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Award for woman who had tip of finger amputated overturned by Court of Appeal after plaintiff failed to prove the case as pleaded

By: Julie McEvoy and Mary Maunsell | Posted on: 18 May 2021

In the case, McGeoghan v Christopher Kelly, Martin McBrierty and Pauric McInern [2021] IECA 29, the Court of Appeal overturned a High Court award of €56,250.00 after the Plaintiff failed to prove the case as pleaded.

The Court was satisfied that the plaintiff failed to establish that there was any negligence on the part of the defendants and her claim ought to have been dismissed.

Background

The Plaintiff, Michelle McGeoghan, from Donegal, sued McLaughlin’s Bar in Dunkineely, after a door slammed shut on her baby finger. The Plaintiff was leaving the pub at 2.30am and therefore had to exit through the side door as the main entrance had been locked at closing time. When she attempted to open the door, it slammed shut on her right baby finger and crushed it. Considerable damage was done to her baby finger, which resulted in the tip of it having to be amputated.

The Plaintiff argued that the hallway was dark and she should have been escorted out from the premises. She further argued that there was no closer on the door and no handle on the door. Two joint engineering inspections were carried out. The first one reported that there was a closer on the door but it was not working. The second inspection reported that the closer was functioning. It appears that the closer was fixed between the two inspections. Furthermore, a handle was found on the door on both inspections.

The trial judge held against the Plaintiff on each of the disputed facts, however, he held that the closer should have been maintained and that the probable cause of the accident was the fact that the closer was not working and therefore the Defendants’ were liable for negligence.  The Plaintiff was awarded €56,250 after the judge held there was contributory negligence on her part of 25%.

Court of Appeal

Both defendants appealed the decision on the basis that there was no evidence as to what caused the door to slam and in the absence of such evidence, the trial Judge was not entitled to find that the defendants had been negligent. The plaintiff cross appealed the finding of contributory negligence stating that the judge was wrong to conclude that the light in the hall must have been on and that there was no duty on the defendants to escort the plaintiff off the premises.

Mr Justice Seamus Noonan, delivering the decision of the Court of Appeal, stressed that there was no evidence to establish that the accident was caused due to the door closer not working. He further highlighted that the fact that counsel for the Plaintiff had argued that whether or not there was a door closer was irrelevant because the Plaintiff’s case was that she should have been escorted from the premises. Furthermore, he held that the Defendant’s had no duty to equip the door with a door closer.

The case as pleaded was there was no closer on the door and there should have been, rather than that there was a closer but it was not functioning correctly. It was therefore “inescapable” the trial judge had found the defence liable on a case never actually pleaded, or made, by the plaintiff.

The Court noted the importance of the Civil Liability and Courts Act 2014 which was considered by recent Court of Appeal decision of Morgan v ESB [2021 IECA 29] that required parties to plead with “greater precision and particularity”

Arising from this the Court stated that while perhaps understandable that the trial judge concluded that the “probable cause of the accident was the door closer not functioning correctly, in legal terms it was not the proximate cause or indeed a cause at all”. The Court concluded “the cause was never established”. The Court went further by stating that the essential basis upon which the trial judge held the defendants to be negligent was not one that was ever pleaded but simply one that “fortuitously” emerged in the course of the evidence.

The Court also found, as for the contention that the defendants had an obligation to escort the plaintiff off the premises that, based on the evidence before the trial judge there was no basis for same as a ground of cross-appeal that there was such a duty

Conclusion

Mr Justice Noonan was therefore satisfied that the plaintiff failed to establish that there was any negligence on the part of the defendants. The Court allowed the appeal, dismissed the cross-appeal and set aside the order of the High Court.

This Judgment serves as another reminder to parties on the importance of the provisions of the Civil Liability and Courts Act 2004. This article was written by Julie McEvoy, Solicitor, Comyn Kelleher Tobin and Mary Maunsell, Intern, Comyn Kelleher Tobin.

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