Practical Claim Issues
Cases
Lopes -v- MJELR
[2008] IEHC 246 (11 June 2008)
Judgment by: Hanna J.
The plaintiff in these proceedings is a citizen of a Member State of the European Union, namely Portugal, hailing as he does originally from the Cape Verde Islands. He is or has been inter alia, a seafarer. He is also a lay litigant. This matter comes before me by way of a Motion brought by the respondent within the plaintiff’s proceedings. The principal reliefs sought are as follows:
1. An order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts dismissing, or alternatively, striking out the plaintiff’s claim against the defendant on the grounds that it discloses no reasonable cause of action against the defendant and is shown by the Pleadings to be frivolous and/or vexatious.
2. Further, or in the alternative, an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim against the defendant as being an abuse of process of this Court and/or as having no reasonable prospects of success and/or being bound to fail.
3. Further, or in the alternative, an order pursuant to Order 19 Rule 27 of the Rules of the Superior Courts dismissing, or alternatively striking out the plaintiff’s claim as being scandalous.
The background facts and circumstances leading to the plaintiff’s proceedings can be summarised as follows.
On the 11th December 1988, Mr. Lopes was unfortunately involved in a road traffic accident which was no fault of his own. He subsequently, through his then solicitor, a Mr. Walker, brought proceedings in the Circuit Court. These proceedings were heard in Naas Circuit Court before Judge Patrick Smith (as he then was) and an award was made to the plaintiff amounting to IR£10,000.00 for general damages and IR£2,000.00 in special damages. Those sums are roughly translated into today’s money to €12,697.38 and €2,539.48 respectively.
Mr. Lopes was not well pleased with what happened to him because he maintained inter alia that his injuries were more significant and that he had suffered a significant loss of future earning power. This led to him instituting proceedings against his solicitor and one of his medical advisors, the Consultant Neurologist, Dr. Roderick Galvin.
On the 29th March 1995, Mr. Justice Morris (as he then was) dismissed Mr. Lopes’ case against Dr. Galvin and on the 31st March 1995, Mr. Justice Morris similarly dismissed the plaintiff’s claim against his solicitor, Mr. Walker. On the 25th November 1996, the Supreme Court dismissed Mr. Lopes’ appeal against the dismissal of his action against Dr. Galvin; the Supreme Court on that occasion being constituted in the personage of O’Flaherty, Barrington and Murphy JJ. However, on the 28th July 1997, the Supreme Court, comprising of Murphy, Lynch and Barron JJ., allowed Mr. Lopes’ appeal against the dismissal of his action against Mr. Walker and the matter was then remitted to the High Court for the determination of the damages. This, as I have indicated, was an action against his solicitor brought under the rubric of the tort of negligence.
On the 26th and 30th June and 1st July 1998, the action was heard by Mr. Justice Geoghegan and on the 2nd July 1998 he awarded the sum of €66,185.69 (that is the equivalent thereof), less the sum of €12,697.38 previously awarded to Mr. Lopes for general damages. That order was perfected on the 21st July 1998. Mr. Lopes appealed this decision, again at all times representing himself. This came before the Supreme Court, which was then made up of O’Flaherty, Lynch and Barrington JJ., and judgment was reserved. Unfortunately for all parties involved (including Mr. Lopes), certain difficulties arose which necessitated the resignation from the Bench of O’Flaherty J., as a consequence of which this case simply had to be heard again. Mr. Lopes does raise some queries about this but it seems to me that any query is wholly without foundation, since as one of the constituent members of the Court had to resign, the Court had to be reconstituted and the matter re-heard.
This re-hearing took place on the 21st June 1999 and judgment was delivered on the 19th July 1999, this Supreme Court consisting of Lynch J., Hamilton C.J. and Barron J. This resulted in a tripling of the damages to Mr. Lopes to the amount of €196,809.40 or its equivalent in punts, including €63,486.90, the equivalent to IR£50,000.00 for future special damages. The order was made in favour of Mr. Lopes, again taking into account the previous award made to him.
Here lies the fundamental cause of Mr. Lopes’ grievance. In a nutshell, he alleges that insufficient provision was made for him in respect of future loss of earnings as a navigator/seaman and this he attributes to a variety of reasons to which I will shortly refer.
Some years later, on the 26th March 2007, he issued a Plenary Summons against the Minister for Justice, Equality and Law Reform. An appearance was entered on behalf of the defendant and on the 29th June 2007, the defendant brought a Motion to dismiss Mr. Lopes’ claim. On the 26th June 2007, Mr. Lopes delivered his Statement of Claim.
I should observe at this point that it was indicated to me (and I would be most surprised if it were not to be the case) that, at the very least, the statute of limitations would loom extremely large in this case.
Mr. Lopes has brought a Plenary Summons and a Statement of Claim. The latter, with a few additions, is to all intents and purposes, the same as the former. It is a somewhat diffuse document but in basic summary, the plaintiff claims against The Minister for Justice, Equality and Law Reform under Article 12 of the Consolidated Treaty establishing the European Union. That article enjoins the Council to take appropriate action to combat discrimination, inter alia, based on racial or ethnic origin.
A brief summary of his claim is as follows.
Firstly, he alleges such discrimination on the part of a “state body”, namely the High Court and Supreme Court Judges who have at various times dealt with his litigation. As a consequence, he alleges he has not been adequately compensated for future loss of earnings as a navigator/seaman. He further alleges that the decision of the 2nd July 1998 given by Geoghegan J., in effect, according to his words, “overruled” the decision of the Supreme Court given on the 28th July 1997. He further alleges that the learned High Court Judge acted on the prompting by defence counsel that he was not an Irish citizen and that this spawned an unfair and discriminatory treatment he claims he has received at the hands of the Courts.
Further, he alleges that this refusal, as he would see it, properly to compensate him for future loss of earnings, is contrary to the EC Treaty. He further alleges racial discrimination as the root cause of his perceived woes. He points to some unidentified case where he claims a woman was compensated more generously than he. He says that he has been treated unfairly. He alleges racial discrimination and these allegations are carried forward in two affidavits sworn by him. He seeks compensation for the trauma which he alleges was suffered by him and his family as a consequence of his engagement to date with the Irish legal process. In a nutshell, Mr. Lopes’ grievance is that he did not get enough compensation because of his racial origin and the colour of his skin.
In seeking the reliefs contained in the Notice of Motion, Mr. Andrew Walker BL urged that there was no basis in law for any prospect of success in Mr. Lopes’ proceedings. They are no more, he says, than the embodiment of Mr. Lopes’ grievance. The plaintiff cannot succeed in law. It was further argued that the plaintiff is abusing the process of this Court and, further, that his proceedings contain scandalous material comprising of inter alia, what Mr. Walker would describe as “unfounded and unsustainable allegations against Members of the High Court and the Supreme Court Bench”.
As I have already noted, Mr. Lopes appeared on his own behalf. He claims to have studied law for a number of years. Strangely, although professing expertise in the law and trumpeting the force of his opinion, he refused to identify where he was conducting these studies which led to such vigorous certainty such as would be envied by many who have studied for far more years at internationally renowned centres of legal excellence, supplemented by decades of legal practice at the Bar or in the solicitors’ profession, perhaps even graduating to the Bench. He argued that there was no defence to the proceedings. The fact that they were brought under the auspices of the Treaty and Irish law, he said, was irrelevant. The Motion was effectively a mechanism to silence him; it was brought in the hope that yet another biased Judge would spring to the aid of the defence (he suggested). I did invite him to suggest whether he thought I was biased and happily Mr. Lopes declined to do so.
The Material Law
Article 35 of the Constitution provides as follows:
“1. The Judges of the Supreme Court, the High Court and all other Courts established in pursuance of Article 34 hereof shall be appointed by the President.
2. All Judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”
Article 13 of the EU Treaty provides as follows:
“Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliamen, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”
The subject of judicial immunity from suit is well established and is enunciated clearly in the case of Sirros -v- Moore & Others, [1975] 1 Q.B. 118. Lord Denning, M.R., at page 132 of the decision states as follows:
“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance or was actuated by envy, hatred and malice and all uncharitableness, he is not liable to action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to any action for damages. The reason is not because the judge has any privileges to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.”
This was expressly adopted as part of the law in this jurisdiction by Morris P. in the case of Desmond & Another -v- Cornelius Riordan [2000] 1 I.R. 505. (see also Macauley & Company Limited -v- Wyse-Power [1943] 77 I.L.T.R 61)
Since judicial immunity from suit is thus set in stone, it follows that vicarious liability of the Government in general and a minister in particular does not arise (see Deighan -v- Ireland [1995] 2 I.R. 56).
It is also clear that the Court has an inherent jurisdiction to deal appropriately with proceedings that may be adjudged frivolous or vexatious in tandem with Order 19. Dealing with Order 19 under the former rules, Costello J. said in Barry -v- Buckley [1981] I.R. 306 at p.308:
“The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of the process of this Court does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail; per Buckley L.J. in Goodson -v- Grierson, at p 765.”
In the case of D.K. -v- King [1994] I.R. 166, Costello J. said at p. 170:
“The principles on which the court will exercise its inherent jurisdiction to strike out a plaintiff’s action can be shortly stated. Basically, the jurisdiction exists to ensure that an abuse of the court’s process does not take place. If it is established by satisfactory evidence that the proceedings are frivolous or vexatious or if it is clear that the plaintiff’s claim must fail, then the court may stay the action. But it will only exercise this jurisdiction sparingly and in clear cases.”
