal costs from an impecunious plaintiff) than it would cost it to settle the claim (for a lesser sum than its irrecoverable legal costs).
54. However, if (using the figures supplied to this Court in the Condon case), those claims are bought-off by a defendant on the basis of €10,000 for the plaintiff and €10,000 for his lawyers (a total of €20,000, which is not an insignificant sum of money for a provider of children’s play activities), such a settlement of nuisance claims (on top of the legal costs of say €10,000 payable to the their own lawyers) may nonetheless have a ‘chilling effect’ for that provider (notwithstanding that it is less than the €50,000 – €100,000 that it might cost to ‘win’ the action if it were to be heard in the High Court).
55. However, clearly this is a catch-22 situation, since while it costs more to fight nuisance claims than settle them, if a defendant settles ‘nuisance claims’, then the greater the incentive there is for plaintiffs to bring nuisance claims. Accordingly, it seems that so long as there is no financial disincentive for an impecunious plaintiff to bring nuisance claims, in the hope of receiving a settlement, such claims will continue to be brought, particularly if it makes economic sense for the defendant to buy them off, rather than litigate them.
56. In this regard, it is perhaps not surprising that such a high percentage of personal injuries cases settle. In the Report of the Personal Injuries Guidelines Committee (published by the Judicial Council in December 2020) it is stated that only about 0.54% of all personal injury claims (in the period 2017-2019) were actually heard in court (unlike say judicial review cases, where there is anecdotal evidence that only circa 10% of such claims are settled).
57. Based on the foregoing, it seems that the chilling effect, to which Hardiman J. referred, arises not just with (i) a finding of liability by a court against a provider of play/recreational activities (and indeed other services to adults/children which might give rise to claims), but also (ii) where claims against impecunious plaintiffs are dismissed and (iii) where claims are settled (since it does not make economic sense to spend more to ‘win’ litigation against an impecunious plaintiff than it costs to settle the claim).
While law is required to protect freedom, too much law can restrict freedom
58. It is also relevant to note that the claim in this case appears, to this Court at least, to be a new category of claim (or what might be termed new law), in that it seeks damages for personal injury to an adult from her use of a swing designed for children. While it is clear that law is necessary to protect the freedoms of citizens, e.g. the law making it a crime for one person to assault another, this case also illustrates that the law (or what might be termed ‘too much law’) can in some instances have the effect of restricting the freedom of citizens. This is because a finding of a breach of a duty to adults when using children’s swings may lead to those swings being raised to prevent future claims (as noted by the engineer for Tipperary County Council), thereby depriving younger children of the freedom and pleasure of using those swings. It is this type of restriction of freedom by what might be termed too much law that the American jurist, Professor Grant Gilmore, may have had in mind, when he stated that “[i]n Hell, there will be nothing but law….” (Grant Gilmore, The Ages of American Law (1977) at p. 111).
59. This case therefore illustrates the risks, to the freedom of all citizens of too much law, or of what Hardiman J. referred to as the ‘ eternal quest for a “ deep pocket”’ . This is because it is important to bear in mind that what people sue for (whether the claim is won, settled or indeed lost – particularly if the winning local authority ends up footing the cost of ‘winning’ the claim) ends up defining the limits of freedom for all citizens. Ironically therefore, personal injury claims such as this one can have the greatest effect, not on the parties to the litigation, but rather people who are not party to the claim, nor even aware of its existence, but who may have their freedoms restricted by the chilling effect of such claims (i.e. other children who might have the birds’ nest swing altered or indeed taken away to prevent further claims).
60. The case of Tomlinson v. Congleton Borough Council has been previously referenced. It was concerned with a claim from an 18-year-old man who broke his neck and was paralysed for life when racing into a lake from a sandy beach and diving in at too sharp an angle onto the sandy bottom of the lake. If the claim was successful it might have given rise to a restriction on the freedom of other swimmers, not just in that lake, but in other lakes throughout England, so as to eliminate the risk of similar claims.
61. In considering whether the local authority should be liable, for allegedly not doing enough to protect against the swimming accident, the House of Lords considered not only the likelihood that someone might be injured and the seriousness of the injury which may occur, but they also considered the social value of the activity giving rise to the accident, observing that the Court of Appeal had made no reference to the social value of the activities in question. In Tomlinson, the social value was significant (namely the joy of swimming in a lake – similar to the joy of children playing in a playground) and that social value was such as to militate against a finding of liability (which liability was likely to lead to a restriction on other persons swimming in that lake).
62. It is clear from the various judgments of the House of Lords that it concluded that permitting Mr. Tomlinson’s claim would encourage the parks in England to restrict access to normal and healthy activities affecting the enjoyment of countless people. There was thus an important question of freedom at stake and it was held by the House of Lords to be unjust that the harmless recreation of others on the beaches should be prohibited in order to comply with what was an alleged legal duty to prevent accidents, on the part of the local authority.
63. The House of Lords held that this misguided perception of justice on the part of the English Court of Appeal in awarding damages can hurt the public generally (albeit that it may have resulted from an understandable sympathy which a court might feel for the life-altering injuries suffered by Mr. Tomlinson). However, this desire, which Hardiman J. described as ‘a human tendency to wish that that person should be compensated’ (O’Keeffe v. Hickey[2009] 2 I.R. 302 at p. 319) in respect of one injured citizen can have a negative effect on the freedom of all citizens . Lord Hoffman stated at para. 81:
“The arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.”
Lord Hoffman, at para. 46, also referenced the fact that it
“Is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious.”
He went on to criticise the misguided perception of the Court of Appeal of the impact an award of damages could potentially have on public enjoyment of facilities.
“Sedley LJ, … was able to say that if the logic of the Court of Appeal’s decision was that other public lakes and ponds required similar precautions, “so be it”. But I cannot view this prospect with the same equanimity. In my opinion it would damage the quality of many people’s lives.” (at para. 48)
Lord Hoffmann further noted at para. 34:
“The question of what amounts to “such care as in all the circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.”
Lord Scott stated at para. 94:
“Of course there is some risk of accidents arising out of the joie-de-vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone.”
Does the law require that all trees be cut down because someone may climb and fall?
64. Lord Hobhouse also made remarks regarding the impact awards of damages could have on the freedom of others to enjoy amenities (at para. 81):
“It is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? Does the law require that attractive waterside picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no.”
Similarly, in this case, this Court might ask does the law require that the birds’ nest swing be raised 8 inches because an adult decides to use it and thereby deprive young children from climbing onto the swing because of its raised height?
65. It seems to this Court that the Tomlinson case illustrates that the goal of law is not just to decide whether or not to provide compensation for an accident to a particular individual, but also to bear in mind the daily freedoms of every citizen, who are not parties to that litigation. This is because what people sue for can result in key limitations on the freedoms of all citizens (whether adults swimming in a lake or children playing in a playground).
High Court is bound by Court of Appeal direction not to not deny children joy of playing
66. It is also relevant to note at this juncture that the High Court (and for that matter the District and Circuit Courts) are bound by the direction from the Court of Appeal that judges should ensure that they do not risk denying children positive experiences such as playing in a playground. In this case, the playground was one which was funded by a local community. In the judgment of Irvine J., as she then was, in Byrne v. Ardenheath[2017] IECA 293 at para. 49, she dismissed a personal injuries claim by a plaintiff who slipped on a grassy bank and she stated that:
“Judges should be careful when interpreting statutory provisions such as s. 3 of the [Occupiers’ Liability Act, 1995] to ensure that they do not inadvertently and contrary to the intention of the legislature by their judgments end up denying children the joy of running down a grassy slope in a public park on a dry summer day or the golfer the pleasure of playing to an elevated green surrounded by a grassy bank.” (Emphasis added)
67. In this context, it is to be noted that if the plaintiffs in this case were successful, it would be likely to lead to an increase in the height of the swing in question by approximately 8 inches. As noted by the defendant’s engineer, this is likely to prevent certain smaller children from getting on to the higher swing and would therefore ‘ deny children the joy’ of being on that swing, all because of a personal injuries claim by an adult using a swing in a children’s playground. This is therefore a further reason why the claim should be dismissed.
68. It is also relevant to note that Hardiman J. further referenced the effect of findings of negligence on children’s play in O’Keeffe v. Hickey, when he quoted with approval the judgment of Binnie J. in the Canadian Supreme Court case of Jacobi v. Griffiths(1999) 174 DLR (4th) 71 at p. 105. In that case, there was a dismissal of a claim of vicarious liability against a non-profit organisation and Binnie J. observed that in the event of a finding of liability, the ‘ rational response’ of non-profit recreational organisations dealing with such claims ‘ may be to exit the children’s recreational field altogether’ . Hardiman J. then went on to reference the decline in the number of people performing voluntary activities on a local community basis and he observed that the decisions which courts take imposing liability for negligence ‘ are not without relevance to these issues’ (at p. 343).
69. Similarly, in this case, if there were to be an award of damages for this new category of claim (of adults injured using children’s swings), it seems that it would be a rational response for organisations to exit the field of provision of play or adventure centres for children.
Conclusion on liability
70. This Court has concluded that there was no breach of duty by the Local Authority as it did in fact comply with the relevant BS standard for the height of swings. However, even if this was not the case, it is not necessary for this Court to determine whether in fact there was a deviation, in relation to the swing, from the British Standards applicable at the time. This is because there is a complete absence of causation between the alleged breach of duty (being the failure to raise the swing) and the occurrence of the accident. This is because the ‘legal cause’ of the accident was not the fact that there was an alleged shortfall in the clearance between the child’s swing and the ground, making it unsafe for use by the plaintiffs, who are both adults. Rather, the legal cause of the accident was that two adults chose, on separate occasions, to use equipment which was designed for children and which (as stated implicitly by the terms of the Notice but also based on common sense), was not for use by adults.
71. Then, when using the equipment, they failed to take sufficient care for their own safety. In this regard, since the plaintiffs chose to use equipment which was not for use by adults, but for children of 12 and under, it is perhaps not surprising that they found the swing to be ‘too low’ for their usage and so caught their ankles between the swing and the ground.
72. In those circumstances, they cannot, in this Court’s view, suggest that the accidents were legally ‘caused’ by Tipperary County Council, when in fact the accidents were caused by their decision to use equipment which was not designed for use by adults. Just as if an adult decided to accompany her toddler on a child’s tricycle because she was afraid that he might fall off and she ended up injuring herself when getting off the tricycle, she could not, in this Court’s view, apportion liability to the manufacturer of the tricycle, so too the plaintiffs cannot seek to apportion liability to the Local Authority in these circumstances for the plaintiffs’ failure to use common sense and look out for their own welfare.
73. For all the foregoing reasons, the claims of both plaintiffs are dismissed.
Accidents do not automatically give rise to a right to compensation
74. In concluding this part of the judgment, this Court would summarise and add to Hardiman’s comments in O’Keeffe v. Hickey that it is important for potential plaintiffs and their lawyers to bear in mind that, just because:
• an accident occurred and someone is injured, and
• it occurred on property which is insured or owned/managed by the State or another insured party or a ‘deep pocket’ to quote Hardiman J., and
• it could be said that ‘but for’ something (in this case the swing being low) it would not have happened (see Lavin v. Dublin Airport Authority plc[2016] IECA 268 at para. 54 et seq.), and
• an engineer provides an expert opinion that in his opinion the location of the accident was substandard (because courts should approach with caution opinions from experts engaged by one party in litigation – see Byrne v. Ardenheath[2017] IECA 293 and Hanrahan v. Minister for Agriculture, Fisheries and Food[2017] IESC 66)
does not give rise to a right to damages. As the foregoing analysis illustrates, there are other factors to be considered, such as the social value of the activity in question, the effect of a successful claim on the freedom and liberty of others, the duty of every citizen to take reasonable care for themselves, the application of common sense (i.e. what ‘ universally known by reasonable adults of normal intelligence ’) etc.
What would the reaction be if the accident occurred in her own home or on a sports pitch?
75. In this regard, in analysing whether someone else is legally liable for an accident, it is sometimes helpful to consider the likely reaction of the plaintiff if the accident had happened in her home or indeed on a sports field. It seems to this Court that if the plaintiffs had fractured their ankles while playing with children in their own home in similar circumstances or on sports field, they would, in this Court’s view, be likely to dismiss it as an ‘unfortunate accident’ or a failure of common sense or a misjudgement which befalls everyone at some stage in their lives and for which no compensation is available.
76. Just because the accident happens in a public place which is covered by insurance, or which is the responsibility of a State body, does not alter the essential character of what occurred as an unfortunate accident for which no one, other than the plaintiff, is responsible.
77. Accordingly, while a court might have sympathy for the plaintiffs for the fractured ankles they suffered, it is not the job of a court to be generous based on sympathy, with other people’s money, whether that money belongs to a taxpayer, an insurance company or an individual uninsured defendant. Accordingly, there is no basis upon which the plaintiffs’ ‘ quest ’ for ‘ a deep pocket’ can be satisfied in this case.
78. Furthermore, in light of the considerable backlog in the High Court, it seems to this Court that this backlog might be eased (for the benefit of litigants with serious injuries in need of urgent compensation) if litigants and their lawyers asked what the reaction would have been if the accident had occurred in their own home? Such a question would, in this Court’s view, have highlighted in this case (and perhaps in other cases) that the real cause of the accident is an absence of care or common sense and not alleged negligence by some third party, who has insurance or a ‘deep pocket’.
DAMAGES OF OVER €54,000 FOR ‘MINOR’ INJURY?
79. If this Court is wrong regarding liability, it is relevant to consider the submissions of counsel for the plaintiffs regarding what he regarded as fair compensation for the injuries sustained.
80. Mr. Counihan S.C for the plaintiffs made submissions in this case regarding the application of p. 64 of the Book of Quantum to the plaintiffs’ injury, which deals with what is described as ‘minor’ ankle injuries. On this basis he submitted that Ms. O’Mahoney was deserving of damages of in the region of €54,700. In this regard, it is to be noted that there was no claim for special damages in the form of loss of earnings as it seems that Ms. O’Mahoney was not employed at the time. Out of pocket expenses were claimed in the form of ‘medical expenses’ and ‘travelling expenses’, but these were not particularised.
81. There was no indication given to the Court that these out of pocket expenses were substantial or came anywhere close to €5,300 (which, when added to the figure of €54,700 relied upon by counsel, would give a total of €60,000, the floor for damages in the High Court). Accordingly, it seems that the plaintiff and/or her lawyers regard her minor ankle injury as justifying an award for pain and suffering alone of close to €60,000.
82. Counsel for Tipperary County Council, Mr. Bulbulia BL agreed with Mr. Counihan’s description of the plaintiffs’ injuries as ‘minor’ and he quoted from the Book of Quantum as to the inclusion of ‘ a simple non-displaced fracture in the ankle’ in this category of minor injuries. In doing so, he referred the Court to the non-binding Book of Quantum referencing damages of ‘up to €54,700’. Both counsel referred only to the non-binding Book of Quantum and they did not made any submissions regarding the effect of the principles (set down by the Court of Appeal and the Supreme Court and set out below) which bind this Court regarding the assessment of damages on the appropriate compensation in this case.
Personal Injuries Guidelines are not binding in this case
83. Both counsel placed reliance on the Book of Quantum, as the proceedings were issued prior to the 24th April, 2021, when the Personal Injuries Guidelines were passed by the Judicial Council (the “Personal Injuries Guidelines”). For this reason, the Personal Injuries Guidelines are not binding regarding the assessment of damages in this case.
84. It is relevant to note that when this Court heard High Court personal injuries actions in June 2021, most, if not all, the cases which were heard were instituted on average six years earlier. Accordingly, it seems likely that many, if not the majority, of cases to be heard in the High Court over the next six years will be ones initiated prior to 24th April, 2021. Therefore, the Personal Injuries Guidelines may not be binding regarding the assessment of damages in the majority of cases to be heard for the next six years and hence it is important to clarify the binding legal principles which will apply during that period.
85. In particular, each time a plaintiff relies on the Book of Quantum to support his claim for damages, it is important for this Court to consider what the appropriate level of damages should be, in light of the case law for calculating damages set down by the Court of Appeal and the Supreme Court, particularly since the Book of Quantum is not binding on this Court (this is because s. 22 of the Civil Liability and Courts Act, 2004 provides that ‘ The court shall, in assessing damages in a personal injuries action, have regard to the Book of Quantum.’ (Emphasis added)).
86. This issue is particularly relevant in the present context since, as noted below, this Court concludes that the non-binding Book of Quantum figure of €54,700 is considerably more than the sum for fair compensation reached, when this Court applies the binding principles for assessing compensation, set down by the Court of Appeal and the Supreme Court.
87. For the avoidance of doubt, it is important to emphasise that the Personal Injuries Guidelines which have been described as reducing personal injury awards by 50% (see The Irish Times, ‘ Personal injury awards drop 50% following introduction of new guidelines’ , 6th July, 2021) are not binding on this Court in relation to the assessment of damages in this case and were not relied upon by this Court.
88. However, it is important to note that this does not mean that the principles set down by the Court of Appeal and the Supreme Court are not binding on this Court, regarding how to assess damages (which are referenced in the Personal Injury Guidelines themselves and in the Report of the Personal Injuries Guidelines Committee published by the Judicial Council in December 2020, as the basis for the calculation of damages). The High Court (and indeed the Circuit and District Courts), are bound by those principles and so those principles, which will be considered next, have a direct and binding impact on the assessment of damages by this Court.
The law which governs the calculation of damages
89. When calculating the level of damages for an award in a case such as this, while the non-binding Book of Quantum is of relevance, it is of limited assistance in comparison to the principles of the Court of Appeal and the Supreme Court which bind this Court. Significantly the figure that this Court would regard as fair compensation for Ms. O’Mahoney (applying the binding principles of the Court of Appeal and the Supreme Court) is less than the figure which counsel suggest is appropriate based on the Book of Quantum.
Compensation of up to €54,700 for ‘minor’ ankle injuries according to Book of Quantum
90. The section of the Book of Quantum to which this Court was referred by counsel for Ms. O’Mahoney was the following at p. 64:
“Fractures – distal Tibia, distal Fibula and Talus
Three bones form the ankle joint; the distal (bottom end) tibia bone (known as the medial malleolus), the distal (bottom end) fibula (known as the lateral malleolus) and the talus bone (one of the tarsal bones in the foot). Fractures that involve the joint are usually considered more complicated than others due to the increased impact on limb movement. The more severe injuries involve displacement and ligament damage (which may be treated with either open or closed reduction).
Minor up to €54,700
These injuries will include simple non-displaced fracture in the ankle which has substantially recovered.
Moderate €39,100 to €87,600
These injuries will include displaced fractures to a single bone in the ankle, or nondisplaced fractures to multiple bones with a full recovery expected with treatment.
Moderately Severe €79,900 to €89,300
Multiple fractures that have resolved but with ongoing pain and stiffness which impacts on movement of the ankle.
Severe and permanent conditions €80,500 to €93,300
These injuries include all three bones of the ankle structure which required extensive surgery and extended healing but may result in an incomplete union and the possibility of having or has achieved arthritic changes and degeneration of the ankle joint and may affect the ability to walk unaided.”
The injury in this case
91. Ms. O’Mahoney suffered a straightforward or undisplaced fracture of her ankle. She was in a cast for six weeks and a boot for four weeks and was out of work for ten weeks. The fracture healed very quickly and an x-ray after her return to work showed that it had healed without complications.
The Personal Injuries Guidelines are not yet binding but can be relied upon
92. This case was instituted prior to 24th April, 2021 and so the figures in the Personal Injuries Guidelines regarding minor ankle injuries are not binding on this Court regarding its assessment of damages.
93. While this Court does not feel it needs to refer or rely upon the figures set out in the Personal Injury Guidelines to assist it assessing damages in this case, it remains to be observed that there is no reason why, in appropriate cases, an Irish court cannot, if it so wishes, refer to the Personal Injury Guidelines to assist it in reaching its assessment of damages, even though the Personal Injury Guidelines are not ‘binding’ on the court (in relation to litigation commenced prior to 24th April, 2021). (In this regard,s. 22(2) of the Civil Liability and Courts Act 2004states thatsubsection (1)(cited above) ‘shall not operate to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action’).
94. This conclusion is based on the fact that the Supreme Court, in Morrissey v. Health Service Executive[2020] IESC 6 at para. 14.18, in deciding whether the cap for damages at €500,000 was reasonable, relied on Judicial Guidelines for the Assessment of Damages in Northern Ireland and also on Judicial Guidelines for the Assessment of Damages in England and Wales. Clarke C.J. stated:
“In the Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland (5th Ed.), which were published in 2019 as a resource for courts and practitioners in the assessment of damages in personal injury cases, the highest level of damages specifically provided for is in respect of injuries resulting in quadriplegia, which attract awards between £475,000 and £700,000. In the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (14th Ed.), published in 2017, which are for the benefit of the judiciary in England and Wales, the highest awards of damages recommended are also in respect of injuries resulting in quadriplegia, which will generally attract an award of between £284,610 to £354,260.”
95. Thus, even though those foreign judicial guidelines on damages are clearly not binding as a matter of Irish law on the Supreme Court, that court relied upon them to reach its conclusion as to whether a particular figure for damages, in that case the cap of €500,000, was reasonable.
96. It is difficult to see therefore why an Irish court could not, if it so wished, rely on other non-binding guidelines (in this case the Personal Injury Guidelines issued by the Judicial Council in Ireland), even if those Guidelines are not binding on the court (if the litigation was commenced prior to 24th April, 2021), in order to assist the court, if it felt it needed assistance, in reaching its conclusion as to the reasonableness of a certain figure for damages.
97. Indeed, the argument for an Irish court relying on the Judicial Council’s Personal Injury Guidelines is much stronger than the argument for an Irish court relying on the Northern Irish or the English & Welsh Guidelines. This is because the Personal Injury Guidelines are binding as a matter of Irish law (in relation to cases instituted since 24th April, 2021), while these ‘foreign’ guidelines are not, and are unlikely to ever to be, binding on an Irish court, yet the Supreme Court had no issue relying upon them.
THREE PRINCIPLES HIGH COURT MUST APPLY IN ASSESSING DAMAGES
98. However, this Court does not feel it needs to rely on the Personal Injury Guidelines, since it does not need to go beyond the three core principles set down by the Court of Appeal for the assessment of damages, which are binding on the High Court. In Nolan v. Wirenski at para. 31, Irvine J. (as she then was) set out these three founding principles which apply to the assessment of damages as follows:
“Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries.”
Thus, while it seems clear that the High Court may , in reliance on Morrissey, rely on the Personal Injuries Guidelines as assistance in calculating damages (which this Court does not feel it necessary to do), it is ‘ required ’ to apply these three principles in the calculation of damages, which this Court will now do:
(I) IS THE AWARD FAIR TO THE PLAINTIFF AND DEFENDANT
99. The first principle is that awards of damages should be ‘fair to the plaintiff and the defendant.’
100. Therefore, in every case in which damages are being assessed, the Court must consider not only whether the amount of damages proposed is reasonable in light of the pain and suffering which the plaintiff has had to endure previously and into the future, but also whether the amount of damages is a reasonable amount to ask a defendant to pay for causing (usually accidentally) the pain and suffering in question.
101. It seems to this Court that what is fair compensation arises independent of the financial standing of the plaintiff or the defendant. This is because the test is not what a defendant can afford, but rather what is a fair award in light of the second and third principles for assessing damages i.e. the proportionate principle and the common good/social conditions (which as noted below relates, inter alia, to the general level of incomes in the State).
102. Thus, it seems to this Court that it is irrelevant, in calculating the level of damages, whether the defendant is an insurance company, the State/taxpayers, an uninsured person on the average wage or an unemployed individual. Thus, as noted by Hardiman J. in O’Keeffe v. Hickey at para. 42 (albeit, in the context of finding a defendant vicariously liable for injury)
“I do not consider that companies, institutions or even the State itself are necessarily to be considered in a different light than an individual.”
103. Similarly, as noted hereunder, while the amount due to a plaintiff in respect of special damages, such as loss of earnings, will vary depending on whether she is a successful business woman or unemployed, what is fair in respect of general damages for pain and suffering is in general the same whether the plaintiff is wealthy or unemployed, since pain and suffering takes no account of a person’s wealth.
104. While the concept of what is ‘fair’ compensation to a plaintiff and a defendant would, in the absence of further guidance (in the form of the second and third principles), be open to very differing interpretations, it seems to this Court that, when it comes to coming up with a figure to compensate a plaintiff for the injury caused, the second and third principles provide much more concrete assistance (because of the reference to actual euro figures as a touchstone for calculating damages).
(II) IS THE AWARD PROPORTIONATE?
105. The second principle derives from a number of cases including the Supreme Court decision in M.N. v. S.M.[2005] 4 I.R. 461 and the Court of Appeal decision in Wirenski. It is whether the proposed award, of general damages for pain and suffering, as distinct from special damages, is proportionate within the scheme of awards generally and in particular to the general cap on damages for catastrophic/quadriplegic injuries. As regards that cap, Irvine J., as she then was, noted in Wirenski at para. 32 that:
“It can however generally be said that insofar as cases which involve catastrophic or life changing injury have come before the Courts in recent years, the level of general damages awarded in respect of injuries of this type has generally been somewhere in or around €450,000. That is not to say that €450,000 is a maximum. There has been the rare case in which a sum in excess of that figure has been awarded.”
106. At para. 42, she noted:
“As Denham J. advised in M.N. v. S.M. damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude.”
107. Compliance with this ‘ proportionate’ principle is important in order to avoid what the Court of Appeal described in Payne v. Nugent[2015] IECA 268 at para. 18 as the ‘concertina’ effect on damages. The judgment in Payne v. Nugent refers to four classes of injuries in this regard, namely:
• modest (or minor),
• middle-ranking (or moderate),
• serious, and,
• catastrophic.
108. The Supreme Court judgment in M.N. v. S.M.[2005] 4 I.R. 461 and the Court of Appeal judgments in Nolan v. Wirenski[2016] IECA 56 and Fogarty v. Cox[2017] IECA 309 make it clear that:
• modest damages should be awarded for minor injuries,
• moderate damages for middling injuries,
• severe injuries should attract damages which are distinguishable from catastrophic injuries.
109. The judgment in Payne v. Nugent discusses the necessity for awards of damages to avoid the ‘ concertina type effect’ , in order to avoid an injustice being caused to persons with catastrophic injuries or serious injuries. This injustice would arise if persons with modest/minor injuries, receive awards which are not significantly less than those received by persons with moderate/middle ranking injuries , which are themselves not significantly less than those received by persons with serious injuries such as a loss of a limb, which themselves are not significantly less than those with catastrophic injuries/quadriplegia.
110. It is important to note that while the Wirenski judgment referenced €450,000 as the cap for damages it is clear from para. 14.24 of the Morrissey decision that the current cap is now €500,000.
Application of the proportionate principle in this case
111. In this case, one can apply the proportionate principle by noting that the suggested award of up to €54,700 for the pain and suffering, relating to (what the Book of Quantum and counsel for Ms. O’Mahoney described as) a ‘minor’ ankle injury and led to her being out of work for 10 weeks, is almost 1/9th of €500,000 (the maximum award for the pain and suffering for a quadriplegic/catastrophic injury).
112. It is difficult for this Court to see how this could be regarded as ‘proportionate’ (bearing in mind the requirement that awards for minor injuries must be proportionate to quadriplegia/catastrophic injuries) in light of the respective pain and suffering attaching to, on the one hand, quadriplegia/catastrophic injuries, and on the other hand, a minor ankle injury – i.e. how could it be proportionate for the latter injury to give rise to an entitlement to almost 1/9th of the damages of the former life-changing catastrophic injuries.
113. It is this Court’s view that this would not be proportionate. Rather an award of closer to €5,000 – €10,000 would be more proportionate and consistent with the need to avoid the ‘ concertina’ effect.
114. When applying this principle for the assessment of damages, it seems to this Court to be undoubtedly easier to compare serious injuries such as loss of a limb with catastrophic injuries such as quadriplegia which are in some way comparable, so as to decide if the proposed award is proportionate, than it is to compare a modest injury with catastrophic injuries, since a minor ankle fracture is so far removed from quadriplegia/catastrophic injuries.
115. For this reason, the real value of this proportionate principle, in this Court’s view, is not so much to come up with an actual award (for which the third principle regarding the general level of incomes is of greater assistance), but rather to help a court to ‘reality-check’ a proposed award. Nonetheless this proportionate principle is of relevance for modest/minor injuries, particularly in view of the importance of avoiding the ‘concertina’ effect as outlined by the Court of Appeal.
(III) IS AN AWARD REASONABLE IN LIGHT OF THE COMMON GOOD & SOCIAL CONDITIONS IN THE STATE?
116. The third and final principle, which the High Court is obliged to apply by the Court of Appeal decision in Wirenski (and, as noted below, by the Supreme Court decision in Sinnott v. Quinnsworth[1984] I.L.R.M. 523), is whether the proposed compensation is objectively reasonable in light of the common good and social conditions.
117. The perception of what is in the common good will vary depending on the particular circumstances of a personal injuries case and is a somewhat subjective criteria and less concrete than the term ‘social conditions’. In this Court’s view, it is unlikely to be a regular factor in assessing the precise amount of damages in a particular case, but it could well be necessary, in the particular circumstances of a case, for reference to be made to the common good in assessing damages. For example, in rare circumstances, it is possible that the common good might necessitate an award of increased or reduced damages, than might otherwise be the case, if the court felt that the common good justified such a reduction/increase.
118. The most helpful aspect of the third principle in assessing damages, is in this Court’s view, likely to be the ‘social conditions’ aspect of this principle. This is because the term ‘ social conditions’ is, in this Court’s view, a much more specific term than ‘ common good’ and accordingly capable of being of concrete assistance in assessing how much compensation should be paid in respect of a particular personal injury. This is because it seems clear from the judgment of O’Higgins C.J. in Sinnott v. Quinnsworth[1984] I.L.R.M. 523, that the term ‘social conditions’ refers, inter alia, to the general level of incomes in the State. At p. 532 of that judgment, he stated that in determining whether a figure for general damages for pain and suffering was fair and reasonable:
“some regard should be had to the ordinary living standards in the country, to the general level of incomes and to the things upon which the plaintiff might reasonably be expected to spend money.” (Emphasis added)
The fact that this Court is obliged to have regard to the general level of incomes in assessing damages for pain and suffering is also clear from the High Court decision in Yang Yun v. MIBI[2009] IEHC 318.
119. In that case, in determining the appropriate level of general damages for personal injuries, Quirke J. makes it clear that account must be taken of ‘ economic realities’ (at para. 157) and in particular regard must be had to ‘individual disposable income’ (at para. 156), which he regarded as a relevant factor in the measurement of ‘contemporary standards’ (at para. 135) and in particular current ‘social conditions’ (which is the same expression used by the Court of Appeal in the Wirenski case). He clarifies why disposable incomes have no relevance to pecuniary loss or special damages, but they are relevant to general damages or non-pecuniary losses, at para. 153 of his judgment:
“However, in Heil v. Rankin[2001] Q.B. 272 at p. 297, the Court of Appeal (Lord Woolf M.R.) pointed out that:
“A distinction exists… between the task of the court when determining the level of pecuniary loss and when determining the level of non-pecuniary loss. In the case of pecuniary loss, and issues such as that which engaged the House of Lords in Wells v. Wells, the court is only required to make the correct calculation. Economic consequences are then irrelevant. When the question is the level of damages for non-pecuniary loss the court is engaged in a different exercise. As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA. The decision has to be taken against the background of the society in which the court makes the award.”
Those observations and the distinction identified by Lord Woolf between pecuniary loss (compensated by special damages) and non-pecuniary loss (compensated by general damages) are quite consistent with the principles and further distinctions identified by the Supreme Court in Sinnott v. Quinnsworth and M.N. v. S.M.
Hence, the need for the courts to hear evidence of and to consider “contemporary standards and money values” when assessing and calculating the limit or “cap” to be imposed on awards for general damages from time to time.
It was confirmed in evidence that this country is presently enduring a period of unprecedented recession. There has been a significant drop in individual disposable income and it is anticipated that this will become more acute during the next several years. Wealth and living standards have declined appreciably and economic growth has been replaced with contraction.
Those factors are relevant to the measurement of “contemporary standards” and current “social conditions” within this country and it can be validly argued that, in general, awards of general damages should reflect such economic realities.” (Emphasis added)
120. In that case of Yang Yun v. MIBI, which considered the rise in the ‘cap’ on general damages in the period since its introduction in 1984 (by the Supreme Court in Sinnott v. Quinnsworth) to 2007 (when Yang Yun v. MIBI was heard), Quirke J. relied on the rate of increase in the ‘average industrial earnings’ during that period as an appropriate rate of increase to apply to the cap on damages.
High Court obliged to have regard to the general level of incomes in assessing damages
121. Based on the foregoing case law, it seems clear therefore in applying the third founding principle for the assessment of general damages in a personal injuries case, this Court is obliged to have regard to the general levels of income.
122. Furthermore, this Court believes that the general level of incomes (which this Court interprets to mean the average earnings of people in the State) is a very useful tool, in conjunction with the ‘proportionate principle’, in calculating an appropriate figure for compensation, particularly when one is dealing with modest or middle ranking injuries, which in severity are a long way from catastrophic injuries, for which €500,000 is the ‘cap’ on general damages.
123. This is because for very minor injuries in particular, it may be difficult to even contemplate that the injury is any way referable or even on the same scale as quadriplegia, e.g. a soft tissue injury, which is the type of injury which a court often has to deal with in personal injury cases. For such injuries a touchstone such as general level of incomes/average earnings in the State is, in this Court’s view, crucial in the assessment of damages (in conjunction with the proportionate principle).
Touchstone is not unemployment rate or large salary, but ‘general level of incomes’
124. Of course, the general level of incomes is not what an unemployed person might receive per annum on job seeker’s allowance (circa €10,000 per annum) or what an old-aged pensioner receives (circa €13,000). On the other hand, the general level of incomes is not what a successful lawyer or other successful professional or businessperson earns per annum, which could be many multiples of these amounts. Rather the general level of incomes or touchstone amount appears to this Court to be the average earnings of everyone in the State from those on social welfare up to and including those on the highest salaries.
125. The logic of this approach seems to this Court to be that pain and suffering does not discriminate between the wealth of victims. If one is unemployed or wealthy, the calculation of damages for pain and suffering should be related to average incomes. In this instance, it means that the general level of incomes/average earnings of a person in Ireland is to be used as a touchstone in deciding on the appropriate level of damages for all claims of pain and suffering for personal injuries. As previously noted, Hardiman J. observed in O’Keeffe v. Hickey at p. 317 that ‘ companies, institutions or even the State itself are necessarily to be considered in a different light than an individual.’
126. While this observation was made in the context of finding a defendant vicariously liable for personal injuries, it seems to this Court, equally applicable to the calculation of damages, since the relevant principles for calculating damages, and in particular the ‘general level of incomes’ takes no account of the financial position of the defendant or indeed if he is insured or not.
