Murphy v Digby Bridge Sand & Gravel Company Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 12 May 2023
• Neutral Citation: [2023] IEHC 311
• Court: High Court
• Docket Number: [2018 10500 P]

Between

Marie Patricia Murphy

Plaintiff

and

Digby Bridge Sand and Gravel Company Limited

Defendant

[2023] IEHC 311

[2018 10500 P]

THE HIGH COURT

Solicitors for the plaintiff – Ferry's LLP.

Counsel for the plaintiff – Mr. Laurenz Boss.

Judgment delivered on 12 May 2023 by Mr. Justice Tony O'Connor

1 . The notice of motion before the Court filed on 21 March 2023 primarily seeks an order setting aside a notice of discontinuance dated 11 October 2019. There is no rule which provides for such an application, and so the plaintiff relies on the inherent jurisdiction of the Court.

Background

2 . The plaintiff claims damages for a displaced fracture of her left elbow and a non – displaced fracture in her right wrist (“the injuries”). She suffered the injuries from allegedly tripping over a speed ramp on 24 February 2017 near No. 1, Thomond Road, Ballyfermot (“the locus”). The plaintiff alleged in the personal injury summons issued on 30 November 2018 that she was caused to trip on a speed ramp while seeking to avoid a skip placed on the footpath, on which she was running.

Affidavit of plaintiff's solicitor

3 . The affidavit of the plaintiff's solicitor, sworn on 21 March 2023, deposed that the solicitors for the defendant (“Digby”) had advised his firm that the defendant had no skip in the vicinity of the locus on 24 February 2017. After further exchanges, a personal injury summons with record number 2019 4905 P was issued on 10 June 2019, claiming damages arising out of the alleged trip for the injuries from a firm trading as Panda Waste and other related parties (“Panda”).

4 . In the 2019 proceedings the defence pleaded on 25 June 2020 at para. 3 (f) that if the accident occurred, the same was caused by the negligence of Digby, which had hired the skip and was responsible for locating it at the locus. Para. 5 of an affidavit sworn on 29 July 2020 grounding the application to join Digby as a third party averred:-

“… it will be [Panda's] evidence at the trial of the action that ‘Digby’ hired the skip on 24 February 2017 in order to carry out works at 1 Thomond Road, and that [Digby] its servants, officers or agents instructed [Panda's] servants or agents to place the skip at the location in question”.

5 . Counsel for the plaintiff and Digby acknowledged that Digby had no standing at the hearing of this motion, as Digby was no longer a party to these proceedings at this stage.

Case law

6 . Finnegan J., in ( Smyth v. Tunney Devine and Crofter Properties [2009] 3 IR 322), allowed the appeal to grant the application to withdraw a notice of discontinuance. There, the applicant relied on circumstances which had changed in the following way:-

“On 9 July 2002 the Supreme Court in a decision in an action Crofter Properties Limited v. Genport Limited held that Ms. Devine, made the calls not only on her own behalf but also on behalf of Crofter Properties Limited”.

7 . Finnegan J. stated:-

“A starting point as to the law in this jurisdiction is Wiley on the Judicature Acts. At page 437 he states that Order 26, Rule 1, forms a complete code as to the discontinuance of an action…”.

8 . He referred...