The plaintiff has brought these proceedings complaining of what has occurred. He has been dealt with by both the High Court and the Supreme Court. It must be observed that the plaintiff’s success rate as a lay litigant is significantly greater than most others one has come across. He has in fact made major inroads into quantum. But the Court must have regard to the fact that it also has a jurisdiction, notwithstanding the plaintiff’s success to date, to deal with matters that are also considered to be of a scandalous nature. See Riordan -v- Hamilton & Others (Unreported, High Court, Smyth J. 26th June 2000).
As regards the case that he made, or argued, should I say, that this case is subject only to European Community Law, it is fair to say that in certain circumstances it might be envisaged that the Courts in this jurisdiction might be amenable to decisions of the European Court of Justice in procedural matters (See Kobler -v- Republik Österreich [2004] 1 Q.B. 848) but these are circumstances that are altogether different to what we are dealing with.
In my view, having considered this matter carefully, it seems to me that the plaintiff’s proceedings in this case are wholly unsustainable in law or in fact. They are the fruits of a grievance founded on what I regret to say is the fanciful and unsustainable notion that racial bias drove the Supreme Court to treble the damages awarded to him in the High Court. He has sought succour in a cherry-picked extract from the judgment of Barron J., without considering the judgment as a whole. Clearly, and beyond per adventure, it was the function of Geoghegan J. to hear and determine the plaintiff’s trial according to the evidence before him. This matter is to be determined within the rubric of Irish law. Irish constitutional law is amply equipped to protect the applicant against any unfair discrimination, however motivated, but the reality of the matter is that there is not a shred of evidence whatsoever of any such racial discrimination against him and to that extent I am wholly satisfied that his allegations to this effect in his proceedings are scandalous and unsustainable. Nothing could be added to these Pleadings by way of amendment or by way of evidence to alter the situation. It seems to me that one is forced, sadly, to the conclusion that the sole qualification to be guilty of racial discrimination seems to be to take a view contrary to Mr. Lopes. Maybe I will now join the ranks of those who he wishes to label biased and racist but it seems to me that his case is wholly without any foundation and cannot under any circumstances be added to or succeed.
I should observe that in his concluding remarks to me, Mr. Lopes demonstrated a compulsion to fight on with the perceived grievance which he entertains against the Irish Judiciary. Not as far as this Court is concerned; I strike out his proceedings.
Murphy (Nee Condon) -v- Roche
[2011] IEHC 35
Judgment by: McMahon J.
JUDGMENT of Mr. Justice McMahon delivered on the 26th day of January, 2011
Introduction
1. The plaintiff was a front seat passenger in a car driven by her husband on 13th November, 2006, when the car she was travelling in was hit broadside, on the passenger side by a vehicle driven by the defendant. The car in which the plaintiff was travelling was driven into a third vehicle. The plaintiff is now thirty-six years of age and is married with two children, one of whom is sixteen years of age and the other, three years old.
2. The collision was a serious one and the plaintiff was frightened and was taken from the car to Cork University Hospital immediately after the accident. The defendant has admitted liability and the case is one of assessment of damages only.
The Injuries
3. The physical injuries which the plaintiff suffered are all of a soft tissue nature. In particular, the plaintiff was injured in her right shoulder, her neck, her back and her chest (ribcage) area. Recovery has been slow and the plaintiff has not been in a position to fully return to work since the accident. The problems for the plaintiff were complicated by the fact that she was in the early stages of pregnancy at the time of the accident. Initially, there was some uncertainty as to whether she was pregnant, but when it was subsequently confirmed, it naturally caused some apprehension and anxiety for the plaintiff during the pregnancy. Thankfully, however, the baby went full term and was born in good health.
4. The plaintiff claims damages for:
(i) her physical injuries;
(ii) loss of earnings;
(iii) anxiety for the fear and apprehension during her pregnancy and for depression which followed the accident.
Previous Injuries
5. In the course of cross examination, counsel for the defence drew attention to two previous accidents, which the plaintiff was involved in, and which the defendant suggested caused similar injuries to the plaintiff, and for which, it was claimed, the defendant should not be responsible.
6. The first of these incidents occurred in January 1996, when the plaintiff fell down a stairs in rented accommodation because of a defective banister rail. In that accident, she injured her neck, her right shoulder and her lower back. The plaintiff was compensated in the sum of €10,000 for those injuries. The plaintiff claims that they were minor injuries and gave evidence that she had fully recovered long before the present accident. Having heard her evidence and having read the documentation discovered to the defendant relating to this accident, I have come to the conclusion that any injuries which the plaintiff suffered in that accident had fully resolved shortly after it and have no bearing on the injuries which the plaintiff suffered in the present case. I refer, in particular, to medical reports from that time, discovered to the defendant, and which were compiled by Dr. Derek O’Connell, and forwarded to Peter Fleming, the plaintiff’s solicitor at that time.
7. The second accident which the defendant drew attention to was a road traffic accident which occurred in July 2006, some four months before the accident the subject of these proceedings. The plaintiff’s evidence in that matter is that it was a minor rear-ending of her husband’s car while she was a passenger in it. No claim was made in respect of that accident, as it was a minor one. The cost of repairing her husband’s bumper was paid by the insurance company. The plaintiff said that she had no injuries. She was, however, pregnant at the time and she took two weeks off from work. Dr. Susan Hill, a specialist in occupational medicine, gave evidence that because of the plaintiff’s pregnancy problems at the time, and the tests associated with it, a two-week absence from her work was warranted. I accept the evidence of the plaintiff on this matter, namely, that she suffered no physical injuries in this accident, and that the loss of her baby at that time was not caused by this minor incident.
8. My conclusion, therefore, is that neither of these incidents has any bearing on the injuries which the plaintiff received in the accident, the subject of these proceedings and which occurred on 13th November, 2006.
The Plaintiff’s Evidence
9. The plaintiff’s main complaints initially related to a bruising and soreness in her pelvis area, soreness to her right shoulder, soreness and bruising in her chest (ribcage) area and to a lesser extent soreness in her neck and back.
10. When it was confirmed, however, that she was also pregnant when this accident occurred, it caused her great anxiety which ultimately developed into a depression after the baby was born. The fact that she was pregnant also restricted the medications and the investigations (especially, the x-rays) which could be undertaken after the accident. With regard to the plaintiff’s complaint about being depressed there was some suggestion by the defendants that this was normal postnatal depression and was unrelated to the accident which occurred in November 2006. I will deal with the evidence of Dr. Campbell (the Psychiatrist) on this issue later, but it is appropriate to say at this juncture that Dr. Derek O’Connell (the plaintiff’s G.P.) testified (a) that the plaintiff was only some weeks pregnant at the time of the accident and (b) that he was treating the plaintiff for depression during the period after the accident and before the birth of the baby in July 2007. This clearly suggests that the plaintiff’s complaint in this regard was not totally connected or due to the birth of her baby. There can be little doubt in any event that after the accident the plaintiff was “anxious” for her unborn child and I am not convinced that her subsequent depression was solely of the postnatal kind. Her natural anxiety after the accident may have provided a foundation for subsequent depression due partly to her physical injuries, the slowness of her recovery and to her natural “low” after the baby was born. I will address this more fully in the context of Dr. Campbell’s evidence later in this judgment.
11. The plaintiff’s injuries are apparently all of soft tissue variety. Various x-rays and scans have confirmed this. Normally one would expect such injuries to resolve within a reasonable period (frequently estimated to be between 12 and 24 months), but such progress is dependent on the nature of the trauma suffered and the vulnerability of the injured party.
12. After the accident, the plaintiff went to her G.P., Dr. Derek O’Connell, and when the prescribed medication was not having the desired effect she was referred to various specialists. Dr. O’Connell treated her conservatively with medications initially but he had to strengthen the dosage over the years when the plaintiff was not getting obvious relief. He referred her first to Dr. Mark Phelan because of her persistent problem with her right shoulder.
Dr. Phelan
13. When Dr. Phelan saw her first on 7th September, 2007, the plaintiff was complaining of a number of issues relating to her neck, her right shoulder and her chest area, which at that time according to Dr. Phelan was the most serious problem in his view. The plaintiff found the 12 hour shift at work very difficult for her and complained of pain in that area when she exercised and when she was lying down. He gave her some nerve blocking injections which gave the plaintiff some good relief for a couple of months. The witness indicated that the chest area was a difficult area to treat because of the constant movement of the chest. Scans did not help to identify the problems although a mild bulging of the disc showed up which Dr. Phelan said was not abnormal in a woman of the plaintiff’s age.
14. The other complaint that the plaintiff had at that time related to her right shoulder and Dr. Phelan referred the plaintiff to Mr. Mahalingam, an Orthopaedic Surgeon, for this problem. Dr. Phelan also recommended to the plaintiff opium patches which were designed to control the pain by slow release of the drug through the skin. Dr. Phelan expressed the view that the plaintiff was genuine and was very anxious to get back to work, but was depressed because of her inability to do so. He said that it was difficult to give an accurate prognosis for her chest problems at the moment. The patch treatment had to be discontinued as the plaintiff developed an allergy which according to Dr. Phelan was not unusual. By April 2009, Dr. Phelan felt that the plaintiff’s neck, back and shoulder were getting better. At that time, it was his view that the problems relating to the chest wall were beginning to dominate as the long term issue. In July 2009, Dr. Phelan felt it would be beneficial if the plaintiff could go back to work. The social contact would help the plaintiff and alleviate guilty feelings she had because her husband had to work longer hours while she was forced to stay at home. Dr. Phelan, however, was concerned about the 12 hours shifts and the nature of the plaintiff’s job which involved twisting and lifting of repetitive nature. In cross examination, Dr. Phelan explained that the chest problems related to the internal mechanics of the wall of the chest which he asserted can be difficult to treat at the best of times.
