Supreme Court dismisses appeal where trial judge correctly found plaintiff failed to prove negligence on balance of probabilities.

THE SUPREME COURT

[S.C. No. 248 of 2002]

Denham J.

Murray J.

Hardiman J.

BETWEEN/

JOHN O’FLAHERTY

PLAINTIFF/APPELLANT

AND

O’MATHUNA BAID TEORANTA

DEFENDANT/RESPONDENT

AND

BAID CLOS AN DAINGEAN TEORANTA

THIRD PARTY

Judgment delivered on the 6th day of May, 2004 by Denham J.

1. This is an appeal by John O’Flaherty, the plaintiff, hereinafter referred to as the plaintiff, from the order of the High Court

(McCracken J.) given on the 25th day of June, 2002, after a three day hearing. The plaintiff brought an action for damages for

personal injuries. The High Court found that there was no negligence on the part of the defendant as alleged and dismissed the

plaintiff’s action. It was ordered that the defendant recover against the plaintiff the costs of the action when taxed. It was further

ordered that the issue between the defendant and the third party be struck out of the list and that the defendant pay to the third

party €2,500.00 measured costs of the issue.

2. The plaintiff was the skipper of a fishing vessel which was tied up at the pier in Dingle alongside a number of boats, one of which,

Resolution II, was owned by the defendant. The plaintiff claims that in crossing at night the boat of the defendant to get to his boat

he fell through an uncovered opening, into an open hold and sustained personal injuries.

3. The High Court held that on the evidence the injury did not occur in the manner described by the plaintiff and that the negligence

claim could not be sustained.

4. The grounds of the appeal are:

1. That the learned trial judge erred in law in finding that the plaintiff had failed to discharge the onus of proof of negligence.

2. That the findings of the learned trial judge were against the evidence and the weight of the evidence.

3. That, in finding that the coaming was not present at the time of the plaintiff’s accident, the trial judge erred in fact and law

in proceeding to find a failure to discharge the onus of proof, when, in fact, the circumstances which led to the plaintiff’s

accident was a failure in the defendant’s duty of care to the plaintiff.

5. On behalf of the plaintiff written and oral submissions were made to the court. In essence it was submitted that:

1. The only issue which the trial judge had to determine in the case was whether the defendant was guilty of negligence in

failing to cover the hatch and thereby creating a trap situation.

2. In the course of his judgment the learned trial judge erroneously summarised the plaintiff’s case as being “that he fell over a

coaming” when on the evidence what caused the plaintiff to fall into the hatch was the absence of a cover on it.

3. It was submitted that the evidence regarding the coaming is insignificant and any inferences derived from that did not have

any bearing on the issue to be determined.

4. The trial judge in the course of his judgment accepted that it would be negligent to leave a hatch to a fish hold uncovered.

In the circumstances it would appear that the trial judge accepted the plaintiff’s evidence regarding the hatch. It was

submitted therefore that there was sufficient evidence before the trial judge to conclude, on the balance of probabilities, that

the accident had occurred in the manner in which the plaintiff claimed it had occurred.

5. In the circumstances it was submitted the appeal should be allowed.

6. On behalf of the defendant it was submitted that at the trial of the action the plaintiff gave a very specific account of what

happened. The plaintiff asserted that (a) he was crossing the boat (of the defendant) via the shelter deck which was effectively in

darkness, (b) that there was quite a number of obstacles in his path by reason of repairs to the boat which he knew were being

executed, (c) that he negotiated a number of these objects and eventually came to an object which he asserted in evidence was a

knee high coaming around a hatch in the shelter deck, albeit that he had first thought it was another set of boards or something

similar, and (d) that he stepped over this coaming and fell into an uncovered hatch thereby sustaining his injuries. The defendant

submitted that (a) there was no such coaming, and (b) that it was improbable that he fell into the hatch and thereby sustained

injuries.

7. The learned trial judge referred to the case made by the plaintiff that he stepped over the coaming of the hatch that was roughly

knee high. The learned trial judge stated that it had been put to the plaintiff in cross-examination that there was no coaming and

that the hatch area was flush with the deck. Reference was made by the learned trial judge to the evidence of Sean Fitzgerald and

Michael Hennessy that at the date of the accident the old coaming of the hatch had been removed. The learned trial judge held:-

“I feel I must accept the evidence of Mr. Fitzgerald and Mr. Hennessy that there was no coving (sic) in place at the relevant

time. Therefore the probability is that this accident could not have happened in the manner described by the plaintiff.

I should say that I also accept fully, it is not really denied by the defendant, that it is negligent to leave a hatch to a fish hold

uncovered, particularly where it must have been known to the defendant that other vessels might tie up outside it.

