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Cite as: [2019] IECA 333

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THE COURT OF APPEAL

Baker J.

Noonan J.

Power J.

BETWEEN/

Neutral Citation Number: [2019] IECA 333

APPEAL RECORD NUMBER: 2017/592

HIGH COURT NUMBER: 2015/2017 P

TREASA KILGANNON

PLAINTIFF/RESPONDENT

- AND –

SLIGO COUNTY COUNCIL, ANNE CONNOLLY, BLAIR FEENEY, THE BOARD OF MANAGEMENT

DROMORE WEST CENTRAL NATIONAL SCHOOL AND NOMINEE OF DROMORE WEST CENTRAL

NATIONAL SCHOOL

DEFENDANTS/APPELLANTS

- AND –

BRENDAN KILREHILL AND AIDEN KILREHILL TRADING AS KILREHILL BROTHERS

THIRD PARTIES

JUDGMENT of Mr. Justice Noonan delivered on the 18th day of December, 2019

1. This is an appeal from the judgment of Eagar J. given on the 9th December, 2017 at the High

Court sitting in Sligo. The plaintiff (Mrs. Kilgannon) brought these personal injuries proceedings

claiming damages for injuries she suffered in a trip and fall accident on 19th February, 2013

outside Dromore National School in Sligo. At the commencement of the trial, the proceedings were

withdrawn against the first defendant, Sligo County Council, disposing of the third party issue also.

The sole continuing defendant was therefore in effect the school.

2. The facts of this matter are very simple and straightforward, albeit in some respects highly

controversial.

3. Mrs. Kilgannon’s daughter, M, was a pupil in the senior infants’ class and during the course of the

morning, had become upset, apparently because she lost an earring. As a result, the school

decided to contact Mrs. Kilgannon to bring M home early. The school secretary, Mrs. Ruane,

telephoned Mrs. Kilgannon in or around lunch time and asked her to collect M. Mrs. Kilgannon

drove to the school, arriving at about 1.50 pm, and parked on the opposite side of the road from

the school, behind another car. The owner of the other car, Mrs. Carroll, was sitting in her car

waiting to collect her granddaughter from the school.

4. Mrs. Kilgannon had brought her younger daughter, C, aged three, with her and she got out of the

car, took C from the back seat and carried her across the road, intending to enter the school and

collect M. The plaintiff’s evidence was that she walked across the road and as she was stepping up

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on to the footpath, lost her footing as a result of one of the kerb stones in the footpath being

missing and this caused her to fall. She put out her right arm to break the fall, while holding on to

C in her left arm and in doing so, suffered a nasty fracture of her right wrist. Mrs. Carroll was, at

the time, reading in her car wearing her reading glasses. She does not appear to have directly

witnessed the occurrence of the accident, but her attention was drawn by the sound of the plaintiff

falling and she immediately went to her aid.

5. The real dispute in this case centres around where the plaintiff fell. Mrs. Kilgannon’s evidence was

that she fell at the point on the footpath where the kerb stone was missing. This would appear to

have been some 30 feet or so from the gate into the school. The defendants’ case throughout

however, was that she did not in fact fall at this point, but rather immediately beside the school

gate itself, where there was no similar defect.

6. Before the trial commenced, the parties sensibly agreed that this was the primary issue in the case

and if the plaintiff was found to have fallen at the missing kerb stone, the school would be liable,

but if she was found to have fallen immediately beside the gate, the school would not. The battle

lines were thus clearly drawn and the evidence on liability was almost entirely focused on this

issue. As it emerged, the photographs and engineering evidence and all the medical reports were

agreed, as were the special damages and accordingly, the only witness to give evidence for the

plaintiff was Mrs. Kilgannon herself.

7. Three witnesses gave evidence on behalf of the school, Mrs. Carroll, Mrs. Ruane and the school

principal, Mrs. Langan. Mrs. Carroll’s evidence was that when she went to assist the plaintiff, she

found her just outside the school gates and not where the plaintiff says she fell. Mrs. Carroll went

with Mrs. Kilgannon and C into the school, where they went into Mrs. Ruane’s office. Mrs. Ruane

had been working at her desk facing the window of her office at the front of the school looking out

across the road to where Mrs. Carroll and Mrs. Kilgannon were parked, but she did not witness the

accident.

8. Mrs. Ruane’s evidence was that the plaintiff told her that she was coming across the road and fell

and protected C’s head from the school gate. The plaintiff disputed this. Mrs. Langan arrived into

the office shortly thereafter. Mrs. Langan’s evidence was that she asked the plaintiff what had

happened and the plaintiff gave her a similar account to the effect that she fell just before the

gate. Mrs. Kilgannon denied that this conversation occurred or that there was any discussion about

the circumstances of the accident.