Mr. Mahalingam (Orthopaedic Surgeon)
15. Mr. Mahalingam treated the plaintiff principally for her shoulder pain. He diagnosed a frozen shoulder and intervened (arthroscopy) through keyhole surgery with some success. The plaintiff reported good relief for a period of about two months. As Mr. Mahalingam explained, however, his intervention addressed a condition that was secondary to the main problem and pain could recur if the primary problem did not resolve. He gave the opinion that eventually the shoulder should fully recover and there would be no arthritis. He did not treat her neck or back. He confirmed that the plaintiff had a frozen shoulder and that she was genuine in her complaints.
Dr. Susan Hill (Occupational Physician)
16. Dr. Susan Hill is an Occupational Physician and a specialist in that area. She was engaged by the plaintiff’s employer to examine and report on the plaintiff in relation to her ability to carry out her job, which as already noted involved some repetitive lifting and twisting over shift periods of 12 hour duration. She first saw the plaintiff on 7th December, 2006, in relation to the injuries which the plaintiff suffered in this accident. Prior to this, the plaintiff presented as a healthy girl with a good working record and Dr. Hill’s practice had seen very little of the plaintiff except for the mandatory annual check-up ordered by the employers for all employees. Dr. Hill gave evidence that the plaintiff was genuine and was anxious to get back to work. The plaintiff’s efforts to return to work, however, were not successful and Dr. Hill had reservations about the nature of the work, the 12 hour shift and the increased targets being imposed on the people in the plaintiff’s shift at the time. Having described the various attempts by the plaintiff to resume her old job without success, Dr. Hill concluded that the main issue for the plaintiff is that she cannot now tolerate the work involved in her old job. The plaintiff’s decision to go part-time in an effort to re-engage was fully justified. Dr. Hill was positive about the plaintiff accepting the new job now on offer as it involved no shift work (it was 8.30am to 5.30pm, four days a week and 8.30am – 1.00pm on Fridays) and was a lighter job. It was less well rewarded, however. She was hopeful that the plaintiff would recover fully in time and hoped that this might be within the next 12 to 24 months, but could not be certain in the plaintiff’s case given her history. In cross examination, she confirmed that she had a note of chest pain in February 2007 and further notes of “anxiety about pregnancy” in December 2006 and January 2007, and one of “depression” in October 2008 following “the birth of the child”.
Dr. Aisling Campbell
17. Dr. Aisling Campbell, Consultant Psychiatrist also gave evidence to the court. Dr. Campbell was first engaged on behalf of PIAB to assess the plaintiff and later, after the file was released back to the courts, she was engaged by the plaintiff’s solicitor to furnish a medico-legal report. She recorded the plaintiff’s medical complaints after the accident and gave evidence to the effect that the plaintiff in early 2007 was very anxious about the well being of her unborn baby; she was having nightmares of a small white coffin and her sleep pattern was broken. These understandable apprehensions, which could be described as “quite marked anxiety”, continued after the child was born and later developed into what might properly be called depression by October 2007. Her medication increased from painkillers, to sedatives to anti-depressants over time. Although postnatal depression occurred in one in eight women, Dr. Campbell was of the view that the anxiety for her unborn baby and the chronic pain associated with her ongoing physical ailments contributed to the onset of the depression that manifest itself at this time. It could not be attributed solely to post-natal issues. She was further of the view that the depression resolved sometime later, after perhaps 8 – 12 months, and that her difficulties now were more properly described as anxiety and frustration at the slow recovery of her physical injuries and her inability to resume her work. There was no doubt that the plaintiff benefited from the social aspect of the workplace and it also improved her self-esteem. Dr. Campbell felt that the plaintiff needed to undergo an intensive pain management programme to address her ongoing physical problems, but that such programmes were not readily available. An early return to suitable work would undoubtedly benefit the plaintiff. Dr. Campbell was of the view that while the plaintiff was “a poor historian” in her ability to recount her medical problems, she was genuinely trying to record her difficulties at all times. She found no element of exaggeration in the plaintiff’s complaints.
Prof. Michael G. Molloy (Consultant Physician/Rheumatologist)
18. Prof. Molloy examined the plaintiff and reported on her on 6th November, 2009, 3rd February, 2010 and 26th August, 2010.
19. He was fully aware of the history when he first examined her in 2009. At that time he was concerned particularly about the injury to the chest wall and he ordered CT Scans, something he said he would not do unless he was seriously concerned. The scans were clear. The plaintiff clearly had soft tissue problems around her chest which he considered were induced by trauma. He said that it was very difficult to predict how long these problems would persist since the lung is a mobile organ and the injuries occur at the junction between the bone and cartilage. He also said that the shoulder injury may well persist into the future. He too felt that the nature of her job and the long shifts would be a problem and he recommended shorter and more socialable hours. He said he advised the plaintiff to go back to part-time work. He noted that the plaintiff was engaged in exercises and in particular had been swimming. In December 2010, the plaintiff complained of back and leg pain of a significant nature. He said that there was a spasm in her back and restriction of leg movement. He had ordered an MRI Scan but this had not yet been done. He confirmed that this would effect her gait. This was relevant because a private investigator’s report dated 6th January, 2011, commented on the restricted walking movement of the plaintiff, feigned in his view, as she went to visit her solicitor on that day.
20. Prof. Molloy anticipated in the future that the plaintiff will have to resort to painkilling drugs when required and that the shoulder may continue to give problems into the future. She should engage with an active rehabilitation programme.
21. In cross examination, Prof. Molloy confirmed that what was involved was soft tissue injuries but he had a guarded prognosis. Nevertheless, he would encourage the plaintiff to re-engage with light work. He said he would hope for a resolution in a reasonable period but he continued to have a reservation in relation to her right shoulder. When it was put to him that the plaintiff had an incident 14 years ago and another minor road traffic accident 4 months before the accident in these proceedings, he said that these had not been mentioned to him, but if it had not caused a problem for the plaintiff she might not tell him. He confirmed that in his view the plaintiff was not exaggerating her complaints in any way.
Mr. Desmond White
22. Mr. Desmond White, a Vocational Rehabilitation Consultant also gave evidence. He saw the plaintiff in May 2010 and gave her advice relating to her work position. Taking into account the plaintiff’s ongoing medical problems and the strain the former job was putting on her and on her family, he advised her to retrain for less physical employment. The problem was that even if she did retrain there were few suitable opportunities available now or in the foreseeable future. Mr. White recognised that the plaintiff’s employers were one of the best in Cork and he acknowledged that the new job opportunity on offer to her now with these employers was “a perfect opportunity” for her to get back to work.
Dr. Brian Mulcahy (Consultant Physician and Rheumatologist, Clinical Senior Lecturer, UCC)
23. Dr. Brian Mulcahy examined the plaintiff on behalf of the defendant on 19th May, 2010. He confirmed that the plaintiff undoubtedly suffered soft tissue injuries as a result of the road traffic accident. He said that nothing unusual turned up on the MRI Scans. His evidence was that the plaintiff did not tell him of the fall she had on the stairs 14 years earlier and he would have expected that she would have disclosed this to him. When it was put to him that the plaintiff had said that she was only asked about previous road traffic accidents, he said that he would invariably ask about all previous accidents not only road traffic accidents. Of the recent road traffic accident (4 months earlier) he said that the plaintiff indicated it was only “a tip” and that her back stiffened but it resolved in a couple of days. He agreed that some soft tissue injuries are slow to recover and the recovery time is difficult to predict on occasions. A resolution might normally be expected within 12 to 24 months, but in a person as young as the plaintiff, he estimated “that within ten years after the accident most would have recovered”.
24. On examination of her, he felt that the plaintiff might have been exaggerating in her forward bending movements which he felt should not have been as stiff as the plaintiff indicated. Because of this remark in his report, the question of whether the plaintiff was genuine or not was put to the plaintiff in cross-examination. She vehemently denied feigning her injuries. Each of the other treating doctors was asked by the court to comment on this suggestion and unequivocally and unhesitatingly they declared that the plaintiff was genuine in her complaints and was most anxious to return to work.
25. I found Dr. Mulcahy’s evidence was measured and reasonable and his comment that he felt the plaintiff was exaggerating when she was asked to do her forward back movement should not be taken out of context. It must be recalled that Dr. Mulcahy only saw the plaintiff once in an examination that lasted approximately 20 minutes. The plaintiff herself indicated that she had good days and bad days.
Michael Kelleher (Private Investigator)
26. Mr. Kelleher was engaged by the defendants to observe the plaintiff and he did so on two occasions. The first observation occurred on 22nd December, 2010, when the plaintiff was observed outside her house. Mr. Kelleher said he saw the plaintiff’s husband and her young child as well as the plaintiff in the front garden of the plaintiff’s house and that the husband was playing with the child but that on one occasion the plaintiff made a snowball and threw it at her daughter. Mr. Kelleher did not observe any restriction in the movement of the plaintiff on that day. The plaintiff in her evidence when it was put to her said on that occasion it could have been her daughter that was observed as the investigator was some 300 yards away from the scene and there were no photographs of that incident before the court. After that, the plaintiff and her husband went in a car to the shopping centre at Blackpool where she walked around the shops for approximately an hour and fifty minutes. The plaintiff was observed as she walked from shop to shop and Mr. Kelleher said that she did not seem to have any restriction in movement. She did not sit down as far as the investigator was concerned during that period. Photographs of this incident were before the court. The plaintiff said in her evidence that she would probably have taken medication before she went on the shopping outing and that on that day she was wearing new MBT shoes which her husband had just bought her.