I do not know what happened to the plaintiff, he clearly fell and he clearly sustained an injury. He may even have fallen on

Resolution II, but the onus is on the plaintiff to prove negligence on behalf of the defendant. I can only decide this case on the

evidence which I have heard, I cannot make a case for the plaintiff that he has not made himself.

His case has been quite clear, that he fell over a coving (sic), which I believe was not there on the relevant date. Therefore

the injury did not occur in the manner described by the plaintiff and the negligence claimed could not have followed.”

(Transcript, Day 4, 25th June, 2004).

8. This appeal revolves around issues of fact. It was submitted by the plaintiff that the learned trial judge approached the question of

liability on an erroneous basis when he summarised the plaintiff’s case in stating “that he fell over a coaming.” On the evidence the

plaintiff fell into the hold of the boat, when he stepped over an obstacle onto the hatch area, due to the absence of a cover on the

hatch. It was submitted that the phrase used by the learned trial judge meant that he considered the plaintiff to have been tripped

and caused to fall by the coaming which was never the case.

As regards this point, in my view the learned trial judge’s comment must be taken in the context of his judgment as a whole. Earlier in

his judgment he referred to the plaintiff’s evidence in the following terms: “Then he says he felt another obstacle, he put his leg over

it expecting to stand on the deck on the other side and fell into an open hatch into the fish hold of the vessel.” It is quite clear from

this passage and from reading the judgment as a whole that the learned trial judge dealt with the plaintiff’s case on the basis of his

claim that he had been caused to fall due to stepping on the area of an uncovered hatch after he had stepped over coaming which

he said was there at the time. In doing so it seems inevitable that the plaintiff would have had some contact with the coaming as he

fell and I do not consider that the general phrase alluded to by the plaintiff in his submissions is open to the interpretation that the

trial judge considered the plaintiff to have simply tripped over the coaming.

A central matter is the question of coaming on the boat of the defendant, the boat upon which the plaintiff claims he suffered

personal injuries. As will have been seen from the quotations above from the transcript, the term “coaming” is transcribed as “coving”

and “combing.” “Coaming” is defined in the Concise Oxford Dictionary as:-

“a raised border around the hatches etc. of a ship to keep out water.”

The plaintiff introduced the question of the coaming in his direct evidence. He described the coaming stating:-

“When I came to which must have been the combing (sic) at the time and I just thought it was another set of boards or

something similar and stepped over it and down into the hole.

Q.48 You fell into the hole?

A. Yes.”

(Transcript of evidence, Day 1, 20th June, 2002).

He then went on to describe the coaming in photograph number seven. On cross-examination the plaintiff was very specific as to the

coaming. It is recorded in the transcript as follows:-

“279 Q. I am just wondering did this accident happen at all as you have suggested because you have told us that there was

this combing?

A. That’s right.

280 Q. How did you know there was a combing there if you could not see…

A. I did not know what it was at the time, it was just another obstacle in my way that I stepped over at the time.

281 Q. When did you learn that it was combing (sic)?

A. Afterwards.

282 Q. When?

A. I knew it was a combing (sic) straight away when I was falling down the hole.

283 Q. When did you first learn it was a combing (sic)?

A. When I fell down the hold I knew it was part of the hatch then but it was too late.

284 Q. Did you report this when your engineer went along to take photographs of it?

A. Certainly not.

285 Q. Let us be sure what we are talking about, looking at the photographs, as I understand it, if you look at photograph

number three you are talking about that raised barrier, if you like, around the hold, is that right?

A. That is right.

286 Q. What height is that, do you know?

A. I don’t know, it is around, roughly, knee height.

287 Q. Roughly, knee height?

A. Roughly, knee height.

288 Q. If you did see this obstacle are you saying to the court that you put your leg in over it?

A. Yes.

289 Q. Did you not hold on to anything?

A. No, there was nothing there to hold on to.

290 Q. It seems there is an awful lot of things there to hold on to?

A. They were there when this photograph was taken but they weren’t there at the time.

291 Q. Did you simply put your foot down without testing what the ground was like beyond it, if there was ground at all?

A. I had already stepped over, I suppose, three or four separate objects like that and I just assumed this was another one and

given that I always close a hatch myself I just assumed that any hatch I would encounter would also be closed.

292 Q. Did you know there was a hatch here?

A. I knew it was there somewhere, I didn’t know exactly where it was.

293 Q. Presumably you did not know that that obstacle was there either?

A. I assumed that when I came to the hatch that the hatch would be closed.

294 Q. Did you know what that obstacle was that you met?

A. No.

295 Q. Again I have to suggest to you, Mr. O’ Flaherty, my client will tell the court that that combing (sic) was not there at the

time. That combing represented one of the features which was being built into this vessel?

