Dudgeon v Supermacs Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 16 November 2020
• Neutral Citation: [2020] IEHC 600
• Docket Number: [Record No. 2020/22 CA.]
• Court: High Court
• Date: 16 November 2020

BETWEEN

PAMELA DUDGEON

PLAINTIFF

AND

SUPERMACS IRELAND LIMITED

DEFENDANT

[2020] IEHC 600

Barr

[Record No. 2020/22 CA.]

THE HIGH COURT

JUDGMENT of Mr. Justice Barr delivered ex tempore on the 16th day of November, 2020

1 This is an appeal brought by the plaintiff against the refusal by Groarke J. in the Circuit Court of her application for discovery of the CCTV recording taken at the defendants restaurant premises in Eyre Square, Galway on 6th January, 2017.

2 The background to the application can be briefly summarised in the following way: the plaintiff, who was born on 9th March, 1965, and at least one companion went into the defendants restaurant premises in Eyre Square, Galway on 6th January, 2017. It is pleaded on behalf of the plaintiff that having purchased some food and while awaiting receipt of same, “ the plaintiff sat on a chair which broke, resulting in her falling to the ground and as a consequence whereof she sustained personal injuries, loss, damage, inconvenience and expense, which are ongoing.”

3 It is further pleaded in the Civil Bill that the plaintiff fell “ in a twisting type mechanism” and was extremely embarrassed by the entire accident. It was pleaded that she had pain in the lower part of her back throughout the remainder of the day, particularly having returned home that evening by train. It appears that the plaintiff complained of soreness in her buttocks and in her abdominal muscles. Examination by her GP noted that she had tenderness over the large muscles related to her hip. She underwent an x-ray of her pelvis and lumbar spine, which were normal. The x-ray was carried out on 11th January, 2017.

4 The plaintiff consulted with her solicitor who issued a formal letter notifying the defendant of the claim on 12th January 2017. In that letter the defendant was informed that unless they admitted liability within a period of 10 days from the date of that letter, they were required to undertake in writing that they would preserve any real or movable property relevant to the accident in their possession, power or control pending an examination by the plaintiff's expert.

5 Proceedings were issued against the defendant in the Circuit Court on 18th December, 2017. In broad terms, it was pleaded on behalf of the plaintiff that in breach of duty, the defendant as owner and occupier of the restaurant premises, had caused or permitted her to sit on a chair that was defective and as a result thereof, the chair had broken and the plaintiff was caused to fall to the ground and suffer personal injury, loss and damage. In a defence filed on 7th December, 2018, the defendant stated that it did not require the plaintiff to prove that she had been present on the defendant's premises on the date of the accident, or that she had been seated on a chair that had broken as alleged at para. 4 of the Civil Bill. However, the defence stated “ it is not admitted that the plaintiff fell to the ground as a consequence of the aforesaid break, or that she suffered or sustained the alleged or any personal injury, loss, damage, inconvenience and/or expense and the particulars of same are denied as if set out hereunder and traversed seriatim.” Other than that, the defence denied that the accident had happened in the manner alleged, and it went on to deny each of the particulars of negligence pleaded in the endorsement of claim.

6 By letter dated 5th April, 2019, the plaintiff's solicitors sought voluntary discovery from the defendant of four categories of documents. The County Registrar directed that each of the four categories should be provided to the plaintiff. The defendant appealed that ruling to the learned Circuit Court judge. At the hearing of the appeal, the defendant consented to making discovery of the documents set out at categories two, three and four in the letter seeking voluntary discovery. However, the defendant maintained its objection to making discovery of category one, which was of the CCTV footage of the locus of the accident on the day of the accident.

7 Having heard argument on behalf of the parties, the learned Circuit Court judge (Groarke J.) refused to direct the defendant to make discovery of the relevant CCTV footage. It is against that order that the present appeal has been brought.

8 Mr. Hogan BL on behalf of the plaintiff, submitted that it has long been established that CCTV footage represents the best evidence that can be obtained in relation to the happening of an event, because it records in real time what took place at the relevant time. It is not dependent on the recollection of the parties, or the recollection of witnesses to the event, which evidence, may often be tainted by intentional or unintentional bias, or by frailty of memory: see Braddish v. DPP [2001] 3 I.R. 127, where Hardiman J. stated that “[i]t would be difficult to think of evidence more directly relevant than a purported video tape showing the commission of the crime.” See also the decision of the same judge in Dunne v. DPP [2002] 2 I.R. 305, where he stated that “[v]ideo evidence […] can have very dramatic effect in appropriate cases. If the film is clear, it approximates to having a good eyewitness.” Counsel also referred to the decision in McNamara v. Dunne Stores (Parkway) Ltd [2017] IEHC 172 where Murphy J. concluded that CCTV footage depicting an incident that took place in a supermarket was “ crucial” in determining whether the...