27. The second occasion where the plaintiff was observed was on 6th January, 2011, and in this instance, Mr. Kelleher said he followed the plaintiff as she and her husband drove to town. After they parked the car he followed the couple as they made their way to her solicitor for a consultation. He said that he noticed a marked restriction in the plaintiff’s movements on that day and the insinuation was that as she prepared to go to her solicitor in connection with this case she adopted a more restricted gait. Photographs of this incident were also exhibited to the court. Having carefully examined the photographs, eighty six in all, I am of the view that the photographs disclose nothing which would detract from the plaintiff’s version of events. As to the allegation that the plaintiff was seen linking her husband as they walked to the solicitor’s office, this could hardly something to be held against the plaintiff, as married couples frequently link each other for no other reason than to display affection and solidarity. Sometimes they might even do so for support. That some other photographs from 22nd December, show the plaintiff smiling does not warrant any adverse conclusion either. The photographs on their own are of no assistance to the court and certainly do not compel an adverse conclusion in relation to the plaintiff’s veracity. Neither is the evidence of Mr. Kelleher such that it would lead me to conclude that the plaintiff was not genuine in her complaint. There were no photographs or evidence of the plaintiff bending or lifting or running or jumping or stooping or carrying heavy shopping bags or engaging in any activity that would contradict the case she makes in these proceedings. In any event, as already mentioned, since the issue was raised, the court asked each of the medical practitioners who treated the plaintiff as to what their view was in relation to the genuineness of the plaintiff and each unreservedly affirmed that she was a genuine person who suffered injuries and who was very anxious to return to work.
Conclusion on the Plaintiff’s Injuries at Present
28. With regard to the plaintiff’s injuries which have been outlined above, I note and accept the following in relation to her present condition:
(1) Neck: The plaintiff indicates that her neck is a lot better now although she does get spasms now and then if she moves quickly. She can deal with this, however.
(2) Back: She said her back was bad in September but it has improved since then.
(3) Shoulder: She said her shoulder is better now and she is sleeping on it and it has shown an improvement in recent months.
(4) Chest area: She said her chest area is giving her some problems still.
29. Bearing in mind, the reservations which Prof. Molloy had about the plaintiff’s right shoulder and her present chest complaints, I have formed the view that the plaintiff will continue to recover and I estimate that on the evidence before me she will have made a good, if not full, recovery within a period of approximately two and a half years, by which time her pain and suffering will have eased considerably. I am not satisfied, however, that the plaintiff will be able to go back to her old job then, or at anytime after that. Given her history now I think it unlikely that her old job would be available to her with her present employers. The evidence of Mr. Desmond White, the Vocational Rehabilitation Consultant, which I accept, is relevant in that regard. I address below the appropriate multiplier that should be applied in relation to future earnings.
30. Damages
31. Based on the medical and other evidence before me, I make the following awards in favour of the plaintiff:
(a) Pain and suffering to date: €45,000
(b) Pain and suffering into the future: €25,000
(c) Medical expenses incurred by the plaintiff to date have been agreed in the sum of €9,563.
32. Loss of earnings to date have been set out in a schedule compiled by the plaintiffs. These are calculated on the basis of lost wages while the plaintiff was out of work because of injuries suffered in the accident and the reduction in pay she received when she re-engaged on a part-time basis. The evidence of the plaintiff’s absences from work, including the dates and the reduced payments, given by her employers, were accepted by the defendant. The defendant did, however, contest the sum of €7,728 which the plaintiff claimed when she availed of an extension to her maternity leave from the 9th January to the 30th March 2008. I am satisfied that the plaintiff is not entitled to this sum in the circumstances and I disallow it. I do not accept the defendant’s objection to the plaintiff’s decision to stay out of work from 26th May to the 4th of July 2007, when the baby was born. In view of the anxiety and apprehension caused by the accident during the pregnancy the plaintiff was entitled to exercise caution at that late stage of her pregnancy. The amount due under this heading therefore is €77,353.
Future Loss of Earnings
33. Mr. John Logan, an actuary called on behalf of the plaintiff made some calculations taking into account the likely loss of income which the plaintiff will suffer into the future. The evidence, which I accept, is that the plaintiff will not be able to go back to the job which she held before the accident. The nature of this employment involved the repetitive physical exertion which the plaintiff has tried to resume without success since the accident. Her former position also involved 12 hour shifts which she admits she is no longer capable of doing for the foreseeable future.
34. Fortunately, in the present climate at least, her present employer can make two other positions available to the plaintiff at lower remuneration. Her former job carried an annual salary of €44,873 whereas the other jobs on offer, a part-time (likely to become permanent in the future) and a new fulltime post (referred to as “the innovation position) carry gross annual salaries of €22,436 and €32,293 respectively.
35. Given the plaintiff’s history of employment with the current employer, her undeniable wish to return to some form of employment, preferably with her current employer, and the undisputed medical evidence of the benefits for the plaintiff of re-engaging in the workplace, especially for her self-esteem and her general psychological well being, I am of the view that the plaintiff will be back in the workforce with her old employer in the near future. The evidence from her employer was that she was to start back last Monday in the part-time position, but did not do so presumably because of her case being listed in this Court for hearing. Ms. Julia Kelleher (Human Resources Department) for her employer also confirmed that the plaintiff is an applicant (seemingly the only applicant) for the “innovation position” and indicated to the court that she is likely to be successful. I take this to mean that it is reasonably probable that she will be engaged in this post. The appointment is probationary only for 12 months, but again the evidence of Ms. Kelleher was that given the plaintiff’s history with the company, her experience and her good record, it is likely she will be made permanent in that position after the probationary period has expired. Nothing, of course, is certain, but I hold, given this evidence, and all the circumstances referred to above, that this is likely to be the eventual outcome and I base her future losses on this conclusion.
36. This, of course, means that the plaintiff’s new salary will be somewhat lower than her previous salary: the old salary was €44,873 and the new salary will be €32,293 per annum. The difference therefore is €12,580 per annum or €119 net per week. This last figure has been advanced by Mr. Logan and is accepted by the defendants.
37. I am not prepared to conclude, in the present uncertain economic climate, at national and international levels, that the plaintiff could, had she not been injured, fairly assume that her employment, even with her current supportive employers would be guaranteed until she reached 65 years of age. Given the unprecedented economic uncertainties, I am of the view that the court should apply the appropriate multiplier as if the plaintiff’s continued employment in her own job would only have continued for a further 10 years from 7th January, 2011. The appropriate multiplier, according to Mr. Logan and not contested by the defendant, for such a period is €468 for every euro lost per week which I have determined above to be €119. On these figures, therefore, I calculate the plaintiff’s loss of future earnings to be €55,692. I have no reason to make any further deduction from this sum since the evidence in relation to the plaintiff’s health prior to the accident was not such that her ability to work for the next 10 years was in question. The difference in the plaintiff’s pension entitlements when she reaches 65 years, based on the difference between her old salary and her new salary, was not significant according to the evidence of Mr. Logan, the actuary called by the plaintiff. I have borne it in mind (as well as the reduced future gratuity on retirement) when I was making the earlier assumptions and so I make no separate award in respect of these. There are no other Reddy v. Bates considerations which would cause me to reduce this sum further.
38. The total due to the plaintiff therefore comes to €212,608.
James Irish v Daniel Irish
2018 4307 P
High Court [Approved]
15 June 2021
unreported
[2021] IEHC 464
Ms. Justice Niamh Hyland
June 15, 2021
JUDGMENT
Introduction
1. This decision relates to an application by counsel for the defendant to dismiss the plaintiff’s case mid-way through the plaintiff’s case, on the basis that the only case now sought to be made by the plaintiff has not been pleaded. The jurisdictional basis for the application is the inherent jurisdiction of the court.
2. Counsel for the plaintiff says the application should be treated as one to restrain the plaintiff’s engineer, the only remaining witness, from giving evidence on the new matters that the plaintiff now seeks to advance.
3. Irrespective of whether the application is one to dismiss the case, or simply to restrain the giving of certain evidence, objection is taken to either course by counsel for the plaintiff.
Facts
4. The defendant is the plaintiff’s brother and is a farmer. The plaintiff is a part time farmer and a publican. They live within 5km of each other but have separate farms.
5. This dispute arises out of an injury to the plaintiff’s arm when he was worming cattle on his brother’s farm and the bullock, in the plaintiff’s own words during cross-examination, “went cracked” when he put the injection into him, thus knocking the plaintiff’s wrist against a fence, which resulted in a broken wrist. The bullock behind him then jogged the bullock being injected but that was after the knock to the plaintiff’s wrist.
6. This account of events differed from that which had been set out in the report of the plaintiff’s engineer, which criticised the defendant for having too many animals in the crush and not having the bullock in a gate to restrict movement by the bullocks while each bullock was being injected. On that approach, the cause of the accident was that a bullock in the crush moved forward and jogged the bullock being injected, thus causing the plaintiff’s hand to be impacted. (For those not familiar with farming, I should explain that a crush is a long narrow passage which the animals are put into one in front of the other, which prevents them from moving around in any significant way while procedures are being carried out).
7. The defendant’s engineer report responded that the plaintiff had taken a risk by putting his arm between the top and middle rail and that persons should go over the top rail rather than under it. He noted that given the experience of the plaintiff, the plaintiff ought to have known how to do this correctly.
Pleadings
8. The plaintiff’s case was pleaded in a very generic way – very much the type of boilerplate pleading criticised in Morgan v. ESB[2021] IECA 29, which as Collins J. observed, was intended to be consigned to history. It is very difficult to know what the real complaint was from the Personal Injury Summons.
9. Paragraph 9 of the Personal Injuries summons reads:
“9. In the course of his part-time employment with the Defendant, on or about 28th December 2016 the Plaintiff was assisted (sic) the Defendant in administering worm medication to the Defendant’s cattle and bullocks by means of a syringe when suddenly and without warning owing to the negligence and breach of duty (including breach of Statutory Duty) and/or breach of contract by the Defendant, the Plaintiff was struck by the Defendant’s bullock and sustained a fracture to his wrist”.
