Court of Appeal: €65,000 award upheld for laceration injuries sustained by child while ice-skating

Killian Flood BL

About this case:

• Citation:
  [2021] IECA 17
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

The Court of Appeal rejected the defendant’s appeal against the trial judge’s findings. In particular, the court was highly critical of the defendant’s expert evidence and the manner in which the defendant conducted its defence to the proceedings.

Background

The plaintiff was a ten-year-old child who went with her mother and her sister to a commercial ice-skating rink in December 2015. The evidence before the High Court was that 281 tickets had been sold for a 50-minute slot at the time and that the rink was crowded with people. The defendant, Cool Running Events Limited, allowed 10 minutes for everyone to get off the ice for the next session. There was only one exit from the ice rink through which every patron was marshalled.

Unfortunately, while exiting the ice, CCTV footage showed that the plaintiff bumped off a large man and fell on the ice. Another person then skated over the back of her hand, causing the plaintiff significant lacerations. The plaintiff sued the defendant for personal injuries arising from the accident.

At the trial, the plaintiff, her mother and her sister gave evidence stating that the ice rink was packed and that there were no supervisors on the ice rink at the time. Counsel for the defendant attempted to rely on the CCTV footage to undermine the plaintiff’s evidence. However, the defendant chose not to call any witnesses who was present when the accident occurred.

The defendant chose to call only two witnesses, who were Mr Bill Cremin, the managing director, and Mr Barry Tennyson, an engineer. However, neither of these witnesses were present on the defendant’s S.I. 391 schedule of witnesses and the plaintiff’s legal team had no idea that these witnesses would be called. It transpired that Mr Tennyson was only engaged as an expert after the trial had commenced and that his report was limited to critiquing the evidence of the plaintiff’s engineering expert, Mr Niallo Carroll. As a result of this surprise, the trial had to be adjourned back to the list and re-run before another judge.

In a four-day trial, Ms Justice Bronagh O’Hanlon held that the defendant was liable for the accident. The judge said that the accident was foreseeable and that Cool Runnings failed in its duty of care to the plaintiff. The plaintiff was awarded €65,000 for her injuries.

Court of Appeal

The defendant appealed the judge’s ruling to the Court of Appeal, arguing that the judge was wrong to award damages in the case based on the engineering evidence. The court was also invited to overturn the trial judge’s ruling on the basis of the CCTV evidence in the case.

Delivering the judgment of the court, Mr Justice Seamus Noonan rejected the appeal and criticised the manner in which the defendant had defended the proceedings. First, the court said that the late notification by the defendant that Mr Tennyson would give evidence was a clear abuse of process. The entire point for exchanging a schedule of witnesses was to avoid a party getting a litigious advantage at trial, but this was precisely what occurred in the case. Moreover, the court also noted that the late instructions to Mr Tennyson meant that “the defendant placed Mr. Tennyson in an impossible position where he could not fulfil the duties required of an independent expert.” On this basis, the trial judge was entitled to prefer the evidence of the plaintiff’s expert.

The court also noted that the defendant had failed to call any witness who was present at the time of the accident, despite several scheduled witnesses in attendance at the second hearing. The court said there was “ample evidence” to show that the defendant was negligent in the case. The court therefore refused to overturn the trial judge’s findings despite being urged by the defendant to consider the CCTV evidence afresh.

Finally, the court criticised the defendant’s pleadings in the personal injuries defence, noting that many allegations were not pursued at trial. In particular, the defendant had pleaded that the plaintiff contributed to her own accident and that the plaintiff’s mother had failed to supervise her.

On the contributory negligence point, the court said that the defendant had the benefit of a full hour of CCTV involving the plaintiff and yet there was no witness called to show that the plaintiff acted inappropriately. Even without regard to the extent that a ten-year-old could be guilty of contributory negligence, it was “impossible to hold that this plea was properly made in the defence.”

Similarly, the allegations against the plaintiff’s mother were “advanced without any evidential basis” because it was perfectly obvious from the CCTV footage that the mother was “barely able to skate, let alone supervise her daughter” who was a proficient skater. Worse, Mr Cremin distanced himself from the pleadings in his testimony and no explanation was given as to how the pleas came to be made in the defence.

Mr Justice Noonan said that the case provided a timely reminder that “careful consideration is required before pleas of the kind that are seen in this case are advanced, which I would deprecate in the strongest terms.”

Conclusion

The appeal was dismissed and the plaintiff was provisionally entitled to her costs.