Michelle McGeoghan v Christopher Kelly, Martin McBrierty and Pauric McInern

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 21 April 2021
• Neutral Citation: [2021] IECA 123
• Date: 21 April 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2018/470

Between/

Michelle McGeoghan

Plaintiff/Respondent

and

Christopher Kelly, Martin McBrierty and Pauric McInern

Defendants/Appellants

[2021] IECA 123

Whelan J.

Noonan J.

Binchy J.

Record Number: 2018/470

High Court Record Number: 2013/5928P

THE COURT OF APPEAL

Personal injuries – Negligence – Contributory negligence – Respondent seeking damages for personal injuries – Whether the trial judge was entitled to find that the appellants had been negligent

Facts: The first defendant/appellant, Mr Kelly, was the owner of a licenced premises known as McLaughlin’s Bar, Dunkineely, County Donegal. The second and third defendants/appellants, Mr McBrierty and Mr McInern had, at the material time, taken a one year lease of the premises from the first appellant. A personal injuries action arose out of an accident that befell the plaintiff/respondent, Ms McGeoghan, on the 6th August, 2012. As it was well after closing time, the entrance door into the bar was closed and the plaintiff had to leave by a separate door opening onto Main Street which also served as the hall door for the adjoining residence. The plaintiff was alone as she entered the corridor to the outside which she claimed was dark. The door was secured by what was described as a Union snib lock of a typical kind. She opened the lock with her right hand and as the door opened slightly, she placed her left hand around the leading edge of the door intending to draw it towards her. Before she could do so however, the door suddenly slammed shut catching the little finger of her left hand between the door and its jamb. As a result, she suffered a severe crushing injury to the finger which ultimately resulted in the amputation of the tip. The High Court (Meenan J) found in favour of the plaintiff. The negligence identified by the trial judge on the part of the defendants was a failure to ensure that a door closer that was fitted to the door was functioning correctly so as to prevent the door slamming. He awarded general damages in the sum of €75,000 but subject to a deduction of 25% for contributory negligence on the part of the plaintiff. The defendants appealed to the Court of Appeal. The primary ground of appeal advanced was that there was no evidence as to what caused the door to slam and in the absence of such evidence, the trial judge was not entitled to find that the defendants had been negligent. The plaintiff cross-appealed against the finding of contributory negligence on the basis that the finding by the trial judge that there was no duty on the defendants to escort the plaintiff off the premises was erroneous. It was further pleaded that the judge was wrong to conclude that the light in the hall must have been on.

Held by Noonan J that the essential basis upon which the trial judge held the defendants to be negligent was not one that was ever pleaded or made by the plaintiff, but simply one that fortuitously emerged in the course of the evidence. Noonan J held that the Civil Liability and Courts Act 2004, and more generally the requirement for pleadings to define issues, would be robbed of any meaningful effect if courts were at large to determine the outcome of litigation on such a basis; far from the parties being confined to the issues defined by the pleadings, claims would fall to be decided on an inquisitorial rather than adversarial basis. Confronted with the evidence, Noonan J understood how the trial judge felt constrained to find that there was no duty on the defendants to escort the plaintiff off the premises, particularly as he had already found that the light was on. Therefore it seemed to Noonan J that there was no basis for the plaintiff’s contention as a ground of cross-appeal that there was such a duty.

Noonan J held that the plaintiff failed to establish that there was any negligence on the part of the defendants and her claim ought to have been dismissed. He allowed the appeal, dismissed the cross-appeal and set aside the order of the High Court. As the defendants had been entirely successful, his provisional view was that they were entitled to the costs of the appeal and the proceedings in the High Court.

Appeal allowed. Cross-appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Noonan delivered on the 21st day of April, 2021

1 . The first appellant is the owner of a licenced premises known as McLaughlin's Bar, Dunkineely, County Donegal. The second and third appellants had, at the material time, taken a one year lease of the premises from the first appellant. I shall for convenience refer to the appellants as the defendants. This personal injuries action arises out of an unfortunate accident that befell the respondent (the plaintiff) on the 6th August, 2012 at about 2.30am on a Sunday night/Monday morning.