10. This plea is followed by 25 separate particulars of negligence, breach of duty and breach of contract, some of which are utterly general in nature.
11. In the Defence dated 17 January 2019, the defendant refutes all allegations that he is liable for any injuries suffered by the plaintiff and pleads at paragraph 3C of the defence that the plaintiff was not an employee of the defendant, but was a volunteer under an arrangement between the two brothers that they would mutually assist one another on their farms from time to time, and that the applicability of the Safety Health and Welfare at Work legislation is denied. The defendant also pleads contributory negligence on the part of the plaintiff, including that he placed his hand in a position of danger.
Cross examination of the plaintiff
12. When being cross-examined, the plaintiff agreed the correct way to work animals was over the top of the rail. He was asked whether it was the case that you get as many cattle as possible in the crush and whether you work over the top of the bars and he answered yes to that composite question. However, on further questioning, he said he always did it through the bars as he was not able to reach in over the bar because the bar was too high for him. He gave as a further reason that the animal wouldn’t stand still, and that you have to go through the bar. He also said there was a difficulty reaching the bullocks as they were not all the same height and were not fully grown.
13. On that evidence being given in the afternoon of the first day of the trial, when the court sat this morning, counsel for the plaintiff recalibrated his case (as he described it), withdrawing the claim that there ought to have only been one animal in the crush at a time, or that the bullock being injected was pushed forward by another bullock behind him. In other words, the core complaint i.e. that the operation was being carried out in a hazardous manner because animals were being injected in over-close proximity to other unrestrained animals, was gone from the case.
14. In its place was a new case i.e. that the defendant was negligent in permitting his brother to inject cattle through the bars in circumstances where the size of his brother, the measurements of the crush and the height of the platform on which a person stood to access the crush, all meant that his brother had to inject the animals by going under the top bar adjoining the crush, because he could not reach over the top bar. I should say that I am formulating the plea in this way, but it was not identified as such by counsel.
15. Rather what he said was that there was no safe system of work and there was a lack of supervision. These headings do not convey the reformulated case sought to be made against the defendant. If the case had been properly pleaded from the start, it would have identified at least the components I have set out above and probably much more besides.
16. Counsel also made concessions in relation to employer’s liability and s. 12 of the Safety, Health and Welfare at Work Act 2005, accepting they were no longer relevant to the case.
Plaintiff’s arguments
17. Counsel for the plaintiff says he should be permitted to advance the new case for the following reasons:
i. The existing pleadings encompass the case now sought to be made;
ii. The new evidence here arose from cross examination. Because the defendant elicited that evidence, he is stuck with it and counsel for the plaintiff must be entitled to proceed on that basis, even if it was not pleaded;
iii. Judgments from the Court of Appeal about cases being required to be pleaded fully, specifically Morgan v. ESB and McGeoghan v. Kelly & Ors[2021] IECA 123 should be treated as referable only to their own facts and that ultimately the High Court decisions in those cases were overturned because of a paucity of evidence and not because of pleading issues;
iv. There is already uncontroverted evidence about measurements and such evidence forms the core of the factual matters he wishes to advance;
v. No prejudice to the defendant has been identified and therefore the concerns about trial by ambush do not arise.
Findings
18. I am satisfied that the existing pleadings do not, contrary to the ingenious submissions of counsel, identify the cause of action now sought to be made. The defendant did not and could not have had any idea of the nature of this allegation. Indeed, the plaintiff’s counsel had no idea of this allegation until the plaintiff was cross examined. It is therefore an utterly new allegation that was never part of the case and which is not contained within the pleadings.
19. One can test that proposition simply by asking the question whether, having read the pleadings, a person would know that it was alleged that the accident happened because the defendant failed to prevent him injecting through the bars rather than over the bars, while knowing the plaintiff could not reach over the bars due to his small stature. Even the most careful reader of the Summons could not have deduced this was the case against the defendant.
20. Next, counsel for the plaintiff argues that although it was not part of the case, the new argument ought to be permitted because it arose out of cross examination. I do not accept that this means that the rules in relation to the requirement to fully plead and particularise a case may be dispensed with. At paragraph 25 of the judgement McGeoghan, Noonan J. observed:
“It seems to me therefore inescapable that the trial judge found the defendants liable on a case never actually either pleaded or made by the plaintiff. It was instead something that, almost incidentally, arose from the evidence. It is of course trite to say that the pleadings define the issues between the parties but in a case such as the present, it is important that sight not be lost of that fundamental tenet of our law. Although this remains true for all classes of litigation, it is particularly important in the context of personal injuries litigation since the passing of the Civil Liability and Courts Act, 2004 and in particular sections 10-13 of that Act .”
21. The mere fact that in that case the new claim arose out of evidence given in the case did not alter the approach of the Court of Appeal.
22. The purpose of pleadings is so that each side knows the nature of the case being made against them. It is the duty of the solicitor to elicit the facts from the client, to instruct counsel and for the pleadings to be based on those instructions. If a client chooses not to give proper and full instructions, he or she must bear the responsibility for that if the case pleaded does not reflect the evidence they give. This remains the case whether that evidence is given in direct or cross-examination.
23. A further argument was made by counsel for the plaintiff that the Court of Appeal decisions referred to above ought only be applied if I find the facts are analogous or similar in the instant case. I consider that to be an erroneous submission. There is a clear identification in those decisions of the applicable principles in relation to pleadings, and the necessity of clarity in respect of same. Those principles apply irrespective of the particular nature of the factual dispute between the parties.
24. On the other hand, I accept counsel’s submission that the ultimate decisions of the Court of Appeal were based on the lack of evidence in the High Court. It may be that the comments on pleadings are obiter. Nonetheless they are obiter comments from the Court of Appeal that have been repeated in at least two judgments and it seems to me that I ought to proceed upon that basis.
25. Finally, in relation to the point that there is no dispute about the measurements, the case sought to be made is not simply one about measurements. First, the question of the measurement of the plaintiff’s height is entirely new and the defendant has not had a chance to consider those, or other, measurements yet. Second, the issue now sought to be raised by the plaintiff is not one that can be determined exclusively by looking at measurements. A court would have to consider matters such as the extent to which the plaintiff would have difficulty going over the top of the bar, what other measures he could have taken to address such a difficulty (if it existed) and whether the defendant was aware of the plaintiff’s practice in this respect, either generally or at the relevant time.
26. In this respect, the evidence given by the plaintiff that he did not know what the defendant’s own practice was when vaccinating is potentially relevant. It would also have to be considered whether the plaintiff’s own practice when vaccinating cattle at home on his farm is relevant. There, on his own evidence, he also goes through the bars, even though he does not have the same height difficulty because his platform is higher. This is potentially relevant to the question of contributory negligence. These are the kind of questions that require to be teased out in pleadings and particulars.
27. Nor do I accept there is no prejudice to the defendant, although it is true none was identified by counsel for the defendant. Being required to meet an entirely different case at trial, in circumstances where an engineer’s report has been prepared on the basis of allegations no longer being advanced, with no notice of the new case, cannot but cause some prejudice, even if it is potentially remediable with an adjournment and application to amend.
Conclusion
28. In all the circumstances I am satisfied:
(a) that the plaintiff seeks to make a new case;
(b) that case was not previously pleaded in any way;
(c) that the case would require to be pleaded out in the normal way; and
(d) the Court of Appeal has made it clear that cases may not be advanced at trial that were not pleaded, even if the new facts underlying the new case arise through the giving of evidence.
29. However, I agree with counsel for the plaintiff that the correct course flowing from my conclusions is that the plaintiff ought not be permitted to adduce any evidence that relates to the case not pleaded. Counsel for the defendant has asked that I strike out the case pursuant to the inherent jurisdiction of the court. That is indeed a draconian measure and given that I do not need to impose such a measure, but rather can meet the justice of the situation by restricting the plaintiff’s evidence as indicated above, that seems to me the appropriate order.
30. Therefore, I will direct that the plaintiff’s witnesses not yet heard may not give evidence relevant to matters not arising on the pleadings.
P.W. v. CIE
[1967] 138
O’Dalaigh C.J.; Walsh J. 138
Supreme Court
O’DALAIGH C.J. :
I have read the judgment of Mr. Justice Walsh and I agree with it.
WALSH J. :
The plaintiff in this case suffered serious injuries by reason of the admitted negligence of the defendants. As well as injuries to her chest and her shoulder there were also injuries to her pelvis and it was alleged that she suffered injuries affecting her reproductive organs. The statement of claim supplied no particulars of her personal injuries and no particulars of her damage, save the pecuniary loss. By letter of the 1st March, 1966, the defendants’ solicitor sought particulars of the pecuniary loss alleged and of matters pertaining to that loss and he also sought “detailed particulars of the alleged personal injuries with full details of all periods of hospitalisation, etc.” No other particulars of damage were sought.
