Seamus Comerford v Carlow County Council

JurisdictionIreland
JudgeMs. Justice Máire Whelan
Judgment Date08 October 2021
Neutral Citation[2021] IECA 253
CourtCourt of Appeal (Ireland)
Docket NumberAppeal Number: 2017/595
Between/
Seamus Comerford
Appellant
and
Carlow County Council
Respondent

[2021] IECA 253

Whelan J.

Faherty J.

Collins J.

Appeal Number: 2017/595

THE COURT OF APPEAL

Personal injuries – Damages – Unfair trial – Appellant appealing against the order of the High Court dismissing his claim for damages for personal injuries – Whether the trial was unfair

Facts: The appellant, Mr Comerford, appealed to the Court of Appeal against the order of the High Court of 24 November 2017 dismissing his claim for damages for personal injuries arising from a trip and fall which occurred while he was walking on the public footpath in the vicinity of his home in Tullow, Co. Carlow on the evening of 2 March 2013. The action was heard before the High Court on 20, 21 and 24 November 2017. The appellant’s contention was that fundamental unfairness arose in the conduct of the hearing of the case, including in particular the failure to apply the so-called “Phipson Rule” to the issue of admissibility of the disputed contents of unproven medical notes (the CareDoc notes). The appellant contended that fundamental unfairness arose due to the failure to afford the appellant’s legal team an opportunity to cross-examine the author of the CareDoc notes, the contents of which were in dispute; the alleged misapplication of the principles in the decision of the court in Byrne v Ardenheath [2017] IECA 293; and, the manner in which the trial judge identified certain factors as tending to undermine the appellant’s recollection of the accident such as, inter alia, a claim in special damages pertaining to the costs of plastic surgery and his assessment that the case from a quantum perspective lay within the Circuit Court jurisdiction. The appellant contended that to the extent that he considered those matters relevant to the determination of the issue of liability, the trial judge erred such that the orders of the High Court require to be vacated and a new trial directed.

Held by Whelan J that the deprivation by the trial judge of the appellant’s right to cross-examine the author of the CareDoc notes on the central issue pertaining to the appellant’s honesty and credibility, coupled with the fact that the respondent called no witness to support the creative hypotheses advanced by counsel that the manner of the fall was “improbable” and that, inter alia, the route reported by the appellant to have been taken by him on the occasion in question was not “logical”, resulted in the evidence not being fairly dealt with or fairly appraised culminating in an unfair trial. Whelan J held that the case fell to be remitted to the High Court at the next sittings in Kilkenny for a full re-hearing.

Whelan J held that it was appropriate that the orders including the costs order made in the High Court be vacated and in their stead an order be made granting the appellant the costs of the High Court hearing and also the costs of the appeal when ascertained.

Appeal allowed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 8th day of October 2021

Introduction
1

This is an appeal against the order of the High Court of 24 November 2017 dismissing the appellant's claim for damages for personal injuries arising from a trip and fall which occurred while he was walking on the public footpath in the vicinity of his home in Tullow, Co. Carlow on the evening of 2 March 2013. The action was heard before the High Court on 20, 21 and 24 November 2017. The appellant's contention is that fundamental unfairness arose in the conduct of the hearing of the case, including in particular the failure to apply the so-called “Phipson Rule” to the issue of admissibility of the disputed contents of unproven medical notes (the CareDoc notes). The Phipson Rule has been characterised as the principle that counsel ought not to rely in the course of cross-examination on the contents of a document unless she is in a position and entitled to put it in evidence when called upon to do so.

2

The trial judge had initially ruled, quite properly, on 21 November 2017 that the appellant could be cross-examined on foot of the said notes on the condition that their author, Dr. McInerney, be made available for cross-examination the following Friday, 24 November 2017. Notwithstanding that ruling, and after taking away the CareDoc notes to consider same on 24 November, the trial judge gave judgment whilst wholly disregarding the Phipson Rule on the consequences of a defendant's failure to comply with the said evidential rule. The appellant further contends that fundamental unfairness arose due to the failure to afford the appellant's legal team an opportunity to cross-examine the author of the CareDoc notes, the contents of which were in dispute; the alleged misapplication of the principles in the decision of this court in Byrne v. Ardenheath [2017] IECA 293; and, the manner in which the trial judge identified certain factors as tending to undermine the appellant's recollection of the accident such as, inter alia, a claim in special damages pertaining to the costs of plastic surgery and his assessment that the case from a quantum perspective lay within the Circuit Court jurisdiction. The appellant contends that to the extent that he considered those matters relevant to the determination of the issue of liability, the trial judge erred such that the orders of the High Court require to be vacated and a new trial directed.