127. Of course, it is important to bear in mind that this is not the case in relation to special damages (or pecuniary losses), which will often vary depending on the financial position or wage of the plaintiff. So, while general damages for pain and suffering do not discriminate based on a person’s wealth, special damages will apply differently to people depending on their financial circumstances. For example, if a person is out of work for 10 weeks because of an ankle injury and she was earning €10,000 a week, then she will have in addition to a claim for general damages for pain and suffering, an entitlement to receive from the defendant special damages in respect of a loss of earnings of €100,000. Thus an award of damages could be for a figure of €100,000 in special damages plus a figure for say €7,500 in general damages for pain and suffering, giving a total award of €107,500. However, in this judgment, this Court is not concerned with special damages, but only with general damages for pain and suffering.
What is the general level of incomes in Ireland?
128. Since a court has to turn the abstract (pain and suffering) into the concrete (a sum of money), it is important to have a precise figure for the general level of incomes, in much the same way as one has regard to a concrete figure for the ‘cap’ on damages, which is currently a figure of €500,000.
129. For this purpose, this Court relies on the figures published by the Central Statistics Office (“CSO”), and in particular the annual release of the ‘average weekly earnings’ in the State. The most recent figure released by the CSO is €867.52 per week i.e. €45,111 per annum (CSO Statistical Release, 1 June 2021), which is circa €35,000 after tax.
The after-tax amount of the general level of incomes
130. In this regard, it seems clear to this Court that in determining the ‘general level of incomes’, the after-tax income has to be considered since this is the amount actually received by an employee. Support for this view is to be found in the approach of the Supreme Court in McDonagh v. Sunday Newspapers[2018] 2 I.R. 79 to assessing whether a damages award by a jury in a defamation action was fair. At pp. 109 and 110 O’Donnell J. stated:
“Finally, the award was on any view a very large sum of money which would have meant that the plaintiff could live very comfortably for the rest of his life. Given the fact that tax is not chargeable on the award, it is worth considering how long and how hard an individual would have to work to amass such a sum, and in turn what €900,000 in 2008 or its equivalent in today’s money could purchase. I agree with all my colleagues that the award was excessive and must be set aside.” (Emphasis added)
Thus, it is to be noted that the Supreme Court concluded that it was relevant, in determining whether an award was reasonable, that no tax was paid on the award. To put it another way, it was the ‘after-tax’ amount which was considered by the Supreme Court in assessing the reasonableness of damages. Similarly, it seems to this Court that a court must take account of the ‘after-tax’ amount of the ‘general level of incomes’ in the State (and not the gross earnings), in deciding whether an award for pain and suffering is reasonable, when it is applying the third principle for assessing damages.
131. Accordingly, it is to this figure of circa €35,000 per annum (after tax) or circa €3,000 per month, which this Court will refer to as the ‘ average earnings’ or the ‘general level of incomes’ (to use the expression used by O’Higgins C.J.), in order to determine what is a fair and reasonable amount of compensation in a particular case.
Application of ‘general level of incomes’ to this case
132. Applying the Supreme Court’s analysis in Sinnott v. Quinnsworth therefore, one might ask whether, bearing in mind that the average earnings for a year in the State is circa €35,000 per annum, a figure of €54,700, as suggested by counsel for the plaintiffs, would be fair and reasonable compensation for a person who had a straight-forward fracture of an ankle which healed without complications and led to her being out of work for 10 weeks.
How long would someone have to work to earn those damages?
133. Another way to apply this third principle is to ask how long someone would have to work to earn the proposed damages, since this is what was done by the Supreme Court in McDonagh v. Sunday Newspapers when assessing whether a particular figure for damages was reasonable. In that case, it asked how long someone would have to work to earn the amount in question. At pp. 109 and 110, in determining whether an award of damages was reasonable, O’Donnell J. stated:
“Finally, the award was on any view a very large sum of money which would have meant that the plaintiff could live very comfortably for the rest of his life. Given the fact that tax is not chargeable on the award, it is worth considering how long and how hard an individual would have to work to amass such a sum, and in turn what €900,000 in 2008 or its equivalent in today’s money could purchase. I agree with all my colleagues that the award was excessive and must be set aside.” (Emphasis added)
Although this test as to the reasonableness of damages was done in the context of a defamation award, there seems no reason why the same exercise cannot be done in relation to damages for pain and suffering, since in either case one is seeking to determine whether an amount of damages in euro terms is reasonable.
134. In addition, it seems to this Court that, although not explicitly stated by O’Donnell J., the question was not how long a wealthy person would have to work, since logic would seem to dictate that it is how long a person on average earnings would have to work. Accordingly, this approach by the Supreme Court in McDonagh is consistent with, but perhaps a slightly more user-friendly adaptation of, O’Higgins CJ.’s test in the Sinnott v. Quinnsworth case.
135. When the analysis is done in this manner, it appears to this Court that €54,700 could not be said to be fair to the plaintiff and the defendant. To put the matter another way, if the defendant were uninsured and he was a person on the average wage, he would have to work for over a year and a half to earn enough to pay the plaintiff damages for the pain and suffering caused to her by his accidental infliction of the ankle injury, which fully healed and kept her out of work for just 10 weeks.
136. Similarly, looking at it from the plaintiff’s perspective, for her to earn this sum of money, she would have to work for over a year and a half, if she was on the average wage. Viewed in the ‘general level of incomes’ context (the third principle), which this Court is required to consider, it seems clear that €54,700 is well in excess of what could be regarded as fair compensation for a minor ankle injury.
137. It has already been noted, that when considering the ‘proportionate’ principle (the second principle), this Court concluded that a sum of €5,000 – €10,000 would amount to fair compensation for Ms. O’Mahoney’s injury to her ankle (relative to the cap of €500,000 for paraplegia/catastrophic injuries).
138. It is helpful to now consider this sum of €5,000 – €10,000 in light of the general level of incomes/how long one would have to work test, to see if it is reasonable in that context. A sum of €10,000 is the net sum of money which would be earned by a person on the average wage working for a period of just over 3 months (based on net average earnings of €3,000 per month). It seems to this Court therefore that a figure of €5,000 – €7,500, i.e. between two and three months’ income, would be fair compensation for the pain and suffering caused to Ms. O’Mahoney for her ‘minor’ ankle injury. It must be remembered that Ms. O’Mahoney, or indeed any other plaintiff, will also be entitled to any out of pocket expenses (or special damages), such as loss of earnings, medical expenses etc. on top of this figure for pain and suffering (or general damages).
139. Having considered the three founding principles for the assessment of damages set down by the Court of Appeal and the Supreme Court, and having concluded that a sum of a maximum of €7,500 would be fair compensation, it is useful to now consider a rare case in which the Supreme Court had to calculate what it regards as moderate damages (since appeals in relation to damages for minor injuries are rarely if ever heard by the Supreme Court) and in particular the type of injury for which the Supreme Court regarded €7,500 as fair compensation.
Type of injury for which Supreme Court regards €7,500 as fair compensation
140. In Simpson v. Governor of Mountjoy[2019] IESC 81 the Supreme Court considered the appropriate amount of compensation for a person who cannot be said to have ‘sustained significant injuries’ (at para. 118). This Supreme Court case is being considered in the context of the plaintiffs’ counsel having referred to their injuries as falling within the category of ‘minor’ ankle injuries in the Book of Quantum ( albeit that he did so by reference to the €54,700 figure and in the context of proceedings that were taken in the High Court with a jurisdiction of €60,000 for damages in personal injury cases).
141. Since minor injuries are normally dealt with in the District Court (with a final appeal to the Circuit Court) or perhaps in the Circuit Court (with a final appeal to the High Court), it is unusual for there to be a judgment from the Supreme Court on the appropriate level of compensation for ‘minor’ injuries. Hence the Simpson decision assumes particular importance not just for this Court, but also for the Circuit and District Courts when these courts are presented with minor/modest or moderate/middling injuries.
142. In the Simpson case, the plaintiff took an action seeking damages against the State as he was, for a period of seven and a half months, forced to slop out in prison. Although not a personal injuries action (as it was an action for damages for breach of constitutional rights, including his right to dignity, privacy and autonomy), nonetheless it is relevant to note that the plaintiff was claiming damages for the harm caused to him, since he sought damages for the fact that he felt ‘deeply humiliated, alienated from support and denigrated’ as a result of his exposure to conditions which were ‘ distressing, humiliating, and fell far below acceptable standards’ (at para. 116 et seq.). In many ways, the claim therefore was similar to a claim for ‘pain and suffering’ in tort law made by a person who suffered personal injuries.
143. Crucially, it is important to note that the approach of MacMenamin J. (at para. 126 et seq.) was ‘ insofar as practicable, to adhere to principles applicable in tort law’ and he applied a ‘ restitutionary element’ to the assessment of damages. In making the award, he stated that ‘ the award should be characterised as compensatory damages’ . This is the same approach which is taken to assessing damages for pain and suffering in personal injury actions. This case therefore is an important statement by the Supreme Court regarding what amounts to ‘minor’ or moderate damages for injuries which the Court determined could be said to not be ‘significant’ (at para. 118) or serious and so in this Court’s view, is of considerable relevance to the District, Circuit and High Courts in considering ‘minor’ or ‘moderate’ damages for personal injuries which are not serious.
144. In that case, the Supreme Court determined that the sum of €7,500 was appropriate compensation for a prisoner who was forced to slop out for seven and a half months and MacMenamin J. described the sum of €7,500 as ‘ moderate compensatory damages’ (at para. 130) for the injury caused to the plaintiff. This sum was claimed in respect of the stress and humiliation suffered by the prisoner and so it seems clear that the damages which were awarded were designed to compensate him for the pain and suffering endured by him during that seven and half month period, in exactly the same way as general damages for pain and suffering are designed in a personal injuries action to compensate a plaintiff.
145. Since the Supreme Court regards €7,500 as ‘fair’ damages from the perspective of the plaintiff and the defendant for the pain and suffering caused to a plaintiff for having to slop out for seven and a half months, which sum the Court described as ‘ moderate compensatory damages’ , it is difficult to see how Ms. O’Mahoney who was out of work for just over two months as result of a minor ankle injury, which healed without complication, would be entitled to multiples of that amount for her pain and suffering, as suggested by her counsel in reliance on the Book of Quantum.
Advantage of the three founding principles in calculating damages
146. Before concluding on the appropriate level of damages in this case, it is worth noting that, while the first founding principle (of what is ‘ fair to the plaintiff and defendant’ ) is necessarily subjective for each judge, the second and third founding principles for the assessment of damages are considerably less subjective, since they use concrete figures, namely a cap of €500,000 and the general level of incomes of circa €35,000 per annum after tax.
147. The use of these concrete figures as the basis for calculating damages are useful since it illustrates for litigants that damages are not plucked out of the sky by courts, but rather the courts are required by the Court of Appeal and Supreme Court to conduct an exercise using concrete figures (for the cap on damages and the general level of incomes) that change over time with inflation.
148. It does not mean that two judges will reach the same figure, since one judge might regard the pain and suffering for an injury as worth in monetary terms say one year’s average income, while another judge might be of the view that it is worth one and half years’ average income, but it does mean that the final figure is relatable to concrete figures and provides in each case therefore a type of ‘reality-check’ for a plaintiff and a defendant, as to the level of damages.
149. Applying the three founding principles for the assessment of damages should therefore make it easier for litigants and their lawyers to understand how a court comes up with a figure for pain and suffering, and therefore it may facilitate the settling of claims, without litigants and their advisers themselves being expected to pluck figures out of the sky.
Conclusion regarding damages
150. Based on the foregoing, it seems to this Court that if Ms. O’Mahoney were to be awarded damages, it should be in region of €5,000 – €7,500 and so this claim should, in any case, have been brought in the District Court.
151. Such an award is, in this Court’s view:
• proportionate to the cap of €500,000 for damages for pain and suffering for quadriplegia/catastrophic injuries in view of the vast difference between the respective injuries, and,
• reasonable in light of the general level of incomes (after tax) of circa €35,000 per annum, bearing in mind it would take a person on the average wage 2-3 months to earn that amount of damages (in reliance on the Supreme Court in McDonagh).
152. In addition, to ‘reality-check’ the award, it is to be noted that the Supreme Court determined that an award of €7,500 was fair compensation for a person who felt ‘ deeply humiliated, alienated from support and denigrated ’ as a result of having to slop out for seven and half months which the Court found was ‘distressing, humiliating, and fell far below acceptable standards’. Accordingly, a sum of €5,000 – €7,500 seems reasonable for the ‘pain and suffering’ endured by Ms. O’Mahoney as a result of her undisplaced fracture which fully healed without complications and led to her being out of work for just over two months.
153. In conclusion, this Court would observe that although no reliance was placed in this judgment on the Personal Injury Guidelines, it remains to be observed that the range of awards set out in the Personal Injuries Guidelines for ‘ minor ankle injuries’ , which include ‘ less serious, minor or undisplaced fractures’ states that an ankle injury which recovers within six months is assessed at €500 – €3,000 and where there is recovery within six months to two years, the award is in the region of €6,000 – €12,000.
Why some unmeritorious claims might be brought in the High rather than District Court
154. This Court has expressed the view that even if this was a meritorious claim, it should have been instituted in the District Court.
155. However, if an impecunious plaintiff with an unmeritorious claim hopes to receive a settlement, it is to be noted that if he institutes proceedings in the High Court, rather than the District Court or Circuit Court, he may be increasing the likelihood of a settlement as well as increasing the amount of that settlement.
156. This is for the simple reason that there is a much greater financial incentive for a defendant to settle a High Court claim against an impecunious plaintiff, than a District Court claim. To take an example, if the details provided to this Court in the Condon case regarding the settlement of two nuisance claims were representative of the value of nuisance claim settlements generally in the High Court, then a plaintiff with a nuisance claim might expect to get €10,000 to withdraw his High Court action and his lawyers might get €10,000. In contrast, legal costs in the District Court for a ‘minor’ injury are likely to be €500 – €1,000. Accordingly, in the context of a High Court action, settling an unmeritorious claim by an impecunious plaintiff for €20,000 may make economic sense for a defendant, since he may save perhaps €50,000 – €100,000 in legal costs, which he would not recover if he were to win the litigation.
157. This saving in legal costs for the defendant is likely to be fifty times more than the defendant would save in settling a District Court case (a saving of legal costs of €500 – €1,000), and perhaps ten times more than the defendant would save in the Circuit Court (say legal costs of €5,000 – €10,000).
158. It should be clear therefore that there are economic reasons why an impecunious plaintiff with an unmeritorious claim for a minor injury, who is hoping for a settlement, would choose to institute proceedings in the court where legal fees are highest, since there will be a greater incentive for the defendant to settle the claim.
159. As noted by the Supreme Court in Farrell v. Bank of Ireland[2012] IESC 42, the inability of an impecunious plaintiff to pay legal costs if he loses the litigation can be used as ‘ a form of unfair tactic little short, at least in some cases, of blackmail’ . If this approach is taken by a plaintiff (and it is not suggested that it was taken by the plaintiffs in this case), it follows that the higher the legal costs, the bigger the blackmail or leverage for a settlement. Hence, there are economic reasons why such a plaintiff might institute an unmeritorious claim in the High Court, rather than the District Court, particularly as there appears to be little if any economic disincentive to doing so.
160. In the absence of any financial disincentive to taking minor injury claims in the High Court (or indeed a system in which the jurisdiction in which a claim is brought, is determined by objective criteria, rather than at a plaintiff’s choosing), this continued approach is likely to lead to some personal injuries cases for minor injuries continuing to be taken in the High Court.
161. This is a significant issue because while one might have thought that the High Court is reserved for serious and significant cases (and the District Court for minor injuries), this case perfectly illustrates that even where the plaintiffs’ counsel and the Book of Quantum categorise an injury as ‘minor’ it can still end up in the High Court and occupy that court, in this case, for two days. It seems to this Court that it is not a one-off occurrence that minor injury cases, which should be taken in the District Court, end up in the High Court, since the same week as this case was heard by this Court, a claim for an even more minor injury ( albeit an appeal from the Circuit Court) took up a similar amount of expensive and valuable High Court time (see Hardy v Bible[2021] IEHC 614, a claim involving alleged soft tissue injuries in which the plaintiff self-referred to a busy emergency department for ‘ occasional neck pain’ for which he had taken one painkiller).
162. The reason that it is significant that minor injury claims are being brought in the High Court, is because there is considerable backlog in the High Court, which means that other litigants, some with far from minor injuries (i.e. terminal or life-altering conditions) are left waiting for a High Court judge to become available to hear their cases.
163. It must be emphasised that in making this point that minor injury claims can end up clogging up the High Court, it is not being suggested that the plaintiffs or their lawyers in this case believed that the claims were unmeritorious or indeed instituted the claims in the High Court in order to increase the chances of a significant settlement or indeed believed that their claims were not deserving of compensation at the High Court level. Nor is it being suggested that lawyers would institute proceedings in a higher court on behalf of impecunious plaintiffs, on the basis that a settlement in a higher court is likely to lead to a greater settlement sum in respect of legal fees. This is because it also must always be borne in mind that lawyers act on instructions of their clients regarding the issuing of proceedings and the jurisdiction in which they are issued.
‘No lose’ for the plaintiffs but ‘lose/lose’ for the defendants
164. Finally, this case is another example of a case, where it is likely to be ‘no lose’ for the plaintiffs, as regards legal costs, but ‘lose/lose’ for the defendants, as the plaintiffs may not be in a financial position to pay the legal costs which have been awarded against them and so the defendants may end up paying their own High Court legal costs of circa €50,000-€100,000 even though they have won this case.
165. Indeed, were the plaintiffs to appeal, and even though at first instance the claim has been found to be unmeritorious (and so such an appeal would be, not just on quantum, but also on liability), there is at present no requirement for such losing plaintiffs to provide security for the costs of such an appeal. Accordingly, even though the defendant has won the case in the High Court (but is likely to have ‘lost’ on legal costs), if the plaintiffs appeal, the defendant will for a second time face the prospect that if it wins that appeal it will still have to pay its legal costs.
Kellett v RCL Cruises Ltd & Ors
(Approved) [2020] IECA 138 (21 May 2020)
JUDGMENT of Mr. Justice Noonan delivered on the 20th day of May, 2020
1. This appeal is brought from the judgment and order of the High Court, (Barr J.), of the 6th June, 2019 in which the court dismissed the plaintiff’s claim for damages for personal injuries. I gratefully adopt the detailed statement of the facts as set out in the written judgment of the trial judge.
2. By way of brief summary, the appellant booked and paid for a seven day Caribbean cruise for herself and her husband. One of the scheduled stops was at the island of St. Maarten where the plaintiff had pre-booked a speedboat excursion described in the advertising material as a “White Knuckle Jet Boat Thrill Ride”. The appellant paid a supplement for this excursion at the time of booking the cruise. The company providing the ride had a website with photographs and a video, together with a description of “an adrenaline-infused rush from a water rollercoaster ride”. The publicity material described extreme manoeuvres carried out at high speed by the jet boat for thirty minutes “that will have you involuntarily laughing and ‘praying for your life’ and that will knock you silly!”
3. The jet boat was a fibreglass craft with three bench seats, each for four passengers. On the day in question there were ten passengers (including the appellant and her husband), and the skipper of the boat who sat in the front row at the controls. Each row of seats had a horizontal bar in front of it and the passengers were instructed to stay seated, hold the bar tightly and plant their feet firmly on the floor during the manoeuvres. The appellant was seated beside the skipper and having indicated by hand signal in advance, he performed a 360 degree turn at speed.
4. Despite the fact that the appellant was holding the bar tightly, she was lifted out of her seat and struck her head against the skipper’s head. He stopped the boat and told her to change places with her husband who was beside her so that she was now sitting on the starboard side of the front bench. The skipper again, after a warning, performed a 360 degree turn, this time in the opposite direction. Again the appellant was lifted out of her seat and was thrown back down with force, striking her right elbow against the gunwale, thereby suffering an injury. This ultimately transpired to be an undisplaced fracture of the right lateral epicondyle.
5. It is common case that the cruise booked by the appellant was a package holiday within the meaning of the Package Holidays and Travel Trade Act, 1995. The appellant claims that the injury she suffered was caused by the breach of contract and negligence of the respondents and as organisers of the package holiday, they are liable to compensate the appellant by virtue of section 20 of the 1995 Act. At the trial, the witnesses for the appellant on the liability issue were the appellant herself and a consulting forensic engineer. The respondents called no liability evidence. The engineer’s evidence was that the respondents had been negligent in four respects:
(i) The boat should have been fitted with seatbelts;
(ii) there should have been a side bar or rail along the gunwale of the boat for the plaintiff to hold;
(iii) there should have been padding on the gunwale;
(iv) after the first incident, the skipper should not have seated the appellant beside the gunwale of the boat, but swapped her with a passenger in the last row thereby helping to wedge her in between three others.
6. The appellant’s engineer gave no evidence of any relevant standards or regulations that might have applied to the activity in question in St. Maarten. Although he offered the view that items (i) to (iii) above should, in his opinion, have been provided, he was unable to offer any evidence of such features in any similar craft anywhere with the exception that he had once been on a boat on the Thames which had a side rail.
Judgment of the High Court
7. Having set out the facts in detail, the judge summarised the expert evidence given by the engineer on behalf of the plaintiff. He noted the criticisms to which I have referred including that the skipper should have swopped the appellant with one of the passengers in the back row so that she would be wedged in place. The engineer’s evidence was that he was not aware of any Irish regulations governing such boat trips nor was he aware of any local regulations in St. Maarten. He had not examined the boat in question and his opinion was formed after speaking to the plaintiff and looking at the excursion operator’s website and the boats shown thereon.
8. The judge then proceeded to set out the law in some detail referring to the statutory provisions and then the relevant case law to which I will refer further. Having analysed all the relevant authorities, the trial judge posed what he described as the difficult question of “what standard of care can be expected of the service provider in the foreign country?”
9. His answer to the question was that the law was primarily to be found in the judgment of the Supreme Court in Scaife v. Falcon Leisure Group (Overseas) Limited [2008] 2 IR 359 where Macken J. found that “…[T]he standard by which the acts in question are to be judged is that of reasonable skill and care, which standard, if not expressed in a contract will be readily implied into it”. The trial judge then added (at paragraph 39): –
“To that, one can probably safely add that in general, if it is established that the service provider complied with all relevant local regulations and standards, they and the organiser will not be liable in negligence or breach of contract to the consumer, unless it can be shown that such local standards were patently deficient, or were not in conformity with uniformly applicable international regulations.”
10. Having carefully analysed the law, the trial judge set out his conclusions. He noted that the engineer was unable to point to any standards or regulations in St. Maarten, or Ireland, or indeed elsewhere which would have mandated the use of the features, the absence of which he criticised. He said the case law makes clear that the onus rests on the plaintiff to establish that the service provider did not provide the service in accordance with local regulations or standards, or in accordance with internationally recognised standards. He held that the appellant had not established what the local standards were and thus, that there was a failure to comply with such standards. He found this to be an evidential deficit.
11. Having found this deficit, he went on to separately consider each of the complaints made and discounted them in turn for reasons which he explained. He said (at para. 61): –
“In the circumstances, it is not necessary for me to determine whether the plaintiff could establish liability in the absence of any evidence as to the applicable standards in St. Maarten. I am satisfied that even if one were to apply standards which may be thought applicable in this jurisdiction, one could still not find that the White Knuckle Jet Boat Thrill Ride was provided without reasonable skill and care as required by the Scaife judgment.”
12. He concluded that the appellant had not established any negligence on the part of the defendants or any liability under the terms of the 1995 Act and dismissed the claim.
Grounds of Appeal
13. Many of the grounds are somewhat generic and suggest that the trial judge had sufficient evidence, contrary to his findings, to determine that there had been negligence on the part of the respondents. Other grounds suggest that the findings were against the weight of the evidence. At paragraph 55 of his judgment, the trial judge said that “…one must also take account into that passengers… have to embark and disembark over the gunwales; the provision of a sidebar would constitute a serious trip hazard at each embarkation and disembarkation of the vessel…” It is pleaded that there was no evidence led which supported this finding. It is said further that the judge applied the wrong test on the issue of liability.
14. The appellant further contends that the trial judge erred in his application of the 1995 Act by determining that there was an obligation on the appellant to provide evidence of local standards and that this amounted to an evidential deficit in the appellant’s case. Finally, it is said that the trial judge erred in applying the provisions of the 1995 Act and the European regulations upon which it is based (Council Directive 90/314/EEC of 13 June 1990 of the European Communities on Package Travel, Package Holidays and Package Tours). The appellant contends that the stated purpose of the regulations is to protect the rights of consumers of package holidays and an interpretation which requires a claimant to incur the prohibitive costs of retaining a foreign resident expert to deal with local standards is inconsistent with the purpose of the Directive.
15. In this latter regard, the appellant in her submissions contended that the normal onus of proof should be reversed and the burden of establishing that there was compliance with local regulations lay upon the respondents.
16. It is important to note that no transcript of the evidence before the High Court was made available by the appellant to this court, the appellant claiming that she was unable to afford the cost of transcription of the DAR recording. This obviously handicapped the court in dealing with the appeal and insofar as any issues arose concerning the evidence in the High Court, these could only be considered by reference to the terms of the judgment itself and the written report of the engineer.
Package Holidays and Travel Trade Act, 1995
17. An “Organiser” is defined under the Act as a person who organises and sells “Packages” comprising of at least two of transport, accommodation or other tourist services. Section 20 provides: –
“20.— (1) The organiser shall be liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by the organiser, the retailer, or other suppliers of services but this shall not affect any remedy or right of action which the organiser may have against the retailer or those other suppliers of services.
(2) The organiser shall be liable to the consumer for any damage caused by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of the organiser or the retailer nor to that of another supplier of services, because—
(a) the failures which occur in the performance of the contract are attributable to the consumer,
(b) such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable, or
(c) such failures are due to—
(i) force majeure, that is to say, unusual and unforeseeable circumstances beyond the control of the organiser, the retailer or other supplier of services, the consequences of which could not have been avoided even if all due care had been exercised, or
(ii) an event which the organiser, the retailer or the supplier of services, even with all due care, could not foresee or forestall.”
18. The 1995 Act gave effect under our domestic law to Council Directive 90/314/EEC on Package Travel, Package Holidays and Package Tours. The rationale behind the Directive, as explained in the recitals, is to harmonise the disparate laws on package holidays as between Member States which give rise to distortions in competition amongst operators established in different Member States. The economic importance of tourism is noted: –
“Whereas tourism plays an increasingly important role in the economies of the Member States; whereas the package system is a fundamental part of tourism; whereas the package travel industry in Member States would be stimulated to greater growth and productivity if at least a minimum of common rules were adopted in order to give it a Community dimension; whereas this would not only produce benefits for Community citizens buying packages organised on the basis of those rules, but would attract tourists from outside the Community seeking the advantages of guaranteed standards in packages;”
19. The recitals also recognise the necessity for consumer protection in this area: –
“Whereas if, after the consumer has departed, there occurs a significant failure of performance of the services for which he has contracted or the organiser perceives that he will be unable to procure a significant part of the services to be provided; the organiser should have certain obligations towards the consumer;
Whereas the organiser and/or retailer party to the contract should be liable to the consumer for the proper performance of the obligations arising under the contract; whereas, moreover, the organiser and/or retailer should be liable for the damage resulting for the consumer from failure to perform or improper performance of the contract unless the defects in the performance of the contract are attributable neither to any fault of theirs nor to that of another supplier of services;”
Scaife v. Falcon Leisure
20. The plaintiff went on a package holiday to Spain booked through the defendant which included hotel accommodation. The plaintiff fell in the dining room of the hotel due to a spillage on the tiled floor, as a result of which, she suffered personal injuries. The High Court held that by virtue of section 20 of the 1995 Act, the defendant was liable. The defendant appealed to the Supreme Court. The sole judgment was delivered by Macken J. with whom the other members of the court agreed.
21. Macken J. noted the arguments advanced on the appeal by the parties and in particular, the submission of counsel for the defence that it was not possible to discern whether the standard to be imposed on the hotel owner or proprietor for whose acts the defendant was being sought to be made liable pursuant to section 20 of the 1995 Act, was the Irish legal standard or the Spanish legal standard, urging on the court that it must be the latter. The court referred to the provisions of s. 20 and of the Directive, as well as relevant provisions in Irish legislation such as the Hotel Proprietors Act, 1963 and the Occupiers Liability Act, 1995. Having referred to these provisions, Macken J. stated (at pp. 367-8): –
“[22] As concerns the Directive itself, since s. 20 of the Act of 1995 faithfully transposes the provisions of art. 5 of the Directive, it is not necessary to set out the terms of that article separately. It is, however, relevant to cite art. 8 of the Directive which reads:-
‘Member States may adopt or return more stringent provisions in the field covered by the Directive to protect the consumer.’
[23] It seems to me that the provisions of the Hotel Proprietors Act 1963 are within the ambit of art. 8 of the Directive since the obligation concerning the state of hotel or other premises, as well as the safety of guests, are provisions protecting the consumer which are or may be, more stringent than the provisions of the Directive. Similarly, apart from the statutory protection given to hotel guests as set forth above, and as specifically retained by the Act of 1995, an occupier’s common law liability to visitors, now enshrined in s. 3 of the Occupiers Liability Act 1995, may well also fall within art. 8 of the Directive, even if not specifically referred to in the Act of 1995. Having regard to counsel for the defendant’s argument, that the appropriate standard for the High Court to have applied is the standard operating in Spain and not the standard in Ireland, the question arises as to whether the High Court judge was entitled to invoke the standard operating by virtue, inter alia, of the above sections of the above Acts or the established common law tests.”
22. In considering the answer to this question, Macken J. felt that it was useful to consider the Irish and United Kingdom cases on the appropriate test or standard to be applied. She noted that in Ireland, prior to the passing of the 1995 Act, the case law established that the standard of reasonable skill and care was appropriate in assessing the performance of services for the purpose of establishing whether there had been a breach of contract or that a party was liable to another in tort. She analysed McKenna v Best Travel Ltd [1998] 3 IR 57 and a number of the United Kingdom cases including Hone v. Going Places Leisure Travel Limited [2001] EWCA Civ 947, Wong Mee Wan v. Kwan Kin Travel Services Limited [1996] 1 WLR 38 and Healy v. Cosmosair Plc, Antonio Simoes Louren‡o and Vilar Da Lapa Administracao De Propriedades LDA [2005] EWHC 1657 (QB). The result of that analysis was (at p. 373): –
“The conclusions to be drawn from all of the above cited cases are that, both before and after the coming into force of the Directive and its transposition in national law, the established principle is that the organiser is not an insurer to the customer. The High Court judge correctly found that the hotel proprietor was not such an insurer under the legislation. The above cases also establish the principle that the test is not one of strict liability, and in that regard I am satisfied also that the High Court judge’s finding, when correctly read, was not that strict liability applied. The final principle clearly established by those cases is that the standard by which the acts in question are to be judged is that of reasonable skill and care, which standard, if not expressed in a contract will be readily implied into it. In the circumstances, I am satisfied that the reasonable skill and care test generally applicable according to the above case law and by statute, and applied by the High Court judge, was the correct test in law.”
23. Before arriving at that conclusion, Macken J. had noted, in an apparently obiter passage, that if there was a difference between Irish and Spanish law on the appropriate legal standards governing the safety of hotels for visitors or guests, the application of the lower standard might not necessarily comply with the provisions of the Directive. She noted the opinion of Advocate General Tizzano in Leitner v. TUI Deutschland GmbH& Co. KG (Case C – 168/00) [2002] E.C.R. 1-02631, that the provisions of the Directive must be interpreted in the manner most favourable to the person they are intended to protect, namely the consumer of the tourism service. Macken J. noted however, that the point did not appear to have been at issue in the High Court.
24. On the facts of the case, however, she held that there was clear evidence that the hotel had in place a system to deal with spillages but had failed to activate it so as to prevent the plaintiff’s accident. She was satisfied that the High Court judge had evidence before him that the accident was a wholly foreseeable event and was entitled to find that the service in question was not supplied with reasonable skill and care. The appeal was dismissed.
25. It was therefore, unnecessary for the court in reaching this conclusion to answer the question of whether the standard operating in Spain or the standard in Ireland was the appropriate one to apply. Nor does it appear that the question arose in circumstances where no evidence appears to have been led by the defendant that a lower standard applied in Spain which had been complied with. It seems clear from the observations of Macken J. above cited that the court considered that the principles to be derived from the UK cases to which she referred are persuasive in this jurisdiction.
United Kingdom Cases
26. In the present case, the English authorities analysed by the trial judge endorse the reasonable skill and care test but consider also, that local standards may be highly relevant. One of the early authorities on this point is Wilson v. Best Travel Limited [1993] 1 All E.R. 353, which pre-dated the incorporation of the Directive into English law in 1992. The plaintiff, while staying in a hotel in Greece on a holiday booked through the defendant tour operator, sustained serious injuries after tripping and falling through glass patio doors at the hotel. The doors were fitted with ordinary glass which complied with Greek Standards, whereas British Standards would have required the use of safety glass. The plaintiff’s claim failed. The following passage from the judgment of Phillips J. has been considered authoritative in many of the subsequent cases, including those post-dating the introduction of the Directive (at p. 358): –
“What is the duty of a tour operator in a situation such as this? Must he refrain from sending holidaymakers to any hotel whose characteristics, insofar as safety is concerned, fail to satisfy the standards which apply in this country? I do not believe that his obligations in respect of the safety of his clients can extend this far. Save where uniform international regulations apply, there are bound to be differences in the safety standards applied in respect of the many hazards of modern life between one country and another. All civilised countries attempt to cater for these hazards by imposing mandatory regulations. The duty of care of a tour operator is likely to extend to checking that local safety regulations are complied with. Provided they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotel unless the absence of such a feature might leave a reasonable holidaymaker to decline to take a holiday at the hotel in question.”
27. In Evans v. Kosmar Villa Holidays Limited [2008] 1 WLR 297, the seventeen-year-old plaintiff was severely injured when he dived at night into the shallow end of a swimming pool at an apartment complex in Corfu. He sued the tour operator on the basis that there had been a failure to exercise reasonable skill and care on the part of the apartment complex owners in failing to have proper “No Diving” signs and depth markers. He succeeded in the Queen’s Bench Division, subject to a fifty percent reduction for contributory negligence. However, the Court of Appeal allowed the defendant’s appeal and dismissed the claim. The sole judgment was given by Richards L.J. with whom the other members of the court agreed. He said (at page 306): –
“23. A claim such as that in Wilson v. Best Travel Limited [1993] 1 All E.R. 353 would no doubt be put differently under the 1992 Regulations: since the tour operator is directly liable under those regulations for improper performance of the contract by the hotel even if the hotel is under independent ownership and management, the focus can be on the exercise of reasonable care in the operation of the hotel itself, rather than in the selection of the hotel and the offer of accommodation at it. But I do not think that this affects the principle laid down as to the standard to be applied to a hotel abroad, namely that the hotel is required to comply with local safety regulations rather than with British safety standards. That was the approach in Codd v. Thomson Tour Operators Limited The Times 20 October 2000; Court of Appeal (Civil Division) Transcript Number 1470 of 2000, in which the claimant had been injured while travelling in a lift at a hotel in which he was staying in Majorca. The tour operator accepted that it would be liable, (presumably under the 1992 Regulations) if negligence was established against those who were responsible for running and managing the hotel, but the judge found that liability was not established. The Court of Appeal dismissed the claimant’s appeal, citing Wilson v. Best Travel Limited [1993] 1 All E.R. 353 for the proposition that there was no requirement for the hotel to comply with British safety standards, and holding that there was no breach of local safety regulations and that there was no negligence by the hotel management either in relation to the maintenance of the lift or in relation to safety procedures.