In reply to that letter demanding particulars, the plaintiff’s solicitor by letter of the 18th March, 1966, replied in the following terms:”The plaintiff was rendered unconscious and was deeply shocked. She had injuries to her pelvis, right shoulder, the back of her shoulder and the right side of her chest, and she required emergency treatment in hospital. X-rays show that she had a fracture of the right clavicle in the middle and outer thirds with marked displacements. There was a fracture of two ribs on the right side with a pneumothorax. There was a fracture of the superior and inferior ramus of the pubic bones of her pelvis. She had multiple bruises, as well as which she got a two and a half inch laceration over the spine of her right scapula and a one and a half inch laceration just below this. She was detained in hospital until the 12th August, 1965, and continues to attend as an out-patient for treatment. She now has a limp, a healed scar 21/2 inches long over her right shoulder which is keyloid and tender. She has a second ugly scar below this. There is a bump at the site of the fracture of her right clavicle which is a sign of overlap and callus formation in this area. This is unsightly and tender to touch. She has tenderness over the right side of her ribs and suffers considerable pain on sudden movement in this area. She has tenderness over the fractures of the superior ramus of her pubes. The degree of incapacity which will be permanent is not presently assessable, but it is anticipated that it will be fairly severe. By reason of her injuries the plaintiff’s obstetrical capacity has been damaged and her prospects of marriage have been seriously impaired. Considerable damage has been caused to the soft tissues of her pelvis and her future fertility has been seriously interfered with, as well as her capacity for child-bearing. She is still incapacitated from resuming her pre-accident work.” The defendants did not seek any further particulars after receipt of this Information.
On the 29th June, 1967, when the action commenced before Mr. Justice Murnaghan and a jury, counsel for the plaintiff, in his opening address to the jury, stated that one of the sequelae of the injuries would be that the plaintiff, when she got married, would find the sexual act “difficult and painful.” At the close of this address, counsel for the defendants requested the trial judge to discharge the jury on the grounds (a) that the matter mentioned by counsel for the plaintiff did not appear in the particulars of personal injuries furnished in reply to the defendants’ letter and (b)that the particulars supplied by the plaintiff referred only to”obstetrical capacity.” Counsel for the plaintiff submitted that the matter he had opened to the jury was a sequela,or a consequence, of the injuries to the soft tissues mentioned in the particulars. The learned trial judge acceded to the application of counsel for the defendant on the grounds that he had been taken by surprise and that he could, in the judge’s opinion, have been misled by the particulars furnished, apparently taking the view that the particulars indicated only obstetrical damage. Counsel for the plaintiff had declined the judge’s invitation to go on with the case provided no further reference was made in the case to the matter already opened to the jury. In the result the jury were discharged and the action was ordered to stand adjourned to the following sittings of the High Court for the hearing of jury actions, and it was ordered that the plaintiff should pay to the defendants the costs occasioned by such adjournment, when taxed and ascertained. It is against that order that this appeal has been taken.
The grounds of appeal relied upon are, first, that the trial judge misdirected himself in fact and in law in holding that the plaintiff’s counsel, in his opening address to the jury, had introduced matters relating to the plaintiff’s injuries, or to the consequences of the plaintiff’s injuries, which were not reasonably included or covered by the particulars requested by and furnished to the defendants; and, secondly, that the learned trial judge misdirected himself in fact and in law in holding that the matters mentioned by plaintiff’s counsel were not reasonably indicated and for ascertainable by the defendants from the particulars furnished to them and the medical examinations made by them.
It is hardly necessary to emphasise that the object of seeking particulars is to obtain information, and that the purpose of answering them is to furnish the information sought. The purpose of seeking and furnishing such information is to save unnecessary expense, to ascertain with reasonable precision what issues of fact will arise in the case, and to eradicate so far as is possible the element of surprise to either party in the case. In Spedding v. Fitzpatrick (1),at p. 414 of the report, Lord Justice Cotton described the old system of pleading at common law as one designed “to conceal as much as possible what was going to be proved at the trial.” Happily no such attitude could now be countenanced. The second matter which should not need to be emphasised is that pleadings, and the particulars of the matters alleged therein, should be in language and terms easily understood by the reasonably intelligent layman. It would be quite an intolerable position if it would suffice to furnish information in terminology intelligible only to experts in the sphere in which the subject-matter of the information lay. To supply particulars of matters pleaded in terms which could not be understood by the recipient of the information without the assistance of an expert to translate it into terms understandable by the ordinary reasonable man would be to re-introduce into litigation the tactics of making things as difficult as possible for one’s opponent. In all matters of evidence of a scientific or technical nature it would, in any event, be highly desirable to institute the practice of exchanging between the parties the reports of the experts whose evidence is relied upon by the parties.
In the present case the matter opened to the jury by counsel for the plaintiff was one of the alleged sequelae of the injuries sustained by the plaintiff. The real question is whether the injuries, which gave rise to the sequelae, were furnished in the plaintiff’s reply to the request for particulars. That is a question which apparently nobody is able to answer. Because of the peculiarly medical terminology used in the reply it is not, at first sight, possible to say whether it was or was not and no counsel in this case could indicate to this Court, or indeed to the High Court, a sufficient translation of the terms employed to ascertain this fact. The learned trial judge was also, apparently, unable to translate the material furnished and he could not reasonably be expected to do so having regard to the language used. However, he did hold that all the material furnished related only to obstetrical difficulties and held that the details of information supplied in reference to this excluded the implication of any other trouble. If this were a correct interpretation of the particulars, the inference would be quite valid. In my view it was not a correct interpretation of the particulars. It is at least clear from the particulars furnished that there was, in addition, gynaecological trouble which was not obstetrical trouble; the full extent of it was not clear, though loss of fertility was part of it. Counsel for the plaintiff submits that, from the language used in describing this other injury, its sequelae would be apparent to the medical advisers of the defendants. That may or may not be so, but I do not think that need call for any consideration by this Court at this juncture.
The defendants, in their request for particulars, asked for particulars of the personal injuries. If they did not understand the particulars which they obtained, then they should have asked that further and better particulars be given in language which they could understand and, in my view, they would have been fully justified in doing so in the present case. Whether they understood them or not, they did not ask for any particulars of the sequelae, if any, of which the plaintiff was complaining. Any particular injury may provide several sequelae, but they may not all be relevant in the sense that they may not, in fact, damage the plaintiff. It is quite clear, for example, that, if a person lost a foot, one of the sequelae would be that such person would never become a ballet dancer. That, however, would have no relevance whatever unless the plaintiff, the injured party in such a case, wished to make the case that he had suffered damage thereby. It therefore behoves every defendant, who looks for the necessary information to enable him to meet the plaintiff’s case, to seek not only particulars of the injuries alleged but also to seek information as to the sequelae.If, in reply to such a request, a plaintiff enumerates particularsequelae, then he cannot afterwards at the trial be heard to complain of further or other ones of which the defendant has no notice. If the defendant does not ask for particulars of sequelae, he can scarcely be heard to complain that he was not furnished with any. In the present case the defendants did not ask for particulars of any of the damage alleged to have been suffered, other than particulars of the pecuniary loss. The complaint made, following upon the opening address to the jury of the plaintiff’s counsel, was a complaint of being without notice of a sequelae alleged, and not a complaint of no notice of a particular item of personal injury which had not been furnished in reply to the request for particulars of such injuries.
In my view the defendants’ objection to the introduction of this matter to the jury as being outside the particulars furnished was not well founded, and for that reason I am of the opinion that the ground upon which the learned trial judge gave his ruling is not sustainable. This is not, of course, to express any view on what would be the proper course to take in any particular case if he were satisfied that the defendants’ counsel were, because of the omissions of the defendants’ advisers, taken by surprise. There might be many such cases in which justice would require that the hearing should be deferred upon such terms as would meet the occasion. If the point should arise at a time and in a manner which would make it impracticable to go further with the case and nothing had happened but the opening of the case to the jury, then probably the best thing to do would be to discharge the jury. If, however, it arose during the hearing of a case it would be an unnecessarily expensive procedure to discharge the jury if the matter could be met by going on as far as was possible with the case and then adjourning for such reasonable period, even a week or two, as would enable the surprised party to remedy his position and continue with the case. Even when a party is surprised by a default on the part of his opponent the same flexible procedure should be adopted where possible with a view to avoiding unnecessary duplication of expense and the post-ponement of the trial of the action. In my view this appeal should be allowed.
BUDD J. :
I agree.
Terence (Otherwise Terry) Morgan v Electricity Supply Board
2018/340 (WLIE 1)
Court of Appeal [Unapproved]
5 February 2021
unreported
[2021] IECA 29/1
Mr. Justice Maurice Collins
February 05, 2021
JUDGMENT
1. I fully agree with the judgment given by Noonan J and with the order that he proposes.
2. In my view, this appeal raises a number of significant issues and for that reason I would like to add some observations of my own. For that purpose, I gratefully adopt Noonan J’s detailed account of the circumstances giving rise to the claim here and of the course of the proceedings in the High Court.
The Civil Liability and Courts Act 2004
3. The Plaintiff’s action here was a “ personal injuries action ” within the meaning of the Civil Liability and Courts Act 2004 ( “the 2004 Act ”) and was therefore subject to the provisions of Part 2 of that Act.
4. Part 2 contains important provisions regarding pleadings in personal injuries actions. Focusing on those applicable to pleadings by a plaintiff, section 10(2) sets out various matters which a personal injuries summons shall specify, including:
“ (f) full particulars of the acts of the defendant constituting the .. wrong and the circumstances relating to the commission of the said wrong ”
“(g) full particulars of each instance of negligence by the defendant.”
5. The need for clarity and specificity is further reinforced by section 13(1)(a), which provides as follows:
“(1) All pleadings in a personal injuries action shall—
(a) in the case of a pleading served by the plaintiff, contain full and detailed particulars of the claim of which the action consists and of each allegation, assertion or plea comprising that claim”
6. Corresponding obligations are imposed on defendants by sections 12 and 13(1)(b) of the 2004 Act. I considered the effect of those sections in Crean v Harty[2020] IECA 364 and in the course of my judgment noted that “the provisions of sections 10-13 of the Act are clearly intended to ensure that parties (including defendants) plead with greater precision and particularity so that, in advance of trial, the actual issues between the parties will be clearly identified.” (at para 23)
7. A “ very significant innovation ” in Part 2 (so I characterised it in Crean v Harty) is the requirement in section 14 that pleadings be verified on affidavit. A plaintiff is required to verify “ any pleading containing assertions or allegations” or any “ further information ” provided to the defendant: section 14(1). A corresponding obligation is imposed on defendants by section 14(2). The importance of the requirement for verification was highlighted by Noonan J in his recent judgment in Naghten (A minor) v Cool Running Events Ltd[2021] IECA 17, with which I agreed. As Noonan J states at para 52 of that judgment, “ .. the days of making allegations in pleadings without a factual or evidential basis, if they ever existed, have long since passed.” That certainly ought to be the case having regard to the requirements of section 14.