3

For the reasons stated in detail hereafter, the court is satisfied that on this occasion the conduct of the trial in its totality was unsatisfactory and that a retrial is warranted.

Key chronological dates
4

The appellant attended CareDoc on 3 March 2013 and came to be treated by Dr. Carole McInerney. It was in that context that the notes in connection with that consultation came to be generated.

5

On 28 February 2014 a personal injuries summons issued. On 9 January 2015 an affidavit of verification was sworn by the appellant.

6

An appearance was entered on behalf of the respondent on 20 May 2014. Thereafter notice for particulars and a request for further information were submitted and responded to.

7

On 18 March 2015 a defence was delivered. At para. 2(a) the respondent required proof of “[t]he occurrence and narrative description of the incident alleged to have occurred on the 2nd of March 2013, particulars of which are denied as if same were set out and traversed seriatim. Paragraph 4 of the defence pleaded:-

“The grounds upon which the defendant alleges that some or all of the personal injuries contended for by the plaintiff (the existence of which is denied) were occasioned in whole or in part by the plaintiff's own acts:-

(f) Failed to mitigate his loss…”

A specific defence to the items of special damage claimed was pleaded including, inter alia:-

“…if the plaintiff did incur the alleged or any item of special damage (which is denied) same was not caused by the alleged or any act or default on the part of the defendant, its servants or agents.”

8

By letter of 18 October 2016 solicitors for the respondent elaborated on the allegation of contributory negligence pleaded at para. 4(f) of the defence:-

“…we note that the Plaintiff has failed to attend or to undergo appropriate treatment for his nasal deformity and to this extent, insofar as the Plaintiff complains of a persistent deformity in his nose, contributory negligence is alleged on the part of the Plaintiff in failing to seek/undergo appropriate medical attention in this regard.”

9

Thereafter on 6 January 2016 an affidavit of discovery was sworn by the appellant. Among the discovered documents were consultation notes from the practice of the appellant's treating GP, Dr. Gerard Moran in Carlow. The first entry is dated 3 March 2013. The notes appear to have been authored by a locum Dr. Carole McInerney on the said occasion. The entry appears to record a consultation with the words “obs taken by nurse”. The entry appears to be shorthand in nature and includes the following:-

“…edges look like they are healing already? injury older than stated…”

Elsewhere there is the entry:-

“…says he fell off footpath but? injuries not entirely consistent with a fall…” (emphasis added)

The discovered CareDoc notes were in the possession of the respondent for approximately one year and ten months prior to the trial of the action. A general notice to produce was served by the respondent on 24 February 2017.

Disclosure of reports and statements
10

Order 39, r. 46(1), as substituted by the Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements) 1998 (S.I. No. 391 of 1998), provides:-

“The plaintiff in an action shall furnish to the other party or parties or their respective solicitors (as the case may be) a schedule listing all reports from expert witnesses intended to be called within one month of the service of the notice of trial in respect of the action or within such further time as may be agreed by the parties or permitted by the Court.

Within seven days of receipt of the plaintiff's schedule, the defendant or any other party or parties shall furnish to the plaintiff or any other party or parties a schedule listing all reports from expert witnesses intended to be called. Within seven days of the receipt of the schedule of the defendant or other party or parties, the parties shall exchange copies of the reports listed in the relevant schedule.”

11

Each party furnished schedules to the other in accordance with the said rule. In the case of the respondent, the schedule identified two witnesses “none of whom would appear to have relevance to the medical records concerned” ( per counsel on behalf of the appellant, day 2 of High Court hearing, p. 21, lines 1 to 2). According to the submissions made on behalf of the respondent to the court, witnesses potentially relevant to the disputed CareDoc notes (none of whom was listed in the...

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1 cases
  • Kehoe v Promontoria (Aran) Ltd
    • Ireland
    • Court of Appeal (Ireland)
    • 30 March 2023
    ...are not directly relevant to the type of application and the type of hearing with which the trial judge was concerned. 68 . In Comerford v. Carlow County Council [2021] IECA 253 the Court of Appeal (Whelan J.) allowed an appeal against the decision of the High Court in a personal injuries ......

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