24. In the present case, there was no evidence to support the pleaded claim of non-compliance with local safety regulations, and that way of putting the case was not pursued at trial. In my view, however, it was still open to the claimant to pursue the claim on the other bases pleaded in the amended particulars of claim. What was said in Wilson v. Best Travel Ltd did not purport to be an exhaustive statement of the duty of care, and it does not seem to me that compliance with local safety regulations is necessarily sufficient to fulfil that duty. That was evidently also the view taken in Codd, where the court found there to be compliance with local safety regulations but nevertheless went on to consider other possible breaches of the duty of care.”
28. In Gouldbourn v. Balkan Holidays Limited and Anor. [2010] EWCA Civ 372, the plaintiff booked a skiing holiday in Bulgaria with the defendant tour operator. She had never skied before. After some initial tuition on nursery slopes, the locally qualified instructor brought her to a slope which she was unable to negotiate safely and fell, suffering injuries. The plaintiff lost the case at first instance and her appeal was dismissed by the Court of Appeal. Giving the leading judgment, Leveson L.J. considered the appropriate standard to be applied (at para. 12): –
“As to the test, [counsel for the defendant] successfully argued that the proper test was whether [the ski instructor] exercised reasonable care and skill as a ski instructor in Bulgaria, which required an analysis of local standards rather than the standards that might be applied in this or any other country. As a result the judge concluded:
‘… on western European standards [the instructor] probably failed to assess her ability correctly and was too quick to take her up onto this slope…
44. That said, on the central issue of negligence, I am driven to the conclusion that [the instructor’s] conduct must be judged against the relevant local standards, and that I have no evidence which can satisfy me that he has failed to show reasonable care by reference to such standards. It may be that he fell below those standards but that is not something which I can properly infer from the evidence I have heard.’
The question for this court is whether that approach is correct.”
29. The court ultimately held that the trial judge was entitled to come to this conclusion. In commenting on the prior case law, Leveson L.J. said (at para. 19 – 20): –
“19. It is a mistake to seek to construe the judgment of Phillips J. [in Wilson] as if it was a statute: see the observations of Richards L.J. in Evans v. Kosmar Villa Holidays Plc. [2008] 1 WLR 297 at para. 224, p. 3068 to the effect that the case did not purport to be an exhaustive statement of the duty of care. Nevertheless it does identify a very important signpost to the correct approach to cases of this nature, which will inevitably impact on the way in which organisations from different countries provide services to UK tourists. To require such organisations to adopt a different standard of care for different tourists is quite impracticable. What might be required for American tourists may well be different to that required by a French or Western European tourist, itself different to that required by a Japanese tourist. Neither do I consider that the Regulations impose a duty on English tour operators to require a standard of care to be judged by UK criteria or necessarily western European criteria.
20. In my judgment the reference to ‘uniform international regulations’ [in Wilson] is intended to do no more than include into any assessment of the standard of care those standards which the relevant country has accepted and adopted. Thus, I agree that a general requirement never to allow pupils to take any risk beyond their capability imposes a duty of care to pupils in that regard, but it does not identify or mandate the way in which that duty should be fulfilled.”
30. In Lougheed v. On the Beach Limited [2014] EWCA Civ 1538, the plaintiff went on a package holiday to a hotel in Spain where she slipped on a patch of water on steps, suffering an injury. She succeeded in the County Court but failed on appeal before the Court of Appeal. Again, the issue of compliance with local standards loomed large in the case. The leading judgment was given by Tomlinson L.J. with whom the other members of the court agreed. In considering the issue of the relevance of local standards, he reviewed the authorities, including Wilson and Evans, and also a case called Holden v. First Choice Holidays (at para. 9 et seq.): –
“… Standards of maintenance and cleanliness vary as between countries and continents and indeed what is reasonably to be expected in a five star hotel in a Western European capital differs from what is reasonably to be expected in a safari lodge, however well-appointed. There may perhaps be certain irreducible standards in relation to life-threatening risks, but to expect uniformity of approach on a matter such as the frequency of inspection and cleaning of floor surfaces is unrealistic. An Englishman does not travel abroad in a cocoon.
10. Holden v. First Choice Holidays and Flights Limited 22 May 2006, unreported, was a case decided by Goldring J., as he then was, under the Regulations. Mrs. Holden fell down some stairs in a hotel in Tunisia. It was found that she had slipped on some spilt liquid, probably a spilt drink. The question arose as to the standards to be required of the hotelier and whether a member of staff was required to be stationed to monitor spillages on the staircase. The judge held that the duty of care was that set out by Phillips J. in Wilson v. Best Travel. He held that it was for the claimant to prove that the defendant fell short of the standards applicable in Tunisia. The claimant had adduced no evidence of such standards and there was no material before the court on the basis of which inferences could be drawn as to the content of those standards. The Recorder in the court below had drawn inferences as to the standards applicable from evidence concerning the care received by the claimant in hospital in Tunisia, and from evidence as to the standards applied by another company in another hotel. Goldring J. rejected that approach. At page 11D he said this:-
‘It does not seem to me that one can infer a local standard from what may well be a higher standard in a particular hotel or by a particular company in particular circumstances. It is no substitute for evidence of what is local custom and what may be the local regulations.’ ”
31. Tomlinson L.J. was at pains to point out that compliance with local regulations was not the end of the matter. He said (at para. 13): –
“Plainly compliance with locally promulgated safety regulations may not be the end of the enquiry. The regulations may be recognised locally as inadequate. There may be steps routinely taken to draw attention to risks tolerated by the local regulations, as for example the placing of a warning sticker on untoughened glass. One would not expect to find locally promulgated regulations governing the frequency with which a hotel floor should be either cleaned or inspected for the presence of spillages on which guests might slip. The standards by which the hotel is to be judged in its performance of such tasks as are unregulated, or where regulations are supplemented by local practice or are recognised to be inadequate must necessarily, and on authority, be informed by local standards of care as applied by establishments of similar size and type.”
32. Later in his judgment, the judge returned to the same issue: –
“16. It follows that I cannot accept [counsel for the plaintiff’s] broad submission that local standards are a distraction and not determinative of the issue whether reasonable skill and care has been exercised. I would accept, as is obvious, that mere compliance with locally applicable regulations will not exhaust the enquiry, for the very reason that the locally applicable standards may recognise that such compliance is of itself insufficient. But I reject the suggestion that the English Court can, if it finds local standards to be unacceptable, judge performance in that locality by reference to the standards reasonably to be expected of a similar establishment operating in England or Wales. Such an approach is neither sensible nor realistic. It is also precluded by authority.”
33. One of the complaints raised by the appellant in the present appeal is the potential unfairness in requiring a claimant to procure evidence from an expert in the foreign country where the accident occurred as to locally applicable standards. She contends that this is an unreasonable burden to impose on a claimant and one contrary to the spirit and intent of the Directive. In that regard, it is I think useful to record the comments of Tomlinson L.J. in the same case when considering the question of whether the trial judge wrongly relied on the evidence of the manager of the hotel where the accident occurred as evidence of local standards. In that regard, the court stated: –
“27. The judge recognised that standards may not be the same in Spain as in the UK and that there will be cases where the court is unable to draw an inference of want of care without sufficient evidence of Spanish standards. In my judgment this is just such a case, both because of the lack of relevant evidence on a point on which the claimant bore the evidential burden, and because it was not a proper case in which to draw an inference, without more, of a lack of proper care. I deal separately with the second point under Ground 2 below. I would not however wish it to be thought that evidence of relevant local practice or standards can only be given by an expert witness called as such, or at any rate in the form of a report of an expert for the introduction of which evidence the permission of the court has been given. I agree with [counsel for the defendant] that it is ordinarily preferable that evidence of these matters should be given in that way, not least because both the opponent party and the court has the protection and the reassurance of the standard form of declaration given by any person who seeks to give expert evidence. A claimant who chooses not to adduce such evidence in a case of this sort does so at his peril. That is not however to say that the evidence could not in an appropriate case be given by an appropriately experienced and qualified individual who nonetheless did not put himself forward as professing expertise in the field. Because cases are infinitely various, and the exigencies of litigation unpredictable, I would not wish to be over-prescriptive. However for the reasons I have given the point does not here arise because the evidence of [the hotel manager] does not in my view bear the weight which the judge put upon it.”
34. Kerr v. Thomas Cook Tour Operations Limited [2015] NIQB 9 is a recent Northern Ireland case where similar issues concerning local standards arose. The plaintiff went on a package holiday to a hotel in Tunisia. She was attacked by a cat on the hotel grounds and injured. Evidence was given that there were a large number of cats roaming freely throughout the hotel grounds and that this situation had existed for some time prior to the incident in question. The plaintiff called no evidence from an expert as to relevant local standards in Tunisia. The defendant called no evidence. In his judgment, Maguire J. reviewed many of the authorities to which I have already referred, noting that the standard to be applied was that of reasonable skill and care. He said (at para. 17): –
“In this case there has been no evidence adduced by the plaintiff which establishes the standard of care which the court should apply. It seems to the court that, unless there is such evidence, the court is unable to conclude that there has been a breach of the obligation. Consequently, with reluctance, the court is forced to conclude that the plaintiff has failed to prove her case. While [counsel for the plaintiff] sought to escape this conclusion by arguing that in this area of the case the onus of proving that it acted with reasonable care and skill should rest with the defendant, the court is unable to accept this submission which was unsupported by authority.”
35. With the exception of Gouldbourn, it must be recognised that all of these cases were concerned with the static condition of the premises as distinct from the conduct of a particular activity. However, Gouldbourn also endorsed the proposition that local standards were equally to be considered in the context of an activity. People engage in many leisure pursuits such as contact sports or adventure activities like hang gliding, sky diving, white water rafting, winter sports, motor sports and an endless list of extreme sports, all of which have an element of danger as an inherent part. Holiday makers in particular will naturally want to have new experiences.
36. People willingly participate in such things, even not involving an element of skill, because the pleasure to be derived from them comes in part at least, from the excitement and exhilaration of being exposed to such danger, albeit in a controlled way that is reasonably safe. This is what generates the enjoyable “adrenaline rush” of the kind described in the advertising material for this ride. Clearly, any holidaymaker seeking a relaxed cruise would be unlikely to participate. In the present case, it could not be suggested that the appellant’s experience was other than what she signed up to. Even a cursory viewing of the promotion material for this boat ride showed that the passengers could expect to be subjected to significant forces and impacts which might result in bumps and bruises. It would be entirely unreasonable to suggest that such, without more, could give rise to liability on the part of the operator.
37. In fairness to the appellant, it was not at any stage suggested that there was anything negligent about the way in which the skipper drove the boat. It was what was promised. The criticism was of the static condition of the boat with the sole exception of the skipper’s repositioning of the appellant after the first 360 degree turn. The trial judge dealt with that contention appropriately in my view.
Discussion
38. The cases to which I have referred above were also the subject of careful analysis by the trial judge leading him to state his conclusions on the law. They were also the subject of considerable debate in this appeal. In the light of that, although it might be said that his ultimate conclusion did not depend on that analysis, it is in my opinion appropriate that I should express a view on these issues.
39. I think a consideration of these authorities suggests that the following principles may be distilled:
(a) In claims pursuant to section 20 of the 1995 Act, the appropriate test is whether reasonable skill and care have been employed in the provision of the service complained of;
(b) the standard by which the test of reasonable skill and care is to be judged is the standard, as distinct from the law, applying in the place where the event complained of occurs. The issue of liability is to be determined by reference to Irish law;
(c) if there are internationally recognised norms applicable to the facts of the case, the court is entitled to have regard to these in its assessment of whether reasonable skill and care has been used;
(d) Per Scaife, there may be cases where the court can have regard to the standards prescribed in Irish legislation such as the Hotel Proprietors Act 1963 and the Occupiers Liability Act 1995 in determining whether there has been compliance with the Directive and the 1995 Act;
(e) it will not necessarily be a defence to a claim to show that local regulations were complied with, if such are recognised locally as inadequate, or are so patently deficient that any reasonable person would view them as obviously inadequate; conversely, there may be a requirement to comply with local standards that are higher than those obtaining in this jurisdiction;
(f) the tour operator is not to be regarded as an insurer;
(g) the onus of proving that the relevant service has been provided without reasonable skill and care rests upon the plaintiff and accordingly, it is for the plaintiff to establish that any relevant standard has not been complied with;
(h) it will normally be difficult for the court to make an assessment of whether reasonable skill and care has been used in the provision of the service, absent evidence of relevant local standards, as distinct from Irish standards, subject to (d) above
(i) the court should not be overly prescriptive as to how compliance with local standards is to be proved. It is not necessarily the case that such proof can only be provided by a locally qualified expert, subject always to the rules of evidence and the relative weight to be attached to non-expert evidence.
(j) The parties may, of course, expressly contract for the provision of a service to a particular standard, as the trial judge pointed out.
40. It follows from the foregoing that I cannot accept the contention of the appellant that an onus fell upon the respondents to demonstrate compliance with local regulations. That would be to reverse the burden of proof. In the present case, the appellant’s engineer was not in a position to offer evidence as to the standards and regulations, if any, that applied to the activity in question in St. Maarten. Indeed he was not in a position to offer evidence as to any such standards or regulations that might apply to such an activity in Ireland.
41. The engineer’s evidence could therefore only be viewed as what might amount to the use of reasonable skill and care in such an activity in this jurisdiction but on that basis, the trial judge considered, in my view correctly, that even then it would not have been possible to attribute negligence to the respondents. The appellant criticises the trial judge’s view of the engineer’s evidence in some particular respects. In the context, for example, of the suggestion that the boat should have been fitted with seatbelts, the judge pointed to the very obvious risk that such devices would pose if the boat capsized, an issue apparently raised in cross-examination of the engineer.
42. Similarly, criticism is made of the fact that the judge’s conclusion that the provision of a side bar might have amounted to a trip hazard was one unsupported by any evidence. While that might be strictly speaking true, it has to be remembered that the only evidence the engineer could offer of this being a necessary feature was a trip on a boat on the Thames. Certainly in the case of the seatbelts and padding on the gunwales, beyond the engineer speculating that these would be desirable features, there was no evidence offered by him of any similar craft with similar features.
43. While the appellant claims that no countervailing evidence was led by the respondent, it does not follow that merely because this evidence was given by the appellant’s engineer, the court was obliged to accept it. In any event, the judge’s findings on these matters were merely an application of basic common sense. The same goes for his determination that he did not fault the skipper for his action after the first incident in moving the appellant to a different position on the front bench, and not swapping her to the last row. He was entitled to point out the potential for danger at sea in moving two passengers in a fibreglass craft of shallow draft with no walkway between benches.
44. Again, this seems an eminently reasonable conclusion, but whether the judge was right or wrong in reaching these conclusions was ultimately immaterial to the outcome. He correctly held that the appellant had failed to discharge the requisite onus of proving that the service had been provided without reasonable skill and care when judged against applicable local standards (at para. 53). This was not determinative however, because he further held (at para. 61) that, even judged by any relevant Irish standard, he still could not find that there had been a breach of duty by the respondents. At the end of the day, as the trial judge put it, this was unfortunately an injury that simply occurred during the course of a vigorous activity.
Conclusion
45. I am satisfied that the trial judge identified the appropriate legal test and correctly applied it to the facts of this case. His conclusion was, in any event, stress tested against any relevant Irish criteria and even then the judge was rightly of the view that he could still not find that the service was provided without reasonable skill and care.
46. I therefore agree with his conclusion and for the reasons explained would dismiss this appeal.
Result: Dismiss Appeal
Vesey v. Bus Eireann
[2001] IESC 93 (13th November, 2001)
THE SUPREME COURT
JUDGMENT of Mr. Justice Hardiman delivered the 13th day of November, 2001. [Nem Diss.]
1. This is the Defendant’s appeal against the order of the High Court of the 14th November, 2000 awarding the Plaintiff damages for personal injuries in the total sum of £72,500.00.
2. The Plaintiff was involved in a traffic accident on the 9th September, 1996. He was stationary at traffic lights on the Stillorgan Road when a bus the property of the Defendant drove into the rear of his vehicle. The action was heard in the High Court on the 7th, 8th and 9th of November, 2000. Judgment was reserved overnight and delivered on the 10th November.
The issues.
3. Liability for the accident was not disputed by the Defendant and the substantive plea was a denial of the injuries and loss alleged.
4. Despite the apparent simplicity of the issues the trial was a very difficult one. The nature of these difficulties is graphically set out in the judgment of the learned trial judge. He said:-
“…….It should be a very simple case and the facts of it are very simple indeed. The Plaintiff was hit from behind by a bus. Let me say that the only fact in this case about which I am absolutely certain is that the accident took place and I am only certain of that because the Defendants have admitted it. Had the Defendants not admitted it, I would possibly have the gravest difficulty in coming to that conclusion….. It is necessary to notice that that is the end of the simplicity in the case”.
5. Later the trial judge said:-
“I am now going to say something that I have never said about any Plaintiff in the last 13½ years on the bench. The Plaintiff has lied to me, he has lied to his own doctors, he has lied to the Defendants’ doctors in a manner which has rendered the opinions of the doctors almost useless because they admit themselves, they depend on the veracity of the history given to them by the Plaintiff to form their opinions. The Plaintiff did not tell the doctors the truth regarding his history.
Turning the Plaintiff’s work history the learned trial judge said:-
“The history of work in the case is one of the great mysteries because the only time on which we have any detail of the Plaintiff’s work was in the six months prior to the accident and, undoubtedly, he was working then but …… I accept that only because of (the evidence of a former employer)…….”
6. As will be gathered from these extracts, the difficulties in the case revolved around the ascertainment of the precise physical injuries and disability referable to the accident and in respect of which damages could be awarded on the one hand, and the Plaintiff’s work history in so far as it bore on his pre-existing condition and on his likely loss of earnings for the future on the other. The assessment of the first of these matters was rendered complicated by the fact that the Plaintiff had at least four previous accidents, three of them while in the employment of a company for which he worked for a total of only six or seven months. In these cases, he had made claims of various sorts of injuries which would have the effect of rendering him fit for only light work. However, in the six months or so prior to the present accident he had been working in the building trade and earning an average of £365.00 per week.
7. In relation to these matters the learned trial judge held:-
“….. Having regard to the condition from which the Plaintiff was suffering….. two months prior to the accident….. it is very hard to say that his present condition is any way worse than this but I am happy to accept the evidence of Mr. Harold Browne when he says that his pre-existing condition was shaken up……”
He also held:-
“I accept that he suffered some damage but as to what the damage was I can only speculate”.
8. The judge also held:-
“With regard to general damages, as I say, the Plaintiff has not helped me, he has lied to his doctors, but I accept Mr. Browne and I accept Dr. McGrath, the Defendant’s doctors that he (a) has no psychiatric problem or demonstrated no sign of them and (b) that what happened to him, he was shaken up and he had a bad condition beforehand, though he was able to work with it and I do not think that at this late stage he has suffered or is anyway really worse off than he was before the accident, or he certainly has not proved that to my satisfaction on the balance of probabilities”.
9. None of these findings were appealed against by the Plaintiff. The Defendant, however, appealed on the following grounds:-
“(1) That the learned trial judge erred in law and on the facts by making an award of general damages to the Plaintiff which was excessive and was unsupported by the evidence.
(2) That the learned trial judge erred in law and on the facts in making any award of damages in respect of loss of earnings to the Plaintiff, there being insufficient evidence to support such an award.
(3) Having regard to the dishonesty of the Plaintiff, the learned trial judge erred in law and on the facts in making any award of damages to the Plaintiff in that the Plaintiff had failed to discharge the burden of proof upon him to satisfy the Court as to the injuries he had allegedly sustained.”
Damages
10. The damages awarded to the Plaintiff were sub-divided as follows:-
(i) Special damages £7,500,
(ii) Loss of earnings to date and into the future £35,000,
(iii) Pain and suffering to date and into the future £30,000.
Aspects of the evidence
11. As will be gathered from the extracts set out above, the evidence in this case took a number of unusual turns. The Plaintiff gave contradictory evidence on a considerable number of points both in relation to his medical condition and his work history. He also had the difficulty that particulars of his medical state had been furnished by another firm of Solicitors acting on his behalf in relation to an earlier accident. The particulars were dated July, 1993. These contained the allegation that:-
“His incapacity is such that he will be unable to compete with others with realistic hope of obtaining even lighter work”.
12. Moreover, the Plaintiff claimed that his pre-accident work history was a generally good one and that, in particular as a result of work he carried out in the Isle of Man and in Jersey, he had earned enough money to buy a house. However, in the particulars already referred to, delivered in 1993 but in respect of an accident in 1984, the Plaintiff was asked to identify all of his employers since the date of that accident. To this he replied:-
“After the accident the Plaintiff endeavoured to continue his existing employment, but was not physically fit to do so. He subsequently tried to work as a steel fixer with Kavanagh Steel Fixing Service in James’s Street, but found that he was physically incapable of work”.
13. When, in the same action, the Plaintiff was asked to state the amount of his earnings in respect of each employment and he replied:-
“The periods (of employment) were of such short duration that these figures are of no significance”.
14. These were not the only difficulties afflicting the Plaintiff in relation to his medical history, his work history and the correlation between them. He claimed to have been employed outside the country at periods when, according to what he told the doctors treating him, he had been out of work and he claimed again to have been employed abroad at periods during which he was drawing social welfare in Ireland. He replaced one untrue account with another equally untrue.
15. It also became perfectly clear that the Plaintiff had made only a very partial disclosure of his history to certain of his own medical advisers. In particular, Dr. Lorna Browne, a pain specialist, stated in cross-examination that she was unaware of the history set out in the statement of claim in the Plaintiff’s prior proceedings. She conceded that she would have expected to have been told about these symptoms.
16. On a careful re view of the evidence I am quite satisfied that the learned trial judge’s observations quoted above were fully justified.
Submissions in relation to the foregoing
17. Although no appeal was taken from any of the trial judge’s findings by the Plaintiff, it was suggested in argument that the findings quoted above were too harsh. In particular, it was submitted that far too much weight was put on the contradictions between the Plaintiff’s evidence and the particulars delivered in previous litigation because “we all know these are drafted by someone else”.
18. Equally, it was submitted that, while the evidence was unsatisfactory and unreliable it was the obligation of the learned trial judge to “disentangle” the Plaintiff’s contradictions and that he had done so in a manner which was either satisfactory or was not sufficiently unsatisfactory to justify this Court in intervening. In that regard, the Plaintiff relied on the well known passage from the judgment of McCarthy J. in Reddy v. Bates [1984] ILRM 197 at 205, to the effect that the Court should not intervene with the trial court’s award of damages unless there is a very significant disparity between the sums awarded in the High Court and that which this court would consider appropriate.
19. The Defendant, on the other hand, submitted that, having regard to the learned trial judge’s unappealed assessment of the Plaintiff’s evidence, he was wrong in making any award at all to the Plaintiff in respect either of general damages or of loss of earnings. It was emphasised that the onus of proof lay on the Plaintiff and it was submitted that, having regard to what the learned trial judge said, he had plainly failed to discharge it. Accordingly, there should have been no award except for special damages. Additionally, the Defendant submitted that the specific sums awarded were excessive and unsupported by the evidence.
20. In argument in this Court Mr. Finbarr Fox S.C. on behalf of the Defendant, made a further interesting submission. He referred to the well established principles whereby exemplary damages may be awarded to a Plaintiff if the Defendant’s evidence or conduct of the case has been such that the Court wishes to mark its disapproval of it. Mr. Fox referred to a recent personal injuries case ( Crawford v Keane , High Court, unreported, 7 April 2000) where this had been done. In effect, he argued, the same principle should apply in reverse against a Plaintiff such as this, whose conduct of the case clearly merited the Court’s strong disapproval. Accordingly, any award to which the Court might think the Plaintiff was entitled should be reduced or extinguished on this basis. Mr Fox conceded, however, that he had found no Irish or English authority for the proposition that this could be done.
Observations on submissions
21. I do not accept that the learned trial judge’s observations on the Plaintiff were in any way unjustified or unduly harsh. Nor do I accept that he placed too much emphasis on the particulars given by the Plaintiff in his other litigation. I would specifically deprecate the submission made that particulars in another action should be disregarded, or regarded with less seriousness, on the basis that “everybody knows” that they are not drafted by the Plaintiff personally. It is quite true that, in providing the particulars which a Defendant is entitled to require a Plaintiff may rely on the advice of his lawyers, doctors, engineers and other professionals. But none of these professional advisers are responsible for the factual content of the replies. These replies are the Plaintiff’s document for which he is personally responsible. In relation to the matters in question here, the Plaintiff’s capacity for work after an accident and his employment history, these are matters peculiarly within the Plaintiff’s knowledge and about which his lawyers or doctors can have no direct knowledge other than on the basis of his instructions to them. It is essential, and as far as I know is the general practice, that a Plaintiff’s solicitor should carefully go through with him replies to particulars in the form in which it is proposed to send them to the Defendant, and obtain his assent. The fact that particulars of negligence or breach of statutory duty are necessarily expressed in legal terms, and particulars of injuries or prognosis in medical terms, in no way exempts the Plaintiff from ensuring, with the assistance of his solicitor, that the underlying facts are correctly stated.
22. I cannot agree, either, that it is the responsibility of a trial judge to “disentangle” the Plaintiff’s case when it has become entangled as a result of lies and misrepresentations systematically made by the Plaintiff himself. The procedure in our courts is an adversarial one and the Defendant is entitled to have the Plaintiff’s case presented by him and accepted on its merits or otherwise as these appear from the Plaintiff’s presentation and crossexamination . For the trial judge to make on behalf of the Plaintiff the best case he can in such circumstances would risk the loss of the appearance of impartiality. The learned trial judge was quite correct to point out that the onus was on the Plaintiff and that he had, in significant respects, failed to discharge it. It may be the submissions in relation to “disentangling” are more relevant to the learned trial judge’s eventual decision when, having eloquently pointed out the shortcomings in the Plaintiff’s evidence, he went on to make the awards summarised above. I will return to that topic later in this judgment.
23. In general, I agree with the main thrust of Mr. Fox’s submissions. The learned trial judge himself said:-
“I accept that he suffered some damage but as to what the damage was, I can only speculate”.
24. It seems to me that this is not a correct basis on which to approach the assessment of damages and that a Defendant is entitled to have the exercise approached in a more specific and evidence based fashion. The learned trial judge was, of course, attempting to perform the very difficult task of deciding what should be awarded to a Plaintiff who undoubtedly had an entitlement to some award, in circumstances where the Plaintiff himself had made the exercise all but impossible by persistent lies in and out of court.
Decision
25. I believe that the award in relation to future loss of earnings is largely speculative, as the learned trial judge himself said, and should be set aside. I take the view that the Plaintiff had almost entirely failed to adduce credible evidence in this regard and was accordingly entitled to no award. In view of the utterly sporadic nature of proved employment, the Plaintiff’s lies and deceptions in relation to his employment history, and the medical evidence summarised above, I do not believe that the Plaintiff has established on the balance of probabilities that he is entitled to any award in respect of loss of earnings into the future.
General damages
26. A court is not obliged, or entitled, to speculate in the absence of credible evidence. Here, the Plaintiff was contradicted out of his own mouth both in relation to his history of working, which appears in reality to have been extremely sporadic and in relation to his pre-accident medical condition. In these circumstances, it appears to me that the learned trial judge was correct in his decision that the only reliable evidence was that of the Defendant’s medical witnesses. It is quite clear from the transcript that the evidence of the Psychiatrist, Dr. Desmond McGrath, does not support the existence of any psychiatric injury and no award falls to be made under this heading. The evidence of Mr. Harold Browne, the well known surgeon, is supportive of the existence of modest injury only as a result of the accident involving the Defendant. There are, plainly, other sources of injury, in the form of the previous accidents, and the Plaiintiff’s condition is also contributed to by his obesity.
27. Mr. Browne stated his conclusion as follows in direct evidence:-
“My conclusion was that he had three injuries to his back; the primary injury was in 1984, the second injury was in 1993 and the third injury was in 1996. Once you injure your back it makes it much more vulnerable to subsequent injury. Also, from the files I had, I found that he had a condition called spinal stenosis which, per se, can also cause backache and pain on bending. His obesity also was contributing to his backaches. He also had degenerative changes in his back pre accident. All these factors: one accident, two accidents, three accidents , one dovetailed into another, resulting in the so called chronic back pain”.
28. In cross-examination Mr. Browne somewhat expanded his view in relation to the specific topics posed to him as follows:-
“Q. He had, undeniably, a pre-existing back condition is that not so?
A. Yes.
Q. He was not improved by the accident and the severe impact that occurred?
A. But at the same time, I do not think that the accident at issue made his previous conditions any worse.
Q. Are you seriously suggesting that an impact that wrote off the car, which broke the seat, which took it away from its moorings, that would not make his condition any worse?
A. He was described, Mr. Maguire, in 1994 in the charts of St. Vincent’s Hospital, as having chronic progressive backache and that is a pretty definitive statement 2½ years before the present accident.
Q. That goes to show how bad his condition was before the accident, I am asking you a separate question as to whether this accident, I am suggesting to you it hardly improved his back condition.
A. I would agree with you there, yes.
Q. Would you say it made it any worse?
A. I do not think it made it any worse than the pain he had in 1994, which is described as serious pain at St. Vincent’s Hospital, and the injury that he had was soft tissue injury at the time of the 1996 accident”.
29. In these circumstances, I would reduce the award for general damages, past and future, to £15,000.00
30. The claim for past loss of earnings, again, is extremely problematical. The Plaintiff supplied the names of five employers with whom he said he had worked over the years. It transpired, however, in cross-examination that he had worked for some of these only for a small number of weeks. He mentioned other employers, some only vaguely identified, for whom he had worked abroad. His major point was that he was in good employment at the time of the accident. It appears that he had worked for a major company from February to May of 1996 and he claimed to have been re-employed in August of that year. This was supported by the employer’s representative. However it was also established that he was drawing social welfare at the relevant time. The employment, even looking at it at its height from the Plaintiff’s point of view, was not continuous but depended on the existence of particular projects.
31. In relation to loss of earnings between the date of the accident and the date of trial, the position is again very unsatisfactory and the Plaintiff’s evidence entirely unreliable. However, it was conceded by Mr. Browne that it was not unreasonable for the Plaintiff to have been off work for nine months after the accident. Counsel for the Plaintiff said that his net loss would have been £200.00 a week and on that basis I would be prepared to allow him £7,500.00.
32. In the circumstances I assess the Plaintiff’s damages at £7,500.00 in respect of special damages, £15,000.00 in respect of general damages and £7,500.00 in respect of loss of earnings, making a total of £30,000.00.
Reduction or extinguishment of damages
33. I have considered Mr. Fox’s submission to the effect that the damages to which the Court considers the Plaintiff is entitled should be reduced or extinguished as a mark of the Court’s disapproval of the sustained dishonesty which characterised the Plaintiff’s prosecution of his claim. I am not satisfied that there is a direct analogy with an award of exemplary damages to mark the Court’s disapproval of the conduct of a Defendant. Such exemplary damages are a graft upon the Plaintiff’s entitlement to compensatory damages and an award of damages of the latter sort is a condition of the award of exemplary damages. Even if, contrary to the view I have expressed, there is an inherent power to reduce damages in circumstances such as the present it would not be appropriate to exercise it without warning in the circumstances of the present case.
34. It is interesting to note, however, that in the United States there is a well established jurisprudence on the inherent power of a court to dismiss an action for “flagrant bad faith” : see National Hockey League v. Metropolitan Hockey Club Inc. 427 US 639. The power will be exercised in circumstances such as dishonest conduct by a litigant, obstruction of the discovery process, abuse of the judicial process or otherwise seeking to perpetrate a fraud on the Court: see Link v. Wabash Railroad Company 370 US 626. The rationale is stated in the Hockey League case as follows:-
“Here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the District Court in appropriate cases, not merely to penalise those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.”.
35. The American context is of course rather different from that prevailing here: in particular the American courts usually lack the power to penalise conduct of the relevant sort by an appropriate order as to costs. But there is plainly a point where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose upon the other party.
Need for submissions
36. In my judgment in Kelly v. Bus Eireann delivered 16 March 2000, I expressed the view that Counsel could probably assist the trial Court in many personal injuries actions by making brief submissions as to the issues arising and the salient evidence bearing on them. Obviously, this will not be necessary in an entirely straightforward case but the present action could not possibly be regarded as being in this category. It was a case where the evidence underwent several dramatic changes. I consider that the Court might have been assisted by a brief statement of each sides contentions at the end of the evidence.
O’K v L.H & Ors
[2006] IEHC 393 (24 October 2006)
JUDGMENT of Mr. Justice de Valera delivered on the 24th day of October, 2006.
Damages
The plaintiff obtained judgment against the first defendant on the 8th day of November, 1999 and the defendant did not seek to appear nor was he represented at the subsequent hearing between the plaintiff and the second, third and fourth defendants which was heard in the High Court in Dublin commencing on the 3rd day of March, 2004.
I am now asked to measure the damages to which the plaintiff is entitled against the first defendant.
Special Damages
A figure of €5,104 was claimed by the plaintiff against the defendants and agreed between the plaintiff and the second, third and fourth defendants (subject to liability). I am satisfied on the evidence that this is an appropriate amount to award the plaintiff under this heading against the first defendant.
General Damages
In deciding on the appropriate figure for general damages I am accepting the evidence of the plaintiff herself and that of Dr. O’Leary, her psychiatrist.
Since the sexual assaults on the plaintiff when she was a little girl her life has been blighted and I am satisfied on the evidence that the sexual abuse that she suffered has been, as described by Dr. O’Leary:
“quite intrusive in her life… and still is to the present date”.
Sexual abuse of the kind suffered by the plaintiff is extremely emotive and I must ensure in measuring damages that such measurement is carried out dispassionately and judicially.
There have been a number of cases in the recent past in which juries awarded sums in the region of €1,000,000 for injuries arising out of the sexual abuse of young children but the Supreme Court has made it clear that these are excessively high figures.
The Supreme Court has laid down guidelines in decisions such as Gough v. Neary [2003] 3 I.R. p. 92 in relation to the limit of damages in personal injury actions, of which this is one, and that limit appears to be somewhere in the region of €400,000 and this for what are described as “catastrophic injury” cases.
In deciding on the appropriate amount of general damages in L. O’K.’s situation I must maintain a proportionality between the limits set down by the Supreme Court and the severity of the damage to the plaintiff herself.
In these circumstances I believe that the appropriate figure is €200,000 being made up as to €150,000 for general damages to the date of trial and €50,000 for general damages into the future.
