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Skating on thin ice? A tale of caution from the Court of Appeal.

By: Clare Daly | Posted on: 04 Feb 2021

In Naghten v Cool Runnings Events Limited [26 January 2021], the Court of Appeal recently upheld a decision from the High Court which held an ice rink liable for injuries caused to a child while she was skating there with her family.

In this Judgment, Mr. Justice Noonan highlighted a number of issues which arose during the trial, including the exchange of SI391 professional reports, the late engagement of an expert witness, the role of this expert witness and the pleas contained in a defence. The judgment serves as a cautionary tale as to what pleas to include in a defence and the importance of advising and explaining a defence to clients in circumstances where an Affidavit of Verification will be relied on to verify the truth and accuracy of the defence. 

1: PLEAS IN A DEFENCE

A number of pleas were raised in the defence which were not pursued at trial including:

  • That the minor plaintiff voluntarily assumed the risk by participating in this event of ice skating.
  • That the plaintiff acted in such a manner that she knew or ought to have known would cause her personal injury (i.e. that the child was contributory negligent). The Court stated, “If these staff members had witnessed any inappropriate behaviour on the part of the plaintiff, presumably they would have been called to give evidence.” As these staff members were not called upon to give evidence, it is assumed that the defendant must have known there was no question of the plaintiff misbehaving.
  • Negligence of the Plaintiff’s mother in failing to supervise the Plaintiff or have any regard for her safety. The Court stated, “To suggest to any parent that he or she failed to have regard for their child’s safety is distressing.”

Significantly, in evidence, the managing director of the Ice Rink distanced himself from these pleas, despite the fact that a member of the defendant's company had sworn an Affidavit of Verification on foot of the defence.

The court questioned why no apology or withdrawal of these pleas followed and warned that “the days of making allegations in pleadings without a factual or evidential basis, if they ever existed, have long since passed”. The Court referenced the obligation to verify the defence pursuant to s. 14 of the Civil Liability and Courts Act, 2004 and the consequential criminal sanctions applicable pursuant to s. 25 of the same Act “where such a sworn Affidavit of Verification is false or misleading in any material respect”.

2. AFFIDAVITS OF VERIFICATION UNDER SECTION 14

The Court of Appeal highlighted that this case serves as a “timely reminder that s. 14 applies with equal force to defendants and careful consideration is required before pleas of the kind that are seen in this case are advanced, which I would deprecate in the strongest terms.”

The Court warned that solicitors have a duty to advise deponents as to the importance of the Affidavit of Verification and the defence which it verifies, that this is not a form filling exercise but that there are “serious consequences that may ensue if what is sworn transpires to be incorrect”.

3. WHEN TO EXCHANGE SI391 DOCUMENTATION

SI 391 Disclosure obligations were enacted to bring about transparency in the litigation process, to ensure that litigants are not surprised by witnesses or professional reports. The defendant’s engineer was engaged late in the proceedings, on day 2 of the trial, and the judgment indicates that the engineer’s report, which was also dated the 2nd day of the trial essentially comprised of a critique of the plaintiff’s engineers report. It appears that the plaintiff’s solicitor was also unaware that the defendant's engineer was going to be giving evidence.

The Court of Appeal noted that:

“S.I. 391 of 1998 was introduced to bring about a degree of transparency designed to avoid trial by ambush and as a consequence, in theory at least to facilitate earlier resolution of personal injuries litigation.  This was seen to be particularly important in the context of expert evidence where there was a perceived absence of equality of arms or, to use a more current expression, a level playing field." 

It was noted that the exchange of reports should be contemporaneous to avoid the danger that the rules can be abused to enable one party to gain an advantage over another. The Court identified 3 previous cases where the rules around this exchange were considered:

Kincaid v Aer Lingus Teo [2003] 2 IR 314 and later by the High Court in Harrington v Cork City Council [2015] 1 IR1.  Mister Justice Noonan considered both of these cases in Dunne v Grunenthal GmbH [2018] IEHC 798 and found that in Kincaid and Harrington the Court identified the non-simultaneous exchange of expert reports as potentially amounting to an unfair litigious advantage.

Further, where the defendant does not have a professional report at the time of exchange, an undertaking may be given that the defendant will not disclose the plaintiff’s reports to any expert subsequently engaged.

“The requirements of fairness require a simultaneous exchange of expert reports and that requirement is not abrogated by the non existence at this point in time of expert reports to the defendants”.  

CONCLUSION

This case serves as a cautionary tale for litigators in terms of their defence, particularly where placing blame on a child in terms of contributory negligence or indeed on parents in terms of a failure to properly supervise the child. The fact that a plea in a defence is not relied on in the course of the trial does not insulate the defendant from admonishment (or worse), particularly where the legislation provides that a defence is to be verified, and a misrepresentation in the verified defence is capable of attracting a criminal sanction pursuant to the Civil Liability and Court Act 2004. Read the full judgment here.

This article was written by Clare Daly, Solicitor, CKT.

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