Terence (Otherwise Terry) Morgan v Electricity Supply Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Maurice Collins
• Judgment Date: 05 February 2021
• Neutral Citation: [2021] IECA 29
• Date: 05 February 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2018/340

Between

Terence (Otherwise Terry) Morgan

Plaintiff/Respondent

and

Electricity Supply Board

Defendant/Appellant

[2021] IECA 29

Noonan J.

Collins J.

Binchy J.

Record Number: 2018/340

High Court Record Number: 2015/5925P

THE COURT OF APPEAL

Summary judgment – Damages – Causation – Respondent seeking damages – Whether there was a shortcoming in the respondent’s training which contributed to his accident

Facts: The plaintiff/respondent, Mr Morgan, slipped and fell at the premises of the defendant/appellant, Electricity Supply Board, at Dundalk, where the plaintiff was employed by the defendant, on the 30th April, 2013. By its judgment of the 10th May, 2018 and order of the 31st of May, 2018 respectively, the High Court (O’Hanlon J) found in favour of the plaintiff and awarded him a sum of €110,000 in damages. The defendant appealed to the Court of Appeal. The primary issue in this case was whether the plaintiff established that the skylight was leaking.

Held by Noonan J that there was no credible evidence on which the court could safely have concluded that there had been a leak from the skylight which caused the accident and the trial judge was therefore correct to decline to reach such a conclusion. Noonan J was satisfied that there was no credible evidence before the High Court to justify a finding that the nosing on the steps was in any way responsible for the plaintiff’s accident. Noonan J concluded that the trial judge was in error in finding that the plaintiff’s fall was caused or contributed to by any culpable defect in the nosing. Noonan J was satisfied that there was no evidence before the High Court which would have entitled the trial judge to conclude that there had been a breach of the provisions of s. 8 of the Safety Health and Welfare at Work Act 2005. Insofar, therefore, as the trial judge held that there was a shortcoming in the plaintiff’s training which contributed to his accident and out-ruled contributory negligence, Noonan J was satisfied that such finding could not be upheld by the Court of Appeal.

Noonan J held that the appeal should be allowed, the order of the High Court set aside and the plaintiff’s claim dismissed. As the defendant had been entirely successful in this appeal, Noonan J’s provisional view was that it was entitled to its costs both in the Court of Appeal and the High Court.

Appeal allowed.

No redactions needed

JUDGMENT of Mr. Justice Maurice Collins delivered on 5 February 2021

1 I fully agree with the judgment given by Noonan J and with the order that he proposes.

2 In my view, this appeal raises a number of significant issues and for that reason I would like to add some observations of my own. For that purpose, I gratefully adopt Noonan J's detailed account of the circumstances giving rise to the claim here and of the course of the proceedings in the High Court.

The Civil Liability and Courts Act 2004

3 The Plaintiff's action here was a “ personal injuries action” within the meaning of the Civil Liability and Courts Act 2004 ( “the 2004 Act”) and was therefore subject to the provisions of Part 2 of that Act.

4 Part 2 contains important provisions regarding pleadings in personal injuries actions. Focusing on those applicable to pleadings by a plaintiff, section 10(2) sets out various matters which a personal injuries summons shall specify, including:

“ (f) full particulars of the acts of the defendant constituting the .. wrong and the circumstances relating to the commission of the said wrong”

“(g) full particulars of each instance of negligence by the defendant.”

5 The need for clarity and specificity is further reinforced by section 13(1)(a), which provides as follows:

“(1) All pleadings in a personal injuries action shall—

(a) in the case of a pleading served by the plaintiff, contain full and detailed particulars of the claim of which the action consists and of each allegation, assertion or plea comprising that claim”

6 Corresponding obligations are imposed on defendants by sections 12 and 13(1)(b) of the 2004 Act. I considered the effect of those sections in Crean v Harty [2020] IECA 364 and in the course of my judgment noted that “the provisions of sections 10–13 of the Act are clearly intended to ensure that parties (including defendants) plead with greater precision and particularity so that, in advance of trial, the actual issues between the parties will be clearly identified” (at para 23).