Aggravated and Exemplary Damages
It has been urged upon me, and I accept, by counsel for the plaintiff that I should also consider making awards under the heading of aggravated and exemplary damages. Among the matters which I should take into consideration when considering aggravated damages is the manner in which the wrong was committed, the conduct of the wrongdoer after the commission of the offence and the conduct of the wrongdoer in the defence of the action up to and including the trial of the action. In this matter the first defendant has refused to take any part in the trial and I am satisfied that I am entitled to take this into consideration as well as his behaviour at the criminal trial which was the “trigger” for L. O’K. in initiating this action.
I am also entitled to take into consideration the nature of the wrong committed by the first defendant and a sexual assault by a teacher on one of his young pupils is a matter which must excite the “proper indignation of the public” per McCarthy J. in the Supreme Court decision McIntyre v. Lewis [1991] 1 IR 121 which was followed by McCracken J. in the High Court decision Crofter Properties v. Genport Limited [2002] 4 I.R. 73 and award a sum for exemplary damages.
Under the headings aggravated damages and exemplary damages, therefore, I award a sum of €50,000 under each heading.
The Criminal Injuries Compensation Tribunal
In 2002, L. O’K. was awarded, and accepted, €33,962.24 as an ex gratia payment for compensation from the CICT. I am satisfied that it should not be taken into consideration in respect of her action against the first named defendant herein.
Total Damages
Therefore I award the plaintiff arising out of the judgment obtained by her against the first named defendant the sum of €305,104.
Counihan v Bus Átha Cliath – Dublin Bus
[2005] I.E.H.C. 51
JUDGMENT of Mr. Justice Clarke delivered the 2nd March, 2005.
The respective plaintiffs are husband and wife. On 14th May, 2000 they were walking along the footpath on the Sillorgan dual carriageway travelling towards Donnybrook on the Belfield side. Without warning a bus owned by the first defendant (“Dublin Bus”) and being driven by the second defendant (“Mr. Ebbs”) travelled across a number of lanes of the city bound carriageway, mounted the footpath and struck a blow against both plaintiffs. As a result they suffered significant injuries. The incident occurred in the early afternoon on a Sunday when driving conditions were good and the traffic on the roadway was relatively light. In all those circumstances it would be likely to require somewhat unusual, if not extraordinary, circumstances in order that an action in negligence by the plaintiffs against the defendants could be the subject of an arguable defence. However, on any view, there are extraordinary circumstances.
The bus concerned was a tour bus which had commenced its route earlier in the day in Dublin city centre. It had travelled to Killiney, where it stopped, and onwards to Avoca Hand Weavers where the customers had lunch. It was in the course of travelling back to Dublin city centre when the accident occurred.
David Mudd who was a passenger on the bus gave evidence, which was not disputed by either of the defendants, which described the tour up to the time of the incident. With the exception of commenting that he found Mr. Ebbs to be lively he noted nothing unusual about the way in which the tour was conducted. His comment on the liveliness of Mr. Ebbs related to the fact, with which Mr. Ebbs agreed, that he engaged in a fair amount of talk and banter together with some singing in the course of conducting his tour.
However when the bus had passed through the traffic lights at the junction of Foster Avenue and was heading under the flyover which leads to the Belfield campus Mr. Mudd noticed a change. It is common case that Mr. Ebbs drew the attention of his passengers to the presence of the Belfield campus on what would have been his and their left. He also drew their attention to the presence of the Montrose Hotel on the right. Thereafter he did not pass any comment and it would appear likely turned off his microphone. As the bus was beginning to come up the incline on the city side of the flyover it is again common case between Mr. Mudd and Mr. Ebbs that the bus was in the right hand lane which is designated as a lane for making a rightward turn at the upcoming junction on the corner next to the RTE premises at Montrose. However at some stage on the upward incline the bus began to drift over towards the left hand side of the carriageway. Initially Mr. Mudd did not consider that anything unusual was happening. Mr. Mudd and his wife were visitors from England and were unfamiliar with the roads in the vicinity. He gave evidence that his assumption was that the bus intended to take a left turn somewhere further up the carriageway.
Mr. Ebbs evidence is that soon after he had drawn his passengers attention to the Montrose and stopped speaking he felt warm. He states that he recollects loosening his tie and thereafter has no recollection of any events until coming to in circumstances where the bus, having already injured the two plaintiffs, had crashed into the railings at the entrance to the Belfield Court Apartments which are on the left side of the carriageway travelling into the city.
The only other evidence relating to what physically happened on the occasion in question came from a Mr. John Sweetman, who was driving a car travelling in the same direction as the bus, and from a Mr. Derek Gibbons who was driving a Number 10 bus back towards Dublin city centre having exited from the Belfield campus.
Mr. Sweetman’s evidence confirms, in general terms, the evidence given by Mr. Mudd and Mr. Ebbs. However he did add two matters which have the potential to be material and which I should set out. However prior to doing same it is important to note the context in which Mr. Sweetman initially made a statement of his recollections of the events. He did not stop at the scene but drove to Donnybrook Garda Station to report the accident. Some months later on 14th August, 2000 he made a statement to the Gardaí. In that statement Mr. Sweetman said as follows:-
“I became aware of a Dublin Bus double decker bus ahead of me with the registration number that I now know to be 96 D 283. It was either in the outer lane or it pulled it into it as I got near to it so I assumed it was going to turn to the right at Nutley Lane. I proceeded to pass it on the left hand side. As I drew abreast, it began to pull back into my lane. The driver appeared to see me and straightened out. At this stage we were about at the top of the incline at the end of the underpass. I passed by. As I continued, in my rear view mirror I saw him pull back across behind me. He continued across into the converging bus lane, mounted the pavement and entered the railings and hedge outside the apartment complex and came to a halt upright.”
In evidence Mr. Sweetman indicated that he had initially felt that he had made eye contact with the driver but that he now felt that that was unlikely having regard to the difficulty of seeing a bus driver from his position in his car. However he remained of the view that the bus appeared to straighten as an initial response to his presence and only continued to cross the carriageways when he had passed by. I found Mr. Sweetman a most careful witness. However, his recall of the detail of the accident (for example what lane the bus was in before the event) was, for understandable reasons, somewhat hazy.
Mr. Gibbons evidence was that he was travelling down the slip way bus lane from Belfield when he saw the bus being driven by Mr. Ebbs coming across the various laneways. Subject to the fact that it appeared to Mr. Gibbons that Mr. Ebbs bus was not giving him much room he did not feel that the driving was particularly unusual until the bus continued to cross over onto the footpath and into the railings.
The above apparently strange set of circumstances is placed in much clearer light when one considers the medical evidence. Dr. Gearty, a Consultant Cardiologist at St. James’ Hospital, was called to give evidence by the defendants and gave evidence of having reviewed the notes from St. Vincent’s Hospital (the hospital to which Mr. Ebbs was taken immediately after the accident). Dr. Gearty’s evidence, which was not contested, was to the effect that the clinical findings evidenced by those notes were that Mr. Ebbs was suffering from sick sinus syndrome. This is a condition which affects the rhythm of the heart. While the more normal onset of the condition gives rise to what Dr. Gearty described as “little dizzy spells and fainting” he indicated that while not common it was equally not rare for the condition to present itself initially in quite a dramatic fashion giving rise to what he described as a “profound blackout”. The condition is treated by implanting an electric pacemaker. Dr. Gearty further gave unchallenged evidence that the condition was of a degenerative variety, was unknown in infancy and childhood and that while there was a small scattering of incidents noted in the literature in respect of the onset of symptoms in people in their twenties the average age of clinical presentation was 50.
On the basis of that evidence I have no doubt but that Mr. Ebbs suffered from the relevant condition. Having regard to the description of the condition by Dr. Gearty, the evidence of Mr. Ebbs as to the circumstances surrounding the accident, and Dr. Gearty’s clear indication that the account given by Mr. Ebbs was entirely consistent with his case being one of a dramatic initial presentation of the symptoms, I have come to the view that what occurred on the occasion in question was that Mr. Ebbs suffered a complete blackout as a result of a latent sick sinus condition. On the basis of his evidence and also the evidence of Dr. O’Connell (a panel doctor with CIE who has acted as his general practitioner) I am satisfied that there was no preliminary warning of the condition such as would have led Mr. Ebbs to be concerned as to his ability to drive. Furthermore on the basis of Dr. Gearty’s evidence I am satisfied that there is no reasonable test that could have been carried out which would have ascertained the existence of the condition in advance of this accident. As Dr. Gearty pointed out, the tests which show the irregulatory in the heart rhythm can only do so when the test is carried out at a time when the patient is actually suffering from a manifestation of the condition. In the circumstances it is highly improbable that any test would have detected the condition until it became symptomatic. For the reasons indicated above I am satisfied that the condition was not symptomatic in advance of the accident. While there was some contest as to whether Mr. Ebbs might have suffered from fainting as a child, on the basis of the evidence as to the timing of the onset of the condition, this does not seem to be relevant.
In those circumstances it seems clear to me that there is no basis for suggesting that either Dublin Bus (as employer) or Mr. Ebbs (as driver) ought to have been aware of the danger of Mr. Ebbs driving and any contention of negligence based on such a proposition must, necessarily, fail.
The remaining aspect of the plaintiffs case gives rise to a consideration of a difficult question of law. In the light of the findings of fact above can it be said that Mr. Ebbs was guilty of negligence in his driving of the vehicle in circumstances where both he would be liable and Dublin Bus would be vicariously liable.
The Law
In O’Brien v. Parker [1997] 2 ILRM 170 Lavan J. approved the principles decided in the English case of Roberts v. Ramsbottom (1980) 1 W.L.R. 823 to the effect that a defence of automatism was a defence in civil law.
However Lavan J. went on to hold that there were strict limits to be maintained in order for a successful defence to be established under that heading. He found that there must be “a total destruction of voluntary control on the defendants part. Impaired, reduced or partial control is not sufficient to maintain the defence”.
On the facts of the case before him Lavan J. was not satisfied that there had been such a total loss of control. It should be noted that the position in England has advanced since the Roberts case. In Mansfield v. Weetabix Limited (1998) 1 W.L.R. 1263 the Court of Appeal disapproved of the dictum of Neill J. in Roberts v. Ramsbottom. The basis of the court’s decision was that in criminal cases the question is whether the defendant was driving and hence it is necessary for the defendant, if he is to escape conviction, to show that he was in a state of automatism. Since that is not the test in civil cases, consideration of criminal cases can only introduce confusion. The decision of the Court of Appeal is based on the first principle of liability for negligence that is to say the duty of care which a driver owes to other road users. The standard of care which such a driver was obliged to show was that which was to be expected of a reasonably competent driver unaware that he was or might be suffering from a condition that impaired his ability to drive. The court was of the view that to apply an objective standard in a way that did not take account of such a condition would be to apply a test of strict liability. The court’s view was, therefore, that in cases where the driver did not know and could not reasonably have known of his infirmity which caused the accident he was not at fault and was not negligent. For the reasons indicated above I have concluded that the driver in this case did not know and could not reasonably have known that he was suffering from the condition which ultimately caused the accident. There seems to be little doubt, therefore, that applying the test in Mansfield the defendants must succeed. However if one were to apply the Roberts test as approved by Lavan J. in this court a somewhat more difficult question arises.
Application of Roberts test to this case
If the Roberts test is the correct test then it is necessary for a defendant in circumstances such as Mr. Ebbs, to establish that he had a total lack of control over his ability to drive on the occasion in question. An impaired ability would not suffice. It is in that context that the evidence of Mr. Sweetman comes into play. The plaintiffs case is that:-
(a) the Roberts test is the correct test; and
(b) on the Roberts test and in the light of the evidence of Mr. Sweetman, Mr. Ebbs must have retained some control over the bus so as to react to Mr. Sweetman’s presence on the road.
In that context counsel for the plaintiff canvassed with Dr. Gearty the possibility that Mr. Ebbs might either have been partially but not completely blacked out or alternatively might have had a conscious moment in the course of being blacked out. Dr. Gearty’s view was that as identified in the medical literature incidents seem to arise either as relatively minor fainting and dizzy spells or as complete blackouts but not to any significant degree at an intermediate level. Having regard to that evidence and Mr. Ebbs own account, which I accept, I am satisfied that Mr. Ebbs suffered a complete blackout on this occasion.
As to the possibility of a “lucid” interval Dr. Gearty felt that such was highly improbable but that if it had occurred it was unlikely that Mr. Ebbs would remember it. Even if there was a “lucid” interval during which Mr. Ebbs was in some control of the vehicle for a moment so as to react to Mr. Sweetman’s presence on the road it does not seem that his driving on that occasion was in fact what led to the accident. On the contrary on that scenario he would have, to the best of his ability, sought to correct matters while lucid. What would then have caused the accident was a relapse into a total blackout after he had managed the initial correction to avoid Mr. Sweetman. It seems therefore clear that whatever else may be the case the driving which led to the accident (which was the driving, if that can be the appropriate term, which occurred after Mr. Sweetman had passed by the bus) occurred at a time when Mr. Ebbs was totally blacked out. For these reasons even on the Roberts test I am satisfied that the defendant is entitled to succeed.
Determining whether the Roberts test is the correct test does not, therefore, seem to me to arise on the facts of this case but in case this matter goes further I should express a view that the test set out in Mansfield appears to more closely fit into the principles applicable to the establishment of liability for negligence in civil law than the test suggested in Roberts. It might be added that a driver remains under a duty of care, after the onset of symptoms, to do his best to control the difficult situation in which he finds himself. There is no evidence of any failure on the part of Mr. Ebbs to so act.
Before leaving this matter it does seem to me that I should comment on what is undoubtedly a most unfortunate situation from the point of view of the plaintiffs. They were injured through no fault of their own. In Snelling v. Whitehead, The Times, 31st July, 1975 Lord Wilberforce said as follows:-
“The case is one which is severely distressing to all who have been concerned with it and one which should attract automatic compensation regardless of any question of fault. But no such system has yet been introduced in this country and the courts, including, this house, have no power to depart from the law as it stands. This requires that compensation may only be obtained in an action for damages and further requires, as a condition of the award of damages against the (driver), a finding of fault, or negligence, on his part … it is … not disputed that any degree of fault on the part of the (driver) if established is sufficient for the plaintiff to recover. On the other hand, if no blame can be imputed to the (driver) the action based on negligence must inevitably fail”.
Having quoted the above passage Leggatt L.J. in Mansfield went on to comment as follows:-
“In the present case the plaintiffs may well have been insured. Others in the position may be less fortunate. A change in the law is, however, a matter for parliament”.
Apart from agreeing with the above observations it is worthy of some note that in respect of persons who are injured in motor accidents (though not other accidents) through no fault of their own, legislation and administrative action in this jurisdiction have gone some considerable way towards ensuring that such persons are, in practice, able to recover compensation. As a matter of statute all drivers are required to carry insurance. Where a person is injured as a result of the negligence of an uninsured driver arrangements are in place through the Motor Insurers Bureau of Ireland to ensure that compensation will be forthcoming. Such arrangements now apply even in circumstances where the driver concerned cannot even be identified. Furthermore separate arrangements are in place to ensure that effective compensation is available to those who may be injured due to the negligence of visiting drivers.
In all those circumstances, it is, perhaps, somewhat surprising that a category of persons who, on the basis of my findings above, include the plaintiffs in these actions, who are injured due to no fault of their own are, as a result of the state of the law, deprived of appropriate compensation. However, as was pointed out in Mansfield, a change in that law is a policy decision which is a matter for the Oireachtas.
Approved: Clarke J.
Quigley -v- Complex Tooling & Moulding Ltd
[2008] IESC 44 (22 July 2008)
JUDGMENT of Mr. Justice Fennelly delivered the 22nd day of July, 2008
1. This appeal concerns an award of damages for psychiatric injury (reactive depression) found to have been caused by bullying or harassment in the workplace. In a judgment of 9th March 2005, Lavan J in the High Court found that the plaintiff had “suffered personal injury as a direct consequence of a breach of the defendant’s duties as employers to prevent workplace bullying.” The learned judge, following a separate judgment on damages, awarded to the plaintiff the sum of €75,000 for general damages together with the sum of €773.94 special damages.
2. The defendant appeals on two grounds: firstly, that the evidence, though uncontradicted, did not bear out the plaintiffs complaints of bullying; secondly, that there was no sufficient evidence of a causal link between the bullying which the High Court judge found that the plaintiff had been subjected to and the depression his doctor found him to have suffered. The defendant also appeals against the quantum.
3. In spite of the comparative novelty of the cause of action, the Court has not been asked to decide any principles of law. The parties were ad idem as to the nature of the wrong of harassment or bullying and the standard which should be applied.
The facts
4. The Plaintiff commenced employment with a predecessor company of the defendant at its premises at Kells, County Meath, in or about August 1977. The defendant terminated his employment by dismissing him on or about the 18th October 1999. The defendant, which is no longer in business, carried on the business of assembly of computer parts.
5. The plaintiff, who lives in Kells, had been employed as a factory operative for more than twenty years before the defendant company took over the business in 1998. The defendant appointed a new American plant manager, Mr. Ron Skinner. Most of the plaintiff’s complaints relate to his treatment at the hands of Mr Skinner from 1998 until the termination of his employment on 18th October 1999.
6. The learned trial judge cited as amounting to uncontradicted evidence the particulars of the harassment alleged by the plaintiff in the statement of claim. His approach was to accept as established the matters particularised as follows:
“(a) During the month of July/August in 1998 the Plaintiff was subjected to humiliation at the hands of the Defendant Managing Director, Denis Hampton, following his refusal to accept a voluntary redundancy package which had been offered to him by John Dory, on behalf of the Defendant. During a meeting on the issue, the Plaintiff enquired of John Dory as to what was the reason behind the fact that he was the only member of staff to be offered voluntary redundancy, stating that it was the principle that interested him. John Dory stated “the principle, don’t make me laugh”, at which Denis Hampton laughed also.
(b) The Defendants its servant or agents made humiliating and demeaning reference to and about the Plaintiff, such as on the 6th of April 1999, when Ron Skinner informed Fidelma Browne, an operative into the Defendant Company, that the Plaintiff and a colleague Seamus Reilly, would be retaining their Grade 11 rate of pay, and stated “don’t worry, I’ll sort out the granddads”. On another occasion, after the Plaintiff had through exasperation resulting from the bullying and intimidation at work, raised his voice to a colleague, Ron Skinner asked Seamus Reilly “Do you think that Matt talks to his wife like that. Do you think she would accept being spoken to like this?
(c) The Plaintiff was subjected to excessive and humiliating scrutiny by the Defendant’s Plant Manager, Mr. Ron Skinner. He often stood for up to 30 minutes on a box approximately 8 feet behind the Plaintiff’s work station, with the effect of intimidating the plaintiff. He also made comments about the Plaintiff’s work, for example stating to Joe Power (an operative in the employ of the Defendant ) that he would have to give the Plaintiff “some broom training”, suggesting that the Plaintiff was not capable of the most basic duties, when in fact he had received two awards for cleanest work area from previous management. The plaintiff felt that the purpose of this intimidation and scrutiny was that Ron Skinner was engaging in a campaign to seek justifications for not paying the Plaintiff his Grade 11 rate of pay.”
7. Although there was some evidence in respect of paragraphs (a) and (b), each of those seem to relate to somewhat isolated incidents and there are at least some problems of proof relating to parts of those matters. In the event, those headings do not require analysis by the Court. It is clear that the overwhelming focus of the plaintiff’s complaints related to paragraph (c) and the behaviour of Mr Skinner.
8. The plaintiff claimed that he was being over-scrutinised by Mr Skinner. A flavour of this is given by the following quotation from the plaintiff’s evidence:
“Well, when I would be working away doing my job on assembly with 5 or 6 other employees doing the same job Mr Skinner would come and position himself on some platforms behind me and would be there for half an hour, 45 minutes, daily, watching me.”
9. He became aware of this when colleagues told him of it. Then he was conscious of it. Mr Skinner would be six or seven feet behind him. He would “take up the same stance and stand there with his arms folded just watching me.” This made the plaintiff feel very uncomfortable. The behaviour continued two or three times a week even after the plaintiff had complained through his shop steward. The plaintiff described the attitude and behaviour of Mr Skinner in the following answers:
“His attitude was that I was not capable of doing the assembly the way they wanted it done. He would tell the charge hand in question that any of my work was to be looked at, you know, over scrutinise and check this that and the other. I was so nervous with him watching me that I would make mistakes, because I was aware he is watching me…”
“If I was doing silk screening for instance he would say “I do not know why you are doing that, that is no good. You can see that is no good, there is a scratch on the surface” whatever a screw missing or something. Another day when I would leave …… things out and not do them he’d say, “look you could have done that and we can get that rectified. Go back on that” you know. So no matter what I was doing it just was not right for him”
“……when I would go to get a drink of water he would be standing at my section ……and he would be tapping the door as much as to say well there is nobody working here……I would leave down my drink of water and come over thinking he wanted to speak to me and when I’d come over he would walk off.”
10. The evidence of the plaintiff showed the behaviour of Mr Skinner to combine persistent watching, constant niggling criticism, failure to respond or communicate and inconsistency. As an example of the last, there was evidence of Mr Skinner telling the plaintiff to send a product out to a customer, though the plaintiff though it was defective and told him so, and Mr Skinner blaming the plaintiff when the customer returned the defective goods. Furthermore, the plaintiff’s evidence was amply supported by the evidence several other employees. It appears that the plaintiff was singled out for this treatment.
The defendant’s argument on the harassment issue
11. Mr Lyndon McCann, Senior Counsel, accepted, on behalf of the defendant, that an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of “workplace bullying” at paragraph 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as an accurate statement of the employer’s obligation for the purposes of this case. That definition is:
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
12. Mr McCann submitted, and I would accept, that bullying must be:
· Repeated;
· Inappropriate;
· Undermining of the dignity of the employee at work.
13. Mr Patrick Hanratty, Senior Counsel, for the plaintiff emphasised the strength of the evidence and the fact that the plaintiff’s complaints were supported by the evidence of fellow employees. He laid particular emphasis on the fact that the complaints were not acted on by management. He said that they constituted a breach of the employer’s direct duty of care. It is not a case of vicarious liability.
14. The evidence of treatment of the plaintiff at the hands of Mr Skinner was fully accepted by the learned trial judge. In fact, it was, as he said, uncontradicted. Presumably, this was because the factory was no longer in business by the time of the hearing and Mr Skinner had no doubt returned to the United States. Whatever the reason, the evidence was unchallenged and the trial judge was entitled to accept it as true. I am satisfied that it amply meets the criteria of being repeated, inappropriate and undermining of the dignity of the plaintiff at work. Since the definition of workplace bullying taken from the Code of Practice laid down in the statutory instrument has been accepted by the defendant as an accurate statement of the common law duty of care, it is not appropriate to refer to other authority.
15. Mr Skinner’s treatment of the plaintiff represented a unique amalgam of excessive and selective supervision and scrutiny of the plaintiff, unfair criticism, inconsistency, lack of response to complaint and insidious silence.
16. The decision of the learned trial judge cannot be faulted in this respect. I would reject this ground of appeal.
The causation issue
17. The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to a identifiable psychiatric injury. The learned trial judge found that the plaintiff had “suffered personal injury as a direct consequence of a breach of the defendant’s duties as employers to prevent workplace bullying.” He awarded damages to the plaintiff for psychiatric injury, in the form of depression. On the question of causation, he stated:
“The plaintiff has offered uncontradicted evidence as to the immediate effect of the harassment on his state of health. Evidence has been offered to prove that the injuries of which the plaintiff complains had their root in the treatment of him by the servants of the defendant during his employment with the defendant.”
18. He also said that he accepted the evidence of Dr Coffey, the plaintiff’s general practitioner, who had given evidence on his behalf. On the other hand the learned trial judge did not refer to any of the detail of either the plaintiff’s evidence or that of Dr Coffey or her medical reports.
19. Mr McCann submits that the evidence simply does not bear out the contention that the depression from which the plaintiff suffered was causally linked to the harassment or workplace bullying.
20. At this point it is appropriate to recall that the plaintiff was dismissed from his employment in October 1999. He commenced proceedings against the defendant pursuant to the provisions of the Unfair Dismissals Acts. He was successful in those proceedings before the Rights Commissioner and, on appeal by the defendant, before the Employment Appeals Tribunal, whose determination was dated 7th February 2003. But the defendant had ceased trading in July 2002. The effect of the order of the Employment Appeals Tribunal was that the plaintiff was entitled to payment up until that date and a redundancy payment arising on the closure of the factory.
21. It is agreed that the plaintiff is not entitled in these proceedings to recover damages for any personal injuries suffered as a consequence of his dismissal from his employment.
22. Dr Coffey’s evidence must be read with her medical two reports. The plaintiff first attended Dr Coffey on 8th January 2001. He told her that he had been dismissed from his job in October 1999 and that he had been suffering from depression for six months before his visit to her. He said that he had won his case for unfair dismissal (obviously referring to the decision of the Rights Commissioner) but that the company were appealing the decision and the uncertainty of waiting for a date was adding to his anxiety. Dr Coffey stated, in her report (date 11th June 2001 but related to the visit of 8th January of that year) that the plaintiff “had become increasingly anxious about his impending case” and that “his symptoms of depression had intensified.” She concluded that the plaintiff had “suffered from a moderately severe depressive episode arising directly from his industrial relations problems.”
23. In cross-examination, Dr Coffey agreed that the plaintiff’s complaints related “to the fact that he had lost his job.” She referred to “the delay in the appeal date, the anxiety that surrounded that delay.” She had not recorded any complaint that the plaintiff had had been bullied or harassed at work and agreed that his difficulty was not attributed to such an origin.
24. Dr Coffey prepared a second report dated 24th March 2003 for the purpose of the litigation. She then mentioned that the plaintiff had a pending case against his employer “re harassment,” but did not otherwise refer to that issue. That report makes no mention of the cause of the plaintiff’s depression.
25. The picture presented by the medical evidence then is consistent only with the plaintiff’s depression having been caused by his dismissal and subsequent unfair dismissal proceedings and there is no medical evidence of a link with the harassment.
26. This is consistent with the plaintiff’s own evidence. He said: “…after all these appeals, had been heard…I realised that I wasn’t going to get my job back then it hit me……and then I went to the doctor.” He said that it was then that it “affected [him] mentally.”
27. Although the plaintiff elsewhere in his evidence described Mr Skinner’s behaviour as having shocked him and feeling very uncomfortable, pressurised and useless as an employee, he did not say that he had suffered symptoms of depression.
28. It is clear both from Dr Coffey’s evidence and that of the plaintiff that he did not consider himself to have been affected mentally until after his dismissal. He did not go to a doctor at all until some fourteen months after that event. He then said that his depression had started six months previously. The doctor gave no evidence linking that condition to the harassment or workplace bullying.
29. Consequently, the plaintiff has not discharged the burden of proving that his depression was caused by his treatment during his employment. It follows that, although the plaintiff’s complaints of bullying or harassment have been upheld, and his employer was in beach of its duty of care to him, the appeal should be allowed and the plaintiff’s claim dismissed.