2 . The plaintiff attended a bingo session locally earlier in the evening and arrived at the bar sometime after 11pm. The bar was very busy that evening. She had a few drinks in company with her husband who left ahead of her to get a taxi. As it was well after closing time, the entrance door into the bar was closed and the plaintiff had to leave by a separate door opening onto Main Street which also served as the hall door for the adjoining residence. The plaintiff was alone as she entered the corridor to the outside which she claimed was dark.

3 . The door was secured by what was described as a Union snib lock of a typical kind. She opened the lock with her right hand and as the door opened slightly, she placed her left hand around the leading edge of the door intending to draw it towards her. Before she could do so however, the door suddenly slammed shut catching the little finger of her left hand between the door and its jamb. As a result, she suffered a severe crushing injury to the finger which ultimately resulted in the amputation of the tip.

4 . The High Court (Meenan J.) found in favour of the plaintiff. The negligence identified by the trial judge on the part of the defendants was a failure to ensure that a door closer that was fitted to the door was functioning correctly so as to prevent the door slamming. He awarded general damages in the sum of €75,000 but subject to a deduction of 25% for contributory negligence on the part of the plaintiff.

The Case Pleaded by the Plaintiff

5 . A personal injuries summons was issued by the plaintiff on the 13th June, 2013, about ten months after the accident. It is of some significance to note that the summons was issued in advance of a joint engineering inspection taking place. The plaintiff's evidence at the trial was that there was, in fact, no door closer fitted to the door in question. That was reflected in the summons that pleaded that there were no measures to prevent violent and sudden slamming of the door.

6 . In her particulars of negligence, the plaintiff pleaded at item (d) that there was a failure to ensure that there was an appropriate mechanism on the door to prevent sudden and violent slamming and (l), a failure to apply a device which would prevent the door from violently slamming. Paragraph (n) pleaded that there was a failure to warn the plaintiff that the door was prone to violent slamming but no evidence was led by either side at the trial which supported this latter allegation. Accordingly, the sole and only case pleaded by the plaintiff was in substance that there was no closer on the door.

7 . A joint engineering inspection took place on the 18th September, 2013, three months after the summons containing the pleas I have identified was issued. The inspection was attended by the plaintiff with her consulting engineer, Ms. Anne Kelly, and by Mr. Tom O'Brien, the consulting engineer on behalf of the defendants. In his report following this inspection, Mr. O'Brien noted that the door was fixed with a closing/damping device of standard type with two adjustments that allowed for variation in the swing speed and the latch speed at its final stage of closure. Mr. O'Brien noted that the door was inclined to stick as it closed because the underside was catching against the top surface of the doorstep and once past this restriction, the door closed freely and quickly taking between .45 and .55 seconds for the final phase of closure. Accordingly, the damping effect was negligible at that time.

8 . The case took a somewhat protracted course to come to trial but was eventually listed for hearing at the Sligo sessions of the High Court which commenced on Monday 29th October, 2018 for a period of two weeks.

9 . Before the case came on for trial, the plaintiff's original engineer, Ms. Kelly, had retired and it would seem that very shortly prior to the Sligo sessions, a new engineer was instructed, Mr. Vincent McBride. A second joint engineering inspection took place on the 8th October, 2018 again attended by the plaintiff, this time with Mr. McBride and Mr. O'Brien. Both engineers again assessed the operation of the door closer, again noting that there were two phases. The door opened to a maximum of 80 degrees and took about two seconds to close from 80 degrees to 20 degrees when the second damping phase slowed it further.

10 . To cover the last 20 degrees required 5.3 seconds which was, give or take, approximately ten times longer than had been the case five years earlier when it was assessed in 2013. As at the previous inspection, Mr. O'Brien also noted that the door had a handle just below the snib lock. Of note at the second joint inspection, the plaintiff alleged that on the night of the accident, there was no handle fitted to the door nor was there a closer on the door. These allegations were not made by the plaintiff at the first engineering inspection. Another contentious issue was the lighting in the hallway/corridor leading to the door. There was a ceiling light present but the plaintiff alleged that this was not on at the time of her accident and thus the corridor...