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Moloney v. Jurys Hotel plc [1999] IESC 75 (12th November, 1999)
THE
SUPREME COURT
160/97
Barrington,
J.
Lynch,
J.
Barron,
J.
Between:
FIONA
MOLONEY
Plaintiff
and
JURY’S
HOTEL PLC
Defendants
JUDGMENT
of Barrington, J. delivered the 12th day of November, 1999 [Nem. Diss.]
1. This
is an Appeal from the Judgment and Order of Mr. Justice Kelly delivered and
made herein on the 18th day of April, 1997 whereby he dismissed the Plaintiffs
claim herein with no Order as to costs.
2. The
case is a strange one, though originating in a comparatively simple accident.
3. The
Plaintiff is a young woman and, at all material times, was employed by the
Defendants as a trainee chef at their hotel in Cork City.
________________________________________________
-2-
4. On
the date of the accident which was the 27th day of July, 1993 the Plaintiff was
required in the course of her duties to place a fairly heavy ice cream
container into a refrigerator. To do this she said she had to squat down on her
hunkers. No sooner had she placed the ice cream container in the refrigerator,
and while she was still in a squatting position, someone called for the ice
cream container again. She went to get the ice cream container from the
refrigerator and, with that, her feet went from under her and she fell on her
back causing herself injuries.
5. She
says that the reason why her feet gave way under her was that the floor, in the
vicinity of the refrigerator, was wet.
6. An
interesting aspect of the case was that doctors who gave evidence on either
side were agreed that the Plaintiffs injuries were consistent with a fall such
as she described.
7. Dr.
Dominic Cooke, Consultant Rheumatologist, Ennis, who had treated the Plaintiff
for her back problem (Day 3, Q. 50-52; Q. 169; Q. 175; and in answer to judge
at p.27):
“Q. You
have addressed the ... right sacroiliac joint. Perhaps you would deal with the
facet joints ?
________________________________________________
-3-
A. The
facet joints .... are vulnerable, particularly vulnerable to the type of injury
this lady sustained, a jolting or impact injury would easily pain those.
Q. How
did your diagnosis tally with the type of injury described by the Plaint if?
A. Well,
she would certainly be vulnerable to injuring one or other of those structures.
Q. And
is it your view that she injured one or other, or both?
A. Yes,
it is - it was and it is....
Q. If
she described her back pain in the terms she described it to you her chances of
getting a job would not be great. It all boils down as to whether one believes
the Plaintiff?
A. She
did have restriction. There were clinical signs. The history was very
convincing. The examination was convincing and that is what I would base my
diagnosis on....
Q. On
her account of the accident she was squatting down in front of the fridge with
her weight on her toes and her heels up in the air, and that her feet went
forward, she went backwards but obviously from a very low position?
A. That
is the classic type of injury....
________________________________________________
-4-
Mr.
Justice Kelly: As to how she fell, how is it documented?
A. ‘History
of present complaints. The patient was well until the 22nd of July, 1993. She
fell on her back while putting food in a fridge at work (from a sitting or
squatting position) . She had sharp, severe pain at lower back
Dr.
Eugene Casey, General Practitioner, Ennis, who had also treated the Plaintiff
for her back problem (Day 3, Q. 230):
“Q. I
don ‘t want to take you through her medical state again. You appreciate
the defence case is she did not fall and hurt her back on the 22nd of July, and
that her complaints are completely out of keeping with any such injury. I
presume you say that they are in keeping, is that correct?
A. That
is correct....
Mr.
John Curtin, Consultant Orthopaedic Surgeon, who examined the Plaintiff for the
Defendants (Day 3, Q. 585; Q.622):
“Q. Now,
did you form any conclusion as to what her condition was as of the 20th of
December of last year?
________________________________________________
-5-
A. ...
I concluded that she suffered obviously a helpless fall in July, 1993....
Q. Would
you also agree that - if given that more than three and a half years has
elapsed - that the condition which she now complains of is chronic and is
likely to continue because of the period that 2
A. I
would think not. I think the objective examination combined with all the normal
investigations would suggest that this pain that she has will resolve at some
future date.”
8. There
were however major disputes between the parties as to (a) the state of the
floor at the time of the accident and (b) the normal condition of the floor.