Turner v The Curragh Racecourse & Ors
[2020] IEHC 76 (21 February 2020)
JUDGMENT of Mr Justice David Keane delivered on the 21st February 2020Introduction1. Shortly after 9 a.m. on the morning of Saturday, 6 September 2014, an unusual, if notunprecedented, accident occurred at the Maddenstown Gallops (‘the gallops’) on theCurragh plain in Kildare, when the plaintiff, Gary Turner, who was out for a run, collidedwith a galloping racehorse that was being ridden by a jockey there.2. The first and second defendants, The Curragh Racecourse and Curragh RacecourseHospitality Limited respectively, are the corporate entities that manage the variousgallops on the Curragh and operate the nearby Curragh Racecourse. In this judgment, Iwill refer to those two companies collectively as ‘Curragh Racecourse’. It is commoncase that Curragh Racecourse has assumed the rights, interests and obligations of thetrustees of the Turf Club under an indenture with the Minister for Defence (‘the Minister’)of 10 September 1968 (‘the licence of 1968’), whereby the Minister licensed the trusteesto use certain lands on the Curragh as grass gallops. In turn, Curragh Racecourse nowlicences racehorse trainers to use those gallops for training purposes.3. By s. 2 of the Curragh of Kildare Act 1961 (‘the Act of 1961’), the lands of the Curraghplain were vested in the Minister, subject to any existing interests in those lands and tothe existing rights of way, rights to pasture for sheep (as rights of commonage) and otherrights affecting them specified in the Curragh of Kildare Act 1870 (‘the Act of 1870’).4. The Minister’s control of the Curragh lands is the result of the presence there of theCurragh Military Camp, which, together with the military camp at Aldershot in Hampshire,England, was first established in response to the outbreak of the Crimean War in 1854.Over 30,000 Irishmen served in the British army during that war. Concern about theeffect of the establishment of a permanent military camp on the continued enjoyment ofexisting rights and interests in the use of the Curragh lands led to the establishment of acommission of inquiry in 1866 and to the subsequent passage of the Curragh of KildareAct 1868 (‘the Act of 1868’). Among the purposes of that Act, as explained in one of itsrecitals, was ‘preserving the Use of the Curragh for the Purpose of Horse Racing and theTraining of Race Horses.’ According to the entry on the Curragh in the 1911 edition of theEncyclopaedia Britannica: ‘The word cuirrech, cognate with the Latin cursus, signifies arace-course, and chariot-races are spoken of as taking place on the Curragh as early asthe 1st century A.D.’ It is thus evident that from time immemorial the Curragh has beenPage 2 ⇓recognised as a centre, if not the centre, of horseracing activity on this island and that itsstatus as such has been the subject of express statutory recognition for over 150 years.5. The third defendant Tracey Collins is a racehorse trainer. The fourth defendant SheenaCollins is a sister of Tracey Collins. At the material time, Tracey Collins was the trainer ofthe three horses that were involved in the accident that is the subject of theseproceedings and Sheena Collins was her employee.The Curragh Acts6. The Act of 1868 gave statutory recognition to the already extant, common law office ofRanger of the Curragh, and created the additional office of Deputy Ranger. As the title ofthe office implies, the Ranger’s role was the preservation and management of the Curraghplain. The Ranger was given the power to appoint two bailiffs to assist the Deputy Ranger.Separately, the Act of 1868 created three Curragh Commissioners to inquire into,amongst other matters: first, what rights to pasture sheep (by way of commonage),rights of way or other rights existed over the Curragh; second, what persons were thebeneficiaries of any such rights, for what period and over what lands; and third, whatcompensation should be given to any party whose rights were, or may be, injuriouslyaffected by the Act’s stipulation that the Minister for War was to have exclusive use of theCurragh Camp, use and control of the Curragh rifle range, and use of the remainingCurragh lands whenever necessary for military purposes. Subject to that stipulation, allrights to pasture sheep, rights of way and other existing rights over the Curragh landswere to continue, as though the Act of 1868 had not been passed. In a series ofprovisions that remain unrepealed, The Curragh of Kildare Act 1870 (‘the Act of 1870’)gave statutory recognition to the relevant awards and findings of the CurraghCommissioners and introduced a further stipulation that no animals other than sheep maybe pastured on the Curragh lands.7. The office of the Ranger was effectively abolished when the Act of 1961 repealed the Actof 1868 in its entirety. However, the Curragh Bye-Laws 1964 (‘the Bye-laws’), made bythe Minister in exercise of the powers conferred on him by s. 16 of the Act of 1961,created the roles of ‘Head Bailiff’ and ‘Under Bailiff’ as employees of the Minister to carryout various duties in relation to the preservation and management of the Curragh plain.To that end, the Head Bailiff was given certain express powers under the Bye-laws.Subsequently, under s. 1 of the Curragh of Kildare Act 1969 (‘the Act of 1969’), theperson conferred with the powers, and charged with the duties, of the Head Bailiffbecame known as the Maor and the Under Bailiff became known as the Fomhair. Thefunctions of those persons under the Act of 1969 and the 1964 Bye-laws, as amended,principally involve the regulation of the exercise of sheep-grazing rights and theenforcement of the restriction on keeping or grazing other animals on the Curragh lands.The licence8. Under the licence of 1968, the Minister granted the trustees (for present purposes,Curragh Racecourse) licence and authority to use certain identified Curragh lands,including the gallops, as grass gallops for horse training purposes, with the right to passand repass at all times over the remainder of the Curragh lands (apart from the militaryPage 3 ⇓camp and rifle range) in order to do so, but excepting and reserving all existing rights topasture sheep (by way of commonage), rights of way and other rights, including therights of the Minister, over all of those lands. In return, Curragh Racecourse covenantedwith the Minister, in relevant part:‘…(iii) Not to enclose [the lands the subject of the licence, including the gallops] or anyportion thereof.(iv) Not to erect any building or permanent structure of any type on [the lands thesubject of the licence, including the gallops] or any portion thereof.(v) Not to erect any fences hurdles starting gates or other structures on [the premisesthe subject of the licence, including the gallops] or in any other part of the Curraghother than [the racecourse and surrounding lands, which do not include the gallops]without the prior written consent of the Minister….(ix) To indemnify and keep indemnified the Minister his successors and assigns againstall claims expenses demands or proceeding whatsoever in respect of accident orinjury to persons or animals or damage to property arising out of the exercise ofthe Licence hereby granted or out of rights of common pasture or otherwisehowsoever….’The pleadings9. In the personal injuries summons that issued on his behalf on 2 March 2016, Mr Turnerclaims that his collision with a racehorse was caused by the negligence and breach of dutyof the defendants, so that they are liable to compensate him in damages to for theinjuries to him that resulted.10. Mr Turner pleads that Curragh Racecourse was negligent or in breach of its duty to himin: permitting racehorses to gallop on that part of the Curragh lands; failing to protecthim from galloping horses at that place; failing to warn him of the presence of gallopinghorses there; failing to provide a barrier to his entry onto the gallops; and breaching itsobligations to him under the Occupiers’ Liability Act 1995 and the Safety, Health andWelfare at Work Act 2005.11. Mr Turner pleads that, as racehorse trainers, the Collins sisters were negligent or inbreach of their duty to him in: permitting racehorses to gallop at the gallops; failing tokeep an adequate lookout for persons such as Mr Tuner coming on to the gallops whileracehorses were exercising there; failing to have the galloping racehorses take evasiveaction; failing to warn Mr Turner of the galloping horses’ approach; and breaching theirobligations to Mr Turner under the Safety, Health and Welfare at Work Acts.Page 4 ⇓12. In its defence, delivered on 24 August 2016, Curragh Racecourse admits that the accidentoccurred but denies negligence. Further, or in the alternative, Curragh Racecourse pleadsthat the accident was caused in whole or in part by Mr Turner’s own negligence in:running into the path of the galloping racehorses; failing to keep a proper lookout; failingto stop or change course; failing to heed shouted warnings; and playing music onheadphones that prevented him from hearing either the sound of the approaching horsesor the shouted warnings of their approach.13. In their defence, delivered on 16 December 2016, the Collins sisters place Mr Turner onstrict proof of every aspect of his claim, before pleading that Mr Turner’s accident wascaused, or contributed to, by his own negligence in; disobeying warnings or prohibitorynotices against going on to the gallops at that time; trespassing on the gallops; failing todraw on the local knowledge that he had or ought to have had of the use of the gallops byracehorses; failing to keep a proper lookout; causing the collision by running into the pathof the galloping racehorses; wearing headphones and playing music on them whilerunning across the gallops in a manner that prevented him from hearing the approach ofthe racehorses or the shouted warnings of their approach; continuing to run whileunsighted by the low level of the sun in the sky or failing to take the appropriate steps toavoid being unsighted in that way while running; causing an emergency by running intothe path of the galloping horses; and failing to stop before colliding with them. TheCollins sisters also expressly plead that Sheena Collins was an employee of Tracey Collinsand not a racehorse trainer in her own right, so that she can have no possible liability inrespect of Mr Turner’s claims.Background14. Mr Turner, a transport manager with his own company, was 46 years old when theaccident happened. At all material times, he has lived in Newbridge, just half a mile – byhis estimate – from the townland of Athgarvan at the eastern edge of the Curragh. Heruns to keep fit and has participated in organised 10km events. For approximately eightyears prior to the accident, he had been running on the Curragh three or four times aweek. He invariably took one of two routes; a long and a short run. Only the long runtook him over the gallops.15. On the Saturday morning when the accident occurred, Mr Turner was not working andhad decided to go for a run. He drove from his home in Newbridge to the carpark ofAthgarvan National School and set off on his run from there. It was a sunny morning. Heran westwards initially, along a route south of the M7 motorway and north of the CurraghCamp. He was wearing earphones, through which he was listening to music. Beforereaching the western edge of the Curragh, he turned left and continued in a southwesterly direction parallel with the metal palisade fence on the north west side of Camp.That palisade fence surrounds the Camp Armoury.16. Mr Turner continued straight ahead in a south westerly direction past the corner of thepalisade fence, where it turns ninety degrees to run south east. Just before he reached apoint level with the corner of the palisade fence on his left, he passed on his right a set ofmobile practice starting stalls for racehorses. Although Mr Turner professes not to havePage 5 ⇓known it, once he passed that point, running in that direction, he began to cross thegallops.17. As must be common knowledge and as Pat Culleton – the independent expert engineerwho gave evidence on Mr Turner’s behalf – accepted, a jogger running at an average paceshould be able to come to a stop within, at most, a couple of seconds or a distance of nomore than a few metres.18. The gallops comprise one part of the disparate Curragh lands, collectively known as theCurragh Training Grounds, that the Minister has licensed Curragh Racecourse to use forthe purpose of training racehorses. Those rolled and groomed grass gallops are locatedsouth of the Curragh Camp Armoury, starting at a point to the east of it, continuingparallel to the palisade fence on its south west side, and finishing beyond it to the west.They run in a straight line on an upward gradient in a north westerly direction forapproximately seven furlongs or 1.4 kilometres. There is another gradient across thewidth of the gallops sloping downward away from the Army Camp. Throughout the flatracing season from approximately March to November, the gallops are open to racehorsetrainers each Wednesday and Saturday, during the hours between daybreak and 1 p.m.19. In order to ensure that racehorses and their riders take a single designated line along thegallops on any given day, cross-rails laterally intersect the gallops at three points alongtheir length. Those cross-rails are constructed of lengths of white plastic piping supportedat intervals by metal rods as stanchions. Each rod is looped around the plastic pipe andits sharpened ends are stuck in the turf below. The line that the horses must take isdesignated by opening a 6.6 metre gap at a corresponding point in each of the threecross-rails. As the season progresses, the location of the gap in each of the cross-rails ismoved down the gradient away from the Curragh Camp, so that the designated line shiftsconstantly to protect the turf from damage through overuse. According to the evidence ofMr Turner and as shown in various photographs of the location taken by his partner thefollowing day, the cross-rails were in poor condition at the time of the accident in thatsome of the metal rods had fallen over, with the result that certain sections of whiteplastic pipe were partly or wholly on the ground. Patrick Kelly, the Curragh Racecoursetraining grounds manager, explained during his evidence that it is quite a job to maintainthe cross-rails because the sheep like to rub or scratch against them, frequently knockingthem down.20. The designated line is also demarcated by seven pairs of small white circular markers,6.6m apart, placed at regular intervals from the start of the gallops to the finish. Tofacilitate military patrols around the perimeter of the Curragh Camp, there is a 20-metregap between the northwest side of the gallops and the palisade fence on the southwestside of the Camp Armoury.21. To the south of the gallops, running parallel to them, is a separate all-weather racehorsetrack.Page 6 ⇓22. Despite running on the Curragh for eight years and frequently taking a route across thegallops, Mr Turner testified that he had never seen a single horse there. Further heattributed no significance to the presence of mobile starting stalls, cross-rails and markersat that location. He thought that the stalls had been abandoned and that the cross-railswere of no use to anyone because of their poor condition. He did not notice the markersor the all-weather track that runs parallel to the gallops to the south, which he thought(wrongly, the aerial photographs would suggest) might have been obstructed from hisview by trees.23. Not far beyond the all-weather track is the southern edge of the Curragh, fringed bytrainers’ yards, amongst which is that of Tracey Collins.24. On the Saturday morning of the accident, Ms Collins was working as usual from her yardat Conyngham Lodge Stables, a short distance from the gallops. Her grandfather begantraining racehorses there in 1926, and her father took over the operation in 1958. MsCollins was a work rider for her father for 25 or 26 years and an amateur jockey for 10years. She took out her trainer’s licence in 2007, the year that her father died. Thus, forapproaching a century, her family has been continuously engaged in racehorse training atthe Curragh.25. Ms Collins works her horses on the gallops when they are open on Wednesday andSaturday mornings. On those mornings, she begins her day by checking on theircondition and then feeding them. Next, Ms Collins assigns a jockey to each mount. Whilethe jockeys are tacking out, she drives out to inspect the condition of the ground on thegallops. That inspection usually takes place between 5.45 a.m. and 6.00 a.m. After that,Ms Collins returns to the yard to attend to various tasks; horses might be put on themechanical walker or given a rub down. Then, the horses that are to be worked arebrought down to a wooded area just to the south of the all-weather track beside thegallops, where they are trotted out for 10 minutes or so. When that has been done, MsCollins proceeds in her jeep along the Camp Armoury side of the gallops, conducting asafety inspection to satisfy herself of the absence of any evident risk to her staff or horsesfrom potential hazards such as vehicles, joggers or grazing sheep. She then parks herjeep at a point on the gallops beside the designated line approximately 50 metres to thewest of the corner of the palisade fence. From there, Ms Collins can watch throughbinoculars as her horses carry out ‘fast work’ on the gallops and the jockeys can takedirection from her as they approach her position. Ms Collins uses a circular motion of herleft hand to signal the jockeys to urge on their horses and holds up the palm of her lefthand in a static posture to signal the jockeys to ease them up.26. John Watson, the independent equestrian expert who was called as a witness on behalf ofMr Turner, explained in his evidence that the training of racehorses usually entails seriouswork – that is, work done at a gallop – twice a week. This galloping work may be done athalf speed, three-quarter speed or full speed. Generally, the last quarter of any gallop isdone at full speed. The trainer adopts a vantage point that the horses will pass whenthey are at full exertion. As they approach the end of the gallops, the horses are pulledPage 7 ⇓up over a further 100 or 200 metres, still travelling a straight line. In Mr Watson’s words,it is important to pull a racehorse up gradually because its legs are ‘a fragile bit of kit’,compared to its overall body mass, and because it is perhaps most prone to injury whenphysically tired towards the end of its exertion. When they have been pulled up, thehorses are brought back around so that the trainer can observe their post-exertioncondition and breathing.27. According to the evidence of Mr Kelly, the training grounds manager, on a typical daywhen the gallops are open, 6 to 8 trainers would use them, working upwards of 100horses in total.28. At the time of the accident, Ms Collins was working a group (known as ‘a lot’) comprisingsix horses, divided into two batches of three. The horses jump off in batches andfrequently ride just inches apart to simulate race conditions. It was the first batch thatwere involved in the accident the subject of these proceedings. Of that group, HazelWallace was the jockey on Daisy Bell, the horse to the right; Philip Donovan was onMajestic Queen, in the middle; and Yoshi Takamora was on Chiclet, on the left. HazelWallace has worked for Ms Collins for over 20 years and Ms Collins considers her to be anexceptional rider.The accident29. Mr Turner’s evidence concerning the accident and its aftermath was broadly as follows.When he passed the corner of the palisade fence on his left, he continued running straightahead across what he now knows to be the gallops. He was running in line with the thirdset of cross-rails, which were immediately to his left. He was not looking to his right orhis left. Although it was a sunny morning and the sun would have been above and in linewith the approaching racehorses that were below him and to his left, Mr Turner did notclaim to have been unsighted in that direction; rather, his evidence was that he did notlook to his right or left, as he had no reason to do so. Thus, he did not see Tracey Collinsor her jeep to his right.30. Although Mr Turner had earphones on, he stated that he first became aware of the horseswhen he heard them. He was insistent that he did not hear any shouting before theaccident. On hearing the horses’ approach, he looked to the left and saw them twenty orthirty feet away from him. They went straight over him, veering neither right nor left.Two of them may have hit him. He fell to the ground. He saw the next batch of horsescoming up behind him, so he scrambled away from their line of approach before droppingto the ground again. A woman, who was probably Tracey Collins, approached him. Shetold him that an ambulance had been called and advised him not to move. At the time,he thought he was dying.31. In cross-examination, it was put to Mr Turner that the account of the accident he hadgiven in evidence was inconsistent with the case he had pleaded and the account of theaccident that he had given to his own independent experts. In the personal injuriessummons that issued on his behalf on 2 March 2016, the contents of which he hadverified in an affidavit sworn on 7 March 2016, Mr Turner pleaded, in material part:Page 8 ⇓‘While jogging along, [Mr Turner] became aware that someone was calling to him.[Mr Turner] looked around and became aware that three horses with jockeys werebearing down upon him.’Mr Turner had no explanation to offer for that discrepancy.32. Similarly, according to the report of Mr Culleton, Mr Turner’s engineer, during aninspection of the location of the accident on 9 October 2014, Mr Turner told him that hecould recall ‘suddenly feeling vibration in the ground, hearing shouting and then seeingthree charging horses bearing down on him from his left.’ When counsel drew thataccount to Mr Turner’s attention, he responded that he had been on a lot of medication atthat time.33. Further, according to the report of Mr Watson, the independent equestrian expert whogave evidence on behalf of Mr Turner, during an inspection of the location over two yearsafter the accident on 1 April 2017:‘3.8. [Mr Turner] recalled looking up because he heard somebody calling to him. He wasnot aware what they were calling about. At the inspection, he believed the voiceappeared to come from a vehicle parked about 50 metres or more away to hisright.3.9. The “next thing” he saw was “three horses running at me with jockeys on them”.They came at him, straight through a gap in the railings, from his left.’34. Mr Turner could not explain why, if these were errors, he had taken no steps to correctthem, merely repeating several times in evidence that he had heard ‘noises’, but not‘shouting’, just prior to the accident.35. In her evidence, Tracey Collins gave the following account of the accident. She haddriven up the gallops to inspect them for a second time at 9.10 a.m. when she hadobserved no joggers, sheep or vehicles present there and, thus, no risk of collision. Shehad parked her jeep and had alighted from it. She was observing the first batch of threehorses on the gallops through her binoculars. They were gradually quickening their paceand had just come through the second set of cross-rails when the jockeys beganshouting. Ms Collins put down her binoculars to look around. She saw Mr Turner runningalong the third set of a cross-rails on a collision course with the approaching horses. MsCollins began running as fast as she could towards Mr Turner, while shouting and waving.The jockeys also were shouting at Mr Turner and were trying to pull up their mounts. Thehorses were by then going very fast. Two of them were fillies with a handicap rating ofover 100. Mr Turner just kept running. Mr Turner arrived at the gap in the cross-rails,just as the horses did. He collided with the neck or shoulder of Daisy Bell, the mount ofHazel Wallace, and was knocked down. The filly stumbled, and Ms Wallace was thrown tothe ground.Page 9 ⇓36. In Ms Collins view, there was nothing that the horses or their riders could have done toavoid the collision. The horses only had the 6.6-metre-wide gap to go through. At thespeed they were travelling, if they had attempted to veer sharply left or right they wouldhave fallen, creating a risk of serious injury to horse and rider. If they had veered lesssharply left or right they would have gone through the cross-rails at an even greater riskof serious injury and with the additional danger that horse or rider might have beenimpaled on the sharpened ends of one of the metal rods supporting the plastic rails.37. Ms Collins ran to attend to Mr Turner. She rang the army hospital at the Curragh Campto call an ambulance. She rang Mr Kelly, the training grounds manager. Having trainedin first aid, she told Mr Turner not to move. Ms Wallace was sitting up and appearedphysically fine, although she seemed to Ms Collins to be in shock. Ms Collins noted loudmusic coming from Mr Turner’s earphones, which were on the ground.38. Hazel Wallace, who was called as a witness on behalf of the third and fourth defendants,provided the following account of the accident. She and her fellow jockeys trotted theirmounts through the first marker at the commencement of the gallops because the groundthere wasn’t great. They started to canter and then gallop when approaching the first setof cross-rails, after which they got the horses into a tempo and went through the secondset of cross-rails. They were riding together, nicely balanced and in sync. Ms Wallacewas focussed on the horses beside her and on Ms Collins, who was at a vantage pointabout 100 yards or so beyond the third set of cross-rails. As they approached the markerbetween the second and third fence, Ms Wallace saw Mr Turner. He was approximatelyhalf way across the length of the cross-rails. The markers are about 150 yards from thecross rails, so she was about 150 yards from Mr Turner when she first saw him, ahead ofher and to her right. She began shouting as loud as she could to warn him. The othertwo jockeys began shouting as well. Ms Wallace felt that he didn’t hear or see thembecause he didn’t look at them or stop.39. Ms Wallace testified that she could not turn her horse away from the gap at that pointbecause the turn would have been too sharp. She knew that the metal rods supportingthe plastic rails have sharp spikes at each end. Their horses were trained for flat racing;they had never been taught how to jump an obstacle. It takes a furlong and a half to pullup a horse once it is moving flat out and hers was. The average racehorse weighs half atonne. She was concerned, not only about Mr Turner’s safety, but also about her ownsafety and that of her fellow jockeys. She was trying to pull her horse back.Unfortunately, shouting tends to have the effect of spurring a horse on, rather thanslowing it down. They met at the gap at the same time. As she was going through thegap, Mr Turner came across it, colliding with her horse’s shoulder. Mr Turner appeared tolook up only at the last split second.40. Ms Wallace was thrown by the force of the impact and finished up about 10 or 12 metresaway, once she had stopped rolling. She saw the next batch of horses coming andscrambled away before dropping to the ground again. When the ambulance arrived, themedical staff had a quick look over her. She did not feel she required a doctor. ShePage 10 ⇓spent the rest of the weekend at home and was back riding on the following Monday orTuesday. She has been riding for 20 years and nothing like this has ever happened in herexperience, either before or since.The injuries41. Mr Turner was brought by ambulance to the Accident and Emergency Department of NaasGeneral Hospital, where his right shoulder was found to be dislocated. It was reduced(that is to say, put back in place) successfully, while Mr Turner was under sedative.Although he went to work the following Monday, the pain in that shoulder was verysevere for six weeks after the accident and he still suffers pain and a range of physicaland psychological problems that he attributes to the accident. In late 2014, Mr Turnerbegan to develop left-sided back pain, radiating to the left side of his chest, andsignificant pain in the left-side of his cervical spine, radiating towards his left leg. He hasundergone extensive physiotherapy. He has had injections and rhizotomy (i.e. nerve-cauterising or severing) procedures carried out four times, against the background ofconfirmed degenerative disc disease in his lumbar spine and degenerative arthritis in thefacet joints there. The accident may have exacerbated an existing osteoarthritic conditionin his left knee. He has been diagnosed with post-traumatic stress disorder.Disputed facts42. Although there is some level of agreement between the parties concerning the broadcircumstances of the accident, three significant points of conflict emerged at trial: first,the distance beyond the corner of the palisade fence that Mr Turner had run beforecolliding with the racehorses on the gallops; second, whether there was any shoutedwarning to Mr Turner prior to the collision; and third, whether Ms Collins and her jeep hadbeen present to Mr Turner’s right on the gallops prior to the collision.43. During his cross-examination at trial, Mr Turner stated that he believes the accidentoccurred when he had proceeded only 30 or 40 metres beyond the corner of the palisadefence. It was then put to him that in the report of Mr Culleton, the independent expertengineer instructed on his behalf, Mr Turner is recorded at the inspection on 9 October2014 as estimating that he was 100 metres beyond the corner of that fence when thecollision happened. Mr Turner responded that it would have been 100 feet (i.e.approximately 30 metres) and not 100 metres. Mr Turner estimated that he had been hitabout eight seconds after he passed the corner and that, at the pace he was running, hewould have covered 100 feet in that time. It was put to Mr Turner that it was thedefendant’s case that the collision had occurred 139 metres from the corner of thepalisade fence. He did not accept that.44. In the report of Tony O’Keefe, the independent expert engineer who was called as awitness on behalf of the Collins sisters, Tracey Collins is recorded as having informed himthat, on the morning in question, the gap in the cross-rails (and hence the location of theaccident) was at a point on the gallops that Mr O’Keefe then measured as 139 metresfrom the corner of the palisade fence. Mr O’Keefe confirmed his instructions and hismeasurements in evidence and it was not put to him that he was mistaken in either. Norwas it suggested to Ms Collins that her recollection in that regard had been incorrect. MsPage 11 ⇓Wallace, the jockey, confirmed that the designated line that morning was the one that MsCollins had identified to Mr O’Keefe (i.e. with the gap in the third-set of cross rails at apoint which Mr O’Keefe measured at 139 metres from the corner of the palisade fence).Ms Wallace was not cross-examined on that aspect of her evidence. Mr Kelly, the traininggrounds manager, who was directly called to the scene of the accident by Ms Collins, gaveevidence that the location at which it occurred (the gap in the third set of cross-rails) wasabout 120 metres from the palisade fence.45. Bearing in mind the uncontroverted evidence that the season commences in March orApril and that the accident occurred in September, the defendants’ evidence on the pointis consistent with the unchallenged assertion that, as the season progresses, thedesignated line on the gallops is moved down the gradient, ever further from the palisadefence at the Camp Armoury.46. I have already described the conflict between Mr Turner’s evidence at trial – that therehad been noises, but no shouts, prior to the collision – and not only the defendants’evidence on that point but also both the relevant part of Mr Turner’s claim as pleaded andthe description of events that he gave to his own independent experts as recorded bythem.47. In evidence at trial, Mr Turner claimed never to have looked left or right while running onthe Curragh because, in his view, there was no reason to do so. Nonetheless, he did notaccept that Ms Collins’ jeep was parked on the gallops to his right when the accidentoccurred. Instead, he expressed the view that the jeep had driven up after the accident.48. As noted earlier, the evidence of Ms Collins is that she had parked her jeep at a vantagepoint on the gallops that would have been to Mr Turner’s right as he proceeded beyondthe corner of the palisade fence and was standing beside it, watching through herbinoculars the horses proceeding towards her. That is also the evidence of Ms Wallace,the jockey. Once again, Mr Turner’s own independent equestrian expert, Mr Watson,records Mr Turner describing a voice calling to him prior to the collision that ‘appeared tocome from a vehicle parked about 50 metres or more away to his right.’49. Having considered the evidence as carefully as I am able, on the balance of probabilities Iam conclude that:(a) the accident occurred between 120 and 139 metres from the corner of the palisadefence,(b) for several seconds prior to the accident, the jockeys of the three approachinghorses to Mr Turner’s left were shouting warnings at him and Ms Collins to his rightwas running towards him, while waving her arms and shouting a warning to him,andPage 12 ⇓(c) as the preceding finding implies, Ms Collins jeep was parked at a position on thegallops where it would have been plainly visible to Mr Turner’s right, as would MsCollins.Analysisi. negligence50. Mr Watson, the equestrian expert instructed on behalf of Mr Turner, expressed the viewthat the Curragh Racecourse could, and should, have averted the accident by erecting atemporary sign when the gallops were in use, somewhere in the vicinity of the corner ofthe palisade fence at the Camp Armoury or, better still, at the top of the third set ofcross-rails, orientated to be read by persons approaching the gallops at that point fromthe north east, reading ‘LOOK LEFT FOR GALLOPING HORSES’ or words to that effect. MrCulleton, Mr Turner’s expert engineer, also expressed, albeit in more general terms, theview that a sign of some sort should have been erected. As that was not done, Mr Turnersubmits that Curragh Racecourse breached the duty of care that it owed him.51. I cannot accept that submission for several reasons.52. The first reason is that I cannot reconcile it with the particular facts of this case. Fromthe moment that Mr Turner passed the corner of the palisade fence around the CampArmoury, the entire unobstructed vista of the gallops opened out before him. TomRowan, the independent expert engineer called as a witness by Curragh Racecourse, gaveunchallenged evidence that, at a running speed of 3.05 m/s (a good average speed for ajogger), it would take between 32 and 45 seconds to run a distance of between 100 and139m. On his own evidence, Mr Turner proceeded for that long over that distance acrossan open plain without ever seeing, to his left, the six galloping racehorses and theirjockeys, whose course was converging orthogonally with his own, or seeing, to his right,Ms Collins, who was initially standing beside her parked jeep, which he also failed to see,and who then ran towards him, shouting and waving her arms. As already noted, MrTurner’s explanation for this remarkable turn of events is that he did not look to his rightor his left when jogging on the Curragh Plain because as far as he was concerned therewas no reason to. That being so, I cannot be satisfied that Mr Turner would have seen atemporary sign erected at either the corner of the palisade fence or the beginning of thethird set of cross-rails to either the left or right of the route along which he had chosen tojog. Hence, even if the duty of care on Curragh Racecourse required it to erect atemporary warning sign, I could not be satisfied that its failure to do so was the cause ofMr Turner’s accident.53. The second reason is that I cannot accept the existence of a duty of care as wide as thatwhich Mr Turner’s submission implies. In his report on behalf of Mr Turner, Mr Watsonacknowledges that it is a corollary of the view he has expressed that equivalent signagewould be required at other (unspecified) locations on the Curragh Plain. While someattempt was made in evidence by, and on behalf of, Mr Turner to suggest that there are alimited number of points at which recreational walkers or joggers are likely to commencetraversing the gallops, I accept the evidence of Mr Kelly, the training grounds manager,Page 13 ⇓that the gallops are an open plain, accessible at any point around the three hundred andsixty degrees of their circumference and that recreational users cross them in alldirections. That proposition is borne out by the photographic evidence. While it is truethat a number of faint tracks, which Mr Kelly identified (correctly, to my mind) as sheeptracks and which Mr Turner referred to as jogger’s paths, are evident in various aerial andother photographs, those tracks traverse the gallops at a range of different angles andthere is nothing to compel walkers, joggers or, for that matter, sheep to use, or stay on,any of them.54. Where, then, would a duty to erect signs to warn persons traversing the open gallops ofthe possible presence of galloping horses begin and end? The Supreme Court addresseda similar question in Weir-Rodgers v S.F. Trust Ltd. [2005] 1 I.R. 47. A woman admiringa sunset with some friends from a vantage point at Coolmore, beside the beautifulRossnowlagh Beach in County Donegal, lost her footing and slipped down a deceptivelysteep gradient into the sea, sustaining significant physical injuries. She sued thedefendant company, formed by the Franciscan religious order, which was the occupier ofthe land on which she had been standing. Her claim was that the company had been inbreach of its duty to her under the Occupiers’ Liability Act 1995 (‘the Act of 1995’) infailing to erect a sign or notice warning of the danger. In giving judgment for the Court,Geoghegan J (Murray CJ and Denham J concurring) commented (at 53):‘At one point in the cross-examination of Mr McMullan [the plaintiff’s independentexpert engineer], counsel for the defendant asked him if you were to put up anotice everywhere there was a ridge or a cliff how many notices would have to beerected. His answer was that the place would be littered with notices. One doesnot have to be an engineer to agree with that answer and one does not have to beblessed with a high degree of common sense to opine that it is highly unlikely theOireachtas ever intended any such thing. Mr McMullan’s evidence was extreme but,in my view, it logically had to be given to support the case for the plaintiff. Forinstance, in re-examination counsel for the plaintiff referred to a question counselfor the defendant had asked Mr. McMullan as to whether he was suggesting thatevery stretch of the coast line should be fenced. I rather suspect that counsel forthe plaintiff was hoping for a different kind of answer than he got. Mr. McMullansaid that any area that is heavily pedestrianised should certainly have somewarning signs and that there should also be a fence there as well. I must confessthat this conjures up in my mind huge areas of coastline right around Irelandfenced against the public and littered with warning notices. An intention of theOireachtas to that effect would seem unlikely but if a statute required it, the courtswould be bound to uphold it. That is the question which I have to address when Ideal with the law.’55. In dealing with the law, Geoghegan J concluded (at 56) that, even if the duty of theoccupier in that case was the ordinary Donoghue v Stevenson [1932] AC 562neighbourly duty of care and not the lower duty not to cause intentional injury to, or actPage 14 ⇓with reckless disregard for, a recreational user or trespasser under s. 4(1) of the Act of1995, the plaintiff would not be entitled to succeed. Geoghegan J explained (at 57):‘14 …The whole area of reasonableness in an outdoor land situation has been quiterecently considered by the House of Lords in Tomlinson v. Congleton BoroughCouncil [2003] UKHL 47, [2004] AC 46. That case involved potential liabilityunder the English Occupiers Liability Act 1957 and there were some viewsexpressed in the speeches of the Law Lords relating also to the Occupiers LiabilityAct 1984 which was the Act dealing with duty to trespassers. While there is someoverlap, the wording of the English Acts is sufficiently different to render it oflimited assistance in interpreting the Irish legislation. But at least one aspect of thatcase is relevant to this case. The Law Lords in their speeches referred to thecommon sense expectations of persons engaged in outdoor activities such as, forinstance, mountain climbing or walking or swimming in dangerous areas. The otherside of that coin is that the occupier is entitled to assume that knowledge of suchdangers and risks would exist and safety measures would be taken. For thispurpose, I find it sufficient to refer only to some passages from the speech of LordHutton. At para. 57 he cited with approval a Scottish case Stevenson v. Corporationof Glasgow 1908, SC 1034 at p. 1039 where Lord M’Laren stated: -“in a town, as well as in the country, there are physical features which maybe productive of injury to careless persons or to young children against whichit is impossible to guard by protective measures. The situation of a town onthe banks of a river is a familiar feature; and whether the stream be sluggishlike the Clyde at Glasgow, or swift and variable like the Ness at Inverness, orthe Tay at Perth, there is always danger to the individual who may be sounfortunate as to fall into the stream. But in none of these places has it beenfound necessary to fence the river to prevent children or careless personsfrom falling into the water. Now, as the common law is just the formalstatement of the results and conclusions of the common sense of mankind, Icome without difficulty to the conclusion that precautions which have beenrejected by common sense as unnecessary and inconvenient are not requiredby the law.”15 That passage would seem to be apposite to this case also and would seem to applyto any suggestion that a warning notice should have been put up. Lord Hutton alsocites Glasgow Corporation v. Taylor [1922] 1 AC 44, where at p. 61 Lord Shaw ofDunfermline stated: -“Grounds thrown open by a municipality to the public may contain objects ofnatural beauty, say precipitous cliffs or the banks of streams, the dangers ofthe resort to which are plain.”16 In support of these propositions, Lord Hutton cited yet another Scottish caseHastie v. Magistrates of Edinburgh 1907, SC 1102 where the Lord President (LordDunedin) at p. 1106 said that there are certain risks against which the law inPage 15 ⇓accordance with the dictates of common sense, does not give protection – suchrisks are “just one of the results of the world as we find it.”17 I would heartily endorse the sentiments expressed in these passages. The personsitting down near a cliff must be prepared for oddities in the cliff’s structure or inthe structure of the ground adjacent to the cliff and he or she assumes the inherentrisks associated therewith. There could, of course, be something quite exceptionallyunusual and dangerous in the state of a particular piece of ground which wouldimpose a duty on the occupier the effect of which would be that if he did not put upa warning notice he would be treated as having reckless disregard. But this iscertainly not such a case. While obviously sympathetic to the plaintiff in her seriousinjuries, I am quite satisfied that there was no liability on the part of the defendantin this case and I would set aside the judgment of the High Court and dismiss theaction.’56. In my view, the dangers inherent in crossing wide open gallops are directly comparable tothose of visiting precipitous cliffs or the banks of rivers and streams. I fully accept thatthere could be something quite exceptionally unusual and dangerous in the state of thegallops that would impose the duty to erect a warning sign. In the course of argument, Ioffered as an example the hypothetical that if the gallops extended up to the side of thepalisade fence of the Camp Armoury and if the designated line was then too close to thatfence, creating a blind corner for persons emerging onto the gallops from the north westside of the camp, then such an exceptional or unusual danger could well exist and a dutyto erect a warning sign or to take some comparable preventative measure at that specificplace could then arise. But this was not such a case. There was nothing deceptive aboutthe presence of the galloping racehorses nor about their progress up the gallops. It wasthe unchallenged evidence of Mr O’Keefe, Ms Collins’ independent expert engineer, that,when Mr Turner passed the corner of the palisade fence, the racehorses would have beenplainly visible below him on the open plain of the gallops from an initial distance greaterthan 750 metres away to the point of the collision between them over thirty secondslater. I draw support for that conclusion from the evidence of Mr Kelly, the traininggrounds manager, that, in his 21 years in that role, no other such incident has occurred,either before or since Mr Turner’s accident, and from that of Ms Wallace, the jockey, thatnothing like it had ever happened in the twenty years she had been riding on the gallopsfor Ms Collins.57. Hence, Mr Turner has failed to satisfy me that Curragh Racecourse was under a duty ofcare to erect a warning sign at, or near, the point on the Curragh Plain at which hecommenced jogging across the gallops.58. In light of that conclusion, it is unnecessary to consider Mr Turner’s additional argument,which assumed the existence of such a duty, that Curragh Racecourse was not preventedfrom erecting a warning sign by the express term of its covenant with the Minister underthe licence of 1968 not to erect any ‘structure’ on the gallops without the Minister’sPage 16 ⇓written permission, since a warning sign should not be considered a structure within themeaning of that term of the agreement, properly construed.59. I reject the view put forward by Mr Culleton, Mr Turner’s engineer, that the CurraghRacecourse was in breach of duty in failing to cordon off either the entire gallops or thedesignated line on the gallops in circumstances where: first, there was no evidence that itwas practicable; and second, there was uncontroverted evidence that Curragh Racecoursehad no lawful entitlement to do so.60. Finally, on the question of breach of duty, I also reject Mr Culleton’s view that the Collinssisters were negligent in failing to ensure that the horses Tracey Collins was training onthe gallops were pulled up before Mr Turner could collide with them. Mr Culleton is not anequestrian expert. Mr Watson, Mr Turner’s equestrian expert, expressed no such viewand I accept the evidence of Ms Collins and Ms Wallace on that point.61. Hence, I conclude that there was no breach by any of the defendants of any duty of careowed to Mr Turner in the circumstances of the accident.ii. was Mr Turner negligent?62. Mr Turner jogged over 120 metres across an open plain for over thirty seconds beforerunning into the shoulder or neck of one of three galloping racehorses with which he hadbeen on an orthogonal collision course for all of that distance and time. Had he beenkeeping a proper – or any – lookout, he would have been able to stop within a second ortwo or within a distance of less than six metres and the collision could have been avoided.63. Mr Turner candidly admitted in evidence that he did not look to his left or right at anytime prior to the collision because, in his view, he had no reason to do so. He did not seein his peripheral vision the racehorses that he was converging with, nor did he hear thethunderous sound of those horses’ hooves, until it was too late.64. Mr Turner testified that he considered running on the Curragh Plains directly comparableto running across a field, before offering the view that, since there is no necessity to lookleft or right when crossing a field, there was no necessity for him to look left or right (orotherwise keep any proper lookout) when crossing the gallops prior to this accident. Icannot agree with that view for three reasons.65. First, given the potential presence in any field of livestock, wild animals, agriculturalvehicles and machinery, farmers, agricultural workers and visitors, it seems to mesensible and, thus, reasonable to keep a proper lookout when crossing one. Second, theCurragh Plains are more than just a very large field. On the Curragh, there will also bemilitary patrols; the management and conservation activities of the Maor and his (or her)staff; and the racehorse training activities that have been going on there for centuries.Third, the whole purpose of keeping a proper lookout is to afford an opportunity tobecome aware of, and take appropriate measures to deal with, the unexpected, as well asthe predictable. It is for that reason that I do not think anything very much turns on MrPage 17 ⇓Turner’s claim to have been ignorant of the nature and purpose of the gallops when hebegan crossing them.66. In his evidence, Mr Turner contrasted the proper lookout he keeps when crossing a publicroadway with, to borrow a horse racing expression, the blinkers that he asserts he isentitled to wear, figuratively speaking, when running on the Curragh. Once again, I amafraid that I cannot agree. The existence of a legal requirement to keep a proper lookoutwhen crossing a public road does not imply the absence of any common-senserequirement to do so in other public places.67. While listening to music through headphones as a pedestrian or jogger in a public placedoes not amount to negligent conduct in and of itself and has to be considered in context,I am satisfied that it did contribute to the accident in this case. In addition to failing tokeep a proper visual lookout, Mr Turner did not hear the sound of the warning shouts ofMs Collins, the trainer, and of the jockeys of the three galloping racehorses. Nor did hehear the sound of the galloping hooves of the approaching horses.68. In arguing that listening to music on earphones cannot be classified as negligent on hispart, Mr Turner relies on the decision of the Supreme Court of the Australian CapitalTerritory in Pangallo v Smith [2015] ACTSC 313. While I have found the decision ofAssociate Justice Mossop in that case lucid and persuasive on the relevant point, it doesnot assist Mr Turner. The case concerned a collision on a suburban street between amotor vehicle and a pedestrian wearing earphones and listening to music. In contrast tothe present case, the breach of duty of the defendant in that case (the motorist) wasadmitted, and the relevant issue was whether there had been contributory negligence onthe part of the plaintiff pedestrian in ‘wearing earphones and listening to music whilstwalking on the road … thus impacting upon his ability to hear approaching traffic.’69. Mossop AsJ stated (at para. 20):‘A pedestrian crossing a road at night even in a relatively low traffic suburban areais obliged to take care for the person’s own safety. That obligation extends tolooking and listening for vehicles on the road that have the potential to cause harmto the pedestrian. It extends to cars approaching from both in front of and behindthe pedestrian. It extends to circumstances in which the road is reasonably lit. It isclear that the plaintiff neither saw nor heard the first defendant’s vehicle prior tothe accident. In my view had the plaintiff been taking reasonable care either bypaying greater visual attention to his surroundings or by ensuring that his hearingwas not impeded by headphones and the sounds of the radio then it is likely that hewould have become aware of the presence of the first defendant’s vehicle and itsapproach as it turned into Jandamarra Street. It is more likely than not that havingregard to his proximity to the edge of the road that he would have been able totake some evasive measure in order to avoid the accident.’70. I conclude that the proximate cause of the accident was Mr Turner’s failure to keep aproper lookout, together with his use of earphones to listen to music, impeding – if notPage 18 ⇓eliminating – his ability to hear the approach of the racehorses or the shouted warnings oftheir approach. It is more than likely that, had he been taking reasonable care either bykeeping a proper lookout or by ensuring that he was in a position to hear the sound of theapproaching racehorses or the shouted warnings of their approach, he could have avoidedthe accident by the simple and straightforward expedient of stopping or slowing down.iii. occupiers’ liability71. Mr Turner pleads that Curragh Racecourse was in breach of its duty of care towards himunder the Act of 1995. However, in view of the finding I have already made that none ofthe defendants were in breach of any duty of care that they owed to Mr Turner, there isnothing in the Act of 1995 that can avail him. Even assuming, without deciding, thatCurragh Racecourse was an ‘occupier’ of the gallops, as defined under s. 1 of that Act,then Mr Turner would be no more than ‘a recreational user’ there, as defined under thesame section. Thus, under s. 4 of the same Act, Curragh Racecourse would have owedMr Turner only the lesser duty not to injure him intentionally or act in reckless disregardof his interests. In those circumstances, Mr Turner might have been expected to arguethat the ‘danger’ concerned (that of a collision with a racehorse on the gallops) was not a‘danger due to the state of the premises’, thus taking his claim outside the scope of theAct of 1995 and back within the rubric of normal negligence rules; see Allen v TrabolganHoliday Centre Ltd (Unreported, High Court (Charleton J), 30 April 2010), [2010] IEHC 129(at para. 1). Yet, as I have already concluded, even under normal negligenceprinciples, his claim cannot succeed.iv. a claim in public and private nuisance that was not pleaded72. In the written legal submissions filed on his behalf at the end of the trial, Mr Turnersought to introduce a new claim of occupiers’ liability against the Collins sisters and newclaims of private or public nuisance against each of the defendants. I have alreadyexplained why an occupiers’ liability claim could not succeed. A public nuisance claimcould not succeed either because, on the facts I have found, none of the defendantsunreasonably interfered with the exercise by Mr Turner, as a member of the public, of anyright associated with the use of the Curragh Plain. Whether Mr Turner unreasonablyinterfered with the defendants’ exercise of such rights is a matter that – perhapsfortunately for him – does not arise. The proposed claim in private nuisance is untenable;it depends on the faintly surreal proposition that the right to jog on the Curragh is a localcustomary right i.e. one confined to members of the local community and not available tothe public at large.73. However, an antecedent difficulty for Mr Turner is that he did not plead any of the claimsjust described; did not formally apply to amend his pleadings to include them; and did notoffer any explanation for his failure to adopt either course. Instead, he argued in closingsubmissions, when first raising those claims, that their informal introduction at that pointwould not prejudice the defendants because, if they weren’t prepared to deal with themon the hoof (to borrow another equine expression), they could apply for an adjournment.While it is clear that Order 28, rule 1 of the Rules of the Superior Courts – the rulePage 19 ⇓governing the exercise of the power to permit the amendment of pleadings – is intendedto be a liberal one (i.e. to allow any amendment necessary for the purpose of determiningthe real questions in controversy between the parties), in my judgment the exercise ofthat power in the manner and circumstances just described would facilitate an abuse ofprocess and would amount to a breach of the defendants’ fair trial rights. Hence, I do notpropose to do so.Conclusion74. While Mr Turner is entitled to every sympathy for the injuries he has sustained and thepain and suffering he has endured, I can find no responsibility and, hence, no liability forthose injuries on the part of any of the defendants.75. Mr Turner’s action is dismissed.