8. The intended effect of section 14 would be greatly undermined if parties were permitted to continue to plead claims in wholly generic terms. Thus – unsurprisingly – the provisions of Part 2 relating to pleadings, and the requirement for verification introduced by section 14, operate coherently. Plaintiffs (and defendants) are required to state clearly and specifically what their claim (or defence) is and identify the basis for it in their pleadings and must then verify that claim (or that defence) on affidavit. Where further particulars are furnished, such must also be verified on affidavit. Unless pleadings are clear and meaningful, the value of section 14 verifying affidavits will be significantly diluted.
The Pleadings here
9. The Personal Injuries Summons here might, in many respects, be held up as an example of the type of pleading that Part 2 of the 2004 Act was intended to consign to history. The majority of the particulars of wrongdoing are in boilerplate form, expressed in such generic terms as to be utterly uninformative. Thus, for instance, it is said, without more, that the ESB failed to provide a safe place of work for the Plaintiff. It is also said the ESB was in breach of the Safety, Health and Welfare at Work Act, 2005. No clue is given as to what provision of that Act the ESB was said to be in breach of or what act or omission on its part constituted such breach. The position is the same as regards the plea that the ESB was in breach of the Safety, Health and Welfare and Work (General Application Regulations) 2007.1 The Summons is wholly silent as to which of the 175 Regulations and 10 Schedules contained in those Regulations is said to have been breached by the ESB. The plea that the ESB was in breach of section 3 of the Occupiers Liability Act 1995 might, on its face, appear more concrete. However, the “ common duty of care ” imposed by section 3 (which concerns the duty of care of occupiers to visitors to their premises, including employees) is necessarily expressed in very general terms and recourse to its terms provides no enlightenment whatever as to the nature of Mr Morgan’s actual complaint against the ESB here.
10. The only claim that is pleaded with tolerable clarity and specificity in the Summons is that to be gathered from a reading of paragraph 9, in conjunction with the particulars (i) and (j), referred to by Noonan J at para 18 of his judgment. The net effect of those pleas (which could readily have been stated more clearly and simply) is that the Plaintiff was alleging that he had slipped and fallen while going down the stairway because of the presence of water on the steps, which had leaked in through the skylight over the stairs and “ contaminated ” it. That is the only claim disclosed by the Personal Injuries Summons that is pleaded in a form resembling that mandated by the 2004 Act.
11. I do not mean to be unduly harsh on the pleader here. From a practical point of view, one can readily understand why a pleader might wish to avoid committing themselves unduly to any particular theory of liability and instead seek to plead in a manner that covers all the bases lest something further should emerge at trial. Indeed, that was conventionally seen as part of the art of pleading. However, that mode of pleading is not, in my view, permissible since the enactment of the 2004 Act. A plaintiff is required to plead specifically and cannot properly rely on the pleading equivalent of the Trojan Horse, which can as needed spring open at trial and disgorge a host of new and/or reformulated claims.
12. It is difficult to avoid the impression that, despite the fact that Part 2 of the 2004 Act has been in force for more than 15 years, the extent of the changes that it makes in the area of personal injuries pleading may not always be fully recognised or reflected in practice. Personal injuries claims are required to be pleaded in a manner which states clearly and precisely what act or omission of the defendant is alleged to have caused the injuries at issue and why it is said that such act or omission was wrongful. The reflexive instinct of practitioners to plead broadly and generally has to be curbed.
13. In any event, as Noonan J notes, shortly before hearing of the action the Plaintiff delivered a further particular of negligence alleging a failure to maintain the staircase “thereby permitting the nosing on the steps of same to become worn and disintegrating so as to constitute a danger to persons using the said staircase.”
14. Thus, on the Plaintiff’s pleaded case, he was alleging that he slipped on the stairs due (1) to the presence of water resulting from a leak in the skylight overhead (due, it was said, to the ESB’s failure to maintain the skylight) and/or (2) the condition of the nosing on the steps of the stair (arising from the ESB’s failure to maintain the stairs). That was the only case being made by the Plaintiff and, unless permitted to amend his pleadings and/or to deliver further particulars of negligence, that was the only case that he could properly advance at trial and that was the only case that the ESB was required to meet.
15. This is consistent with the terms of the report of Mr Osborne (the Plaintiff’s Engineer) which was provided to the ESB in advance of the trial. That report stated that “ the factors contributing to and causing this accident were the leaking skylight and the worn and disintegrating nosings.” While Mr Osborne took the trouble to note a possible breach of fire regulations by the ESB which could not on any view have any bearing on Mr Morgan’s claim (an allegation unfortunately repeated at trial and recorded in the Judgment), his report made no complaint about the training afforded to his client and did not suggest any alternative cause that might account for the alleged presence of “ copious amount of wet ” on the stairs at the time of the accident or address any question of the ESB’s liability if any “ wet ” on the stairs was from a source other than the skylight.2
The Judgment of the High Court
16. The Judge’s findings are set out at para 81 and following of her Judgment. Noonan J has referred in detail to these findings.
17. The claim here was vigorously disputed by the ESB. The Judge heard evidence and argument over a number of days. There were significant conflicts in that evidence, not least as to circumstances and cause of Mr Morgan’s accident and whether it was attributable to a leak from the skylight. Mr Morgan had, of course, given evidence. Mr Osborne also gave evidence on his behalf. A number of employees of the ESB gave evidence, as well as a consultant engineer, Mr Duggan, and a flooring specialist, Mr Wafer.
18. The Judge had to assess this evidence and make relevant findings of fact. The Judge’s findings here are fully set out by Noonan J in his judgment. The key passage is the following:
“85 … while this Court is not able to resolve the conflicts on the evidence as to exactly how wetness came to be on the surface of the area where the plaintiff slipped and fell, nonetheless the court views the plaintiff in the overall scheme of things to have been both consistent and credible. On the balance of probabilities, wetness caused the plaintiff to slip and fall. It is not possible for the Court to resolve the conflict as to whether it was wetness which came from a skylight or whether it was someone who had spilled something or caused the wetness at the locus of the accident.”
The reference in this passage to the Judge’s view of the credibility of the Plaintiff is not the only such reference in the Judgment. At para 81, the Judge states that the Plaintiff “ came across as a very credible witness ” and at para 88 and 89 she stated as follows:
“88. The Court prefers the evidence of the plaintiff, and of his engineer Mr. Osborne, to the evidence adduced by the defendant. He was a very credible witness.
89. As a result of the difficulties the plaintiff has suffered it appears to this Court he continues to receive treatment in respect of this injury and has ongoing pain. He came across as completely reasonable and I prefer his evidence to that adduced by, or on behalf of the defendant.”
19. The decision of the Supreme Court in Hay v O’ Grady[1992] 1 IR 210 was, naturally, relied on by Mr Morgan to submit that these findings, as well as the further findings made by the Judge regarding the condition of the nosing on the stairs and the ESB’s failure to provide appropriate training to Mr Morgan as to how to carry packages safely down a stair, were effectively beyond the review of this Court.
20. In my view, there are a number of fundamental difficulties about this submission. A key aspect of Hay v O’ Grady is its emphasis on “ the importance of a clear statement …. by the trial judge of his findings of fact, the inferences to be drawn, and the conclusion that follows.” (per McCarthy J, at 218). This aspect of Hay v O’ Grady was further developed by the Supreme Court in Doyle v Banville[2012] IESC 25, [2018] 1 IR 505. The Supreme Court’s decision in Donegal Investment Group plc v Danbywiske[2017] IESC 14, [2017] 2 ILRM 1 is also relevant in this context addressing as it does the application of the principles in Hay v O’ Grady and Doyle v Banville to expert evidence and to findings made by a trial judge on the basis of such evidence. My judgment in McDonald v Conroy[2020] IECA 239 contains a detailed discussion of these authorities. In brief summary, however, it is clear that:
“ Any party to any litigation is entitled to a sufficient ruling or judgment so as to enable that party to know why the party concerned won or lost. ……. To that end it is important that the judgment engages with the key elements of the case made by both sides and explains why one or other side is preferred.” ( per Clarke J in Doyle v Banville, at para 10)
In cases where there is conflict in the expert evidence heard by the trial court, the trial judge should at least “ indicate in brief terms the reason why the views of one expert was preferred”: per Clarke J in Donegal Investment Group plc v Danbywiske, at para 7.4.
