Murphy v Minister for Defence

• Jurisdiction: Ireland
• Judge: O'FLAHERTY J.,FINLAY C.J.
• Judgment Date: 19 April 1991
• Neutral Citation: 1991 WJSC-SC 981
• Court: Supreme Court
• Docket Number: [S.C. No. 417 of 1989]
• Date: 19 April 1991

MURPHY v. MIN DEFENCE

DONAL MURPHY

Plaintiff/

Appellant

and

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEYGENERAL

Respondent/

Defendants

1991 WJSC-SC 981

Finlay C.J.

Hederman J.

O'Flaherty J.

417/89

THE SUPREME COURT

Synopsis:

PRACTICE

Appeal

Evidence - Further evidence - Introduction - Permission - Supreme Court - Negligence - Personal injuries - Plaintiff soldier - Plaintiff's failure to seek discovery of documents in High Court - Existence of training regulations unknown at date of trial - Further evidence permitted - Rules of the Superior Courts, 1986, order 58, r. 8 - (417/89 - Supreme Court - 19/4/91) [1991] 2 IR 161

|Murphy v. Minister for Defence|

SUPREME COURT

Appeal

Evidence - Further evidence - Introduction - Permission - Negligence - Personal injuries - Plaintiff soldier - Plaintiff's failure to seek discovery of documents in High Court - Existence of training regulations unknown at date of trial - Further evidence permitted - (417/89 - Supreme Court - 19/4/91)1991 2 IR 161

|Murphy v. Minister for Defence|

Citations:

RSC O.58 r8

LYNAGH V MACKIN 1970 IR 180

DAEMS V VAN LANDEGHEM UNREP SUPREME 15.11.54

CROPPER V SMITH 1884 26 CH 700

1 JUDGMENT delivered on the 19th day of April 1991by FINLAY C.J. [Hederman J. conc]

2 This is a Motion brought pursuant to the provisions of Order 58, Rule 8, of the Superior Court Rules for liberty to adduce further evidence before this Court in a pending appeal brought by the Plaintiff against the dismiss in the High Court of his action for damages for personal injuries arising from alleged negligence and breach of duty. The Plaintiff, who wasat the material dates, a serving member of the Defence Forces, claimed damages against the Defendants in the High Court as a result of personal injuries alleged by him to have been sustained whilst serving in the army, in two separate incidents.

3 It was alleged that the Plaintiff in December 1983, whilst serving in The Lebanon, in accordance with an order, was manhandling a steel construction consisting of a tank trap, and suffered as the result of that incident an injury to his back. The complaint in respect of that incident of the Plaintiff was that the size and shape of the construction concerned was unduly heavy for one man to try and move on his own, and that the order for him to do that was an order negligently given without reasonable care for his safety. The second incident of which complaint is made is alleged to have occurred in May 1986 when the Plaintiff was required, amongst other members of his company, to undergo a fitness test. It was alleged that during thecourse of this test, in one of the exercises required, he aggravated the condition of his back which previously occurred on the incident in 1983 in The Lebanon. The complaint with regard to this test was that having regard to the nature of his previous injury and to his medical record in the army between 1983 and 1986, that it was negligent to require him to undergo a fitness test and was a breach of the duty of his Commanding Officer to take reasonable care for his safety.

4 The learned trial Judge (Costello J.) held that there was no breach of duty to the Plaintiff in requiring him to move the tank trap in The Lebanon on his own, in December 1983, and that there was no breach of a duty to take reasonable care in requiring him to undergo the fitness test in 1986. Against those decisions the Plaintiff appealed.

5 The fresh evidence which it is sought by this motion to introduce for the purpose of the hearing of the appeal consists of a copy of a training circularentitled "1–1980 "Physical Fitness in the DefenceForces", issued by the Training Section of Army Headquarters on the 31st January 1980, together with a medical directive entitled "DMC-65590", dated the 1st November 1979, annexed to and referred to in the said circular.

6 The relevant contents of the training and medical circulars concerned are as follows.

"Training Circular, paragraph 6:"

Medical Examination

7 Before beginning any exercise programme it is advisable to have a medical examination. Medical directive DMC-65590, dated the 1st November 1979, at annex A, will be the guideline in this respect."

8 The material portion of the medical circular of the 1/11/79 is asfollows:

"An adequate period for training will be allowed before any testing commences, in order to avoid exposing any personnel to undue risk arising from a previously unknown or poorly appreciated disability or physical defect, the testing may NOT be carried out unless an individual has had a medical examination within a specifiedperiod."

9 The principles governing the admission of fresh evidence on an appeal to this Court have been set out in the decision of this Court in Lynaghv. Mackin 1970 I.R. 180. Neither Counsel for the Applicant nor the Respondent on this motion has suggested to the Court that any other principles apply, although the Court should review that decision.

10 I am accordingly satisfied that the principles applicable are asfollows.

11 1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

12 2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not bedecisive;

13 3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not beincontrovertible.

14 With regard to these three issues, the Appellant's case on the hearing of this motion was as follows.

15 The Plaintiff has sworn an affidavit, which is not being contradicted before us, asserting that he was, at the time of the trial, unaware of the existence either of the training circular or of the annexed medical circular. He has asserted that these were army documents, the circulation of which was restricted and which would not have been available to him as a private soldier. That evidence has been corroborated by the evidence of a retired Company Sergeant Major who did have access to and knowledge of these documents. It is not contested by the Resondents on the hearing of this motion. Secondly, it has been deposed to by the Solicitor for the Applicant that he was unaware of the existence of any such circulars. He did request a record of the Applicant's medical history, kept by the army and known by the title of an LA30 record and was given it without the necessity for formaldiscovery.The submission is made that having received that there was nothing in the facts of the case and the knowledge of the...