Kilgannon v Sligo County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 18 December 2019 |
| Neutral Citation | [2019] IECA 333 |
| Judgment citation (vLex) | [2019] 12 JIC 1805 |
| Court | Court of Appeal (Ireland) |
| Docket Number | APPEAL RECORD NUMBER: 2017/592 |
| Date | 18 December 2019 |
[2019] IECA 333
THE COURT OF APPEAL
Baker J.
Noonan J.
Power J.
APPEAL RECORD NUMBER: 2017/592
HIGH COURT NUMBER: 2015/2017 P
AND
Personal injuries – Damages – Credible evidence – Plaintiff seeking damages – Whether there was credible evidence which supported the conclusion of the trial judge
Facts: The plaintiff, Mrs Kilgannon, brought personal injuries proceedings claiming damages for injuries she suffered in a trip and fall accident on 19th February, 2013 outside Dromore National School in Sligo. At the commencement of the trial, the proceedings were withdrawn against the first defendant, Sligo County Council, disposing of the third party issue also. The sole continuing defendant was therefore in effect the school. The defendants appealed to the Court of Appeal from the judgment of Eagar J given on the 9th December, 2017 at the High Court sitting in Sligo. Five grounds of appeal were identified: (1) the primary finding of fact was not supported by credible evidence; (2) secondary or inferred facts derived from incorrect inferences drawn by the trial judge; (3) the specific finding of fact was so clearly against the weight of the testimony as to amount to manifest defeat of justice; (4) incontrovertible facts and uncontested testimony and the importance thereof; (5) additional points arising and inadequacy of and absence of reasons.
Held by Noonan J that the judge was entitled to take the view in assessing where the probabilities lay that the version of events given by the plaintiff provided a readily understandable explanation for why the accident happened, whereas on the defendants’ evidence, it remained an unexplained mystery despite all three defence witnesses having had a clear opportunity to inspect the locus. Viewing the judgment as a whole, Noonan J was satisfied that there was credible evidence which supported the conclusion of the trial judge. Noonan J could find no basis for the suggestion that such finding was so clearly against the weight of the evidence as to amount to a manifest defeat of justice. Noonan J held that it was apparent from the judgment itself why the trial judge came to his conclusions. Noonan J did not think the defendants could reasonably contend that they did not know why they lost the case.
Noonan J held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal from the judgment of Eagar J. given on the 9th December, 2017 at the High Court sitting in Sligo. The plaintiff (Mrs. Kilgannon) brought these personal injuries proceedings claiming damages for injuries she suffered in a trip and fall accident on 19th February, 2013 outside Dromore National School in Sligo. At the commencement of the trial, the proceedings were withdrawn against the first defendant, Sligo County Council, disposing of the third party issue also. The sole continuing defendant was therefore in effect the school.
The facts of this matter are very simple and straightforward, albeit in some respects highly controversial.
Mrs. Kilgannon's daughter, M, was a pupil in the senior infants' class and during the course of the morning, had become upset, apparently because she lost an earring. As a result, the school decided to contact Mrs. Kilgannon to bring M home early. The school secretary, Mrs. Ruane, telephoned Mrs. Kilgannon in or around lunch time and asked her to collect M. Mrs. Kilgannon drove to the school, arriving at about 1.50 pm, and parked on the opposite side of the road from the school, behind another car. The owner of the other car, Mrs. Carroll, was sitting in her car waiting to collect her granddaughter from the school.
Mrs. Kilgannon had brought her younger daughter, C, aged three, with her and she got out of the car, took C from the back seat and carried her across the road, intending to enter the school and collect M. The plaintiff's evidence was that she walked across the road and as she was stepping up on to the footpath, lost her footing as a result of one of the kerb stones in the footpath being missing and this caused her to fall. She put out her right arm to break the fall, while holding on to C in her left arm and in doing so, suffered a nasty fracture of her right wrist. Mrs. Carroll was, at the time, reading in her car wearing her reading glasses. She does not appear to have directly witnessed the occurrence of the accident, but her attention was drawn by the sound of the plaintiff falling and she immediately went to her aid.
The real dispute in this case centres around where the plaintiff fell. Mrs. Kilgannon's evidence was that she fell at the point on the footpath where the kerb stone was missing. This would appear to have been some 30 feet or so from the gate into the school. The defendants' case throughout however, was that she did not in fact fall at this point, but rather immediately beside the school gate itself, where there was no similar defect.