Result: Claim in negligence and occupier’s liability dismissed.
O’Rourke v Taylor
Circuit Court.
3 February 1947
[1947] 81 I.L.T.R 69
Judge M. J. Connolly
Judge Connolly:
The plaintiff in her Statement of Claim alleges that while she was lawfully upon the golf course of the Malahide Golf Club in the County of Dublin, engaged in playing a game of golf, the defendant so negligently, recklessly and carelessly played a ball upon the said golf course that it was driven against and struck the plaintiff upon the right side of her head. The particulars of the negligence as contained in the said Claim are as follows:—
That the defendant struck the golf ball towards the plaintiff; that he struck it negligently, carelessly, and recklessly; that he failed to have due regard to the safety of other persons and in particular of the plaintiff—lawfully upon the said golf course; that he failed to allow the plaintiff sufficient time to pass from the 4th green to the 5th teeing-ground and to get clear of the probable or possible line of flight of his shot before striking his ball towards the 4th green, that he struck the golf ball in the direction of the plaintiff and within carrying distance to her and that he failed to look to see if other persons using the said golf links were in the line of the likely carry of his shot, or to take proper care to see the course was clear ahead of him and within range of his shot. *69
By amendment of the claim at the hearing the following additional particular of negligence was furnished of which due notice had been given before the hearing, namely:—
That the defendant gave no, or in the alternative, no proper warning to the plaintiff of his intention to play a shot in her direction.
In his defence the defendant denied that he was guilty of the alleged or any negligence and alleged that the plaintiff was guilty of contributory negligence and further and in the alternative that the plaintiff well knew and appreciated the use and danger of being at the 4th green referred to in the eńdorsement of claim and well knowing and appreciating the danger and use arising thereat voluntarily exposed herself to same. This lastly-mentioned plea amounts to a plea of “ volenti non fit injuria. ” At the hearing counsel for the defendant stated that he was not relying on such lastmentioned defence and consequently that it was not to be considered as an issue in the action.
The facts of the case are within a narrow compass.
The plaintiff and the defendant were members of the club. The defendant’s handicap was 14. The plaintiff had been playing on the Malahide golf course since 1939, and was familiar with the lay-out of the course. The defendant was also familiar with the course and its lay-out.
The plaintiff and two other ladies were playing what is known as a three ball game; and the defendant and three other gentlemen were playing a four ball game and were immediately following the ladies. The ladies had played from the 4th tee to the 4th green and, after they had holed at the 4th green and were proceeding by the customary route to the ladies’ 5th tee, the plaintiff was struck by a golf ball driven by the defendant towards the same green. The distance from the 4th tee to the 4th green is 360 yards. The distance from the 4th green to the ladies’ 5th tee by the customary route is 80 yards. There is another route from this green to the said tee of 131 yards, but the regular and usual route was the one the plaintiff was taking when she was hit, and this would, or should be, known, according to the evidence of the manager of the club, to the general body of players on the links, and particularly those players who were familiar with the course and its lay-out.
Mr. Liam Larkin who gave evidence proved a map, or plan, prepared by him, showing the lay-out of the course between the 4th tee and the 4th green and also the ladies’ 5th tee and the route which the plaintiff was taking from the 4th green to the ladies’ 5th tee, when she was struck by the golf ball driven by the defendant, that this route was a well defined track around the bottom of a quarry, that between the 4th tee and the 4th green there was a hedge with a shed at one end of it and a cottage within a short distance of this shed. The hedge is composed of brambles, briars, and hawthorn, and is 6½ to 7 feet high. The shed is level with the top of the hedge. The ground rises from the 4th tee to the 4th green and more steeply from the corner of the hedge where the shed is situate and that it is then easier to see players higher up and in the vicinity of the 4th green. According to the position pointed out to him by a Mr. Reynolds, who was playing with the defendant in the four ball game, the distance of the defendant’s first shot from the 4th tee to the place it came to rest was 184 yards and from that place to the 4th green is 176 yards 2 feet, that the defendant’s approach shot to the place where the plaintiff was when she was hit was 158 yards 1 foot according to the position pointed out to him by one of the ladies who was examined as a witness and who was with the plaintiff when she was struck with the golf ball. On cross-examination he stated that persons on or in the vicinity of the 4th green could see the players who were following on the fairway coming from the 4th tee towards the 4th green unless such following players were directly behind and very close to the hedge. In answer to a question of mine he stated that the position of the defendant’s ball, as shown to him as already mentioned, was from 18 to 20 yards behind the hedge already referred to. These different positions he indicated on the map in the course of his evidence.
The plaintiff, in her evidence stated she has played on the said links frequently since 1939, that on the 17th March, 1944, she was playing a three ball game with two other ladies, that they were playing from the 4th tee to the 4th green and that they had holed out on the 4th green and were proceeding to the ladies’ 5th teeing ground by the regular and customary route and had gone about 15 yards in that direction when she heard a shout “fore” and saw Mr. Reynolds who was playing in the four ball game with the defendant signalling to keep down but before she could do so she was struck on the forehead by the golf ball. That the interval from the time she heard the shout “fore” and saw Mr. Reynolds signalling, until she was hit by the ball was comparable to what she described as a “flash.” She thinks she saw defendant, when she heard the shout *70 “fore,” at the corner of the shed, and this would be after he had hit the ball, but she did not see him hitting it. On cross-examination she stated she saw the players (meaning the four ball players) coming along the fairway from the 4th tee when she was leaving the 4th green and going towards the ladies’ 5th tee and that, when she heard the shout “fore,” she inclined her head towards the Quarry but did not otherwise keep down and that another lady was beside her when she was hit. To me she stated she saw the defendant on the fairway a few yards out from the corner of the hedge and that he was in the act of hitting the ball, and that on hearing the shout “foré,” and seeing Mr. Reynolds signalling, she turned her head slightly and bent down to one side and that if she then had stooped well down she might have escaped being struck.
Plaintiff was attended by Dr. Loftus who treated her for her injury and for depression which he attributed to the blow of the golf ball as the precipitating cause.
Mrs. Violet Reynolds stated she was a member of the Malahide Golf Club in 1944, and on 17th March, 1944, was playing a three ball game with the plaintiff and that she was beside her when she was hit. She knew a four ball party of players had been following from the 4th tee but she did not see the players up to the time the plaintiff had been struck. She had gone about 20 paces from the 4th green with the plaintiff in the direction of the ladies’ 5th tee when she heard a shout “fore” and then saw Mr. Reynolds one of the four ball players signalling to them to take cover and at the same time saw the defendant at the corner of the shed and he then was going to the centre of the fairway. She then heard a terrific crack and ascertained that the plaintiff had been hit with the ball. The plaintiff, she states, was crouching when she was hit From the time she heard “fore” and saw Mr. Reynolds signalling, the plaintiff would not have had time to turn away until the witness heard the crack. She also stated, that the players following to the 4th green always waited before playing the approach shot to it until the players in front had got safely away. That the course she and the plaintiff were taking to the 5th tee was the customary one and was never known to be dangerous.
The other member of the three ball game was Miss McManus who stated she had gone in front of the two other players towards the 5th tee. She also heard “fore” and, saw Mr. Reynolds running towards the 4th green making signs and she heard the noise of a crack.
Charles Reynolds stated he was one of the four ball players following the three ladies and that he could see them as they were on the higher ground at or in the vicinity of the 4th green. The defendant’s first shot was 15 to 18 yards back from the hedge and about 5 yards in from a line drawn from the corner of the hedge where the shed was. From this position he saw the defendant hit his approach shot to the 4th green and when he saw the ball pulling in towards where the ladies were walking he shouted “fore.” He stated also that the defendant, who is a left hand player, knew the course and that the reason the ball was pulling in towards the ladies might be accounted for by the fact that the defendant is a left hand player. The course the plaintiff was taking from the 4th green was the usual and customary one for the ladies to take towards the ladies’ 5th tee. Ladies in taking that route are in a dangerous position as regards the approach shot of the players following. The lay-out of the course there is not very safe and on cross-examination, he stated that all parties (meaning both sets of players) should use caution.
Kevin O’Neill stated he is manager of the club and that the defendant, who is a member, had in March, 1944, a handicap of 14, that from the place where defendant’s first shot came to rest and the place the plaintiff was when she was hit, the defendant’s approach shot, if a wooden club is used, would get to the place where the ladies were when the plaintiff was hit, that from the 4th green the usual course to go to the ladies’ 5th teeing ground was one which the plaintiff was taking when she was struck, and that should be known to the general body of players, and that the course so being taken is an area of danger around the green. On cross-examination, he said a left hand player invariably pulls the ball.
This was all the evidence for the plaintiff. No evidence was called for the defendant. His counsel, Mr. Sherry asked for a direction on the following grounds:—
(a) That there was no evidence that the defendant was guilty of any negligence.
(b) That the plaintiff was guilty of contributory negligence.
(c) That the plaintiff’s negligence was the real cause of the accident.
(d) That slicing or pulling a shot is not per se evidence of negligence. *71
He cited in support of the lastly-mentioned ground Lockhart v. Carberry, 72 I. L. T. R. 153. That was a Circuit Court case heard before the late Judge McElligott. In that case the plaintiff was a visitor to Lahinch and entered upon the links, which were private property, and contrary to the terms of a notice posted at the place where she so entered, warning unauthorised persons against trespassing upon the links.
When hit by a golf ball played by a player on the links, the plaintiff in that case was sitting about 35 yards from the ordinary course of flight of the golf ball which hit her. It appeared in evidence that the player in question had sliced his shot. The Circuit Judge, in the course of his judgment, stated a pull or slice of a golf ball by a player does not amount to negligence on the part of a golfer. The basis of his judgment in dismissing the action was that the links were private property, that golf was being played thereon when the plaintiff entered thereon, and that she knew that, and that there was danger, and that the plaintiff was on the course at her own risk and was not entitled to succeed.
Mr. Sherry also cited Hall v. Brooklands Auto Racing Club [1933] I. K. B. 205.
Mr. Budd c ited Cleghorn v. Oldham, 43 T. L. R. 465 and Potter v. Carlisle and the Cliftonville Golf Club Ltd. [1939] N. I. R. 114.
I have carefully considered these cases. I do not think it necessary to make any detailed analysis of them. Each, except Hall’s Case, related to accidents between players on golf courses.
In playing games a player must abstain from doing what a reasonable person would not do, and if a jury came to the conclusion that a player had done something which a reasonable player in the circumstances would not have done and if injury resulted therefrom such player was liable in an action for negligence. One can understand that in the playing of games accidents might happen for which no one could be held responsible, and the person who sustained the injury had no redress. In playing golf, a ball might be driven without negligence and strike another player or a spectator.
In Potter’s Case (supra) Babington, L.J., states in the course of his judgment “Every player when on the course must take due care for his own safety and for the safety of others by keeping a good look-out for the disposition of the various greens and tees as he is coming to them or going from them … and he must keep a good look-out for the whereabouts of other players, whether in front or behind, in whose line he may find himself thereby running the risk of being hit or who may appear in his line so that he may run the risk of hitting them; also, he must act upon the knowledge so acquired and not place himself in a position where he is in danger of being hit by other players if he can avoid it, nor himself play a shot while other players are in a place where he may hit them, without giving them due warning and being satisfied that they have received it.”
For the purposes of this action I adopt the principles which I have quoted from the judgment of Babington, L.J.
On the evidence, I have come to the conclusion that the plaintiff and Mrs. Violet Reynolds had gone only a few paces from the 4th green in the direction of the ladies’ 5th teeing ground, and that until they had reached a further distance in such direction they were in an area of danger from the approach shots of the players who were following them, that the defendant, as a member of the club, would have known the customary route from the 4th green to the ladies’ 5th teeing ground, that if he were keeping a proper look-out he should have seen the plaintiff and her co-players, at or in the vicinity of the 4th green at the time he was about to play his approach shot to the said green, that he played such shot without any warning to the plaintiff and her coplayers and, with the knowledge he had of the customary route the players in front would take from the 4th green. In my opinion on the evidence the danger of playing his approach shot was obvious unless the players in front had got safely away from the 4th green or were duly warned. It seems to me from the evidence that the defendant was guilty of negligence in playing his approach shot to the 4th green in the manner and at the time he did so, having regard to all the circumstances. I find as a fact that at the time the shout of “fore” was given by Charles Reynolds, the ball, which had been hit by the defendant, then was in flight towards the place where the plaintiff was proceeding to the 5th teeing ground. As regards the suggestion of the defendant’s counsel, that the cause of the accident was the slicing or pulling of the ball by the defendant, I find on the evidence that such slicing or pulling was slight and made no appreciable difference in the direction of travel of the ball towards the 4th green. There was evidence that a left hand player invariably, to some extent, pulls his shot. On the evidence, I have come to the conclusion that the plain *72 tiff was not as vigilant for her own safety, as she should in all the circumstances have been, by keeping a proper look-out for the players who were following. She must also have known or should have known, that she was in an area of danger from an approach shot of any one of the players who were following from the 4th teeing ground. I have however come to the conclusion that the defendant could by reasonable care have avoided the consequences of plaintiff’s negligence; and in particular that he should have abstained from driving his approach shot until the plaintiff had got away from the direction, or possible direction of such shot. A reasonable player would have so abstained, unless he was reasonably sure he could drive the ball with due regard for the safety of the players in front of him, at or in the vicinity of the 4th green.
As regards the question of damages, the physical injury to the forehead was not severe but as the plaintiff had a small goitre at the time of the accident, such injury, in conjunction with the goitre aggravated her nervous and mental condition, with the result, according to the evidence of Dr. Loftus who attended her, that she suffered from shock, acute depression, and also insomnia. She was unable for 2 or 3 months to attend to her business. She complained of inability to concentrate on her work. Her doctor advised a change of environment, and she went to the country for rest and change of air, to try to relieve the nervous and mental condition from which she was suffering. For medical expenses, and expenses incidental to her visit to Lisdoonvarna, and other places, I allow £40 and for her injuries I allow £65. I give a decree for £105 with costs and expenses.
Philp -v- Ryan & Anor
[2004] IESC 105 (17 December 2004)
Date of Delivery: 17/12/2004
Court: Supreme Court
Composition of Court: Murray C.J., Fennelly J., McCracken J.
Judgment by: Fennelly J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Dissenting
Fennelly J.
Other (see notes)
Murray C.J.
McCracken J.
Other (see notes)
Murray C.J.
JUDGMENT delivered on the 16th day of December, 2004 by FENNELLY J.
The Court has already pronounced its decision on this appeal. It has increased the damages awarded to the Plaintiff/Respondent by Peart J in the High Court from the sum of €45,000 to €100,000.
The action was one for professional negligence against both defendants arising from the first-named defendant’s failure to diagnose that the plaintiff was suffering from prostate cancer and not prostatitis as he found.
Liability was in issue in the High Court, but the appeal by the defendants was limited to the question of damages. The plaintiff lodged a cross appeal claiming that the damages awarded were inadequate. Two points were made in the cross appeal:
· That no damages were awarded for possible loss of life expectancy;
· That aggravated damages should have been awarded as a result of the conduct of the defence to the claim.
On the 26th June 2001 plaintiff was admitted to the Bon Secours Hospital in Cork, having been referred to that hospital by his general practitioner. He complained that he had been unable to pass urine since the previous day and of abdominal pain. Pathology reports in respect of urine samples indicated that there was “no bacterial growth” and a seriously elevated PSA level of 168. The first-named defendant diagnosed acute prostatitis. The expert evidence for the plaintiff at the trial was to the effect that, based on his clinical symptoms, the pathology reports, and other factors this could not have been a case of acute prostatitis. In fact, the test results suggested that the plaintiff almost certainly had cancer which had spread – metastased – outside the prostate into other parts of the body.
This view of the matter was not seriously disputed by the defendants’ experts. At this stage, of course, there is no issue but that the plaintiff’s condition was disastrously misdiagnosed due to the negligence of the defendants. However, it was also tragically clear that the plaintiff’s cancer was, in any event, already at an advanced stage when he first presented to the first-named defendant. The real issue on this aspect of the appeal, therefore, was the extent to which the plaintiff was entitled to be compensated in damages for misdiagnosis, where he was never going to recover fully. Was the plaintiff entitled to recover damages for being deprived, as a result of not being informed of it, of the opportunity to consider possible treatment for his cancer?
It is material, firstly, to set out the principal findings of the learned trial judge on the negligence issue. The learned trial judge held that the first-named defendant was negligent in diagnosing prostatitis to the exclusion of any other possibility. Consequently, he did not tell the plaintiff that he was suffering from cancer or arrange any other necessary tests. The negligence of the first-named defendant resulted in the plaintiff not becoming aware that he had prostate cancer until eight months later than he should have. Specifically, he was deprived of an opportunity to have a discussion between July 2001 and March 2002 with the first-named defendant, or indeed any other medical person about his disease and the alternatives for treating him.
The arrival of the news in March 2002 that he was suffering from advanced prostate cancer was a great shock to the plaintiff, as was the news that this diagnosis could have been made in July 2001, but had been missed by the first-named defendant.
The learned trial judge found that the plaintiff had reasonable grounds for believing that his life expectancy was less than it would have been had the correct diagnosis been made in July 2001, and that this caused him great upset.
Turning to the question of damages, the learned trial judge said:
“I have no doubt that the plaintiff has suffered great anguish and distress on account of the knowledge that he could have been diagnosed sooner. All the academic medical debate about the advantages and disadvantages of immediate versus deferred treatment, are of little comfort to the plaintiff, who, in my view perfectly reasonably, has reasonable grounds for fearing that his life has been shortened.”
When he came to quantify damages, he said:
“As far as damages are concerned, I propose to award a single sum to take account of the distress caused to the plaintiff as a result of the negligence of the first named defendant. The plaintiff’s evidence was that on receiving the letter on 10th March 2002 he panicked, and later he was very angry and felt let down about the missed diagnosis, and he was of the view that what he now faces was very different in terms of survival from it might have been. Of course, whether his life has been shortened is a matter perhaps we will never know” (Emphasis added).
The plaintiff did not, therefore, recover damages for loss of life expectancy. It was contended, on his behalf that, if his cancer had been correctly diagnosed in the summer of 2001, he would have been advised of the various treatment options that would have been open to him. The principal option would have been hormone treatment. While this treatment was by no means assured of success and could be accompanied by undesirable side effects such as impotence, there was a well-established professional view that life could be prolonged to a significant degree.
The learned trial judge conducted a meticulously detailed analysis of the expert evidence given before him and of the professional literature on this question. His conclusions were that:
• there are two well respected schools of thought within the medical profession as to the pros and cons in general of immediate versus deferred hormone treatment in cases of prostate cancer, and that it is not negligent to treat a patient in accordance with either;
• however, it is more likely than not that in relation to this particular plaintiff’s disease as of July 2001 that had the correct diagnosis been made, the plaintiff would have had a full discussion with his treating consultant when the advantages and disadvantages of each method of treatment would have been explained in a way which the plaintiff could understand, and the plaintiff would have been able to participate in the decision-making process regarding his treatment and future, and that in the circumstances of this case he was deprived of that opportunity;
• if the plaintiff had, in consultation with his treating consultant, opted for a deferral of hormone treatment until the disease had progressed, the plaintiff would nevertheless have been monitored closely. He would in other words have been kept under constant observation in order to see how the disease was progressing;
• it was not reasonable, on the evidence, to assume that the delay of eight months in the correct diagnosis had had no adverse impact on the plaintiff’s life expectancy and quality of life, and it is not reasonable for the first-named defendant to say that by not knowing that he had cancer, he was better off in the sense that he could go about his life during that eight months free of the worry of knowing that he had a serious condition. That would be to deny the plaintiff his basic right to be informed about a serious matter regarding his health, and his right to plan his future in the light of that knowledge.
On the balance of probabilities, the learned trial judge was of the view that, having been deprived of an opportunity of considering having immediate or fairly immediate hormone treatment in the summer of 2001, a reasonable consequence of that was that the plaintiff had suffered distress by having a reasonable belief that his life had been shortened by anything from 8 months to two years, and that on the evidence there was a reasonable basis for that belief. Based on these considerations, he decided to award a single sum to take account of the anger and distress suffered by the plaintiff.
However, he did not award any damages for the fact that the plaintiff, not having been informed of his condition in June 2001, was deprived of the opportunity of beneficial treatment. In particular, he did not award any damages for the loss of opportunity to be advised of treatment which might have had the effect of prolonging his life, even by a short period.
This is not to say that the learned trial judge did not consider this aspect of the claim. On the contrary, he discussed it with elaborate care and set out the competing views very fully.
Firstly, he referred to the evidence of the plaintiff’s expert witness, Dr Shah, to the effect that there was “a definite benefit for early therapy in patients who present with prostate cancer.” He thought that the “critical issue related to diagnosis at earliest possible opportunity.” He was of the opinion that the “advantage of early therapy is somewhere between eight months and three years.” The treatment postulated was hormone therapy. Dr Shah relied on a study of 1997 by the Medical Research Council in the UK. There was, sadly, no question of the plaintiff being completely cured. It was a question of whether his life could have been prolonged. This view was supported by the other medical expert called for the plaintiff, Dr Hardman.
The evidence of Mr Denis Murphy, Consultant Urologist called on behalf of the Appellants was that it was better to defer hormone treatment. He said that there was a very broad spectrum of opinion as to whether hormone treatment should be initiated immediately on diagnosis. He did not think the plaintiff would have had any better prognosis if he had been diagnosed earlier.
Referring to this evidence and to the conflicting evidence in what he called the “academic debate” about the merits of earlier hormone treatment, the learned trial judge said:
“What is beyond any doubt is that there are two respectable schools of medical opinion in relation to a general question as to whether it is better to hormonally treat a patient as soon as a diagnosis of localized prostate cancer has been made, or whether it is more beneficial to the patient to wait until that disease has progressed to other parts of the body, or indeed whether it is better to wait beyond that until the patient has actually developed symptoms.”
He posed the following question:
“But what is important to deal with is whether, by reference to the studies and material and the evidence adduced in relation to this matter, it is on the balance of probabilities likely that this particular plaintiff, Mr. Philp, given his particular characteristics of disease in July 2001, has had his life shortened by his treatment being delayed until March 2002, resulting from the missed diagnosis in July 2001, or is Mr Ryan on the balance of probabilities correct when he submits that he would, according to the school of thought to which he adheres, have been correct or justified in any event to have deferred hormone treatment until March 2002 and without any adverse consequences for the plaintiff as far as life expectancy is concerned.” (emphasis added).
At one point, the learned trial judge appeared to lean in favour of the plaintiff’s evidence, when he said:
“I believe there is ample support for the plaintiff’s belief that in all probability he, given his specific condition, at least had a more than 50% possibility that immediate hormone treatment in July 2001 would have been beneficial. Such treatment would have to have been discussed with the plaintiff, and I believe that if Mr Ryan had failed to discuss these options with the plaintiff in July 2001, he would have been in breach of his duty of care. I am not going so far as to say that if Mr Ryan recommended deferred treatment to the plaintiff, and the plaintiff took that advice, that Mr Ryan would be negligent in so recommending. I am simply pointing to the need to have the options clearly placed before Mr Ryan so that an informed decision could be made by the plaintiff in relation to the options. It is always open to a patient to not take advice from his doctor once he has been fully informed as to all relevant considerations – especially in a situation such as the plaintiff’s where there is no unanimity in medical opinion as to the correct course of treatment.”
However, in the final analysis, he did not award damages for this aspect of the claim. His approach appears from the following:
“I cannot make a definitive conclusion in relation to whether his life has been shortened, or by how long, simply because the whole question is the subject of such debate, as I have shown, but I can conclude that on the balance of probabilities, the fear that his life has been shortened is a reasonable fear, and the distress caused to the plaintiff in that regard is reasonable, and for which he entitled to be compensated.”
It must be recorded, of course, that this issue comes before the court only by way of cross appeal. The appeal has been taken to this court not by the plaintiff but by the defendants. However, the court was quite satisfied that the appeal of the defendants on the ground that the damages were excessive was without merit. The award of €45,000 was amply justified by the findings of the learned trial judge regarding the real anguish and distress suffered by the plaintiff. Furthermore, I fully agree with the judgment of McCracken J that an award of aggravated damages should have been made. The failure of the defendants’ solicitors to inform the plaintiff’s solicitors that the first-named the defendant had falsified the clinical note upon which they had placed such heavy reliance in pre-trial procedures was reprehensible in the highest degree. This behaviour was calculated to deceive the plaintiff, his advisers and the court on a material matter. Regrettably the defendants made a deliberate decision not to correct the false impression they had earlier conveyed to the plaintiff that there would be evidence supported by a genuine contemporaneous note that the plaintiff had been advised to have a further test carried out.
It remains only to deal with the cross appeal relating to the failure of the learned trial judge to award damages for possible or probable loss of life expectancy. The cross appeal alleges that it was wrong not to make an award of damages under this heading once it had been found that it would not be reasonable to assume that the delay of some eight months in making the correct diagnosis had no adverse effect on the plaintiff’s life expectancy.
The learned trial judge appears to have posed a test of probability of success on the Appellant’s entitlement to damages for loss of the opportunity to have hormone treatment. Damages depended on proof that life would probably, not possibly, have been prolonged.
The plaintiff claims an entitlement to be compensated for the loss of an opportunity to elect for treatment of his cancer on the basis of correct diagnosis and appropriate medical advice. Assuming such correct diagnosis, he claims that there was a possibility that his life could have been prolonged to some extent. It is common case that the chances of successful treatment were, at best, problematical. There is no dispute as to the trial judge’s view that medical academic opinion was divided on the benefits of hormone therapy.
The defendants argued that this type of lost opportunity was not valuable in the sense that it should not attract compensation unless it could be proved that the postulated treatment would probably have been successful. Mr Patrick Keane, Senior Counsel for the defendants went so far as to submit that a forty nine percent chance of successful treatment would not confer an entitlement to damages, though a fifty one percent chance would. Asked how this was reconcilable with the universal practice of allowing for percentage risks below fifty of the future development of conditions such as arthritis or epilepsy, he sought to distinguish these examples as being on the debit side only. These were negative possibilities for an injured person, whereas, in the present case, the plaintiff seeks compensation for the loss of a beneficial opportunity.
Before considering the authorities cited by Dr John White, Senior Counsel for the plaintiff, I should say that it seems to me to be contrary to instinct and logic that a plaintiff should not be entitled to be compensated for the fact that, due to the negligent diagnosis of his medical condition, he has been deprived of appropriate medical advice and the consequent opportunity to avail of treatment which might improve his condition. I can identify no contrary principle of law or justice. It is commonplace that allowance is made in awards and in settlements for the risk that an injured plaintiff may in the future develop arthritis in an injured joint. The risk may be high or low – a fifteen percent risk is often mentioned – but damages are paid. I cannot agree that this is any different from what is sought in the present case. It does not matter that the damage suffered by the plaintiff consists of the loss of an opportunity to avail of treatment. It might, with equal logic, be described as an increased risk of shorter life expectancy. It seems to me as illogical to award damages for a probable future injury as if it were a certainty, as to withhold them where the risk is low on the basis that it will not happen at all.
This precise matter was dealt with by this Court in Dunlop v Kenny (Unreported, 29th July 1969). O’Dálaigh C.J. delivered the unanimous judgment. It was held that the jury had been misdirected to the effect that the plaintiff would suffer from epilepsy, when the evidence was that there was “a risk of major epilepsy.” O’Dálaigh C.J. held that the trial judge had overstated the risk. He did not, however, state that there should be no award under this heading. The following passage very clearly indicates the correct approach:
“In cases such as this, where there is an issue of possibility or probability of some disability or illness arising or developing in the future, the damages to be awarded should be commensurate with, and proportionate to, the degree of that possibility or probability as the case may be. If the degree of probability is so high as to satisfy a jury that it remains only barely possible that the condition will not occur, a jury would justified in acting upon the assumption that it will occur, and should measure the damages accordingly. On the other hand, if the probability that no such event will occur is so great that it is only barely possible that it would occur, damages should nevertheless be awarded, but should be proportionate the degree of risk, small though it might be.”
This statement applies, of course, only to the assessment of damages for future uncertain events. In respect of past events, whether related to liability or to the causation of damage or loss, the normal rule of proof on the balance of probability applies. These issues were considered by the House of Lords in Davies v Taylor [1974] A.C. 207. That was a claim for damages under the Fatal Accidents, 1846. The plaintiff brought the claim arising from the death of her husband. At the time or the death, she was estranged from him and he had instructed solicitors to commence proceedings for divorce. In support of her claim for loss of future dependency, she said that reconciliation would have taken place. The House of Lords were unanimously of the view that the trial judge had mistakenly held that no sum was recoverable.
Certain passages from the speeches of the Law Lords provide solid support for the approach I have outlined for this case. Lord Reid spoke at page 213 as follows:
“When the question is whether a certain thing is or is not true- whether a certain event did or did not happen – the court must decide one way or the other. There is no question of chance or probability. Either it did or did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent ; sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.
“Injury” in the Fatal Accident Acts does not and could not mean loss of a certainty. It must and can only mean loss of a chance. The chance may be a probability of over 99 per cent but it is still only a chance. So I can see no merit in adopting here the test used for proving whether a fact did or did not happen. There it must be all or nothing.
If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent and a 40 per cent probability? The 40 per cent case will get nothing but what about the 60 per cent case.? Is it to get a full award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical result. I can see no ground at all for saying that the 40 per cent case fails altogether but the 60 per cent case gets 100 per cent. But it would be almost absurd to say that the 40 per cent case gets nothing while the 60 per cent case award is scaled down to that proportion of what the award would have been if the spouses had been living together. That would be applying two different rules to the two cases. So I reject the balance of probability test in this case.”
Lord Simon at page 220 of Glaisdale spoke to similar effect:
“…But this is one of those cases where a balance of probabilities is not the correct test. If the appellant showed any substantial (i.e. not merely fanciful) possibility of a resumption of cohabitation she was entitled to compensation for being deprived of that possibility. The damages would, of course, be scaled down from those payable to a dependant spouse of a stable union, according as the possibility became progressively more remote. But she would still e entitled to some down to the point where the possibility was so fanciful and remote as to be de minimis.”
The assessment of future losses is, on occasion, a matter of mathematical calculation. In certain cases, the courts are accustomed to resorting to the evidence of actuaries, who are expert in calculating the present capitalised value of a combination of future events of greater or lesser likelihood. They can build in allowance for the occurrence of a variety of possibilities including likely age of death or retirement. Nobody suggests that their calculations must be posited on the probable as distinct from the possible happening of each event. Their reports would be deeply flawed if they were.
In my view, the plaintiff should receive an award for the loss of the opportunity to be advised correctly and treated accordingly. Taking this element together with the element of aggravation of damage by the judgment of McCracken J, I believe the sum of €100,000 represents to correct level of the award. I would, therefore, dismiss the appeal and allow the cross appeal substituting the sum of €100, 000 for the sum of €45,000 awarded in the High Court, that increased sum to include both compensation for the loss of life expectancy and the aggravation of damage dealt with in the judgment of McCracken J.
7
THE SUPREME COURT
134/04
144/04
Murray CJ
Fennelly J
McCracken J
Between:
David Philp
Plaintiff
AND
Peter Ryan & Bons Secours Hospital
Bon Secours Health System
Defendants
Judgment of Mr Justice McCracken delivered the 17th day of December 2004
__________________________________________________________
In this judgment I propose to deal only with the question of whether the Plaintiff is entitled to aggravated damages by reason of the behaviour of the Defendants in the preparation and presentation of their case.
