Mapp (A Minor) v Gilhooley

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy J.
• Judgment Date: 23 April 1991
• Neutral Citation: 1991 WJSC-SC 933
• Date: 23 April 1991
• Docket Number: [1987 No. 8641P]
• Court: Supreme Court

MAPP v. GILHOOLEY

BETWEEN

JUDE MAPP, A MINOR

Plaintiff/

Respondent

and

DOMINIC GILHOOLEY

Defendant/

Appellant

1991 WJSC-SC 933

397/89

THE SUPREME COURT

Synopsis:

CONSTITUTION

Personal rights

Courts - Recourse - Curtailment - Witness - Competence - Minor - Unsworn evidence accepted - Mistrial - Retrial - (397/89 - Supreme Court - 23/4/91) - [1991] 2 I.R. 253 - [1991] ILRM 695

|Mapp v. Gilhooley|

EVIDENCE

Witness

Competence - Child - Oath - Knowledge - Absence - Civil action - Unsworn evidence accepted - Judgment for plaintiff - Mistrial - Retrial - (397/89 - Supreme Court - 23/4/91) - [1991] 2 I.R. 253

|Mapp v. Gilhooley|

EVIDENCE

Estoppel

Trial - Procedure - Adoption - Judge - Decision - Counsel - Acquiescence - Admission of unsworn testimony of minor - Mistrial - Retrial - (397/89 - Supreme Court - 23/4/91) - [1991] 2 I.R. 253

|Mapp v. Gilhooley|

PRACTICE

Appeal

Grounds - Addition - Order - Necessity - Notice of appeal - Amendment - Sufficient interval before hearing of appeal - (397/89 - Supreme Court - 23/4/91) - [1991] 2 I.R. 253 1991 ILRM 695

|Mapp v. Gilhooley|

SUPREME COURT

Appeal

Grounds - Addition - Order - Necessity - Notice of appeal - Amendment - Sufficient interval before hearing of appeal - (397/89 - Supreme Court - 23/4/91) [1991] 2 I.R. 253 1991 ILRM 695

|Mapp v. Gilhooley|

Citations:

R V BRASIER 1779 1 LEACH 199

BIRCH V SOMERVILLE 1852 2 ICLR 67

SELLS V HOARE 3 BR & B 232

CHILDRENS ACT 1908

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1914

COURTS ACT 1981 S22

CONSTITUTION ART 36

1 JUDGMENT delivered on the 23rd day of April 1991by FINLAY C.J. [O'Flaherty J. agr]

2 This is an appeal by the Defendant against an Order made in the High Court by Barr J. on the 7th November 1989 directing that the Plaintiff should recover against the Defendant a sum of £8,000 damages for personal injuries suffered by reason of the negligence of theDefendant.

3 The claim arose out of an accident alleged to have occurred in the school playground managed by the Defendant in Sligo on the 14th May1986.

4 The Defendant, immediately after the decision in the High Court, served a notice of appeal against the finding of negligence, based on the following grounds.

5 1. The learned trial Judge erred in fact and in law in finding that the Defendant was negligent by himself, his servants or agents.

6 2. The said finding was against the evidence and against the weight of the evidence.

7 3. The learned trial Judge erred in law in preferring the unsworn evidence of the minor Plaintiff to the sworn evidence of the Defendant'switness.

8 4. The learned trial Judge erred in the law and in fact in holding that the level of supervision was not adequate in the circumstances.

9 At the commencement of the hearing of the appeal the Defendant applied to add a further ground of appeal,having apparently notified the Plaintiff of his intention so to do some time in May of 1990, and having within a very recent time obtained the agreement of the Plaintiff.

10 Such a procedure is inappropriate and any party seeking to extend the grounds of appeal to be submitted to the Court before this Court should, ordinarily speaking, obtain an order, whether by consent or otherwise, amending the notice of appeal in sufficient time to enable members of the Court, when considering the documents which are read before the hearing, to be aware of the issues that are to be raised.

11 The additional ground which was sought to be added and which was by the order of the Court permitted to be added was as follows:

"That the trial was not in accordance with law and that the trial Judge was wrong in law in permitting the Plaintiff to give evidence when he was unsworn and incompetent as a witness."

12 At the commencement of the hearing of this appeal Counsel on behalf of the Defendant abandoned all the other grounds of appeal that had been put forward and confined his submissions to this last additionalground.