9. Mrs. Ruane offered to drive the plaintiff and her daughters home and they proceeded to leave the

school. There was another significant conflict in the evidence at this point, because Mrs. Langan

said she accompanied the plaintiff and Mrs. Ruane out of the school and asked the plaintiff to show

her where the accident had happened and she did so. This was flatly denied by the plaintiff who

said that Mrs. Langan did not come outside with them. Mrs. Langan said that she retrieved the

plaintiff’s handbag from her car, which was again disputed by the plaintiff and she said that Mrs.

Ruane had done so.

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10. Two significant documents were introduced in evidence by the defendants. The first was Mrs.

Langan’s diary entry, which she said was completed by her on the day of the accident. The second

was an accident report form completed for the school’s indemnifiers two days later on 21st

February, 2013. In the diary entry, Mrs. Langan wrote: -

“She parked across opposite the school. On her way into the school, just before she entered

the gate she fell.”

In the same entry, Mrs. Langan has noted that she asked the plaintiff what had happened. Mrs.

Langan also records that: -

“We brought Treasa out to [Mrs. Ruane’s] car and I locked up Treasa’s car after I got her

handbag for her.”

The diary entry makes no reference to Mrs. Langan asking the plaintiff to show her where the

accident had happened, nor does it record if the plaintiff did so, or what she indicated.

11. The accident report form completed two days later is somewhat different. Under the title “full

description of accident”, Mrs. Langan wrote the following: -

“Treasa was carrying her three year old daughter and tripped on the step of the footpath

outside the gate. She fell forward and her hand took the impact.”

12. A rudimentary sketch map was provided by Mrs. Langan, which is obviously not to scale and

although it purports to mark with the letter “X” the locus of the accident it does not really assist

matters.

Judgment of the High Court

13. Eagar J. delivered an ex tempore judgment in which he set out in some detail the evidence which I

have summarised above. He refers to Mrs. Kilgannon’s evidence and the fact that she was cross

examined at considerable length and in considerable detail. She was asked about the Personal

Injuries Assessment Board form which stated that she: -

“stepped on the footpath whereupon she was caused to misstep and fell to the ground.”

It was put to her that there was no mention in the PIAB form of the missing kerb stone, the

suggestion being that this was inconsistent with the plaintiff’s direct evidence. In dealing with this

issue, the trial judge referred to the plaintiff’s medical reports which were at odds with this

suggestion. The PIAB form was completed by the plaintiff’s solicitor on the 6th June, 2014. The

plaintiff was seen by her GP on the 5th February, 2014 when she told her doctor that: -

“she tripped on the footpath where there was a section missing.”

She was seen by Mr William Quinlan, consultant orthopaedic surgeon, on the 6th March, 2014

when she told Mr Quinlan that: -

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“she tripped over an uneven disrupted footpath.”

14. Clearly this was inconsistent with the suggestion that the plaintiff concocted the missing kerb stone

at a date subsequent to the PIAB application form. The trial judge noted in this respect (at p. 7): -

“In relation to each of the medical reports she remained clear of the cause of the fall, an

uneven disrupted footpath.”

In relation to the PIAB form, the court said (at p. 7): -

“She was asked about the absence of the broken footpath in the PIAB form. It is likely that

the form was completed by her solicitor and signed by her.”

15. In so far, therefore, as it was suggested that the plaintiff’s evidence was untruthful on the basis

that it was contradicted by the PIAB form, the trial judge considered this and appears to have

discounted it for the reasons I have identified.

16. In reaching his conclusion, the trial judge noted that (at p. 15): -

“The plaintiff was very clear as to what caused the accident.”

He also observed: -

“She did not yield in anyway as a result of searching cross examination.”

17. As regards the events post accident, the trial judge noted (at p. 15-16): -

“She clearly sustained an injury, which must have been extremely painful and, while she

tried to act as contained as possible, she was clearly suffering from shock and as an example

of that, she got sick in the toilet.”

18. It is evident therefore that the trial judge considered the plaintiff to be a truthful witness whose

evidence he found to be credible. The court went on to deal with the evidence of each of the three

defence witnesses in turn. With regard to Mrs. Carroll, he said (at p. 15): -

“The court is satisfied that Mrs. Carroll was wearing reading glasses and was reading a book.

She was quite insistent as to where the plaintiff fell. She described it but she also described

the fall as a loud bang, which is unlikely to be a fall in front of a school gate but much more

likely to be a fall on the pavement.”

