Kavanagh v Governors and Guardians of Rotunda Hospital

CourtSupreme Court
Judgment Date18 February 1959
Date18 February 1959

Supreme Court.

Kavanagh v. Rotunda Hospital.
In The Matter of the Workmen's CompensationActs, 1934-1953; MARGARET MARY KAVANAGH

Workmen's Compensation - Accident "arising out of" employment - Evidence - Onus of proof - Unexplained accident in course of employment - Whether presumption that accident arose out of employment - Workmen's Compensation Act, 1934 (No. 9 of 1934), s. 15, sub-s. 1.

Pleading - Summons averring specific cause of accident - Averment not denied in defence - Whether an admission of averment by respondent.

Appeal from the Circuit Court.

Appeal by the applicant, Margaret Mary Kavanagh, from an order made by the President of the Circuit Court (Shannon J.), in the Dublin Circuit Court on the 28th July, 1958, dismissing her claim for compensation under the Workmen's Compensation Acts, 1934-1953. The facts have been summarised in the head-note and are more fully set out in the judgment of Lavery J., post.

On the hearing of an application in the Circuit Court for compensation under the Workmen's Compensation Acts, the applicant, a nurse at the Rotunda Hospital, Dublin, gave evidence that on the 30th January, 1957, she took her supper in a room on the ground floor and then proceeded, as was her duty, to go up the stairs to a ward on the first floor. She remembered going up the stairs, which adjoined a passenger-operated lift which she was entitled to use. The next thing she remembered was being on the first floor near the stairs and lift and finding her arm bleeding. There was no further evidence offered by either the applicant or the respondents as to the circumstances surrounding the accident, but it was agreed that her hand was amputated that night. The originating summons set out that the applicant's right hand was caught in the lift and mutilated. The defence was confined to a denial that the accident arose out of and in the course of the employment and to a denial of total incapacity. At the conclusion of the applicant's case, the trial Judge dismissed the applicant's claim on the grounds that there was no evidence as to how the accident occurred and therefore the applicant had not proved that it arose out of her employment. On an appeal by the applicant to the Supreme Court it was

Held 1, that since the averment in the summons that the applicant's hand was caught in the lift was not denied in the respondents' defence, the respondents had thereby conceded that that was how the injuries were caused;

2, that where an accident occurs in the course of an employment on the employer's premises in unexplained circumstances "the true rule is to enquire whether as a matter of probability the evidence as it stands makes it more probable that the accident arose out of the employment rather than otherwise";

3, that, in cases of this kind, there is no distinction to be drawn between cases where the workman is killed and those in which he survives but can give no account of the accident.

Hetherington v. Dublin and Blessington Steam Tramway Co.IR [1927] I. R. 75explained.

Cur. adv. vult.

Lavery J. :—

The judgment I am about to read is the judgment of the...

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