In Conway v. Irish National Teachers Organisation [1991] 2 IR 305 the circumstances in which aggravated or exemplary damages could be awarded was considered by this Court. In the present case the Plaintiff does not claim exemplary damages such as were ultimately awarded in that case, but does claim aggravated damages. At page 317 Finlay CJ dealt with several types of damages which could be awarded and said:-
“2. Aggravated damages, being compensatory damages increased by reason of:-
(a) The manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in anyway finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who is being wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.”
In the present case, the Plaintiff relies on the last of these factors as entitling him to aggravated damages. In Swaime v. Commissioners of Public Works [2003] 1 IR 521, where the question of aggravated damages was considered in the light of a claim for negligence against the defendants in exposing the plaintiff to the risk of contracting mesothelioma, Keane CJ said at page 525, after referring to the Conway case:-
“Although the then Chief Justice in the passage which I have quoted emphasises that the list of the circumstances in which aggravated damages may be awarded is not intended to be exhaustive, those circumstances which he has identified do not typically arise in cases of negligence and, if they do, are not a ground for increasing the amount of compensatory damages.”
He then went on to comment that in a claim for negligence one would not expect the circumstances giving rise to aggravated damages to arise because:-
“Most parties leave the subsequent conduct of the action entirely to their solicitors or their insurers.”
However, after referring to the English decision of Appleton v. Garrett [1966] PIQR 1 and the Supreme Court decision in Cooper v. O’Connell (unreported 5th June 1997) the Chief Justice continued at page 528:-
“Those authorities were not cited in the present case either and, in those circumstances, it would not be appropriate for the court, in my view, to hold that there are no circumstances in which actions for negligence or nuisance, aggravated damages may be awarded. That question can be left for a case in which it is fully argued. In the present case, however, I am satisfied that, while the defendants were unquestionably guilty of what the trial Judge described as ‘the grossest negligence’, that factor, of itself, is not sufficient to entitle the plaintiff to aggravated damages in the absence of circumstances such as those referred to in the judgment of Finlay CJ in Conway v. Irish National Teachers Organisation [1991] 2 IR 305, or factors of a similar nature.”
It should be said that the authorities referred to by Keane CJ in that passage were not cited in this case either, and the applicability of aggravated damages to actions in negligence was not argued at any length in this Court. However, it must be emphasised that the claim for aggravated damages in the present case is not based in any way on the degree of negligence of the Defendants, but rather on their behaviour subsequent to the negligent acts.
The basis for the aggravated damages in the present case lies in the clinical notes of the first named Defendant in relation to the consultation with the Plaintiff on 12th July 2001. The relevant entry, dated 12/7/01, reads:-
“ROC at OPD today
for see DECO1
PSA 6/52”
It is quite clear from looking at the notes that they purport to be a contemporaneous account of what occurred on the various dates set out in those notes. The Plaintiff gave evidence that the first line was his shorthand for “removal of catheter at outpatients department today”, that the word “For” was his abbreviation for what he planned to do and that he was to see the Plaintiff in December 2001. In the course of his evidence he conceded that the words “PSA 6/52”, which was intended to convey that the Plaintiff was to have a PSA test in six weeks, was an addition which he made to the notes at a later date, namely in December 2002 when he received a letter from the Plaintiff’s solicitor threatening an action against him.
The Plaintiff’s advisors clearly had doubts as to the authenticity of these clinical records, and had refused to admit them in evidence unproved, although the Plaintiff did admit the hospital records without formal proof. The matter finally came to light on the sixth day of the hearing, during the evidence in chief of the first Defendant. He referred to his clinical notes in relation to a totally different matter and the learned trial Judge, who appears to have assumed that the clinical notes had been admitted, asked to see them. Counsel for the Plaintiff said the notes had not been admitted in evidence and called for the originals to be produced. This was done, and at that stage the first Defendant disclosed that “PSA 6/52” was an addition which I made to the notes at a later date”. He explained this by saying that in December 2002, when he received a letter from the Plaintiff’s solicitor threatening an action against him, he reviewed his notes and he also reviewed his correspondence with the Plaintiff’s general practitioner. In the course of this correspondence in July 2001 he had told the general practitioner that he was going to arrange to have a PSA repeated in about six weeks time. He said that a letter to a general practitioner would normally be a more complete record, and he assumed that he had omitted this from his clinical notes. It should be noted that he did not say in his evidence in chief that he recollected having told the Plaintiff to have an additional test done in six weeks time.
Under cross-examination the first Defendant conceded that:-
“I do not say with certainty that I did that or that I gave that instruction to Mr Philp. I cannot remember the consultation. So if I understand your question to be asking me am I sure that I gave that direction to Mr Philp, can I say I asked him to have it done, the answer is no, I cannot say that.”
Subsequently in the course of cross-examination Counsel for the Plaintiff sought to ask him when was the first time that he had disclosed to anyone that he had altered the document. Through his Counsel, the first Defendant claimed privilege on the basis that he was being asked to disclose a communication between a client and his lawyer, and this objection was upheld. However, in cross-examination he did say that he had realised “recently” that there was a possibility that he did not advise the Plaintiff to have a test done as recorded in the notes and added:-
“And I then took the step of contacting my legal team and informing them of the situation in relation to the note.”
Subsequently he said that the decision to disclose the fact that the document had been altered was made approximately one week before the hearing and later said:-
“I at all times up to recently, by which I mean, you know, approximately, two weeks ago, was of the mind that I had asked for this PSA test to be done.”
He repeated on several other occasions in the course of the cross-examination that, before the action had commenced, he contacted his legal team and discussed the matter with them and sought advice.
The learned trial Judge, having heard all the evidence, stated at page 26 of his judgment:-
“Given Mr Ryan’s evidence in Court that he has no recollection of the consultation of the 12th July 2001, I cannot however accept his evidence that he was completely sure that, in altering that record, he was only completing the record so that it reflected the true situation. I believe on the balance of probabilities that on receipt of the solicitor’s letter in December 2002 he looked at the clinical notes and in some sense of panic which must have impaired his judgment as to how to react or act, he inserted a note which he felt would assist him in his defence of what was obviously going to be a claim against him.”
This is an extremely serious finding against the first Defendant. It is a finding that the first Defendant deliberately and knowingly altered a document which he must have known would be used in court proceedings with the intention of, as the learned trial Judge said, assisting his case, which in fact means with the intention of deceiving the court, and of attempting to deprive the Plaintiff of damages to which he has subsequently been found to be lawfully entitled.
That matter is of itself extremely disturbing, because obviously the first Defendant had instructed his legal advisors that he had requested the Plaintiff to have a further PSA test in six weeks time. His legal advisors, quite properly at the time, in effect represented to the Plaintiff and his advisors that this was a fact which would be proved by the first Defendant. I will come to these matters later in the judgment.
In addition to misleading his legal advisors, the Plaintiff also sought to, and succeeded in, misleading his own expert witness. He prepared a case summary submitted to Mr Michael Murphy, a consultant urologist who gave evidence on his behalf, which was headed “Case Summary”. In the course of that case summary he made the following statements:-
“I asked him to have a serum PSA measurement carried out after six weeks in the Middle East and to contact me with the result.”
and
“Given that I felt that prostate cancer was only a remote possibility, would see it as good medical practice to try and avoid what appeared to be unnecessary worry and anxiety for a patient over a period of six weeks while his next investigative assessment (i.e. repeat serum PSA) was awaited. Had the follow-up PSA test been carried out as instructed and in the event that the follow-up PSA test was not showing signs of decreasing and indeed were it noted to be increasing, I would have expressed appropriate concern …..”
and
“What transpired was that Mr Philp did not contact me with a PSA result as requested.”
In my view this was a clear attempt to mislead a witness, who the first Defendant knew was going to give evidence as an expert, and therefore would be regarded by the Court in that light. Through misleading Mr Murphy, the first Defendant was again attempting to mislead the Court. Fortunately, the alteration was discovered before Mr Murphy gave his evidence, and was indeed roundly condemned by him.
The allegation that the Plaintiff had been asked to have a further test done in six weeks time was not just contained in the clinical notes and the report to Mr Murphy. It was also made in a number of ways to the Plaintiff’s legal advisors, albeit, as I have said, at a time when no doubt it was believed to be true by the Defendants’ legal advisors. On 1st July 2003 the Plaintiff was served with a notice to admit facts, and was asked to admit that he had been told by the first named Defendant to arrange to have a test carried out six weeks later. On 7th July 2003 interrogatories were administered to the Plaintiff requiring the Plaintiff to admit on oath that the first named Defendant told him on 12th July 2001 to arrange to have a PSA test carried out six weeks later and that it was important to have the test carried out. On 22nd May 2003 the first named Defendant swore an affidavit of discovery which disclosed his clinical notes, and when production of these were sought, it was the altered notes that were produced. In fact, despite its date, that affidavit of discovery was not furnished to the Plaintiff until the 24th June 2003. On 1st July 2003 the Plaintiff’s solicitors were asked admit the medical records held by the Defendants without formal proof. On 19th July 2003 the Defendants’ solicitors replied to a notice for particulars stating that “on the 12th July 2001 Dr Ryan instructed the plaintiff to have a serum PSA measurement carried out after six weeks in the Middle East and to contact him with the result”.
There is no doubt that faced with these documents, the defence against the Plaintiff’s case must have appeared to the Plaintiff’s advisors as being much stronger than it really was. The main plank of the Plaintiff’s case was that he was not told for some eight months after he became ill in July 2001 that he was suffering from prostate cancer. If in fact he himself had failed to comply with the first Defendant’s request to have a test carried out in six weeks time, then of course much if not all of the blame for the delay would have been attributable to the Plaintiff himself. He might well have been discouraged from proceeding with the action or have settled it at well below its value because of the apparent risk. Furthermore, had the alteration in the document not come to light somewhat fortuitously through the intervention of the learned trial Judge, the Defendants’ expert, Mr Murphy, would have given evidence on the basis that the alleged instruction had been given to the Plaintiff, and the first Defendant himself would not have been subjected to strenuous cross-examination in relation to this instruction. It is quite possible that the learned trial Judge in those circumstances would have found against the Plaintiff.
The truly appalling feature in this case is that it appears that the Defendants’ advisors were told of the alteration by the first Defendant between one and two weeks before the commencement of the action. I find it almost incomprehensible that in those circumstances they did not inform the Plaintiff’s solicitors of the true facts. While a great deal of blame attaches to the first Defendant for having altered the document in the first place, he did at least disclose the facts to his own legal advisors, and in my view at least equal if not greater blame must be attributable to them. It is instructive that they did not seek to use the clinical notes in cross-examination of the Plaintiff or his advisors, although they did suggest in such cross-examination that he had been instructed to have a further test taken in six weeks time. They did not seek to have their own client prove the notes until they were called for by the learned trial Judge, although they knew they were being put on proof of the notes. There must be at least a suspicion that there was a deliberate attempt to keep the true facts from the Court notwithstanding that the altered document had been furnished to the Plaintiff’s solicitors as being genuine, and that the facts stated in the alteration had formed part of the instructions to Mr Murphy.
In reviewing the law at the beginning of this judgment I pointed out that some doubt had been expressed as to whether aggravated damages should be awarded in negligence claims. I have no doubt that this is a classic example of a case where such damages can and should be awarded. The Plaintiff has not given evidence of the effect of the misinformation which he received had on him. This is not something which the Defendants can complain about, because his failure to discover the true facts before he had closed his case was due entirely to what I can only describe as the misconduct of the Defendants’ advisors in not disclosing the alteration.
In the absence of direct evidence, in those circumstances in my view the Court is perfectly entitled to infer the probable effect that this false information had on the Plaintiff. It must be remembered that he is a man who had for the last two years known that he was suffering from prostate cancer and does not have long to live. He has undertaken proceedings based on the worry, anxiety and loss of opportunity which arose due to the negligence of the Defendants. One can only imagine the additional stress and anxiety which he must have suffered in the belief that there was, at least in documents shown to him, a strong defence to his action. The loss for which he has already been compensated due to the negligence of the Defendants has in my view been greatly increased due to the grossly improper behaviour of both the first Defendant and his legal advisors. This is clearly as case where already existing damages have been aggravated by such behaviour and I would award him a sum of €50,000.00 in addition to the compensatory damages awarded in relation to his basic claim, as set out in the judgment of Fennelly J, with which judgment I am in full agreement.
Quinn (minor) -v- Mid Western Health Board & anor
[2005] IESC 19 (08 April 2005)
JUDGMENT of Mr. Justice Kearns, delivered the 8th day ofApril, 2005.
The facts of this case and the evidence at trial are set out fully and
comprehensively in the judgment of the learned trial judge (O’Sullivan, J) in the High
Court and do not require detailed elaboration in this judgment.
The plaintiff was born on the 4th May, 1990 in Limerick Maternity Hospital at a gestational age of 39 weeks and 1 day. She brings these proceedings through her mother and next friend, Kathleen Quinn, with whom she resides at Fortanne, O’Callahans Mills, County Clare. The first named respondent has or had responsibility for the Limerick Maternity Hospital at the material time. The second named respondent is a consultant obstetrician and gynaecologist who had responsibility for the obstetric management of the plaintiff’s gestation and subsequent delivery. When Anne Marie was born she had severe brain damage attributable to a condition subsequently diagnosed as periventricular leukomalacia (PVL). The basis of her case against the defendants in the High Court was that she ought to have been delivered not later than week 35 of her gestation, in which case it was contended the plaintiff would have avoided all, or substantially all, of the brain damage which occurred.
The defendants ultimately did not dispute that there had been negligence in the management of the pregnancy and that the plaintiff should have been delivered earlier than she was. However, the defendants contended that the plaintiff’s brain damage was sustained as a result of an acute episode which occurred between 28-30 weeks of the pregnancy and that the outcome would not have been any different had she been delivered at any earlier time than she was.
The hearing before O’Sullivan J. was spread over a period of 17 days between the 13th May and 16th July, 2003, following which judgment was delivered on the 14th October, 2003. It had been agreed between parties that the trial should deal only with the issues of breach of duty, causation and life expectancy – the issue of damages (if any) being postponed until these issues were decided. In delivering judgment, O’Sullivan J. dismissed the plaintiff’s claim and on the 31st October, 2003, awarded costs in favour of the defendants.
The plaintiff’s mother is an insulin-dependant diabetic who was diagnosed as such in 1988 and her pregnancy is thus agreed to have been a ‘high risk’ pregnancy. She consulted her general practitioner regularly during the pregnancy and also attended at the first named defendant’s diabetic clinic in Limerick Regional Hospital. She was weighed regularly and her blood sugar levels noted. Some high blood sugar readings were recorded on the 7th September, 1989, along with some hypoglycaemic episodes. A change in insulin regime was put in place in September, and an incident of vaginal bleeding was noted on the 25th October. There was also a recorded weight loss of 2 kilos between 3rd October and 2nd November.
On the 7th November, 1989 (at 14 weeks gestation), the plaintiff’s mother attended the second named defendant for the first time. She had been referred by her general practitioner and saw the second named defendant on four subsequent occasions thereafter, those dates being the 2nd January, 1990 (22 weeks gestation), the 27th February, 1990 (29 ½ weeks gestation), the 10th April, 1990 (36 weeks gestation) and the 1st May, 1990 (39 weeks gestation).
On the 2nd March, 1999 (at 30 weeks gestation), her general practitioner noted a drop in weight and queried “IUGR” (Intra Uterine Growth Restriction). This possibility was not further explored. On the 27th April, 1990, the general practitioner noted that despite a gestation of 38 weeks and 1 day that the fundus equalled 34 weeks. This was the first time that a discrepancy was noted between gestation and fundal height.
The plaintiff’s mother made a further visit to the second named defendant on the 1st May, 1990 (at 39 weeks gestation), and he recorded a reduction in weight but did not note any discrepancy between the height of the fundus and gestation. No ultra-sound scans were at any time undertaken. On the 3rd May, 1990, the second named defendant suggested that the plaintiff’s mother be admitted to Limerick Maternity Hospital and she was admitted there on the 4th May, 1990, at a point when gestation was at 39 weeks and 1 day.
A foetal heart monitor (CTG) was attached the reading from which was flat, meaning there was no base line variability and no accelerations. Delivery by caesarean section was ordered and at delivery there was a finding of “grossly diminished liquor volume” (oligohydramnios), liquor being the fluid surrounding the foetus in the uterus. At birth, the plaintiff’s weight was 2.09 kilos with a head circumference of 30.5 cm. She was grossly and symmetrically growth retarded, her birth weight and head circumference being well below the third centile for the date of gestation.
She was a very ill child who had poor activity and a poor cry. At 1 minute the plaintiff’s Apgar score was 3 and was 6 at 5 minutes. She developed respiratory problems and had poor colour, with twitching and chronic activity. Within 12 hours of birth the plaintiff suffered epileptic-type seizures. It became evident that the plaintiff had suffered major brain damage and a diagnosis of PVL followed.
A CT scan of the plaintiff’s brain was performed on the 28th May, 1990, and a further CT scan was performed on the 7th June, 1990. Some 10 years later an MRI scan of the plaintiff’s brain was carried out on the 28th June, 2000.
While multiple grounds of appeal have been advanced on behalf of the plaintiff, her case can be fairly summarised in the following way. The plaintiff alleges that her difficulties evolved as part of a unitary pathological process, namely, placental insufficiency (most probably linked to maternal diabetes), which caused a chronic hypoxic ischaemia in utero. This led to a gradual deprivation of oxygen and vital nutrients from before the 28th week which continued up to birth at 39 weeks and 1 day. An important feature of the early stages of this process on the plaintiff’s case was the suggestion that a compensatory mechanism known as “brain sparing” would have operated. Under this process, the brain would have been preferentially favoured by shunting of the available blood and oxygen supply at the expense of other organs during the initial period of chronic placental insufficiency, but this process could not have continued beyond 35 weeks. Had there been proper scanning and other monitoring, the fact that there was IUGR. would have been detected at around 30 weeks and this in turn would, it was contended, have led to delivery between the 32nd and 35th week of gestation thereby avoiding the catastrophic and irreparable damage caused to the plaintiff’s brain thereafter and in the neo-natal period. The witnesses for the defendants, however, denied that the plaintiff’s PVL was caused by a lengthy process which was continuing up to the time of delivery and denied that it was the result of placental insufficiency. They contended that there was an acute, relatively brief insult at 28 weeks to 30 weeks which caused catastrophic brain damage, and that the growth retardation was either caused by the same insult or resulted from the brain damage which occurred at that time. The defendants ultimately accepted during the trial that there was a period of placental dysfunction during the 3 to 4 weeks prior to delivery, but denied that this was connected with the plaintiff’s brain damage. In making their case, the defendants relied in particular on the information subsequently yielded up by the MRI scan. The MRI scan was the subject of detailed investigation and evidence by Professor Olaf Flodmark, a distinguished consultant neuroradiologist from Stockholm who was retained on behalf of the defendants, whose evidence as to the timing of the injury at 28 to 30 weeks was to prove decisive in the decision ultimately arrived at by the trial judge.
Both Professor Flodmark and Dr. King, a consultant paediatric neurologist who was also called for the defendants, disputed that any significant injury occurred later on in the pregnancy, and more particularly in the last 4 weeks of gestation, or that significant injury was caused either on the day of delivery or in the neo-natal period. The plaintiff’s experts, who included two consultant obstetricians, namely, Dr. Peter Buchan and Mr. Roger Clements, consultant paediatric neurologist Professor Alan Hill, consultant neo-natal paediatrician Professor Peter Fleming and paediatrician Professor Alan Lucas were collectively of the view that there was an ongoing progressive process taking place as a result of placental insufficiency which, via the mechanism of hypoxic ischaemia, contributed to the plaintiff’s brain damage during the pregnancy and was combined with an acute hypoxic ischaemic event at the time of delivery with episodes of hypoglycaemia postnatally. The defendants admitted only during the closing submissions that they had been negligent in not delivering the plaintiff/appellant at an earlier time. In the course of the appeal before this Court, Mr. Murray McGrath, senior counsel for the defendants, accepted that this admission necessarily meant that the defendants had been negligent in the management of the pregnancy and had failed to carry out appropriate scanning or monitoring of the plaintiff’s gestation.
The critical issues therefore which the judgment of the learned trial judge addressed were:-
(a) The nature of the insult which caused the PVL
(b) The timing of that insult.
In resolving that conflict, it was clear that the trial judge had to deal with conflicting evidence from both sides with regard to a medical condition (i.e. PVL) which is multi-factorial, poorly understood and the subject-matter of widely diverging scientific and medical understanding, notably in term of its precipitating cause. Having taken considerable time for reflection, O’Sullivan J. held that the plaintiff had failed to establish, on the balance of probability, that she would have avoided her catastophic injuries had she been delivered by the 35th week of gestation and he accordingly dismissed the claim.
Arguments of the Parties on Appeal
Mr. McCullough, senior counsel for the plaintiff, contended that the trial judge in arriving at his decision had accepted the obstetric evidence led on behalf of the plaintiff, to which there was no countervailing evidence, which was to the effect that a unitary pathological process had taken place in the medical condition of the foetus, whereby placental insufficiency caused hypoxic ischaemia which went on progressively from 28 weeks to birth. Having so found and concluded, counsel argued that the trial judge logically should not have set that finding at naught by ultimately preferring, as he did, the radiological evidence adduced on behalf of the defendants to determine the nature and timing of the injury. Furthermore, counsel submitted, the weight of the evidence was such that preference ultimately had to be given to the obstetrical evidence for a number of reasons. Firstly, the child did not die in utero, as one would have expected if a major insult had taken place at 28 weeks. Secondly, the radiological evidence was accepted by the defendants’ experts to be consistent with the case made on behalf of the plaintiff, even though it may have been less likely.
Once that concession as to consistency had been made, Mr. McCullough argued, the radiological evidence was no longer a bar to a finding by the trial judge in favour of the plaintiff. Having found that there was placental insufficiency ab initio, the trial judge should have given more weight to the evidence of Professor Hill (who had had regard to the fact that there was placental insufficiency) than that given to the evidence of Professor Flodmark (who did not have particular regard to the evidence of placental insufficiency).
Mr. McCullough further argued that the defendants themselves had not accepted the case on placental insufficiency until the cross-examination of their last witness, Dr. King. Up to that point, the defendants had contended for a healthy placenta and had postulated the occurrence of a single acute episode taking place for no particular reason. This, Mr. McCullough argued, was inherently improbable and was a view which the court, acting reasonably, should not have arrived at.
Mr. McCullough further criticised the trial judge for attaching undue importance to the failure of the plaintiff’s advisers to call their own radiologist, Professor Anslow, but submitted to this Court that there was nothing in his report (which had been tendered to the court during the hearing) to justify any finding that the failure to call this witness was particularly significant.
Furthermore, while Professor Flodmark had relied heavily on the fact that the MRI scan showed no damage visible to the cortex or sub-cortical area of the brain ( a fact inconsistent with late onset damage), Mr. McCullough argued that the fact that the plaintiff had had epileptic seizures suggested otherwise, so that the MRI scan should not be necessarily regarded as capable of revealing all damage to the grey matter of the brain.
Mr. McCullough further submitted that the defendant’s case was inherently improbable, because it sought to account for the plaintiff’s medical history by contending that three separate and unrelated events had occurred being:-
(a) An initial insult at 28-30 weeks
(b) Placental insufficiently occurring some 3 or 4 weeks before birth, causing hypoxic ischaemia,
and
(c) A further hypoglaecemic episode occurring at time of birth.
Based on those contradictions and difficulties, Mr. McCullough suggested that the trial judge should have preferred the evidence of the plaintiff’s experts and invited this Court effectively to reverse the trial judge’s finding on causation and hold in favour of the plaintiff. Alternatively, Mr. McCullough submitted the case should be sent for retrial before another judge on the issue of causation. He urged the court not to remit the matter to the trial judge to resolve issues which, he suggested, the trial judge had failed to resolve in the course of his judgment.
Finally, he submitted that the failure on the part of the trial judge to resolve the difficult issues before him was not in accordance with the legal obligation to decide the case in favour of one party or the other and the trial was, for these various reasons, unsatisfactory and the outcome one which was not in accordance with the evidence and was a finding so unreasonable that this Court should intervene in the manner suggested.
On behalf of the respondents, Mr. McGrath contended that there was credible evidence before the trial judge such as to raise significant doubt about the correctness of the proposition advanced on behalf of the plaintiff as to causation in this case and, in particular, the timing of the injury. Furthermore, Mr. McGrath submitted that the trial judge had made a conscientious effort to resolve the issues in the case. Insofar as the trial judge may have failed to resolve those issues, Mr McGrath submitted that this Court, if disposed to intervene, should resolve the causation issue in favour of the defendants/appellants.
Notwithstanding the concession of negligence, Mr. McGrath argued that the onus of proof remained at all times on the plaintiff in respect of the issue of causation and there was no onus on the defendant to establish a particular version of causation. If the trial judge as a result of evidence adduced on behalf of the defendant was unable to decide the case on the balance of probabilities in the plaintiff’s favour he had then no option but to dismiss the claim. In any event, Mr. McGrath contended, it was clear from the judgment that the evidence called on behalf of the defendant went further and enabled the trial judge to effectively prefer the defendant’s case to that of the plaintiff.
Having regard to the expertise of Professor Flodmark, whose evidence was not contradicted by any neuroradiologist called on behalf of the plaintiff, the trial judge was entitled to attach great weight to that evidence and to act upon it. He had in addition further evidence available to him, notably evidence of the plaintiff’s reduced head size at birth. Evidence had been given at trial to suggest that growth of her head slowed markedly from about 28 weeks, meaning that brain damage had taken place at that time. Where brain damage occurs, the evidence had shown that the head ceases to grow, and it was noted in this case that at delivery the head size was appropriate to 31/32 weeks only.
The court in addition had the benefit of evidence which suggested that the condition of PVL typically occurs at 28 to 30 weeks and not after 35 weeks. There was further evidence that this condition tends not to be an ongoing or chronic process, but is more usually an acute episode. There was further evidence available from Professor Flodmark that this was a case of “Pure PVL” (where the condition exists without other complicating factors) thus rendering it very unlikely that there had been an ongoing injury beyond 35 weeks. Professor Flodmark did not accept that death of the foetus would have followed an acute injury at 28 – 30 weeks and further stated that he never saw imaging where PVL damage went on beyond 35 weeks.
Counsel argued that the evidence available from the MRI scan, described in evidence by Dr King as the “gold standard” from a diagnostic point of view, suggested clearly that the time of the plaintiff’s brain damage was at 28 weeks. Furthermore, the MRI scan of the cortical and sub-cortical areas of the brain did not show the kind of damage which would be apparent if a chronic ongoing process until birth had taken place.
In all these circumstances, Mr. McGrath argued, the trial judge had resolved an extremely difficult case in a careful and reasoned manner and had set out with great care the reasons why he favoured the evidence of the defendant’s witnesses over those called on behalf of the plaintiff. He submitted that there should be no interference with the findings and judgment arrived at by O’Sullivan J.
Legal Principles
It is important at the outset to identify some legal principles appropriate to the task of deciding the issue of causation in cases of this nature.
Firstly, it was conceded on behalf of the respondents, albeit only on the 17th day of the trial, that the defendants were negligent in not delivering Anne Marie early. In the course of submissions before this Court, Mr. McGrath has helpfully clarified that this concession may be taken as necessarily including an admission that the monitoring of this pregnancy was inadequate and that ultra-sound scans, which conceivably might have yielded information leading to an early delivery, were not in fact performed.
Nonetheless counsel on behalf of the respondents submitted that the onus of proof at all times remained on the plaintiff to establish that the admitted breach of duty actually caused the plaintiff’s injury. The respondent’s case quite simply was that all of the plaintiff’s brain damage was attributable to a severe insult to the brain which occurred, as a matter of probability, between 28 and 30 weeks of gestation and that no intervention by way of early delivery thereafter would have altered that situation. Counsel further contended that while the exact cause of the insult was not known, it resulted in the condition of periventricular leukomalacia (PVL) which Anne Marie was subsequently shown to have.
At the outset it may be said that this is not a case where any act of the respondents first triggered the particular medical condition from which the plaintiff suffers. The case is rather that they negligently failed to realise that there was a problem when indications that such was the case first became evident between 28-30 weeks and to thereafter intervene appropriately to ensure that Anne Marie was born at the earliest possible opportunity, and certainly not later than 35 weeks.
In the context of causation, however, I should immediately emphasise that it is not enough to show that the plaintiff’s condition got worse during the period from the start of the difficulties until delivery, it must further be shown that early intervention would have prevented the damage. There is no dispute in the present case that the only form of effective intervention lay in delivering the baby at the earliest possible opportunity.
Given that a difficulty for which the respondents were not responsible led to the start of the plaintiff’s difficulties, it is perhaps somewhat surprising that the case was presented to the trial judge on an “all-or-nothing” basis. No case was made along the lines that the delay in intervention meant that the plaintiff had “lost a chance” of a better outcome for which she was entitled to be compensated. Furthermore, any claim that the negligent delay “materially contributed” to the plaintiff’s condition, as distinct from bringing it about in its entirety, was expressly abandoned by the plaintiff’s advisers during the course of the trial.
On the face of it, therefore, the issue of causation fell to be dealt with on the basis that the claimant was required to discharge the burden of showing that the breach of duty of which she complains caused the damage and to do so by showing that but for the breach she would not have suffered the damage. This is known as the “but for” principle of causation which obtains in the generality of personal injury actions and is a principle long established in negligence actions at common law.
In the instant case, however, Mr. McCullough argued that the particular circumstances of this case called for a modified approach to proof of causation by reference to principle, authority, and policy. In particular he relied upon a recent decision of the House of Lords in Fairchild v. Glenhaven Funeral Services Ltd. and Others [2002] 3 All ER 305 to suggest that requirements of proof of causation could be relaxed in certain circumstances. He further relied on observations of Sopinka J. in Snell v Farrell, a decision of the Supreme Court in Canada [1990] 2 S.C.R. 311 to argue that causation could be ‘inferred’ in circumstances such as arose in the present case. These cases were, Mr. McCullough submitted, indicative of an evolving approach to issues of negligence and causation which may be said to have begun with the decision of the House of Lords in McGhee v. National Coal Board [1973] W.L.R. Vol.1(1). That case is undoubtedly a useful starting point in the consideration of this issue.
Mr. McGhee had been employed by the National Coal Board for about 15 years, almost always working in pipe kilns. For some 4 ½ days he then worked at a brick kiln, giving up because of a dermatitic condition which had by then developed. The work inside the kiln was very hot and very dusty. The heat made men sweat profusely and the operation of the fan caused them to be covered in dust and grit. The plaintiff contended that his dermatitis had been caused by his period of working in the brink kiln, short though it had been. The employers contended that his work had not caused the dermatitis and that it was non-occupational in origin. The trial court concluded the employers were at fault in failing to provide showers, but found against the plaintiff on the basis that the plaintiff had failed to show that the breach of duty caused or materially contributed to his injury. In allowing the appeal, the House of Lords adapted the orthodox test to meet the particular case, recognising that the plaintiff faced an insuperable problem of proof if the orthodox test of causation was applied, but regarding the case as one in which justice demanded a remedy. In the circumstances the House of Lords found that no distinction was to be drawn between materially increasing the risk of the plaintiff contracting the disease and making a material contribution to its occurrence.
Of the five speeches in the House of Lords, only Lord Wilberforce however advocated a reversal of the burden of proof, an issue touched upon in the course of the appeal before this Court also. Nonetheless, this decision was widely seen as ushering in a relaxation of the traditional “but for” requirement to establish causation. However, in Wilsher v. Essex Area Health Authority [1988] 2 W.L.R. 557, Lord Bridge interpreted McGhee as espousing no new principle. Instead, McGhee was explained as promoting “a robust and pragmatic” approach to the facts of a case to enable an inference of negligence to be drawn where medical or scientific expertise cannot arrive at a definitive conclusion. In giving his reasons, Lord Bridge stated at p.569:-
“The conclusion I draw from these passages is that McGhee v. National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders negligence had materially contributed to the pursuer’s injury. The decision, in my opinion is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”
The underlying reasons for the decision in Wilsher emerge clearly from the dissenting judgment of Browne-Wilkinson V.-C. in the Court of Appeal [1987] Q.B. at p.779 which later found favour with Lord Bridge and in which the Vice-Chancellor stated:-
“To apply the principle in McGhee v National Coal Board [1973] W.L.R.1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust; the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz. brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.
In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (e.g. excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff’s RLF may have been caused by some completely different agent or agents.
The position, to my mind is wholly different from that in McGhee where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. Failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.”
Wilsher suggests that it is less open to a court to relax the onus of proof in relation to causation where the condition brought about by negligence is multi-factorial or is capable of being trigged for a variety of reasons or by a variety of agents. Conversely, where only one reason or agency can be identified, a court may more readily make good any evidential shortfall to draw an appropriate conclusion, notably when scientific and medical science is incapable of providing the requisite information. Such an approach may also be more appropriate to cases where the negligence or breach of duty precedes the injurious event, particularly where the injury falls in shortly afterwards and is thus clearly proximate to it. A difficulty may obviously arise in cases where the injurious event occurs first and there is then negligence, whether by way of misdiagnosis or delay in providing appropriate treatment. In the latter situation, the injury or some of it will in many cases have already occurred to a greater or lesser degree, so that the negligence may perhaps better be characterised as giving rise to the “loss of a chance” or “loss of an opportunity” of avoiding most, or at least a significant part, of the ensuing damage. It must be said there is a dearth of Irish authority on the topic of “loss of a chance” which perhaps explains why the plaintiff’s advisers steered clear of it at trial.
Be that as it may, Mr. McCullough noted that many Canadian cases decided after McGhee (but before Wilsher) tended to follow McGhee by adopting either the reversal of onus or the inference interpretation. Which interpretation was adopted made no practical difference because even when the latter approach was applied, the creation of the risk by the defendant’s breach of duty was deemed to have established a prima facie case, thus shifting the onus to the defendant. (Powell v. Guttman [1978], 89 D.L.R. (3d) 180 (Man. C.A.) and Letnick v. Toronto (Municipality of Metropolitan), [1988] 2 F.C. 399 (C.A.), applied the reversal of proof theory.)
A useful analysis of different approaches to causation may be found in Snell v. Farrell [1990] Can L11 70 (S.C.C.) where Sopinka J. stated as follows (at p.10):-
“The question that this Court must decide is whether the traditional approach to causation is no longer satisfactory in that plaintiffs in malpractice cases are being deprived of compensation because they cannot prove causation where it in fact exists.
Causation is an expression of the relationship which must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation to the latter out of the pocket of the former. Is the requirement that the plaintiff prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury too onerous? Is some lesser relationship sufficient to justify compensation? I have examined the alternatives arising out of the McGhee case. They were that the plaintiff simply prove that the defendant created a risk that the injury which occurred would occur. Or, what amounts to the same thing, that the defendant has the burden of disproving causation. If I were convinced that defendants who have a substantial connection to the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I would not hesitate to adopt one of these alternatives. In my opinion, however, properly applied, the principles relating to causation are adequate to the task. Adoption of either of the proposed alternatives would have the effect of compensating plaintiffs where a substantial connection between the injury and the defendant’s conduct is absent. Reversing the burden of proof may be justified where two defendants negligently fire in the direction of the plaintiff and then by their tortious conduct destroy the means of proof at his disposal. In such a case it is clear that the injury was not caused by neutral conduct. It is quite a different matter to compensate a plaintiff by reversing the burden of proof for an injury that may very well be due to factors unconnected to the defendant and not the fault of anyone.”
