Supreme Court dismisses appeal where plaintiff failed to prove liability due to perfunctory medical evidence and lies.

[2004] IESC 28

THE SUPREME COURT

248/02

Denham J.

Murray J.

Hardiman J.

Between:

JOHN O’FLAHERTY

Plaintiff/Appellant

and

O’MATHUNA BAID TEORANTA

Defendant/Respondent

and

BAID CLOS AN DANGAIN TEORANTA

Third Party

JUDGMENT of Mr. Justice Hardiman delivered the 6th day of May, 2004.

1. I agree with the judgment of Denham J. in this case and with the order which she proposes.

2. I wish to add some observations of my own in relation to the conduct of the trial and the appeal in this matter. I do so in the hope

that they may be of some assistance in the hearing of personal injuries actions in the future.

Aspects of evidence.

3. The relevant evidence has been very substantially summarised by Denham J. in the course of her judgment and I do not intend to

repeat that summary here. I would, however, emphasise two things. The first is that at all times during the trial there was an issue as

to whether the injury which the plaintiff sustained had occurred on the defendant’s boat at all. The onus of proof in this issue was on

the plaintiff.

4. Secondly, I do not consider that the medical evidence called on behalf of the plaintiff is without significance. On the transcript, the

very brief direct evidence and only slightly longer cross-examination reads quite remarkably. McCarthy J. rightly said in his judgment in

Hay v. O’Grady [1992] 1 IR 210, at 217, that “the arid pages of a transcript seldom reflect the atmosphere of a trial”. That is

certainly the position in relation to this witness, Dr. Fionan O’Carroll. Dr. O’Carroll was called by the plaintiff as the first witness on the

third day of the trial. He was asked only three questions. In answer to the first he confirmed that he was from Dingle, Co. Kerry. In

answer to the second he confirmed that he was the doctor who first treated the injuries of the plaintiff. In answer to the third and

final question he said that, at the time he saw him at the out-patient clinic, the plaintiff complained of back pain and pain on his

elbow.

5. This is an extraordinarily perfunctory examination, so much so as to make the reader wonder why the witness was called at all. But

the difficulties of the position, from the plaintiff’s point of view, become apparent on a consideration of the ten questions asked in

cross-examination.

6. Dr. O’Carroll first confirmed that he had no further dealings with the plaintiff after the time he first saw him. He was then shown the

photographs of the locus in quo, and given a summary of the accident as the plaintiff had described it. He agreed that if the accident

happened as the plaintiff described it he would have expected the plaintiff to fall first of all on his crotch and then sideways. He

agreed that the injury actually sustained was consistent with the plaintiff landing on his feet – “that could be an explanation for it”.

Asked frankly whether it was an unlikely explanation for the injuries actually received he said he did not know. Pressed further he said

“I would have thought it hard to get your leg and the side of your leg into that gap”.

7. The substance of the doctor’s evidence was to the effect that, in his view, the accident as described by the plaintiff was an

improbable source of the injuries actually received. As appears from the judgment of Mrs. Justice Denham, the plaintiff was adamant

as to the mechanism of the accident and dismissed alternative suggestions as “ridiculous”. But the learned trial judge accepted, and

this was not the subject of appeal, that the accident could not have happened as the plaintiff described it because the coaming

around the hold which was vital to the plaintiff’s account was simply not there at all on the relevant day. The balance of the

evidence, including the medical evidence, underlines the fact that once the plaintiff’s account of falling as he stepped over the

coaming had been rejected, no other factor in the case could be regarded as providing an alternative basis of liability, either

consistently with the plaintiff’s account or at all. Accordingly, the learned trial judge was in the position where, as he said:-

“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”.

No submissions in the High Court.

8. It is a very striking feature of this case, as of other personal injuries appeals which we have heard over the past number of years,

that neither side addressed the learned trial judge at the end of the evidence. The significance of this will be considered below.

Substance of the appeal.

9. The central point made on the hearing of the appeal in this case was that the learned trial judge, though correct in his finding that

there had been no coaming around the hold at the time of the accident, attributed far too much significance to this fact. The

plaintiff’s case, said Mr. Liam Reidy S.C. who had not appeared in the Court below, was that the plaintiff had fallen down an

uncovered hold, not, or at least not necessarily, that he had fallen over a coaming or anything else. The very use of the phrase

“fallen over” was an inaccuracy, said Mr. Reidy. But the nub of Mr. Reidy’s case was that the plaintiff’s own evidence, given both in

direct examination and in cross-examination, that he had fallen over coaming about 22 ½ inches high, was a mistake. This Court

should, he said, approach the evidence on that basis, ignore it, and consider the case simply as one of a man who fell into an

uncovered hold.

