O'Toole v Heavey

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,EGAN J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-SC 3982
• Docket Number: [S.C. No. 299 of 1990]
• Court: Supreme Court
• Date: 01 January 1993

1992 WJSC-SC 3982

THE SUPREME COURT

Finlay C.J.

Egan J.

Blayney J.

299/90

O'TOOLE v. HEAVEY

HELEN O'TOOLE

Plaintiff/

Appellant

and

CHARLES J. HEAVEY

Defendant/

Respondent

Citations:

HETHERINGTON V ULTRA TYRE SERVICE LTD 1993 2 IR 535, 1993 ILRM 353

Synopsis:

ACTION

Trial

Procedure - Plaintiff - Evidence - Conclusion - Sole defendant - Application - Non-suit - Grounds - Failure of plaintiff to establish negligence - Trial by judge without jury - Intention of defendant to adduce evidence if application unsuccessful - Appropriate test for determination of application - (299/90 - Supreme Court - 17/12/92) - [1993] 2 I.R. 544

|O'Toole v. Heavey|

EVIDENCE

Quantum

Trial - Procedure - Plaintiff - Testimony - Conclusion - Sole defendant - Application - Non-suit - Grounds - Failure of plaintiff to establish negligence - Trial by judge without jury - Intention of defendant to adduce evidence if application unsuccessful - Appropriate test for determination of application - (299/90 - Supreme court - 17/12/92) - [1993] 2 I.R. 544

|O'Toole v. Heavey|

PRACTICE

Procedure

Trial - Issue - Negligence - Plaintiff - Evidence - Conclusion - Sole defendant's application for dismissal of action - Grounds being that negligence not proved - Trial by judge without jury - Intention of defendant to adduce evidence if application unsuccessful - Appropriate test for determination of application - (299/90 - Supreme Court - 17/12/92) - [1993] 2 I.R. 544

|O'Toole v. Heavey|

1 JUDGMENT delivered on the 17th day of December 1992by FINLAY C.J.[BLAYNEY J. AGR]

2 I have had the opportunity of reading the judgment which is about to be delivered by Egan J., and I agree with it, both as to its conclusion and as to the reasoning leading to that conclusion. Since the opinion expressed by me in delivering judgment in Hetherington v. The Ultra Tyre Service Ltd. & Ors.,(unreported, but contained in The Irish Times Law Reports of July 22nd 1991) was mentioned in the course of the appeal I feel it appropriate that I should expand and clarify the view which I expressed in thatcase.

3 It would appear necessary, having regard to the fact that such a high proportion of actions in tort are now tried in the High Court without a jury, to set out what appears to be the most appropriate and just procedure to be adopted by a judge sitting without a jury in an action either in tort or contract where, at the conclusion of the evidence for the plaintiff a defendant seeks a dismissal of the action on the basis that a case has not been made out.

4 The position would appear to me to be as follows.

5 1. If an action is brought either in tort or contract against one defendant only, and if at the conclusion of the evidence for the plaintiff the defendant applies for a dismiss, then it seems appropriate that the trial judge should inquire from the defendant as to whether intheevent of a refusal of that application the defendant would intend to go into evidence.

6 2. If, as occurred in the present case, the indication given by counsel in making the application is that, if refused, his client intends to go into evidence, then, it seems to me that the issue which has been raised as a matter of law before the trial judge is to reach a decision as to whether the plaintiff has made out a prima facie case. This would be consistent with the procedure which would be appropriate in a case where such an application was made and the case was being tried with a jury. In that instance the judge would be required to consider whether on the evidence the plaintiff had submitted, it would be open to a jury, if no other evidence was given, or if they accepted that evidence, even though contradicted in its material facts, to enter a verdict for the plaintiff.

7 3. If upon applying for a non-suit at the conclusion of the plaintiff's case, in a case where one defendantonly has been sued, it is indicated that the defendant does not intend, if the application is refused, to go into evidence, then, in effect, the learned trial judge is being asked to determine the following question, which is: having regard to his view of the evidence of the plaintiff, whether the plaintiff has (that being the only evidence before him) established as a matter of probability the facts necessary to support a verdict in his favour. Unless he is so satisfied, he must dismiss the action; if he is so satisfied it appears to me that he must give judgment for the plaintiff.

8 4. The question as to whether the defendant is going to go into evidence or not, arising in the situation where an application for non-suit is made in a case where one defendant only is sued, necessarily involves the going into evidence on the issue of liability. Where a defendant indicates that he is going to go into evidence on the issue of damages but not of liability, the situation would be as is set out in paragraph 3 hereof.

9 5. Where more than one defendant is sued and where claims or cross-claims for contribution have been made between the defendants on the basis that they are joint tort feasors, the trial judge should not, it seems to me, decide on an application for a non suit made at the conclusion of the Plaintiff's evidence unless he is completely satisfied that the eventual outcome of...