Dealing with Mrs. Ruane, he said (at p. 15): -

“The defence case has been limited by which Mrs. Ruane could see. She says she could see

the accident. She initially suggested that she could see the accident, then said she did not

see the accident.”

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19. Finally, he turned to the evidence of Mrs. Langan. He cited the accident report form entry made by

Mrs. Langan verbatim and went on to say (at p. 17): -

“It is a matter for the court to decide whether or not, and the court does suggest that that is

very much as the plaintiff has given her evidence because the step is close enough to the

school gate and there has been no evidence as to how far it is, other than there seems to be

a number of bicycles. It is clear that the plaintiff was confused about who got her handbag

and probably as a result of the shock.

The principal could and should have waited until the plaintiff came back with her daughter a

number of days later and then set up a meeting to find out how she was recovering, what

had caused her to fall and where she had fallen. Her rush to judgment was not appropriate

but perhaps understandable for a busy teaching principal.

The Balance of Probabilities:

The court finds that the balance of probabilities is in the favour of the plaintiff. The court

finds for the plaintiff having regard to the serious injuries and the ongoing pain and the

effect on her life in circumstances where Mr Quinlan says she has an arthritis change in her

right wrist.”

The Grounds of Appeal

20. The original Notice of Appeal runs to some 18 pages, which is somewhat surprising given the

simple nature of the case and the issues arising. It seems that this court may have come to a

similar conclusion at the directions hearing because an amended Notice of Appeal has been filed

“pursuant to a request by the court” which is somewhat shorter. Five grounds of appeal are

identified:

(1) The primary finding of fact is not supported by credible evidence.

The basis for this contention is that the plaintiff’s evidence showed that her memory was not

reliable. In this regard, the defendants rely on the fact that the trial judge accepted the

defence evidence that Mrs. Langan walked out with the plaintiff after the accident, a fact

which the plaintiff denies, and it follows therefore that the plaintiff’s evidence was found by

the court not to be credible.

(2) Secondary or inferred facts derived from incorrect inferences drawn by the trial judge.

The defendants’ principle complaint under this heading is that the court rejected the

documentary evidence contained in Mrs. Langan’s diary and the accident report form on the

basis that Mrs. Langan had rushed to judgment. This is said to be an incorrect inference by

the judge.

(3) The specific finding of fact is so clearly against the weight of the testimony as to amount to

manifest defeat of justice.

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The fundamental basis for this assertion is that the evidence of the three defence witnesses

and the documents produced in evidence all contradicted the plaintiff and the trial judge

failed to properly evaluate this evidence.

(4) Incontrovertible facts and uncontested testimony and the importance thereof.

This ground is largely concerned with Mrs. Langan’s diary entry which the defendants say

was undisputed. The defendants therefore reason that the trial judge’s conclusion was

erroneous. The defendants contend further that the trial judge’s conclusion is not in

accordance with the accident report form and the trial judge was wrong to conclude

otherwise.

(5) Additional points arising and inadequacy of and absence of reasons.

Under this heading, the defendants submit that the trial judge misdirected himself in holding

that the medical records and what the plaintiff told her husband after the event could

corroborate her evidence of where she fell. Adequate reasons were not given by the court for

preferring the plaintiff’s evidence over that of the defendants’ witnesses and the

documentary evidence. The gist of this ground of appeal is that the defendants were left in a

position after the judgment that they did not know why they lost the case.

21. It should be noted that while the defendants appealed against every aspect of the judgment of the

trial judge, including his assessment of damages and the fact that he made no finding of

contributory negligence against the plaintiff, these issues where abandoned by the defendants at

the hearing of this appeal.

Legal Principles

22. The principles to be applied by an appellate court in the hearing of an appeal such as the present

one are set out in the seminal judgment of McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210. These

principles are so well known and so frequently cited that it is unnecessary to set them out in any

detail. I will refer only to one: -

“2. If the findings of fact made by the trial Judge are supported by credible evidence, this court

is bound by those findings, however voluminous and, apparently, weighty the testimony

against them. The truth is not the monopoly of any majority.”

23. Many of the cases, both before and since Hay v. O’Grady, emphasise the need for the trial court to

engage with the evidence in a meaningful way, so that both the parties and the appeal court can

understand the trial judge’s reasoning and the rationale for the conclusions that he or she reached.

This is a matter of basic justice. Parties are entitled to know why they have won or lost. This is

particularly important in cases where there is a significant conflict of evidence, the resolution of

which is essential to the determination. The Court must explain, at least in broad terms, why one

party’s evidence is preferred over that of another. That does not mean that the trial judge is

required to forensically analyse the entirety of the evidence in minute detail before coming to his or

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her conclusion. As Clarke J. (as he then was) put it, in Doyle v. Banville [2018] 1 I.R. 505, (at p.