The facts

13 The facts relevant to this ground of appeal, as appear from the transcript of the trial, are as follows. After the case had been opened to the learned trial Judge who sat without a jury, Counsel for the Plaintiff stated his intention of calling the Plaintiff as a witness and the following discussion took place:

"MR. JUSTICE BARR: What age is Jude now?"

14 MR. WHELEHAN: He is eight now, my lord.

15 MR. JUSTICE BARR: Jude, in the Catholic religious classes did they tell you all about an oath? Did you ever hear of an oath?

16 PLAINTIFF: No, Sir.

17 MR. JUSTICE BARR: You did'nt?

18 PLAINTIFF: No, Sir.

19 MR. JUSTICE BARR: What am I going to do with Jude?

20 MR. WHELEHAN: I think if your lordship heard his evidence and judge it as best you can.

21 MR. JUSTICE BARR: You know, Jude, that it is very important that you tell the truth about what happened in this accident when you got hurt? You know that it is very important that you tell the truth about what happened that day, and I'm sure you will. So, we will carryon."

22 No objection was taken by Counsel on behalf of the Defendant and it appears from the transcript that the next matter was that direct examination of the infant Plaintiff commenced. This was followed by cross-examination of the infant Plaintiff and a number of other witnesses, all sworn to give evidence, gave evidence concerning the issue of liability.

23 It is clear from the transcript that the Plaintiff's claim that his injuries were caused by negligence in a failure adequately to supervise the playground, entirely rested upon an assertion that for some appreciable time before he fell two groups of boys were formed into different "trains" which purposely collided, one with the other, resulting in his fall and injury.

24 The Plaintiff was the only person at the trial to give that account of how he sustained his injuries.

25 Two of the teachers who were involved in supervision of the playground at the time gave evidence to the effect that such a form of playing would have been dangerous and that if they had observed it they would have stopped it. Neither of them actually saw the Plaintiff fall or receive his injury, but both stated that it was improbable, having regard to their recollection, that his account of how it occurred could have been correct.

26 At the conclusion of all the evidence Counsel on behalf of both the Plaintiff and Defendant addressed the learned trial Judge, and Counsel on behalf of the Defendant addressed him on the basis that he should prefer the sworn testimony of the two teachers to the account given unsworn by the infant Plaintiff.

27 The learned trial Judge in the course of his judgment firstly stated asfollows:

"The Plaintiff, who is now eight years of age, gave evidence at the trial. Although he was not sworn because he had not yet learned the meaning of an oath, I am satisfied that he understood the importance of the occasion and the necessity for telling the truth. He is a remarkably bright and intelligent boy who had no difficulty in givingevidence."

28 The learned trial Judge then continued to review the "evidence" which had been given by the infant Plaintiff and that which had been given by Mrs. Sheehan and Mrs. Brennan, the teachers who were supervising the playground. Having done so, and having set outthelegal obligation of the Manager of the school concerning the supervision of the children, in a manner to which no objection has been taken, the learned trial Judge stated as follows:

"I am satisfied that the Plaintiff has given in evidence a truthful, reliable account of how the accident happened and of the circumstances which gave rise to it. ...... I accept the Plaintiff's evidence that he and other boys in the junior section were playing that game ("trains") for a significant period which was sufficiently long, prior to the accident, to allow one or other or both supervising teachers to see what was happening and to end it before the accident occurred if they had been keeping a reasonable watch. It follows, therefore, that the Defendant's servants were negligent in not supervising the children adequately and that the Plaintiff is entitled to succeed."

The submissions on this appeal

29 On behalf of the Defendant it was submitted that it was a fundamental rule of the common law applicable to criminal and civil proceedings alike that the vivavoce evidence of any witness in a trial must be given on oath oraffirmation.

30 It was contended that irrespective of whether or not the Defendant through his Counsel objected to the taking of evidence from this infant Plaintiff unsworn that the fact that it was done and was relevant to the decision in the case, made the trial a nullity which this Court must set aside. In the alternative, it was contended that in so far as no inquiry appears to have been made by the learned trial Judge of Counsel for the Defendant as to whether he objected to the course which it was proposed to follow with regard to the taking of "evidence" from the infant Plaintiff and no opportunity was given to him to make any submission concerning it, that the Defendant could not be taken to have acquiesced in the course of conduct which occurred, and that irrespective of whether any such acquiescence could or could not debar him from relying on the want of sworn testimony, he clearly could doso.

31 On behalf of the Plaintiff/Respondent it was firstly contended that a rule of common law which provided that the viva voce evidence of a witness in a trial of a civil action must be on oath or affirmation could not have survived the enactment of the Constitution because it would represent either an unjust and invidious discrimination against a...