9. The
Plaintiff swore that the floor was wet at the time of the accident and that it
was frequently wet. No person, other than the Plaintiff actually witnessed the
accident but the Plaintiff was supported in her description of the general
condition of the floor in the neighbourhood of the refrigerator by a fellow
worker Ms. Madden who said that there always seemed to be water seeping out
from the fridge and there was a little channel towards the centre of the
kitchen floor and that, after the Plaintiffs accident, she found that there was
constant water coming out from the fridge.
________________________________________________
-6-
10. Two
experienced chefs Mr. Tannion, who was in charge on the night, and Mr.
Stafford, denied this. Mr. Tannion said that there was no water on the floor
immediately after the accident and that he did not notice any sign of wetness
or water on the Plaintiffs clothing. Mr. Stafford said that the kitchen was a
hostile environment; that spillages were a fact of life; but that there was no
question of water constantly leaking on to the floor.
11. The
Defence case was that they employed a team of porters who mopped up any
spillages and that the refrigerator, if properly maintained and cared for,
would not spill water on to the floor. A disturbing feature of the case,
however, was that no Porter was called to give evidence nor was any maintenance
engineer called to give evidence as to the servicing of the refrigerator.
12. Mr.
Tannion did not witness the Plaintiffs fall but he did say that the account she
gave him just after the accident was different from the account she was giving
in Court. He describes the scene after the accident as follows:-
“343
A. Well, I was sitting in the office when I was summoned to go into the
kitchen. I made my way up to the kitchen. I could see through the corridor
Fiona was standing against a fridge appliance. I went up to her and asked her
what had happened. She said she had been
________________________________________________
-7-
bending
over and she felt a click in her back. I then asked her to show me where it
happened. She brought me over to a section between the fridge and the bain
marie. I asked her to explain to me what happened. She said she was bending
over and she felt a click in her back and with that she was obviously in
distress.”
13. The
issue then became one of credit as between the Plaintiff and Ms. Madden on the
one hand and Mr. Tannion and Mr. Stafford on the other hand as to how the
accident happened, whether the floor was wet on the occasion and as to the
condition of the floor on other occasions.
14. In
the event the Trial Judge decided that the Plaintiff had failed to prove her
case on the balance of probability.
15. The
Trial Judge took great pains with this Personal Injuries Action. This is
illustrated by the fact that he reserved his Judgment. Moreover, in deciding
the issue of costs, he made this remarkable statement:-
“The
Plaint if has failed in her case. She has done so because she hasn‘t
discharged the onus of proof Nothing that I have said in the Judgment or
nothing that I say now should be interpreted as suggesting that the Plaintiff
deliberately set out to mislead the Court
________________________________________________
-8-
or
to tell a false story. It was a case where there was a conflict of evidence as
between the two sides. I have found that the Plaint if failed to discharge the
onus of proof and in the circumstances it seems to me the just thing to do
would be to make no order as to costs.
While
the Trial Judge did not suggest that the Plaintiff was not telling the truth to
the best of her ability. Her story, when weighed against the contradictory
evidence of Mr. Tannion and Mr. Stafford did not carry sufficient weight with
the Trial Judge to satisfy him that she had discharged the onus of proof which
rested on her. This was essentially a question of credit and the conclusion of
the Trial Judge could not normally be disturbed in this Court on the principle
of
Hay
v. O’Grady
[1992] 1 IR 210.
In
attempting to resolve the dispute between the Plaintiff, on the one hand, and
Mr. Tannion on the other hand, as to what happened and as to the condition of
the floor on the night of the accident the learned Trial Judge made the
following analysis of the evidence:-
“In
attempting to find out which of these versions is more probably correct there
are a number of pieces of evidence which assist. First, there is evidence from
Mr. Michael Guerin, who drove the Plaint if to
________________________________________________
-9-
the
Mercy Hospital. He said that the Plaint if told him that her feet went from
underneath her as she was putting something in a refrigerator or cooker, and
she couldn‘t straighten up. She said to him that the floor was very wet
and her feet went from under her on the wet floor. Such a statement made to Mr.
Guerin is not of course, proof of the facts stated in it, but I treat it as
evidence that such a statement was in fact made. But as against this I find it
surprising that such a detail concerning water on the floor was not given to
Mr. Tannion, who would have had a considerable interest in what occurred. This
was Mr. Tannion ‘s evidence, namely that it was not said to him, and the
Plaint if had no recollection of saying anything to him concerning slipping on
water.
