Aoibhe Naghten (A Minor) v Cool Running Events Ltd

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeWhelan J.,Noonan J.,Collins J.
Judgment Date26 January 2021
Neutral Citation[2021] IECA 17
Date26 January 2021
Docket NumberRecord Number: 2018/356

[2021] IECA 17

THE COURT OF APPEAL

Whelan J.

Noonan J.

Collins J.

Record Number: 2018/356

High Court Record Number: 2016/4075P

Between:
Aoibhe Naghten (A Minor)
Suing by her Mother and Next Friend Teresa Crowley
Plaintiff/Respondent
and
Cool Running Events Limited
Defendant/Appellant

Damages – Liability – Quantum – Appellant appealing against award in damages – Whether the appellant was liable

Facts: The defendant/appellant, Cool Running Events Ltd, owned and operated a pop-up ice rink in Blanchardstown County Dublin operating on a seasonal basis between the months of November and January. On the 30th December 2015, the plaintiff/respondent, Ms Naghten, then a ten-year old child, fell while skating at the defendant’s rink onto her hand, when another patron skated over the back of her hand causing her injury. The High Court (O’Hanlon J) in a judgment delivered on the 25th July, 2018, found the defendant liable and awarded a sum of €65,000 in general damages to the plaintiff. The defendant appealed against that award to the Court of Appeal on both liability and quantum.

Held by Noonan J that there was more than ample evidence available to the trial judge which entitled her to conclude that the defendant had been negligent in this case and such negligence caused the plaintiff’s accident. Noonan J held that, there being no issue of contributory negligence pursued at the trial, as distinct from in the pleadings, quite properly in view of the plaintiff’s age, the plaintiff was entitled to succeed one hundred percent. Noonan J held that there was no basis upon which the court could attempt an evaluation of the plaintiff’s injuries which would enable it to determine whether there was any error in the approach of the trial judge. As the onus remained on the defendant as the appellant to establish such error, the court could not interfere with the award.

Noonan J held that the appeal would be dismissed.

Appeal dismissed.

UNAPPROVED
NO REDACTION NEEDED

JUDGMENT of Mr. Justice Noonan delivered on the 26 th day of January, 2021

1

. The appellant (the defendant) owned and operated a pop-up ice rink in Blanchardstown County Dublin operating on a seasonal basis between the months of November and January. On the 30th December 2015, the respondent (the plaintiff), then a ten-year old child, fell while skating at the defendant's rink onto her hand, when another patron skated over the back of her hand causing her injury. The High Court (O'Hanlon J.) in a judgment delivered on the 25th July, 2018, found the defendant liable and awarded a sum of €65,000 in general damages to the plaintiff. The defendant has appealed against that award to this court on both liability and quantum.

Background Facts
2

. The plaintiff, who was born on the 16th May, 2005, attended at the defendant's ice rink together with her mother, Ms. Crowley, and her older sister Kerrie. Ms. Crowley having made an online booking for the three of them. The ice rink operated over the Christmas period between the hours of 10am and 10pm and held ten 50 minute sessions each hour during that period. The ten-minute interval was to allow for one group to leave and the next to enter. Ms. Crowley had booked for the 2pm session. Although only ten, the plaintiff was described as a proficient skater, having undertaken the activity a number of times previously.

3

. The accident occurred at the end of the session as the skaters were leaving the ice rink via the single exit provided for that purpose at just before 3pm. In fact, CCTV footage recorded the accident at a time stamp of 14:58:58 or within one or two seconds of that time. The plaintiff appears to have been skating towards the exit reasonably close to the barrier. The CCTV footage shows a large gentleman holding onto the barrier with his back to the ice rink as the plaintiff approaches to skate behind him. As she does so, his body moves out slightly, whether by design or otherwise, so that the plaintiff collided with him and this caused her to fall to the ground onto her outstretched hands. It would appear that the skater immediately behind the plaintiff then inadvertently skated over the plaintiff's hand.

4

. As a result, the plaintiff appears to have suffered fairly significant lacerations to the back of her hands as illustrated in photographs put before this court clearly taken very shortly after the accident. The plaintiff ultimately made a good recovery albeit with a degree of scarring remaining. Apart from those photographs, it would appear that no other up to date photographs were put in evidence before the High Court to demonstrate the appearance of the plaintiff's hand which was, instead, viewed directly by the trial judge during the course of the hearing.