510): -

“… it does need to be emphasised that the obligation of the trial judge is to analyse the

broad case made on both sides. To borrow a phrase from a different area of jurisprudence it

is no function of this court (nor is it appropriate for parties appealing to this court) to engage

in a rummaging through the undergrowth of the evidence tendered or arguments made in

the trial court to find some tangential piece of evidence or argument which, it might be

argued, was not adequately addressed in the court’s ruling. The obligation of the court is

simply to address, in whatever terms may be appropriate on the facts and issues of the case

in question, the competing arguments of both sides.

[12] In addition there may be cases where the court has nothing more to go on but the demeanor

of the witnesses and where there will be little more to be said than that the court found one

set of witnesses as being more credible than another. However where, as in a case such as

this, there are factors surrounding the accident in question on which the parties lay emphasis

for their argument as to which of two competing accounts should be accepted, then the court

must, of course, address at least the broad drift of the argument on both sides so that the

parties may know why the court came to its conclusions.”

24. The defendants placed reliance in argument on the decision of this court in Nolan v. Wirenski

[2016] IECA 56. Delivering the court’s judgment, Irvine J. again emphasised the need for the trial

court to state its reasoning for reaching a conclusion, since otherwise, the appeal court may be in

darkness as to the rationale for an award. It is important, however, to note the context in which

these observations were made in that case. The plaintiff suffered an injury to her right shoulder in

a road traffic accident. She advanced a very significant claim for the cost of past and future care

which was abandoned without explanation on the morning of the trial.

25. She claimed that she was unable to raise her arm above the horizontal as a result of the injury.

The defendant adduced video evidence which showed the plaintiff fully extending her right arm

over her head and waving enthusiastically on three separate occasions, without apparent difficulty.

They further produced video evidence of the plaintiff ironing for upwards of 25 minutes and other

photographic evidence of her resting on a beach on her right shoulder for in excess of ten minutes

in circumstances where she had told the court that each of these activities caused her significant

pain and discomfort.

26. Despite this evidence the trial judge found as a fact that the plaintiff could not lift her right arm

over the horizontal. Irvine J. concluded that this finding could not be supported by the evidence.

Another finding made by the trial judge was that the plaintiff was still taking medication in respect

of the injury suffered in the accident at the date of trial. However, when cross examined, she

conceded that she was taking the same medication at the date of the accident as a result of a pre-

existing condition. This finding was clearly erroneous. One can therefore readily understand how

the appeal was allowed.

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27. These views were recently reiterated by this court in Keegan v. Sligo County Council [2019] IECA 245,

where McGovern J., delivering the Court’s judgment, found that there was a failure by the

trial judge to analyse in any meaningful way the discrepancies in the evidence given by the

plaintiff.

Discussion

28. A curious feature of this case is the fact that the evidence of the defendants’ witnesses was entirely

focused on where the plaintiff, but not why she fell. This was a very significant point, which was

explored in some depth in the cross examination of the defendants’ witnesses. Mrs. Langan was

insistent that she asked the plaintiff to show her where she fell and that the plaintiff did so. One

would have expected thereafter Mrs. Langan to have looked closely at the locus to ascertain the

cause of the fall, if that could be ascertained, or if there was nothing found, to record that fact,

both in her diary and in the accident report form. She did neither.

29. It was suggested to her in cross examination that this omission was all the more surprising, having

regard to the fact that, if the accident had happened immediately at the school gate as alleged by

the defendants, a very short time after the accident a large group of young children was about to

emerge from the school over the area where the plaintiff fell and thus identifying the cause of the

fall became all the more important. Mrs. Langan was also cross examined about the apparent

inconsistency between what was noted in the diary entry and the accident report form.

30. It will be recalled that in the accident report form, Mrs. Langan notes that the plaintiff had “tripped

on the step of the footpath outside the gate”. This is not referred to in her diary entry. She

appeared not to agree that this was a materially different description, although it plainly is.

However, at the conclusion of her cross examination, Mrs. Langan agreed that there is no footpath

and thus no kerb in the area directly in front of the gate where she alleged that the plaintiff told

her she fell.

31. The trial judge expressly referred to the contents of the accident report form in his judgment,

noting that it was “very much as the plaintiff has given her evidence”. It seems clear therefore that

the trial judge concluded that the description of the accident recorded by Mrs. Langan in the

accident report from was consistent with the plaintiff’s evidence. I cannot see how that conclusion

could be faulted. The accident report form referred to the plaintiff tripping on the step of a footpath

which the evidence established did not exist where the defendants say she fell. The trial judge was

therefore entitled to treat the accident report form as evidence that significantly undermined the

defendants’ case and supported that of the plaintiff.

