Moorehouse -v- The Governor of Wheatfield Prison & ors,  IESC 21 (2015)
|Party Name:||Moorehouse, The Governor of Wheatfield Prison & ors|
THE SUPREME COURT
[Record No. 2014/128]
THE GOVERNOR OF WHEATFIELD PRISON, THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
Judgment of Mr. Justice John Murray dated the 5th day of March, 2015
This appeal arises from an order of the High Court refusing the appellant leave to make two amendments to his personal injuries summons, which would have added further allegations of negligence in his claim for damages against the respondents. The High Court, at the same time, granted leave to the plaintiff in respect of two other proposed amendments. The claim arises from serious injuries, involving the amputation of three fingers of his left hand, when he was using a guillotine steel cutter to cut metal, as part of a training programme in Wheatfield Prison on 27th November, 2008. The full facts and circumstances are set out in the judgment of MacMenamin J., including the history of these proceedings and the terms of the proposed amendments to the personal injuries summons.
In order to place the issue in context, however, I refer to the terms of the two amendments which are still in issue (with the amended text underlined):
(a) “7. On or about the 27th day of November, 2008, whilst the plaintiff was an inmate in Wheatfield Prison, in the County of the City of Dublin, which said prisoner was under the control of the first named defendant, and whilst the plaintiff was under the influence of a controlled drug, to wit methadone, administered by an agent of the first named defendant, the plaintiff was participating in a training programme where he was cutting metal with a guillotine steel cutter, the plaintiff’s left hand became caught in the cutter, in consequence whereof the plaintiff suffered severe personal injuries, loss and damage and expense.”
(b) “D. Permitting the plaintiff to operate at the machine when they knew or ought to have known that it was unsafe and dangerous for him so to do, in general terms, and specifically allowing and permitting the plaintiff to operate at the machine when they knew or ought to have known that he was under the influence of a controlled drug, to wit methadone.”
One of the grounds upon which the High Court refused leave to make the amendments in issue was that the scope of the discretion given to the court, pursuant to Order 28.1 of the Rules of the Superior Courts 1986, to amend pleadings for the purpose of determining the real question in controversy between the parties, must be viewed and modified having regard to certain provisions of the Civil Liability and Courts Act, 2004, and in particular those of Order 1A (S.I. 248/2005) adopted to give effect to those provisions. The relevant provisions regulate in a special way the nature and content of pleadings in personal injuries actions, as compared with other causes of action, and provide for affidavits from each party verifying their pleadings. The Act has other wide ranging provisions specific to personal injuries claims, for example, the consequence of giving misleading or false evidence, but we are not concerned with these in this case.
At the conclusion of the hearing of this appeal, the Court decided to allow the appeal and granted liberty to the plaintiff to make the two contested amendments to the personal injuries summons. Today the judgments of the Court set out the reasons for that decision.
A primary issue in this appeal is whether the Act of 2004, and Order 1A of the Rules of the Superior Courts, should be interpreted so that the discretion of the Court to amend pleadings under Order 28.1 is different and more limited in personal injuries actions than it is for pleadings generally.
The appellants being correct, as I explain in this judgment, in their submission that Order 28.1 continues to apply to a personal injuries summons as it traditionally has in accordance with established principles, then the next question is whether, in all the circumstances of the case, the application for the two amendments in question should have been allowed by the High Court.
I address the interpretative issue in this concurring judgment, and, having decided it in favour of the appellants for the reasons set out herein, I agree with the judgment of MacMenamin J., and in particular why the two amendments should, in the circumstances, be allowed for the reasons which he gives.
The Interpretation of Order 28.1 Issue
There are two essential elements in the submissions of the respondents as to why the discretion to amend pleadings under Order 28.1 should be applied differently, or not applied at all, to personal injuries summons in contrast to other pleadings. These are:
(a) Certain provisions of the Act of 2004, and Order 1A of the Rules of the Superior Courts, requires that pleadings in personal injuries actions, in this case the personal injuries summons, must contain complete particulars of a claim and of each allegation, assertion or plea comprising that claim. In addition, pleadings must be verified by affidavit. This new pleadings regime means that the scope of the discretion of the court under Order 28, Rule 1, to amend pleadings in a personal injuries action must be interpreted in a more limited fashion;
(b) In any event, there is a conflict between the provisions of Order 1A and an application of Order 28.1 in accordance with the “historical” discretion which has been exercised under the latter Order. Order 1A prohibits the application of any Rule which conflicts with its terms. Accordingly, by reason of the new pleading regime for a personal injuries summons, the scope of the discretion to be exercised by the courts under Order 28.1 is more limited as regards amendments to such a summons, in contrast to pleadings in other forms of action.
To continue readingREQUEST YOUR TRIAL