About this case:

• Citation:
  [2024] IEHC 563
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger found that the 10-year delay in progressing the proceedings, the prejudice suffered by the gym and the anticipated delay arising from the need to amend the proceedings satisfied her that a fair trial was impossible. 

Niall Mooney BL appeared for the plaintiff instructed by Ian Mallon & Co. Solicitors, and Caroline McGrath BL appeared for the defendant instructed by Peter Duff & Co. Solicitors.

Background

On 5 April 2009 the plaintiff, then 18 months old, attended the defendant’s play area at its premises in Clontarf accompanied by her mother, her siblings and her aunt. The plaintiff alleged that she slipped and fell off the premises and sustained a broken elbow.

In December 2010, the plaintiff’s solicitor wrote to the defendant erroneously stating that an accident involving the plaintiff had occurred on 1 April 2009, and omitting any detail about how or where the accident occurred.

The plaintiff’s Personal Injuries Assessment Board (PIAB, as it then was) application dated 29 March 2012 clarified to the defendant for the first time that the plaintiff slipped on a wet step-stool while getting water from a water fountain on 5 April 2009, but incorrectly identified the accident locus as the defendant’s Leopardstown premises.

Proceedings issued on 6 February 2013 and were served on the defendant in January 2015.

In December 2022, the plaintiff’s solicitor sought inspection facilities. The defendant responded explaining that the entire area had been renovated in 2019/2020 and the fountain had been removed in that process.

The defendant subsequently issued a motion seeking to strike out the proceedings for inordinate and inexcusable delay, relying upon the renovation of the accident locus and alleging that the accident had not been reported at the relevant time and so there was no accident report form in existence.

High Court

Ms Justice Bolger considered that the first opportunity given to the defendant to investigate the complaint was when it was given the correct date of the accident, almost three years later, finding it “clear that the defendant has suffered prejudice in not having any records relating to such complaints”.

The judge remarked that whilst the suggestion of the plaintiff’s solicitor to the effect that the defendant should have photographed the area prior to renovations “ostensibly appears to be a sensible suggestion”, this would not have assisted due to the “entirely different and new” version of events provided in the plaintiff’s engineer’s report exhibited to one of her replying affidavits, which described the plaintiff as having slipped on a wet foam cube.

The High Court noted a delay of 10 years in progressing the proceedings from the date of issue of the personal injury summons until the issuing of the defendant’s motion in February 2023.

Making no criticism of inter alia pre-commencement delay in circumstances where the plaintiff was an infant, Ms Justice Bolger determined that the delay led to a real prejudice for the defendant which was exacerbated “by the recent and dramatic change in the description of the plaintiff’s accident from that contained in the PIAB form of 29 March 2012 and the personal injury summons of 6 February 2013”.

Finding the defendant’s solicitor’s contention that no meaningful or useful inspection was now possible “to be a reasonable conclusion for them to draw”, the court also refused to accept the plaintiff’s submission that the alteration in the description of the accident was not significant and was not satisfied that the proceedings were ready to be set down for trial in light of same.

Ms Justice Bolger also determined that further anticipated delay caused the necessity to amend the personal injury summons to plead the correct locus of the accident could be taken into account by the court in the exercise of its discretion.

The court concluded: “I find the prejudice caused to the defendant by the delay in progressing the proceedings to be significant and one that renders a fair trial at this juncture, and given the evidence now available, to be impossible. I am satisfied that the O’Domhnaill test of “a real risk of an unfair trial or an unjust result” (as per Irvine J. in Cassidy v. The Provincialate [2015] IECA 74) is satisfied.”

Conclusion

Accordingly, the High Court dismissed the proceedings.

Graydon (A Minor) v Westwood Club Limited [2024] IEHC 563