32. Further, it is clear that the trial judge found the plaintiff’s evidence to be credible and cogent.

Although not expressly referred to by the trial judge, a factor which he would undoubtedly have

been entitled to take into account was that the plaintiff’s evidence provided a clear explanation for

why the accident occurred whereas the defendants provided none. I cannot therefore see any basis

upon which it could be seriously contended that there was no credible evidence before the court on

foot of which it reached its conclusion.

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33. The defendants further complain that the trial judge did not explain why he did not accept the

defendants’ evidence regarding the locus of the accident, when he did accept their evidence of

some of the post-accident events and rejected that of the plaintiff on the basis that she was not

credible. This particularly related to the fact that Mrs. Langan came out with the plaintiff and the

others after the accident and Mrs. Langan retrieved the plaintiff’s handbag from her car.

34. The trial judge concluded that there was a difference between the evidence of the plaintiff leading

up to the accident and that of post-accident events. He pointed to the fact that the plaintiff was in

shock and also in severe pain and neither of these findings could be open to serious doubt. He

concluded that this explained the plaintiff’s confusion about post-accident events and this appears

to me to be a finding that was open on the evidence.

35. The defendants complain that the court failed to have regard to Mrs. Langan’s diary entry, which,

in their written submissions, they assert “wholly supported the oral testimony of all the defendants’

witnesses.” It is I think important to recognise the status of this evidence. The diary entry and

accident report form were admitted into evidence without objection. They are however, clearly

hearsay insofar as the defendants’ witnesses are concerned. A person cannot corroborate his own

evidence by the simple expedient of subsequently writing a statement.

36. The diary entry and accident report form cannot therefore be regarded as corroboration of Mrs.

Langan’s evidence any more than the plaintiff’s evidence could be corroborated by her subsequent

statement to her husband or her doctors. However, the evidential significance of such documents is

of course from the perspective of the opposing parties, insofar as they can be said to be

inconsistent with the evidence of the party who created them. It is in this context that the

documents in the case should be understood and it appears to me that this is in fact how they were

treated by the trial judge. His finding that the accident report form was consistent with the

plaintiff’s account necessarily implied that it was inconsistent with the defendants’ version of the

accident.

37. With regard to Mrs. Carroll’s evidence, I accept the defendant’s contention that insofar as the trial

judge rejected her evidence based on the likely sound of the impact, there was no evidential basis

for such conclusion. However, that was not the only reason for rejecting her evidence because

insofar as he found that she was wearing reading glasses and was reading a book at the material

time, the clear inference to be drawn is that he considered that she either did not or could not see

the accident occurring, although in fairness it should be said that she did not claim to have actually

witnessed the fall. Although it is perhaps somewhat unsatisfactory that the trial judge did not

expressly deal with why he did not accept Mrs. Carroll’s evidence about the locus of the fall, I think

it is reasonably clear from his overall conclusion that he must have been of the view that she was

mistaken.

38. I accept the defendants’ submission that the judge’s comments about Mrs. Langan rushing to

judgment may have been somewhat wide of the mark, but I think this was something of an aside

not directly relevant to his primary finding of fact. However, with respect to the complaint about

the judge saying he was finding for the plaintiff having regard to the serious injuries, it must be

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remembered that this is a live transcript where sometimes the stenographer’s punctuation may not

always equate to what the judge might have written. The passage in question in my view makes

sense if one puts a full stop after “The court finds for the plaintiff” because what follows is clearly

relevant to the quantum which the judge then goes on to assess.

Conclusion

39. As Clarke J. observed in Doyle v. Banville, there may be cases where there is a simple conflict of

evidence, the resolution of which requires little more from the trial court than finding one side

more credible than the other. This is such a case. The judge was entitled to take the view in

assessing where the probabilities lay that the version of events given by the plaintiff provided a

readily understandable explanation for why the accident happened, whereas on the defendants’

evidence, it remained an unexplained mystery despite all three defence witnesses having had a

clear opportunity to inspect the locus.

40. Viewing the judgment as a whole, I am satisfied that there was credible evidence which supports

the conclusion of the trial judge and I can find no basis for the suggestion that such finding was so

clearly against the weight of the evidence as to amount to a manifest defeat of justice. It is also to

my mind apparent from the judgment itself why the trial judge came to his conclusions and I do

not think the defendants can reasonably contend that they do not know why they lost the case.

41. For these reasons therefore, I propose to dismiss this appeal.

Result: Dismiss appeal