Killian Flood BL

About this case:

• Citation:
  [2021] IECA 123
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

The court said that the “essential basis upon which the trial judge held the defendants to be negligent was not one that was ever pleaded or made by the plaintiff” and, as such, the trial judge had erred in making the decision.

In determining the appeal, the court had regard to the recent decision in Morgan v ESB [2021] IECA 29, which emphasised that plaintiffs were required to make specific pleadings in personal injuries cases and could not rely on generic allegations of negligence.

Background

The plaintiff, Ms Michelle McGeoghan, had been drinking at the defendants’ pub in Donegal until the early hours of the morning. She decided to leave for the night and, because it was well after closing time, she exited by a side corridor on the premises.

The exit door had a latch lock. As Ms McGeoghan turned the lock with her right hand and pulled the door ajar, she placed her left hand around the leading edge of the door to draw it fully towards her. Unfortunately, the door slammed shut suddenly and crushed her little finger. Ultimately, the tip of her finger had to be amputated.

The plaintiff issued personal injuries proceedings against the defendants, being the owners and proprietors of the pub. Originally, the allegations of negligence centred on the absence of a “closer” on the door, designed to prevent slamming. The plaintiff also alleged that there was no handle on the door and that the light in the corridor had been off at the time.

Two joint engineering inspections occurred. The first was in September 2013 and it was noted that a closing/damping device was fitted to the door. The door closed in approximately .45 seconds for the final 20 degrees. In the second joint inspection, held in October 2018, it was observed that the final 20 degrees of door closure took 5.3 seconds. This appeared to be because the closer device had been fixed. Further, a handle was found on the door on both inspections.

Prior to the trial, the allegations of negligence were updated to include that the plaintiff should have been escorted off the premises and that the area had not been properly lit.

The three factual issues before the trial judge as pleaded by the plaintiff were 1) that there was no closer on the door, 2) that there was no handle on the door and 3) there was no light in the corridor. The plaintiff gave evidence to this effect.

The expert evidence in the case established that if the closer had been working properly at the time, the door would not have slammed. It was apparent (despite denials from the defendants) that the closer had been adjusted between the two inspections to ensure that it worked.

In an ex tempore decision, the trial judge held against the plaintiff on each of the disputed issues as to fact. He held that both a closer and a handle were on the door and preferred the defendants’ evidence that the corridor light had been switched on.

However, the court held that the difference in closing speeds between the two inspections indicated that the closer had to be maintained. The court held that the probable cause of the accident was that the closer was not working properly at the time and determined that the defendants were liable in negligence. The trial judge awarded €75,000 to the plaintiff, with contributory negligence measured at 25 percent.

Court of Appeal

The defendants appealed the decision on the basis that there was no evidence provided as to what caused the door to slam and, in the absence of such evidence, the court could not make a finding of negligence. The plaintiff cross-appealed, stating that the judge was wrong to hold that the light was on and that there was no duty for her to be escorted off the premises.

Giving the decision of the court, Mr Justice Seamus Noonan determined that the court could not disturb the factual findings under the principle in Hay v. O’Grady [1992] 1 I.R. 210.

However, the court went on to hold that there was “no evidence of any kind, expert or otherwise,” before the court which suggested that the defendants had a duty to equip the door with a closer. In fact, the court noted that counsel had stated that the presence of the closer was “irrelevant” because the plaintiff’s only case was that she should have been escorted off the premises.

As such, the court stated that it was “therefore inescapable that the trial judge found the defendants liable on a case never actually either pleaded or made by the plaintiff.” The court referred to the provisions of the Civil Liability and Courts Act 2004 and the decision in Morgan v. ESB, holding that a plaintiff is required to plead their case with specificity and cannot rely on generalised allegations of negligence.

In light of this, the court said that although it might have been fair to say that “the probable cause of the accident was the door closer not functioning correctly, in legal terms it was not the proximate cause or indeed a cause at all. The cause was never established.” The court said that the essential basis for the finding of negligence was never pleaded or made out by the plaintiff and simply “fortuitously emerged in the course of the evidence”.

Conclusion

In light of these comments, Mr Justice Noonan was satisfied that the trial judge had fallen into error because the plaintiff had failed to establish that there was any negligence on the part of the defendants. The court allowed the appeal and overturned the award of damages entirely. The cross-appeal was also dismissed.