Before the trial commenced, the parties sensibly agreed that this was the primary issue in the case and if the plaintiff was found to have fallen at the missing kerb stone, the school would be liable, but if she was found to have fallen immediately beside the gate, the school would not. The battle lines were thus clearly drawn and the evidence on liability was almost entirely focused on this issue. As it emerged, the photographs and engineering evidence and all the medical reports were agreed, as were the special damages and accordingly, the only witness to give evidence for the plaintiff was Mrs. Kilgannon herself.
Three witnesses gave evidence on behalf of the school, Mrs. Carroll, Mrs. Ruane and the school principal, Mrs. Langan. Mrs. Carroll's evidence was that when she went to assist the plaintiff, she found her just outside the school gates and not where the plaintiff says she fell. Mrs. Carroll went with Mrs. Kilgannon and C into the school, where they went into Mrs. Ruane's office. Mrs. Ruane had been working at her desk facing the window of her office at the front of the school looking out across the road to where Mrs. Carroll and Mrs. Kilgannon were parked, but she did not witness the accident.
Mrs. Ruane's evidence was that the plaintiff told her that she was coming across the road and fell and protected C's head from the school gate. The plaintiff disputed this. Mrs. Langan arrived into the office shortly thereafter. Mrs. Langan's evidence was that she asked the plaintiff what had happened and the plaintiff gave her a similar account to the effect that she fell just before the gate. Mrs. Kilgannon denied that this conversation occurred or that there was any discussion about the circumstances of the accident.
Mrs. Ruane offered to drive the plaintiff and her daughters home and they proceeded to leave the school. There was another significant conflict in the evidence at this point, because Mrs. Langan said she accompanied the plaintiff and Mrs. Ruane out of the school and asked the plaintiff to show her where the accident had happened and she did so. This was flatly denied by the plaintiff who said that Mrs. Langan did not come outside with them. Mrs. Langan said that she retrieved the plaintiff's handbag from her car, which was again disputed by the plaintiff and she said that Mrs. Ruane had done so.
Two significant documents were introduced in evidence by the defendants. The first was Mrs. Langan's diary entry, which she said was completed by her on the day of the accident. The second was an accident report form completed for the school's indemnifiers two days later on 21st February, 2013. In the diary entry, Mrs. Langan wrote: -
“She parked across opposite the school. On her way into the school, just before she entered the gate she fell.”
In the same entry, Mrs. Langan has noted that she asked the plaintiff what had happened. Mrs. Langan also records that: -
“We brought Treasa out to [Mrs. Ruane's] car and I locked up Treasa's car after I got her handbag for her.”
The diary entry makes no reference to Mrs. Langan asking the plaintiff to show her where the accident had happened, nor does it record if the plaintiff did so, or what she indicated.
The accident report form completed two days later is somewhat different. Under the title “full description of accident”, Mrs. Langan wrote the following: -
“Treasa was carrying her three year old daughter and tripped on the step of the footpath outside the gate. She fell forward and her hand took the impact.”
A rudimentary sketch map was provided by Mrs. Langan, which is obviously not to scale and although it purports to mark with the letter “X” the locus of the accident it does not really assist matters.
Eagar J. delivered an ex tempore judgment in which he set out in some detail the evidence which I have summarised above. He refers to Mrs. Kilgannon's evidence and the fact that she was cross examined at considerable length and in considerable detail. She was asked about the Personal Injuries Assessment Board form which stated that she: -
“stepped on the footpath whereupon she was caused to misstep and fell to the ground.”
It was put to her that there was no mention in the PIAB form of the missing kerb stone, the suggestion being that this was inconsistent with the plaintiff's direct evidence. In dealing with this issue, the trial judge referred to the plaintiff's medical reports which were at odds with this suggestion. The PIAB form was completed by the plaintiff's solicitor on the 6th June, 2014. The plaintiff was seen...
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McHugh v The Office of the Revenue Commissioners
...in favour of the respondent. 20 The respondent relies on a recent decision of this court in Kilgannon v. Sligo County Council & Ors. [2019] IECA 333. The case concerned a trip and fall outside a national school at Dromore in Sligo. There was a dispute as to where the plaintiff fell. She cla......