Moorehouse v The Governor of Wheatfield Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Bernard Barton |
| Judgment Date | 08 March 2021 |
| Neutral Citation | [2021] IEHC 248 |
| Court | High Court |
| Docket Number | [2010-5534 P] |
| Date | 08 March 2021 |
AND
[2021] IEHC 248
Bernard Barton
[2010-5534 P]
THE HIGH COURT
Contributory negligence – Apportionment of liability – Damages – Plaintiff seeking damages – Whether the plaintiff was guilty of contributory negligence for the accident that befell him
Facts: This case was remitted back to the High Court by order of a majority of the Court of Appeal on foot of the appeal of the plaintiff, Mr Moorehouse, against the order Barton J made dismissing his claim to have the following issues determined: (1) whether the plaintiff was guilty of contributory negligence for the accident that befell him, as pleaded by the defendants, the Governor of Wheatfield Prison, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General; (2) the apportionment of liability as between the plaintiff and the defendants if there was a finding of contributory negligence against the plaintiff; (3) the assessment of the plaintiff’s damages, taking account of any apportionment of liability consequent on a finding (if any) of contributory negligence on the part of the plaintiff.
Held by Barton J that the plaintiff’s actions in approaching a machine the safe use, operation and purpose of which he had been trained and instructed, that he knew involved a guillotining mechanism, that as a result of the removal of the safety guide guard the cropping blade was visible to him, that it operated by pressing a foot pedal and that he could see his hand upturned in the path of the cropping blade while not resting on a steel flat when he pressed the foot pedal, constituted subjective recklessness and disregard for his own safety; his actions were sheer folly. That he subjectively ran a risk of causing himself a very serious injury when he pressed the machine pedal was beyond question and in the circumstances the Court found that the plaintiff was guilty of contributory negligence and was in breach of statutory duty contrary to the provisions of s. 13 of the Safety Health and Welfare at Work Act 2005. On Barton J’s view of the evidence and the accident circumstances the plaintiff’s behaviour while to a significant degree more blameworthy than the blameworthiness of the defendants was not so blameworthy as to warrant visiting upon him the degrees of fault suggested by the defendants at 85 to 90%. In Barton J’s judgment the justice of the case was fairly met by an apportionment of 70% against the plaintiff and 30% against the defendants; it followed that the damages to which the plaintiff was entitled would be reduced accordingly. Having had regard to the plaintiff’s evidence as to how he felt about his injuries, his experience of pain, his description of the limitations of hand function and the medical evidence, in particular, the evidence of Mr Orr, the Court found that a fair and reasonable sum to compensate the plaintiff for past and future pain and suffering proportionate to and commensurate with his injuries was €275,000. Applying a subjective test, Barton J held that the onus of proof on a defendant to establish on the balance of probabilities that a plaintiff gave or caused to be given information and/or evidence which he or she knew to be false and/or misleading in any material respect is a heavy one, and not without good reason given the mandatory nature of the consequences which are to follow in the event that the bar is met; in this instance he was satisfied that it was not. The original application was essentially dismissed on the merits, accordingly, and for these reasons the Court refused the application for aggravated damages.
Barton J held that, there being no claim for special damages, the Court would enter judgment in favour of the plaintiff for the amount assessed in respect of general damages less 70%.
Damages awarded to plaintiff.
This case was remitted back to the High Court by order of a majority of the Court of Appeal on foot of the Plaintiff's appeal against the order I made dismissing his claim to have the following issues determined:
(1) Determination of the issue as to whether the Plaintiff was guilty of contributory negligence for the accident that befell him, as pleaded by Defendants;
(2) Apportionment of liability as between the Plaintiff and the Defendants if there is a finding of contributory negligence against the Plaintiff;
(3) Assessment of the Plaintiff's damages, taking account of any apportionment of liability consequent on a finding (if any) of contributory negligence on the part of the Plaintiff.