7 A “ very significant innovation” in Part 2 (so I characterised it in Crean v Harty) is the requirement in section 14 that pleadings be verified on affidavit. A plaintiff is required to verify “ any pleading containing assertions or allegations” or any “ further information” provided to the defendant: section 14(1). A corresponding obligation is imposed on defendants by section 14(2). The importance of the requirement for verification was highlighted by Noonan J in his recent judgment in Naghten (A minor) v Cool Running Events Ltd [2021] IECA 17, with which I agreed. As Noonan J states at para 52 of that judgment, “ ..the days of making allegations in pleadings without a factual or evidential basis, if they ever existed, have long since passed.” That certainly ought to be the case having regard to the requirements of section 14.

8 The intended effect of section 14 would be greatly undermined if parties were permitted to continue to plead claims in wholly generic terms. Thus – unsurprisingly – the provisions of Part 2 relating to pleadings, and the requirement for verification introduced by section 14, operate coherently. Plaintiffs (and defendants) are required to state clearly and specifically what their claim (or defence) is and identify the basis for it in their pleadings and must then verify that claim (or that defence) on affidavit. Where further particulars are furnished, such must also be verified on affidavit. Unless pleadings are clear and meaningful, the value of section 14 verifying affidavits will be significantly diluted.

The Pleadings here

9 The Personal Injuries Summons here might, in many respects, be held up as an exemplum of the form of pleading that Part 2 of the 2004 Act intended to consign to history. The majority of the particulars of wrongdoing are in boilerplate form, expressed in such generic terms as to be utterly uninformative. Thus, for instance, it is said, without more, that the ESB failed to provide a safe place of work for the Plaintiff. It is also said the ESB was in breach of the Safety, Health and Welfare at Work Act, 2005. No clue is given as to what provision of that Act the ESB was said to be in breach of or what act or omission on its part constituted such breach. The position is the same as regards the plea that the ESB was in breach of the Safety, Health and Welfare and Work (General Application Regulations) 2007. 1 The Summons is wholly silent as to which of the 175 Regulations and 10 Schedules contained in those Regulations is said to have been breached by the ESB. The plea that the ESB was in breach of section 3 of the Occupiers Liability Act 1995 might, on its face, appear more concrete. However, the “ common duty of care” imposed by section 3 (which concerns the duty of care of occupiers to visitors to their premises, including employees) is necessarily expressed in very general terms and recourse to its terms provides no enlightenment whatever as to the nature of Mr Morgan's actual complaint against the ESB here.

10 The only claim that is pleaded with tolerable clarity and specificity in the Summons is that to be gathered from a reading of paragraph 9, in conjunction with the particulars (i) and (j), which are referred to by Noonan J at para 18 of his judgment. The net effect of those pleas (which could readily have been stated more clearly and simply) is that the Plaintiff was alleging that he had slipped and fallen while going down the stairway because of the presence of water on the steps, which had leaked in through the skylight over the stairs and “ contaminated” it. That is the only claim disclosed by the Personal Injuries Summons that is pleaded in a form resembling that mandated by the 2004 Act.

11 I do not mean to be unduly harsh on the pleader here. From a practical point of view, one can readily understand why a pleader might wish to avoid committing themselves unduly to any particular theory of liability and instead seek to plead in a manner that covers all the bases lest something further should emerge at trial. Indeed, that was conventionally seen as part of the art of pleading. However, that mode of pleading is not, in my view, permissible since the enactment of the 2004 Act. A plaintiff is required to plead specifically and cannot properly rely on the pleading equivalent of the Trojan Horse, which can as needed be sprung open at trial to disgorge a host of new and/or reformulated claims.

12 It is difficult to avoid the impression that, despite the fact that Part 2 of the 2004 Act has been in force for more than 15 years, the extent of the changes that it makes in the area of personal injuries pleading has not always be fully recognised or reflected in practice. Personal injuries claims are required to be pleaded in a manner which states clearly and precisely what act or omission of the defendant is alleged to have caused injury and why it is said that such act or omission was wrongful. The reflexive instinct of practitioners to plead broadly and generally has to be curbed.

13 In any event, as Noonan J notes, shortly before hearing of the action the Plaintiff delivered a further particular of negligence alleging a failure to maintain the staircase “thereby permitting the nosing on the steps of same to become worn and...