Sopinka J. went on to note that proposals in Britain to reverse the burden of proof in malpractice cases which gained momentum by virtue of the McGhee case were not adopted. In 1978, the Royal Commission on Civil Liability on Compensation for Personal Injury (Pearson Report, Vol.1) reported as follows at p.285:-
“Some witnesses suggested that, if the burden of proof were reversed, the patient’s difficulties in obtaining and presenting his evidence would be largely overcome. It was said that doctors were in a better position to prove absence of negligence than patients were to establish liability. At the Council of Europe colloquy, however, although it was agreed that the patient was at a disadvantage when he sought to establish a claim, serious doubts were expressed on the desirability of making a radical change in the burden of proof. We share these doubts. We think that there might well be a large increase in claims, and although many would be groundless, each one would have to be investigated and answered. The result would almost certainly be an increase in defensive medicine.”
Sopinka J. noted that the Wilsher decision in the House of Lords ensured that the common law did not undermine this recommendation. His view was that any dissatisfaction with the traditional approach to causation stemmed to a large extent from its too rigid application by the courts in many cases. He quoted with approval the observation made by Lord Salmon in Alphacell Ltd. v. Woodward [1972] 2 All E.R. 475 at p.490:-
“…it is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.”
He ultimately concluded, and this is the passage upon which counsel relies, that where the relevant facts are peculiarly within the knowledge of one party (or, by inference in the present case, within their ability to procure knowledge of such facts) “very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary. This has been expressed in terms of shifting the burden of proof.”
Sopinka J. however disliked the idea of deciding that a transfer of the onus of proof was the approach to adopt and characterised as proper an approach which involves the weighing of evidence to draw an appropriate inference in circumstances where a defendant runs the risk of an adverse inference in the absence of evidence to the contrary. He continued (at p.12):-
“The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced.”
Finally, Mr. McCullough relied upon the decision arrived at by the House of Lords in Fairchild v. Glenhaven Funeral Services [2002] 3 All ER 305.
In that case, an employee had been employed at different times and for differing periods by more than one employer. He developed a condition of mesothelioma as a result of the inhalation of asbestos dust at work. The question arose whether in the circumstances he was entitled to recover damages against either employer or both of them even though unable to prove on the balance of probabilities that his condition was the result of inhaling asbestos dust during his employment by one or other or both of his employers. The claims were dismissed in the Court of Appeal but were allowed by the House of Lords. The House decided that, in certain special circumstances, the court could depart from the usual “but for” test of causal connection and treat a lesser degree of causal connection as sufficient, namely that the defendant’s breach of duty had materially contributed to causing the claimant’s disease by materially increasing the risk of the disease being contracted. In the circumstances of that case the House thought it would be just, and in accordance with common sense, to treat the conduct of both employers, in exposing the employee to a risk which he should not have been exposed, as making a material contribution to the employee contracting a condition against which it was the duty of both employers to protect. Any injustice that might be involved in imposing liability on a duty-breaking employer in such circumstances was heavily outweighed by the injustice of denying redress to the victim. Policy considerations therefore weighed in favour of allowing the employee to recover against both employers, and that conclusion followed even if one of them was not before the court.
In this course of his judgment (at p.357) Lord Hutton stated:-
“Therefore, whilst the decision taken by the house in McGhee’s case may have been based on an inference of fact, I consider that it is in the interest of justice that it should now be held as a matter of law that the approach taken by the house in McGhee’s case is one which should be followed by trial judges in cases such as the present one where the claimant can prove that the employer’s breach of duty materially increased the risk of him contracting a particular disease and the disease occurred but where in the state of existing medical knowledge he is unable to prove by medical evidence that the breach was a cause of the disease.”
However, I would be firmly of the view that this decision turns on its own unique facts and it was expressly confined by the House of Lords to a particular set of circumstances where it would be patently unjust not to allow the appeal in circumstances where the plaintiff’s condition must have been caused through the negligence of employer A or employer B, or both, but on application of the conventional “but for” test of causation it could not be held that the plaintiff had successfully made out a case against either. Those considerations do not arise in the present case. It is worth noting that in Ireland this difficulty of joint tortfeasors and uncertain causation has been addressed by s.11(3) of the Civil Liability Act, 1961, which provides that :-
“Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage”
Furthermore, the fact that the House of Lords took an exceptional course in Fairchild was expressly acknowledged to have been the case by Lord Hoffman in the course of his judgment in the recent case of Gregg (F.C.) v. Scott (House of Lords, unreported, 27 January, 2005) when he stated (at paras.84-85):-
“Academic writers have suggested that in cases of clinical negligence, the need to prove causation is too restrictive of liability. This argument has appealed to judges in some jurisdictions; in some, but not all, of the States of the United States and most recently in New South Wales and Ireland; Rufo v. Hosking (1 November 2004) (2004) NSWCA 391; Philip v. Ryan (17 December 2004) [2004] 1 I.E.S.C. 105. In the present case it is urged that Mr. Gregg has suffered a wrong and ought to have a remedy. Living for more than ten years is something of great value to him and he should be compensated for the possibility that the delay in diagnosis may have reduced his chances of doing so. In effect, the appellant submits that the exceptional rule in Fairchild should be generalised and damages awarded in all cases in which the defendant may have caused an injury and has increased the likelihood of the injury being suffered. In the present case, it is alleged that Dr. Scott may have caused a reduction in Mr. Gregg’s expectation of life and that he increased the likelihood that his life would be shortened by the disease.
It should first be noted that adopting such a rule would involve abandoning a good deal of authority. The rule which the House is asked to adopt is the very rule which it rejected in Wilsher’s case [1988] AC 1074. Yet Wilsher’s case was expressly approved by the House in Fairchild [2003] 1 AC 32. Hotson [1987] AC 750 too would have to be overruled. Furthermore, the House would be dismantling all the qualifications and restrictions with which it so recently hedged the Fairchild exception. There seem to me to be no new arguments or change of circumstances which could justify such a radical departure from precedent.”
It may be noted en passant that this decision of the House of Lords is also the most recent authority in support of the proposition that actionable claims for “loss of a chance” do not lie. A useful resumé of the relevant policy considerations suggesting why this is the preferred approach appear in the judgment of Baroness Hale of Richmond (at paras.212-226). Given that the decision of Peart J. in Philip v. Ryan was referred to in the judgment of Lord Hoffman, it is perhaps appropriate to comment that that judgment, containing as it does an excellent analysis of the facts on which that particular case turns, does not purport to address the underlying legal principles.
From the review of the cases undertaken herein, I am driven to conclude that Mr. McGrath’s submissions in relation to the onus of proof and causation generally are correct and that the “but for” approach to causation must be followed by this Court. Any approach which had the effect of reversing the onus of proof, or transferring the onus of proof to the defendant, would be one of such importance, even in the few exceptional cases where it might be appropriate, that it would require a full court – or perhaps even legislation – before a change of such magnitude to existing law could take place. Nor do special circumstances arise or exist in this case to bring it within the more relaxed requirements for establishing causation which were found to exist in McGhee v. National Coal Board and Fairchild v. Glenhaven Funeral Services.
This is not a case where there were multiple defendants or where a single agency was clearly established as the cause of the plaintiff’s condition. Indeed it was noted in the evidence at trial that PVL is a multi-factorial condition which is as yet not fully understood by scientific and medical experts. Indeed it appears in this case that a round-table discussion between experts from both sides took place in London some time before the trial, which proved of considerable assistance in sharpening the focus of the evidence given at the trial. Nor is this a case where there was any deliberate obfuscation by the defendants in meeting the case, or any concealment or destruction of documents or records which were of critical importance in determining the nature of the condition from which the plaintiff suffered and the point in time at which it occurred. Both sides to the case had to employ their best endeavours to try to ascertain what had happened in this complex and difficult case. Furthermore the defendants did call evidence from two experts, one of them, Professor Flodmark, being an expert of international stature on the topic of PVL and MRI imaging in relation thereto. That being so, the inferential consequences mentioned by Sopinka, J. in Snell v. Farrell which arise when a defendant fails to adduce evidence do not arise in this case.
Besides, as has already been noted, no argument was made in the course of the trial that the normal requirements of proof on the part of the plaintiff do not apply. That being so, it is quite clear that a new case to that effect can not now be made. In Ahmed v. The Medical Council and the Attorney General [2004] 1 ILRM 372 this Court, sitting as a court of five, unanimously upheld the principle, often referred to as “the rule” in Henderson v. Henderson [1843] 3 Hare 100, to the effect that parties to litigation must bring forward their whole case and each and every point which properly belongs to the subject of litigation in the course of trial and not seek to do so at a later time. Mr. Noonan, counsel for the respondents, usefully referred the court to a restatement of that principle to be found in an Australian decision, Gavalas v. Singh [2001] V.S.C.A. 23 (22 March 2001) where the court noted:-
“As a general rule it is unusual to allow an appellant or a respondent to raise on appeal points not taken at the trial. There are fundamental policy considerations that underlie that approach.”
In proceeding now to consider how the learned trial judge arrived at his decision, I think it is important to stress that this exercise will be conducted on the basis that, notwithstanding that the process of injury may have commenced between 28-30 weeks of gestation, the case is nonetheless one to be assessed having regard to the plaintiff’s contention that all, or nearly all, of the injury and damage which the plaintiff suffered occurred at a point in time later than the appropriate time for intervention, be that 35 weeks gestation, or even some earlier time.
Decision
The jurisdiction of the Supreme Court in an appeal of this nature is as outlined by McCarthy J. when delivering the judgment of this Court in Hay v. O’Grady [1992] 2 I.R. 210 where it was stated (at p.217):-
“(1) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
(2) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.
(3) Inference is a factor drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in ‘Gairloch,’ The S.S., Aberdeen Glenline Steamship Co. v. Macken [1899] 2 I.R.1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.”
This may be characterised as a statement to the effect that primary facts are a matter for the trial court, which, once they are supported by evidence will not be interfered with on appeal and, secondly, the inferences to be drawn therefrom, sometimes referred to as secondary facts, are appropriately a matter which can be reviewed by this Court.
As to how a court of trial should approach the task of finding primary facts, Mr. McCullough pointed to the dicta of Finlay C.J. in Best v. Wellcome Foundation Ltd [1993] 3 I.R. 421 (at p.462):-
“The function which a court can and must perform in the trial of a case in order to achieve a just result is to apply common sense and a careful understanding of the logic and likelihood of events to conflicting opinions and conflicting theories concerning a matter of this kind.”
At an earlier point of his judgment in Best, Finlay C.J. had stressed that it is not possible either for a judge of trial or for an appellate court to take upon itself the role of a determining scientific authority resolving disputes between distinguished scientists in any particular line of technical expertise. In the ordinary course, however, a trial judge will, and must, use his best endeavours to resolve conflicts of fact by deciding those issues in accordance with the legal requirement that he do so on the balance of probabilities. Exceptional cases however can and do arise, and this is clearly one such case, where it may not be possible to do so.
Having regard to the complete stand-off between the respective medical experts on both sides of this case, both as to causation and the timing of Anne Marie’s injury, I do not believe it was necessary for the trial judge ultimately to decide in favour of one proposition or the other. It was open to him to decide the case by holding, as he did, that the plaintiff had not discharged the burden of proof to establish, on the balance of probabilities, that the plaintiff’s injury had occurred in a manner or at a time contended for by the plaintiff’s experts. In short, while the obstetric evidence adduced on behalf of the plaintiff provided one credible explanation of events, the radiological evidence adduced on behalf of the defendants’ provided another, being one based upon scientific and objective criteria, and which the trial judge also found to be credible and which ultimately left him in a position where he was driven to the conclusion that the onus of proof had thus not been discharged.
Support for the proposition that the court of trial is not under an obligation in all cases to positively find in favour of one version over another is to be found in Rhesa Shipping Co. S.A. v. Edmunds and another [1985] 2 All ER 712.
The following passage from the speech of Lord Brandon in that case (at p.718) is particularly helpful in addressing the duty imposed by law to the process of fact finding which a judge of first instance has to perform at the conclusion of a case where alternative scenarios as to causation exist:-
“… The judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. …the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.”
A trial judge must not, of course abdicate his duty to endeavour to resolve issues, but even the most conscientious effort may still leave a judge in the position in which O’Sullivan J. found himself at the end of this case. If credible evidence existed which left him in such a quandary he effectively had no option but to decide the case as he did. In my view there was such evidence.
Firstly, there was ample evidence to support the learned trial judge’s finding that Professor Flodmark was better qualified than Professor Hill, the plaintiff’s obstetrician, to perform the specific task of identifying and interpreting the information contained on the MRI scan and thus to decide if a major, acute brain injury occurred at 28-30 weeks. Indeed Professor Hill in the course of his evidence acknowledged that he did not have the level of experience possessed by a neuroradiologist when interpreting MRI scans and would defer to the opinion of a paediatric neuroradiologist who had experience in reading paediatric images. Professor Hill further accepted that Professor Flodmark was a paediatric neuroradiologist of the highest standing. Of course, he argued that he, unlike Professor Flodmark, could bring his clinical experience of treating patients to bear on issues relating to diagnosis, a factor which counsel suggested might be seen as compensating for any supposed disadvantage on Professor Hill’s part. However, Professor Flodmark’s evidence was to the effect that a neuroradiologist is more objective in reviewing the images to be seen on an MRI scan, a diagnostic tool which was referred to by Dr. King as the “gold standard” for diagnosis, than a clinician and that he was therefore in the best position to furnish an independent opinion not only on what the images show but also on the interpretation of those findings.
In dealing with Professor Flodmark’s opinion, the learned trial judge not only set out the reasons given by Professor Flodmark for his opinion that the insult occurred early in the appropriate time frame for PVL, but also expressed a clear preference for Professor Flodmark as the best of the expert witnesses in stating (at p.37):- “Professor Flodmark was clearly the most qualified of all the witnesses in the case to give evidence as to what precisely the radiology depicted.”
He also gave very clear reason for preferring Professor Flodmark’s evidence to that of Professor Hill. At p.44 he stated:-
“Insofar as there is a difference of opinion between Professor Hill and Professor Flodmark I prefer the latter’s opinion for three reasons, namely, the latter is the better qualified to perform the specific task of identifying precisely what information is or is not contained in images; secondly, I cannot turn a blind eye to the fact that the plaintiff procured a report from a neuroradiologist, Dr. Anslow, which was unfavourable to the case being advanced and then decided not to call him; and, thirdly, it did seem to me that Professor Hills opinion moved quite radically – radically, that is, in the narrow context of the precise issue of timing which is crucial in this case – from a first position where his view was that the injury occurred prior to the 35th week of gestation to a third position where it occurred after it. Whilst these opinions were clearly genuinely held they are – in the very specific context just refereed to – less reliable in my view than the opinion of Dr. Flodmark. I therefore see the case as one in which there is a significant difficulty for the plaintiff arising out of the radiology. There are other less serious difficulties such as the internal tensions between the evidence of Professor Fleming and Professor Hill as to when the plaintiff’s head growth as a foetus began to fall away from the norm.”
Mr. McCullough has criticised this passage in the decision, particularly because of the importance given by O’Sullivan J. to the failure of the plaintiff to call Dr. Anslow, the plaintiff’s Neuroradiologist. These criticisms seem to me to have little merit. Strictly speaking, there may have been reasons other than his unhelpful report to explain why Dr. Anslow was not called, but the fact nonetheless remains that there was no countervailing evidence from a neuroradiologist to contradict Professor Flodmark’s opinion in any way, and it was thus open to the trial judge quite properly to attach particular weight to that expert’s views in those particular circumstances.
Support for that approach may be found in the following passage from the judgment of the House of Lords in R v. IRC, Ex parte T.C. Coombes & Co. (1991) 2 A.C. 283 at p.300:-
“In our legal system generally, the silence of one party in the face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances a prima facie case may become a strong or even an overwhelming case.”
There are other criticisms made about Dr. King’s evidence, largely to the effect that she changed her position and postulated a highly unlikely scenario of three unrelated insults as having caused the plaintiff’s injury. However, those criticisms all drop away if one accepts, as I do, that Dr. King was handicapped by the fact that the results of the MRI scan were not known to her at the time of her first report and also because the hospital records did not indicate any placental abnormality. Indeed it was very much a case where the experts on both sides had to revise and adapt their opinions in the run-up to the trial and during the course of the hearing itself.
The fact remains at the end of the day that the information from the MRI scan and the fact that the plaintiff had reduced head growth at birth were critical elements in the evidence which in my view justified the learned trial judge in holding that an acute early insult had occurred in this case.
In this regard, Professor Flodmark told the trial court that the MRI scan revealed a marked reduction in the amount of white matter in Anne Marie’s brain. That which remains is abnormal and shows signs of gliosis (scarring). In this particular case, there is significant loss of white matter in both the anterior, mid and posterior portion of the brain. Two small white dots are also visible in the central part of the brain called the thalamus. These are changes associated with PVL and, in particular, with more severe forms of PVL. The corpus callosum, which provides the connection between the right and left cerebral hemisphere of the brain is usually four or five times as big as it is in the plaintiff’s case. This is another feature of PVL. However, there is no evidence of any damage in the sub cortical structures, nor is there evidence of any injury to the cortex, both of which look quite normal. These findings indicate that the present case is an example of “pure PVL”. Professor Flodmark also stated that there was no evidence of any damage in the basal ganglia of the type caused by profound hypoxic ischaemia in a full term baby. In Professor Flodmark’s opinion there were no complicating features and no evidence of any additional injury except to the white matter. If any brain damage had been caused by hypoglycaemia, he would have expected to find cortical damage. There was no evidence of such damage either due to hypoxic ischemic injury or hypoglycaemia.
Professor Flodmark further gave evidence that the causes and mechanisms behind brain lesions called PVL are not fully understood. It usually arises where there is a drop of the blood supply to the brain of the foetus.
Professor Flodmark further gave evidence that PVL does not occur before 24/25 weeks and is extremely rare after 34 weeks, if indeed it ever occurs after that time. Cases of pure PVL start to occur and appear around 28 weeks. He had never seen a case where he had been convinced that PVL developed after 34/35 weeks. Even where the injury had occurred at 28/30 weeks, babies had survived in utero despite sometimes having quite extensive damage to the brain.
Asked to address the question of the timing of Anne Marie’s injury, Professor Flodmark stated that the evidence of significant damage to the anterior portion of the brain supported his opinion that the damage in this case most likely occurred between 28 and 30 gestational weeks. He also stated that this finding was supported by the CT scans, and more particularly the first scan which showed the ventricles in the plaintiff’s brain to be “generous” in size. One could also see evidence on the CT scan of some sparseness in the amount of white matter in the periventricular region. In his opinion, it would have made no difference if there had been a delivery at 35 weeks, rather than 39 weeks.
The trial judge accepted, as he was entitled to do, the evidence of Professor Flodmark on these critical matters including, in particular, the evidence in relation to the question of the timing of the injury and the extent of that injury when it first occurred. Thus the learned trial judge had ample evidence to support the view he expressed at p. 46 of his judgment:-
“In my view the better evidence on this aspect of the case shows that there was a growth retardation process probably due to placental insufficiency which commenced quite possibly some weeks before week 28 of the gestation. If that retardation process were the cause of Anne Marie’s injuries, however, and in particular if the irreversible damage to the function of her brain was caused towards the end of the growth retardation period and specifically after the 35th week of gestation one would have expected normally to find damage to the cortex and sub cortex on the M.R.I. scan but this damage does not appear. This is explained by Professors Hill and Lucas who say that the damage to the white matter is so widespread that it may be obliterating the appearance of the cortical and sub cortical damage which they acknowledge must exist in order to support their explanation of the injuries. This is a somewhat two-pronged aspect of the evidence, however, because the appearance of widespread damage in PVL cases tends to establish earlier onset (i.e. within the typical time window of 24/28 to 34/35 weeks) rather than later. It is especially so where the damage involves the anterior portion of the brain which is the case with the plaintiff’s M.R.I.”
This passage is, yet again, indicative of the thoroughness which the learned trial judge brought to his analysis of the evidence in this case. It was an approach he adopted in relation to each of the expert witnesses. He was perfectly entitled, in my view, to conclude, as he did, that the evidence led on behalf of the defendant was such as to bring about a situation where the plaintiff had not tilted the scales decisively in favour of the case on causation contended for by the plaintiff’s experts. The trial judge concluded:-
“I am left, therefore, with two mutually inconsistent bodies of evidence neither of which wholly and satisfactorily resolves the issues in the case. It is not for me, following Finlay C.J. in the authority cited above, to set myself up as a determining authority in regarding these specialist issues, nor do I attempt to do so. I am unable in this case, however, by the application of common sense and a careful understanding of the logic and likelihood of events, to reach a conclusion that the evidence adduced by the plaintiff establishes her case on the balance of probabilities. I am unable to conclude, that is, that on the balance of probabilities that had the plaintiff been delivered by the 35th week of gestation she would have been spared all or a significant part of her injuries. In that event I must dismiss her claim.”
This is a truly tragic case where this Court would wish, as did the trial judge, to acknowledge the profound pain and suffering which the plaintiff’s injuries have brought and will bring to the plaintiff herself and to her parents, and to acknowledge also the inspiring fortitude and love shown to Anne Marie by her parents on every single day since her birth.
However, for the reasons already indicated, I would dismiss this appeal.
Callery v. Sinnan Inns Ltd. t/a Clifton Court Hotel
[2002] IEHC 111 (28 November 2002)
Judgment of Mr Justice Michael Peart delivered the 28th day of November 2002
1. This is an appeal against a judgment of His Honour Judge Hogan given on the 16th July 2002, wherein the learned judge gave judgment in favour of the plaintiff in the sum of €25394.76 together with costs and reserved costs, against the Appellant in this appeal, as well as against a second defendant Security Extra Services Limited, on a joint and several basis. That second defendant has not appealed against the said judgment.
2. The appellant to this appeal is the owner of a premises known as The Clifton Court Hotel, (hereinafter called “the premises”) situated at O’Connell Bridge in the City of Dublin. The second defendant in the hearing in the Circuit Court is a security firm who provided security services to the Appellant at the time relevant to these proceedings. They were an independent contractor in that regard, providing their own direct employees to perform the security duties in question.
3. The plaintiff brought his claim in the Circuit Court for damages for personal injuries which he alleged were sustained by him on 18th July 1999 during the course of an incident outside the premises, when two security men, employees of that second defendant, during the course of their employment restrained the plaintiff from re-entering the premises in circumstances which I shall outline in due course. It is alleged that during the course of that restraining action, excessive force was used in the restraint and that the plaintiff’s little finger on his left hand was bitten by one of the security men in question, to such an extent that the tip of that finger was almost completely severed.
4. Following surgical intervention, the tip of the finger was sewn back, but he is left with an unsightly and mis-shapen finger tip, which causes him embarrassment and also reduces some function in the finger, such as, according to his evidence, playing a guitar.
5. The appellant states that any force that was used was reasonable force in all the circumstances, and denies in any event that the injury to the plaintiff’s finger was caused by biting. They say that the injury may have been caused in the fracas in question, but not in the way described by the plaintiff.
The facts:
6. The facts of this case are in dispute. There is a conflict of evidence between the parties both as to the events leading up to the incident in which the injury is alleged to have occurred, and also as to the fracas itself.
7. The plaintiff states that earlier in the day, he had met a number of persons in another licensed premises, but that they had left that premises to go to the Clifton Court Premises. He says that he went inside without difficulty, and at that time was in the company of his uncle Paddy, his brother Mark Callely, and his aunt Margaret. He says that when they went into the premises he and his uncle Paddy went to the bar immediately and ordered some drinks. He then said in his evidence that some girl picked up his mobile phone from the table he was sitting at and went out of the premises with it. He says that he went out after her to retrieve his mobile phone. About two doors up from the premises he caught up with her and got his phone back. He then says that he went back down to the premises in order to go back in to the others but was refused admission by two bouncers on the door. He says that he asked to be let in to get his coat from the bar, but that one of the bouncers said to him “if you are man enough to get your jacket, go ahead”. He says that he made to go back in, but that he was immediately attacked by the bouncers and he was put in a headlock by one of the bouncers, and was thrown violently to the ground, whereupon the bouncer, aided by the other bouncer, proceeded to kick him violently, including to his head. He also said that he was danced on by one of the bouncers, and that in the scuffle on the ground his little finger on his left hand was bitten so severely that the tip was almost completely severed. He could see the bone of his finger and there was a lot of blood. He says that apart from the injury to his finger he also received cuts and bruises to his head and his shoulder was painful.
8. When he got up he apparently waited for an ambulance to arrive while sitting either on or against a car that was parked at the kerb outside the premises.
9. In cross-examination he said that he had had no difficulty getting into the premises. He did not know the bouncers previously. He said that he had been in the premises for between ten and fifteen minutes before he left in pursuit of the girl he says took his phone. He was referred to the details of the claim appearing in the Civil Bill in which it is stated that the purpose of going out of the premises was to get better reception for a call he was making on his phone. He said that this had not been his purpose and reiterated that he had gone out in order to retrieve the phone from the girl already mentioned. He did not know who that girl was. He went on to say that when he caught up with the girl, she began throwing digs at him, that he put his arms out to protect himself from these blows and that he pushed her away. He says that he told her it was his phone and that he got it back from her. She had been using the phone when he caught up with her. He says this incident with the girl lasted about two minutes, and that he went straight back down to the premises and attempted to gain admission but was refused.
10. It was put to him that the girl in question was in fact a girl named Sabrina whom he had known. He denied knowing any girl named Sabrina. It was put to him that in fact in a statement that he made to the gardai he had stated that in the premises “at about a quarter to nine, Sabrina’s mobile phone rang and she went to the door of the premises to talk because it was too noisy inside. I followed her out and waited for her”. He said that was not so – it was his phone. He said he did not know any Sabrina. It was put to him that the security guards would say that when he went out of the premises and up the street after the girl there was a row going on between him and the girl and that there was a lot of shouting and screaming going on and that the reason why he was not let back in was that they were sure the row would continue back in the premises and that there would be further trouble inside. He denied all this and said that the bouncers just pounced on him for no reason and that he had simply wanted to go back in and get his jacket. It was also put to him that in fact he was wearing the jacket in question when he tried to get back in. Again he denied this.
11. It was put to him that in fact what happened was that the girl called Sabrina had run back up to the premises, had gone up to the bouncers and had been very upset and put her head on the shoulder of one of the bouncers, and that, seeing this, the plaintiff had said to one of the bouncers “Get your f…ing hands off my mot”, or words to that effect, and that he had in fact attacked the bouncer to whom the girl had gone. It was put to him also that a girl had got into the ambulance with him when it arrived, but he denied this. He says that he was alone in the ambulance.
12. The plaintiff’s brother also gave evidence of being in the premises. He also said that the uncle Paddy and the plaintiff had gone up to the bar to get drinks. He said everything was alright in the premises, but that he was told that there had been trouble outside and that his brother had been injured. He went out and saw blood on the plaintiff’s finger, and that he went up to one of the bouncers and said that there was no need to bite the plaintiff’s finger. I presume that the plaintiff must have said to him by that time that his finger had been bitten. He says he asked why the bouncer had bitten the finger and that he was told that the reason was that the plaintiff had broken the bouncer’s bracelet. This of course was denied by Mr Lowndes, the bouncer in question during is evidence. He says that there was no lady with the plaintiff in the premises prior to the incident. In relation to Sabrina he said he had not met her before or since. He also said he did not know why his brother had left the premises and did not know how the row outside had started.
13. The plaintiff’s uncle, Patrick Hughes said in evidence that at about 5.30pm the plaintiff had joined him and Mark in Morans (now O’Sheas) in Talbot Street. They had a few drinks and played some pool. He said that shortly after they had arrived in the Clifton Court someone had come in to say that the plaintiff was in a bit of trouble outside. He saw nothing of the incident itself. He did however say that there had been a girl in the premises. He did not know her name, but that she took the plaintiff’s phone, and that the plaintiff had said to him that he was going out to get his phone back. He also said that he was sitting at a table separate from the table that the plaintiff was at.
14. Garda Thomas Victory gave some evidence relating to the report of the incident to him by the plaintiff on the following day. On that occasion the plaintiff’s finger was bandaged up so he did not see the injury itself. Garda Victory apparently suggested to the plaintiff that he should obtain a medical report and give it to him, but that this never happened. When he investigated the incident he said that one of the doormen stated that the plaintiff had grabbed him by the throat and that was how the row started. He said that following his investigation he did not bring any charges against any party, even though what had been alleged by the plaintiff would have constituted a serious assault.
15. Mr Joe McKevitt also gave evidence on behalf of the Appellant. He said that he was the manager at the premises for about five years and he was the only manager. He says that every half hour or so it is his habit to go out to the door and check that everything is alright. On this occasion he was doing just this when suddenly the plaintiff rushed past him and out onto the street. A girl followed. He said that a row between started up the street, with scuffling and shouting. The girl seemed upset about something. He says that when he went back inside he said to the two doormen that if the two should try and get back into the premises they should be refused. He went back up to his office, but that a short time later he was told there was some trouble outside and he went back down. The plaintiff was outside shouting and pointing to his finger and saying that “this is thousands”.
16. Mr McKevitt also gave evidence that the premises get their security men from Security Extra Services Limited and they have been so doing for some time. It appears that Mr McKevitt recommended these doormen to that company because he had known them or at least one of them (Wesley Lowndes) from the past. The company then took him on and he in turn brought in Mr Sean Enright the other bouncer in question. Mr McKevitt apparently lays down guidelines to Security Extra Services Limited as to how the bouncers are to conduct themselves, and indeed he accepted that if for any reason a particular bouncer was not doing the job in the way he wanted it to be done, he would ring up the company and arrange for a different doorman to be provided. He would be in the habit of recommending certain people to that company and they would be taken on in order to provide security on the door of the appellant’s premises. His policy is that minimum force should at all times be used in restraining unwanted persons.
17. The two bouncers also gave evidence. Firstly Mr Wesley Lowndes stated that on the day in question he was on the door with Mr Sean Enright. He had done security duty for about four years on and off. He says that he saw the plaintiff and the girl come out of the premises and go up the street a few doors. There was a row going on between them. He said that Mr McKevitt had come down and had told him that if they tried to get back in, they should be prevented from doing so as he did not want the trouble to continue inside. He said that the girl had come back down and that the plaintiff and the girl had also come back and had come up to him in a distressed state and had put her head on his shoulder. He said that when the plaintiff saw this he came up to him and told him to get his hands off his girlfriend. He explained that they were not getting back in, and that the plaintiff had made a lunge at Mr Enright and that a scuffle broke out between the three of them. He says that the plaintiff had Mr Enright pinned up to the wall with his hands around his throat. He says that they restrained the plaintiff, and put him on the ground. He had a hold of the plaintiff’s legs, and Mr Enright had him gripped at the shoulder on the ground. They eventually let the plaintiff up and the plaintiff was complaining about his finger. He did not know how the plaintiff’s finger got injured but said there was no question of either he or Mr Enright biting it. He expressed the opinion that it must have got cut either on the hub of a car wheel or perhaps on some glass on the pavement. He did not know. He said that after a few minutes an ambulance arrived and the plaintiff left in the ambulance. He also said that the girl had gone back into the premises at this stage.
18. Mr Sean Enright gave evidence similar in all respects to that given by Mr Lowndes.
Conclusion:
19. Having heard the evidence from all the witnesses, I am satisfied that I cannot rely on the evidence given by the plaintiff and his witnesses as to the sequence of events leading up to the fracas in which the plaintiff’s finger was injured. There are inconsistencies in the evidence regarding the mobile phone, the girl in question, the row outside and so on. There are inconsistencies between what the plaintiff told Garda Victory in his statement and what he must have told his solicitors and also with what he has said in his evidence. On the balance of probabilities, I accept that the account of the relevant events given by Mr McKevitt and by the two doormen is the correct version of events.
20. The question which arises then is whether, even accepting the version of the events given by the appellant’s witnesses, the force used by the doormen was excessive in the circumstances. I do not believe it was. Were I satisfied that one of the bouncers had, during the scuffle, bitten the plaintiff’s finger, I would find otherwise. Indeed, as submitted to me by Mr McDonnell S.C for the plaintiff, I might have been forced to conclude that there had been an assault, as opposed to an act of mere negligence, and if I had been so satisfied, I would have been able to exercise a wide discretion to permit an amendment to the pleadings to permit a specific allegation of assault to be pleaded.
21. In the circumstances it is not necessary to deal with the matter in that way, as I am not satisfied from any evidence which I heard, that in fact on the balance of probabilities, either of the bouncers did bite the plaintiff’s finger. The plaintiff says that it happened, but could not say which of them did it. Furthermore he does not appear to have mentioned biting to the doctors he attended as there is no mention of it in the medical reports provided. The report of Mr Thakore refers to a “laceration”. The report of Mr Lawlor refers to “a crushing injury”. The report of Dr Peter O’Connor simply states that an examination of the left hand revealed “a significant injury to the tip of his left fifth finger”. Without some corroboration of the allegation of biting, I am not prepared to find that the finger was bitten by one of the bouncers.
22. In all other respects I cannot conclude that the action taken by Mr Lowndes and Mr Enright in the circumstances which presented themselves amount to more than reasonable force to restrain the plaintiff. Their evidence, which I accept, is that the plaintiff returned to the premises in a very agitated and aggressive state, and that upon seeing the girl in question placing her head on the bouncer’s shoulder, proceeded to attack that bouncer, pinning him against a wall by the throat. It was inevitable that some force had to be used to restrain the plaintiff and to put him on the ground. Given the struggle involved, the force used was not in my view unreasonable. The evidence is that eventually having been restrained from kicking out and struggling while on the ground, the plaintiff calmed down somewhat and awaited the arrival of the ambulance, while sitting or leaning against a parked car.
23. It is of course very unfortunate that any injury was caused to the plaintiff, but the fact that there was an injury cannot be laid at the door of the Appellants in this case without believable evidence showing that the injury was caused by biting. In my view there is no such evidence given to the court on this appeal, and that in effect what happened to his finger was accidental, and that anything further in the nature of lacerations, pain and bruising was simply an inevitable consequence of the position the plaintiff put himself in, by behaving as he did on his return to the door of the premises.
24. Since I have reached this conclusion it is not necessary for me to address the question as to whether the appellant was responsible in negligence for the acts of the employees of the security firm, and I refrain from doing so. I must therefore set aside the order of the Circuit Court in sofar as it gave judgment against the Appellant in this case. Since the other defendant was not an appellant in this appeal, there is an anomaly remaining in that there will still be a judgment in favour of the plaintiff against Security Extra Services Limited. Be that as it may, I do not think that I can interfere with that in any way since they were not an appellant before me.