10. For the defendant, Mr. Patrick Connolly S.C. emphasised that the great bulk of the plaintiff’s submissions were directed to

explaining away a central portion of the plaintiff’s own account of the accident – that he fell over the coaming already described. He

pointed out that the case was opened on that basis and it was supported by reference to photographs. The plaintiff’s engineer

contradicted the plaintiff’s account that he had not shown the coaming to him: he had done so. This was in 1995, two years post

accident. Mr. Connolly emphasised that the defendant had at all times challenged if and how an accident of the type described by the

plaintiff had occurred on the defendant’s vessel.

11. Mr. Connolly emphasised that the effect of the learned trial judge’s judgment was that, at the end of the evidence, he had not

been satisfied that the plaintiff fell into the hold of Resolution II or indeed that he fell on that vessel at all. Having regard to the onus

of proof which was on the plaintiff, the learned trial judge’s finding that he simply did not know how and when the injuries had been

sustained was sufficient from the defendant’s point of view.

I agree with this.

A new factual case on appeal.

12. The submission which Mr. Reidy S.C. was constrained to make, and which is summarised above, amounts to suggesting that the

Court should accept a version of the accident which is in direct contradiction of the one his client gave in the High Court.

Furthermore, he suggested that that should be done because his client’s evidence was clearly mistaken. Naturally, the learned trial

judge was not invited to consider the plaintiff’s evidence in that light at the trial.

Conduct of a trial.

13. It is necessary to repeat what has already been said in strong terms by this Court, for example in Vesey v. Bus Eireann [2001] 4

IR 192, at 198ff. There, the plaintiff’s evidence had been confused and contradictory. Dealing with a criticism by the

plaintiff/appellant that in those circumstances it was the trial judge’s responsibility to “disentangle” the plaintiff’s case, I said:-

“I cannot agree either that it is the responsibility of a trial judge to ‘disentangle’ the plaintiff’s case where it has become

entangled as a result of lies and misrepresentations systematically made by the plaintiff himself.

14. The procedure in our courts is an adversarial one and the defendant is entitled to have the plaintiff’s case presented by him and

accepted on its merits or otherwise as these appear from the plaintiff’s presentation and cross-examination. For the trial judge to

make on behalf of the plaintiff the best case he can in such circumstances would risk the loss of the appearance of impartiality. The

learned trial judge was quite correct to point out that the onus was on the plaintiff and that he had, in significant respects, failed to

discharge it”.

15. The same case is authority, if such were needed, for the proposition that a trial judge is not entitled to speculate in the plaintiff’s

interest:-

“It seems to me that this is not a correct basis on which to approach the assessment of damages and that a defendant is

entitled to have the exercise approached in a more specific and evidence based fashion”.

16. This, of course, applies all the more strongly to liability issues. I believe the learned trial judge in this case followed the principle

just summarised when he said:-

“The onus of proof 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 for himself”.

17. In my view it is quite impossible for an appellate court to approach the hearing of an appeal on the basis that the appellant’s own

evidence, which was put before the trial judge as being truthful and accurate, is in fact mistaken, and that the essential or legally

relevant cause of the accident was one which the learned trial judge was never invited to consider at all.

Need for submissions.

18. In my opinion this case emphasises the need for brief submissions to be made to the trial judge in personal injuries cases in all but

the very simplest of cases. The present case could not be described as being in that category. This Court has made this point on a

number of occasions, but it does not seem to have had any effect. It was done in Vesey, cited above at page 202. It had earlier

been done in Kelly v. Bus Atha Cliath, judgment in which was given in March 2000.

19. A submission of the kind I describe would not in most cases take more than three or four minutes. It would, however, require that

the plaintiff’s counsel develop and expound, in light of the evidence, a specific basis in support of the contention that the defendant

is liable for the plaintiff’s injuries in whole or in part. Having regard to the significance of these cases to the people involved, and to

the community, the size of the damages at issue and the importance of demonstrating that the assessment of liability, and of

damages, is a rigorous, evidence based process as opposed to a merely impressionistic one, such submissions could quite readily be

made, and should be. Certainly, it will not be possible to urge this Court to act on a view of the facts never canvassed in the Court of

Trial.