A. There was combing there.

296 Q. No, he will say that the hatch area was flush with the floor as near as does not matter?

A. Not true.

297 Q. What he will tell the court is this that as the job progressed old winches and old machinery had to be pulled out as you

described and, indeed, you have confirmed that there was a winch there with chains and tackle around it?

A. There was.

298 Q. This work could not be done to the hold that was removed and was not done?

A. It was there that night anyway.

299 Q. He will say, no.

A. I am saying, yes.

300 Q. Not only that, Mr. O’Flaherty, he will say that, in fact, at the time the area leading to this hold was obstructed by the

winch which was being removed such that the only way in which you could get to the hold was by climbing over the winch?

A. Not at all, ridiculous.”

The issue as to the coaming falls to be considered in the context of the defendant submitting that the accident did not happen as

alleged or at all and not in any event on his boat.

The question of the coaming was not a matter which arose first on cross-examination, it arose in the direct evidence of the plaintiff.

Also, it was already part of his case when he instructed his engineer. The survey of the engineer was conducted on 28th April,

1994/1995 (the report is dated 1994, the oral evidence was that it was 1995) the event in issue occurring on the night of 23rd/24th

September, 1993. The engineer gave specific evidence as to the coaming. He was asked if the plaintiff pointed out the coaming to

him. He replied:-

“175 A. That is correct, my Lord, yes.

176 Q. Is it that he says he fell over?

A. That is correct.

177 Q. That that was in position on the day in question?

A. That is my understanding.”

(Transcript of evidence, Day 2, 21st June, 2002).

The medical evidence introduced by the plaintiff included that of Dr. Fionan O’Carroll which was also inconsistent with the evidence of

the plaintiff as to how the fall occurred. However, the learned trial judge ignored the medical evidence, as will I.

It is clear that there was no coaming at the time of the event alleged. The coaming had been removed. Counsel for the plaintiff on

this appeal submitted that the plaintiff made a mistake about the coaming but that the plaintiff went into the hold and was injured.

He submitted that the plaintiff stepped over something which he described as coaming – on which point he was wrong.

In this case the learned trial judge accepted the evidence of Mr. Fitzgerald and Mr. Hennessy that there was no coaming in place at

the relevant time. He then held that the probability was that the accident did not happen as the plaintiff had alleged. This was a

finding of primary fact. There was evidence upon which the learned trial judge could make such a finding.

This finding of fact was made in circumstances where the coaming was a significant issue given that the defendant was raising the

defence in cross-examination that the fall had not taken place as claimed by the plaintiff. Furthermore, at the very least an essential

part of the account of the plaintiff is that the accident occurred in circumstances where he had to step over an obstacle immediately

adjacent to the edge of the hatch. Having stepped over something which was knee high he fell down the hatch and afterwards, using

a ladder climbed out of the hatch. He, as an experienced boat owner himself, and as already pointed out, identified that “something”

as the hatch coaming to his engineer prior to the trial and at successive points in his evidence at the trial. Moreover, insofar as it was

contended at the hearing of this appeal that the plaintiff was mistaken and that he could have stepped over a set of “pound boards”

there was no evidence at the trial that any such boards were in situ immediately adjacent to the hatch opening. In these

circumstances, and given that the learned trial judge was entitled to find, as he did, that there was no coaming present at the time

inspite of the plaintiff’s repeated assertions to the contrary, a question inevitably arose as to whether the accident happened at all in

the manner alleged by the plaintiff, even if one accepted that there was no cover on the hatch. That was a question for the trial

judge to resolve on the basis of the evidence before him.

The learned trial judge made clear his view that, inspite of all the evidence given, he did not know what had happened to the plaintiff.

It is clear from his judgment that he did not consider the account given by the plaintiff to be a reliable one. He refused to speculate.

In this he was correct. Further, the learned trial judge referred to the fact that the burden was on the plaintiff to prove his case on

the balance of probabilities and that this he had failed to do.

In this case the High Court acted reasonably and within its jurisdiction in making the determination. The learned trial judge held that

the accident did not happen as alleged by the plaintiff and in so doing put the credibility and reliability of the plaintiff at the heart of

the case.

It is well established in our jurisprudence that if the findings of fact of the trial judge are supported by credible evidence the court is

bound by those findings. As to the drawing of inferences, the demeanour of witnesses may be an important aspect of the case, and

this court is slow to substitute its own inference of fact where that depends on oral testimony where inferences have been drawn by

the trial judge, including the credibility of the witness. See Hay v. O’Grady [1992] 1 I.R. 210 at p. 217.

In all the circumstances I would not interfere with the determination of the trial judge where the issues of fact and the credibility of a

critical witness are at the core of the case. I would dismiss the appeal of the plaintiff and affirm the order of the High Court.