Written submissions were exchanged and filed on behalf of the parties in advance of the resumed hearing which took place on the 2nd February 2021. It is not proposed to repeat in extenso the findings of fact which I made in my judgment delivered the 15th August 2017 (see neutral citation [2017] IEHC 535); rather these will be referred to where necessary in relation to the first issue and, if appropriate, in relation to the determination of the second issue. This judgment should, therefore, be read in conjunction with the judgment of this Court following the trial of the action.
The Court is not concerned with the question of liability. This was determined in favour of the Plaintiff by a majority of the Court of Appeal, Costello J. dissenting. For the reasons set out in the judgments of Edwards J. and Donnelly J., the Court of Appeal concluded that I had erred in law by making an order dismissing the Plaintiff's claim in circumstances where the Plaintiff's account of how the accident occurred had been rejected. Although obiter I stated that had the Defendant been found liable, I would also have found the Plaintiff guilty of contributory negligence and would have apportioned fault to a high degree against him; remarks which are consequently non-binding.
It follows that notwithstanding the Plaintiff's failure to provide a cogent explanation for how his hand came to be in the path of the blades, the starting point for the resumption of the case is that absent evidence establishing that the Plaintiff had been subjectively reckless (of which there was no finding), his actions would have been no more than a causa sine qua non and not the causa causans. Having adduced adequate proof of the causa causans of the accident arising from the findings of negligence and breach of statutory duty on the part of the Defendants the liability therefor followed, and the Plaintiff is entitled to succeed in his claim against them.
In a case where the transcript of the evidence exceeds 4 days it is the practice of the Court of Appeal that the parties agree extracts of the evidence from the transcript which are relevant to the issues on appeal. In this case, the transcripts ran to 29 days. The practice was followed and consequently the Court did not have sight of large tranches of the evidence. Whether or not this explains the reference at para 92 of the judgement by Edwards J. to the “absence of evidence” to establish a finding of “subjectively reckless” behaviour by the Plaintiff is plainly a matter of conjecture; however, the transcript is in fact replete with evidence on which findings have been made, which on the Defendant's submissions, if accepted, would warrant the Court coming to the conclusion that the Plaintiff was reckless and thus guilty of contributory negligence at common law as well as being in breach of statutory duty.
It follows in the circumstances of the case that the Court is concerned to determine whether, on the evidence, the actions or omissions alleged on the part of the Plaintiff were the result of factors such as an error of judgement, carelessness, heedlessness, inadvertence or inattention, or as a result of some positive or deliberate act involving the running of a subjective risk. In this regard it is pertinent to refer to the case pleaded by the Defendants at paras 3 and 4 of the amended defence delivered herein which reads as follows:
“3. The Defendants deny that they are guilty of the alleged contributory negligence or breach of duty or breach of statutory duty.
(a) The incident or accident was caused by the negligence or breach of duty and/or recklessness on the part of the Plaintiff.
(b) The Plaintiff was the author of his own misfortune.
(c) The Plaintiff acted contrary to warning signs in operating and/or purporting to operate the machine as alleged.
(d) The Plaintiff acted contrary to all instruction from the Defendants, their servants and/or agents in operating and/or purporting to operate the machine as alleged.
(e) The Plaintiff acted contrary to all warnings and/or instruction from fellow inmates in operating and/or purporting to operate the machine.
(f) The Plaintiff removed guarding from the machine in operating and/or purporting to operate same as alleged.
(g) The Defendants, their servants and/or agent had shut down the machine.
(h) The Defendants, their servants and/or agent had given instruction not to operate the machine.
(i) The Plaintiff was not authorised to operate the machine”.
At paragraph 4 (1) of the defence the following plea appears:
“Further if the accident or incident occurred in the manner alleged or at all and/or if the Plaintiff suffered the alleged or any personal injuries, loss and damage then the Defendants will claim that they are not responsible and/or liable or not wholly responsible or liable to the Plaintiff by virtue of the fact that same arose and/or was caused wholly and/or partly by the negligence and/or contributing negligence on the part of the Plaintiff for the reasons set out above.”
At the outset of the principal judgment delivered on the 15th August 2017 a number of issues, observations and...
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