21. Here, the Judgment makes it clear that the Judge found the Plaintiff to be a credible witness and preferred his evidence (and, it seems, the evidence of Mr Osborne) “ to the evidence adduced by the defendant” but provides no reasons for such findings. The credibility of a witness is a matter of fact – a point made by Hardiman J for the Supreme Court in McCaughey v Anglo Irish Bank Resolution Corporation[2013] IESC 17, at page 49 and subsequently emphasised by that Court in Leopardstown Club Limited v Templeville Developments Limited[2017] IESC 50, [2017] 3 IR 707, per Denham CJ at paras 39 and 80 and per McMenamin J at para 105. Nonetheless, where there is a material conflict of evidence, it can hardly be “ sufficient for the [trial] court simply to declare that it accepts the evidence of the plaintiff” – or, I would add, the evidence of any other witness – “ or that it is satisfied that he is a truthful witness without saying why that is the case”: per Irvine J (as she then was) in Nolan v Wirenski[2016] IECA 56, [2016] 1 IR 461, at para 48. Such an approach would be wholly at odds with Doyle v Banville and indeed with Hay v O’Grady itself. A finding of credibility, whether in respect of a witness’s evidence generally, or some specific evidence given by them, ought generally to be the product of analysis and reasoning that is capable of explanation in a judgment. That does not mean that a lengthy or discursive analysis is necessary. The degree of explanation appropriate will depend on the nature, extent and significance of the relevant evidential conflict. Furthermore, there may be circumstances where a court must make its assessment based only on impression and demeanour but such circumstances will be rare. As regards expert evidence, it is difficult to conceive of any circumstance in which it might be sufficient to resolve conflicts of evidence on the basis of a bare statement that the court “ preferred ” the evidence of expert A to the evidence of expert B. Of course, as Clarke CJ emphasised in Danbywiske, the choice “ may not require a great deal of explanation in a judgment”. Again, the context will be key.
22. Here, the Judgment simply fails to give any indication as to why the Judge preferred the evidence of the Plaintiff to the evidence of the ESB’s witnesses. Equally, it does not explain – even in the briefest of terms – why the Judge preferred the evidence of Mr Osborne to the evidence of Mr Duggan, Mr Wafer and the other witnesses who gave evidence for the ESB (whose evidence is set out in detail by Noonan J). As Noonan J explains, there were significant conflicts between these witnesses which were critical to the proper determination of the Plaintiff’s claim. In these circumstances, the absence of any explanation for the Judge’s stated preference for the evidence of the Plaintiff and Mr Osborne is, in my view, a fundamental difficulty with the Judgment.
23. However, that is not by any means the only difficulty that this aspect of the Judgment presents. As the Court observed in argument, there appears to be a stark conflict or contradiction between the Judge’s apparently unqualified acceptance of the evidence of the Plaintiff and his engineer on the one hand and, on the other, her conclusion that there were conflicts of evidence as to the source of the “ wetness ” on the stairs that could not be resolved by the High Court. If accepted, the evidence of Mr Morgan and Mr Osborne appeared to point inexorably to the conclusion that the Plaintiff had slipped on “ wet ” the source of which was the skylight overhead. Indeed Mr Osborne had been so sure that this was the case that he had not considered it necessary to undertake what might be regarded as fairly basic investigatory steps. Unlike Mr Duggan, he had not conducted any slip resistance testing. He also had not run a plumb line down from the skylight to the stairs to identify where any “ wet ” entering through it might land. He had not gone on to the roof and poured water on the skylight to see whether it penetrated into the stairwell. Mr Osborne had “ immediately connected the wetness with the stains ” that were visible around the skylight (and which the evidence established had resulted from a leak that had occurred in 1995 or earlier) and that was, it seems, an adequate foundation for his evidence as far as he was concerned.3
24. If the Judge accepted Mr Osborne’s evidence, as her Judgment suggests she did, it is very difficult indeed to understand why she felt unable to conclude that any “ wet ” on the stairs had come from the skylight. In reality, it seems clear that the Plaintiff’s evidence (including that of Mr Osborne) did not, in fact, persuade the Judge that the accident happened in the manner, and for the reasons, alleged by him.
25. There is a third, and even more significant, difficulty with the Judge’s analysis. Though it does not say so in terms, the inescapable inference from para 85 of the Judgment is that the Judge considered that the issue of “ exactly how wetness came to be on the surface of the area where the plaintiff slipped and fell” was not one which it was necessary for her to resolve because the liability of the ESB was not dependent on its resolution. That, in my respectful opinion, was plainly not the case.
26. In the first place, as I have explained, the claim made by the Plaintiff was based on an assertion that he had slipped on “ wet ” which was on the stairs as a result of a leaking skylight. That was the case that the Plaintiff was making and in order to determine whether he was entitled to succeed on liability, the Court had to resolve that issue. If the Plaintiff failed to establish that case – as in fact he failed— his claim failed.
27. Second, the Judge’s analysis assumes that, regardless of how any “ wet ” came to be on the stairs, its presence there established negligence and/or breach of duty on the part of the ESB. Before this Court, Mr Kilfeather SC for Mr Morgan suggested that the “supermarket cases ” provided support for the approach taken in the High Court. If there was water or other liquid on the stairs – as the Judge found – there was effectively an onus on the ESB to establish that it was not due to any negligence on its part and the Judge was entitled to conclude on the evidence that it had failed to establish that. Attractively as this argument was put, it cannot be accepted. In the first place, if that was the basis for the Judge’s conclusion, it was incumbent on her to articulate it. The Judgment is, however, entirely silent on the issue of negligence. In any event, the Plaintiff had not made that case. If he had wanted to do so, it had to be pleaded so as to give the ESB a reasonable opportunity to meet it at trial. Not alone was it not pleaded (or addressed in Mr Osborne’s report) no such case was agitated during the High Court hearing, as Mr Kilfeather fairly acknowledged. In any event, I would not accept that the so-called “supermarket cases” necessarily have any application in the circumstances here. The factors that, in Mullen v Quinnsworth Ltd[1990] 1 IR 59, led the Supreme Court to apply the doctrine of res ipsa loquitur in the context of a slip and fall in a supermarket, do not necessarily apply here. Given that that was not and is not an issue in the proceedings, it is neither necessary nor appropriate to say anything more about it.
28. In his judgment, Noonan J discusses in detail the evidence given in the High Court regarding the issues of the condition of the nosing and the Plaintiff’s training and the findings made by the Judge on those issues. I agree entirely with his analysis and have nothing to add to it.
29. It follows that, in agreement with Noonan J, I am of the view that the Judge’s finding of liability here is unsustainable and cannot be allowed to stand and this appeal must therefore be allowed.
As this judgment is being delivered remotely, Binchy J has authorised me to record his agreement with it.
1. SI 299 of 2007.
2. In the course of the hearing in the High Court, Senior Counsel who then appeared for the Plaintiff objected to Counsel for the ESB making reference to “ water ” in the course of cross-examining Mr Osborne and insisted that Counsel should instead use the term “ wet ” as used in Mr Osborne’s report.
3. Day 3, pages 40-47.
Fairbrother v MIBI & Others
[1995] 1 I.R. 581
David Fairbrother Plaintiff v. Motor Insurers Bureau of Ireland, Oliver Baker and Smurfit Finance Limited Defendants
[1993 No. 4883P]
High Court 5th April 1995
Barron J.
5th April 1995
These proceedings arise out of a road traffic accident which occurred on the 6th August, 1990. On that date the plaintiff, who was a pedal cyclist, was struck by a motor car driven by the second defendant. It is common case that the driving by the second defendant on that occasion was not insured. For that reason the proceedings were brought also against the first defendant. In accordance with the provisions of clause 3 (7) of the Motor Insurers Bureau agreement dated the 21st December, 1988, the first defendant required that the third defendant should be joined as a party to the proceedings.
The matter comes before the court to determine whether or not the third defendant is liable to the plaintiff under the provision of s. 118 of the Road Traffic Act, 1961. The relevant circumstances are that the second defendant was at all material times driving the said vehicle under the provisions of a leasing agreement whereby the third defendant leased the vehicle to a limited company of which the second defendant was the substantial owner. The terms and conditions contained in the letting agreement included inter alia a provision, clause 4 (a), that the vehicle should be insured and the further provision, clause 4 (c), that in the case of a mechanically propelled vehicle, the lessee would not be using the goods with the consent of the owner unless the lessee had insured the goods in the manner provided for by clause 4 (a). It was also a term of the agreement that the third defendant would have been entitled to seek details of the relevant insurance policy for the vehicle.
Counsel for the third defendant denies any liability to the plaintiff upon the ground that the provisions of clause 4 (c) of the leasing agreement specifically deny consent to the use of the vehicle in the absence of an approved policy of insurance. Counsel for the first defendant submits on the authority of Buckley v. Musgrave Brook Bond Ltd. [1969] I.R. 440 that the onus of disproving consent lies on the third defendant. He referred also to Ó Fiachain v. Kiernan (Unreported, High Court, Keane J., 1st November, 1985). In that case the interest of the lessee under the leasing agreement had been assigned. The vehicle concerned was involved in an accident in circumstances which entitled the motor insurers of the lessee to repudiate the policy. The injured party sought to recover against the lessor upon the basis that the driver of the vehicle was driving with its consent. The lessor relied upon a clause similar to clause 4 (c). An issue was directed as to whether or not the lessor was liable to the plaintiff. Keane J. accepted that the provisions of the hiring agreement restricted driving to circumstances where there was a valid policy
existence. However, he held that these terms had not been brought to the notice of the assignees of the vehicle so as to bind them. Accordingly he held in favour of the plaintiff.
This ground cannot avail the first defendant in the present case since the second defendant was at all material times fully aware of the terms of the agreement. It is quite clear from those terms that he had no consent to use the vehicle in the absence of a valid policy of insurance. The evidence does not disclose any such consent.
In the course of the proceedings it was submitted that the right of the third defendant to inspect the policy of insurance imposed a duty upon it so to do and that, if it had, it would have found that no such policy existed. Even if this had been done, the third defendant would only have been entitled to take out a policy and in such circumstances the lessee would still have had no consent to use the vehicle until the premium had been repaid. Further such circumstances would not have imposed a duty in favour of a third party. Since no such duty would have arisen it is immaterial whether or not the third defendant was aware of the lack of insurance.
I am satisfied that the vehicle was not at the relevant time being driven with the consent of the third defendant.
A declaration will be made accordingly.