5

. The factual witnesses who gave evidence on behalf of the plaintiff before the High Court were the plaintiff herself, her mother and her sister. Each of them described the ice rink as being “packed” during their session. It was suggested to each in turn by counsel for the defendant that this was not an accurate description by reference to what was to be seen on the CCTV footage which was played in court. However, no evidence was given by any witness on behalf of the defendant who was present at the time of the plaintiff's accident. The CCTV footage also showed the presence of a marshal on the ice rink some time shortly before the plaintiff's accident but the marshal does not appear to have been present when the plaintiff fell and certainly did not come to her aid in the aftermath. There was a suggestion that he was attending to another fall at the time. The plaintiff was however attended to by one of the defendant's first aid officers who, it was agreed, looked after the plaintiff extremely well.

The Course of the Proceedings
6

. A personal injuries summons was issued on the 9th May, 2016. It included fairly generic pleas of negligence and breach of duty and specifically alleged that there was overcrowding and inadequate supervision at the material time. In its defence, the defendant pleaded general traverses but raised a number of particular pleas worthy of note:

  • (a) the defendant alleged that the plaintiff voluntarily assumed the risk of being injured by virtue of the doctrine of volenti non fit injuria;

  • (b) the plaintiff was the author of her own misfortune and failed to have regard for her own safety. Despite this very specific plea that the plaintiff's own negligence caused the accident, no particulars of such alleged negligence were ever given, no suggestion was made to the plaintiff in cross-examination that she had caused the accident by her own carelessness and no evidence was led by the defendant to substantiate such plea;

  • (c) the plaintiff's mother failed to exercise reasonable supervision and control over the plaintiff;

  • (d) the plaintiff's mother failed to have regard for the plaintiff's safety. Neither of these pleas were ever particularised. No suggestion was made to the plaintiff's mother in cross-examination that she had failed to supervise her daughter and no evidence was led to substantiate these allegations. This is unsurprising in circumstances where the uncontroverted evidence was that the plaintiff's mother was barely able to skate, if at all, in contrast to her daughters and particularly the plaintiff;

  • (e) the defendant further alleged against the plaintiff's mother that she failed to seek proper treatment or to take any steps to alleviate her daughter's pain and suffering. Again, no credible attempt was made at the trial to stand over this very serious and hurtful allegation of neglect made against the mother of a young child.

7

. This defence was delivered on the 14th July, 2016 and an affidavit of verification supporting each of the pleas contained therein was sworn on the 4th August, 2016 by Ms. Orla O'Neill, who is described as a director and company secretary of the defendant.

8

. During the course of 2016, the plaintiff's solicitors made a request of the defendant's solicitors for a joint engineering inspection of the locus of the accident to be carried out by the plaintiff's consulting forensic engineer, Mr. Niallo Carroll in consultation with the defendant's engineer. For reasons that are not apparent, such an inspection did not take place but it may be related to the fact that it was not possible at the time it was sought, in the summer of 2016, given the fact that the rink only operates at around Christmas time. The defendant was however, at least from that time, aware that the plaintiff had retained the services of an engineer to give evidence at the trial.

9

. The hearing was fixed to commence on the 3rd May, 2017 and shortly before that, the parties exchanged their S.I. 391 schedules. The first schedule submitted by the defendant's solicitors was dated the 24th April, 2017 and listed five witnesses as to fact, two at least of whom, as it later transpired, were ice marshals present at the rink around the time of the plaintiff's accident. The only expert witness identified was a medical witness and notably, no engineer appeared on the defendant's schedule. Similarly, the only witness as to fact who was actually called by the defence at the trial, Mr. Bill Cremin, is absent from the first schedule. The plaintiff's disclosure schedule is dated the following day, the 25th April, 2007 listing Mr. Carroll as an expert witness and three factual witnesses being the plaintiff, her mother and sister.

10

. The trial commenced on the 3rd May, 2017 before Hanna J. and proceeded for three days, on the 3rd, 4th and 5th May, 2017. On day two of the trial, the 4th May, 2017, the defendant's solicitors prepared a new schedule listing two additional witnesses, Mr. Barry Tennyson of Tennyson Engineers whose report was awaited, and Mr. Cremin, described as managing director/founder of the defendant. When Mr. Tennyson ultimately came to give...

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8 cases
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