The
Plaint if was taken to the Mercy Hospital. In cross-examination an extract from
the hospital notes was put to her. It read, ‘Felt sprain in back while
standing from sitting position.’ The Plaint if had no recollection of
saying such a thing to the hospital authorities. The writer of this note did
not give evidence, but such a note was undoubtedly made and the only person who
could have imparted such information was the Plaint if herself I might not be
inclined to attach much weight to that, particularly as I am sure the Plaintiff
was
________________________________________________
-10-
not
very well on admission to hospital. Nevertheless, I find it a little strange,
but matters become more curious when one considers the conversation that the
Plaint if had with Mr. Tannion and the following. Some days later the Plaintiff
was admitted to Ennis Hospital. The primary cause of her hospitalisation was a
urinary tract infection. Having noted that she complained of being unwell for
two days, poor stream, frequency of micturition and vomiting with rigors and
sweating, the hospital records went on to note that she also complained of and
I quote, ‘sudden onset of pain in back while getting up from bending
forward’. There is no mention of slipping in the hospital notes. Again
the information given to the hospital authorities could only come from the
Plaintiff and again the Plaintiff could not recollect what she told the
hospital authorities.
Dr.
Curtin, who was her consultant in Ennis Hospital, was primarily concerned with
the urinary tract infection, but his recall of her hospitalisation was that in
addition to the urinary tract infection she had back pain following a lifting
accident at the hotel. Again the Plaintiff has no recollection of what she told
Dr. Curtin on this topic. In fairness, the minutiae of the incident were not of
that much concern to the doctor, because he was primarily involved in the
________________________________________________
-11-
treatment
of the urinary tract infection. So again this particular element of the case of
itself might be of little significance. But when coupled with the other matters
that I have alluded to, in my view is of some signifigance.
Dr.
E. Casey, a general practitioner in Ennis, saw the Plaint if on the 5th of
August of 1993. He had a letter from Dr. Curtin, which spoke of a sudden onset
of pain when she bent down replacing a light container in a refrigerator at her
place of work. Again the Plaint if could not recall what she said to Dr. Casey,
but he told me that she told him that she fell at work.
The
onus is on the Plaint if to prove to me on the balance of probabilities, that
there was water on the floor on the night in question, that it was as a result
of the Defendant ‘.s’ negligence that she slipped because of the
water and that her injuries resulted.
In
my view having regard to the conflict of evidence and the matters to which I
have alluded, the Plaintiff has failed to prove as a matter of probability that
there was water on the floor on the night in question.”
________________________________________________
-12-
16. In
making this analysis the learned Trial Judge referred to two hospital notes
which he assumed tended to undermine a portion of the Plaintiffs evidence and
to support that of Mr. Tannion. The trouble is that neither note is evidence.
While either note could have been put to the Plaintiff in cross-examination
(and one was) the cross-examiner would have been bound by her answer. The
persons who made these notes were not called to give evidence. They were not
cross-examined and the possibility that either, or both, of them might have
made a mistake was not explored. There is also the fact that the notes are
mutually contradictory and inconsistent with the nature of the Plaintiffs
injuries as described by all the doctors who gave evidence. These notes are of
no evidential value and should not have been used by the Trial Judge to the
detract from the weight of the Plaintiffs testimony. It would therefore appear
to me that the Trial Judge’s finding that the Plaintiff had failed to
prove as a matter of probability that there was water on the floor on the night
of the accident cannot stand.
17. The
Trial Judge made a second finding that it appeared to him as a matter of
probability that there was no water constantly in the area of the refrigerator.
This is a clear finding of fact and, again, could not normally be interfered
with by this Court. But again, on this matter there was a conflict of testimony
between the Plaintiff and Ms. Madden on the one side and Mr. Tannion and
________________________________________________
-13-
18. Mr.
Stafford on the other. The learned trial Judge had based his first finding on
an assessment of the weight to be given to the Plaintiffs testimony and one
cannot be sure that this same sentiment did not influence his finding on the
second matter.
19. In
these circumstances it appears to me that the trial was unsatisfactory, that
the Appeal should be allowed and that the matter should be remitted to the High
Court for retrial.
© 1999 Irish Supreme Court
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