Supreme Court of Ireland Decisions

1. This is an Appeal from the Judgment and Order of Mr. Justice Kelly delivered and made herein on the 18th day of April, 1997 whereby he dismissed the Plaintiffs claim herein with no Order as to costs.

2. The case is a strange one, though originating in a comparatively simple accident.

3. The Plaintiff is a young woman and, at all material times, was employed by the Defendants as a trainee chef at their hotel in Cork City.

4. On the date of the accident which was the 27th day of July, 1993 the Plaintiff was required in the course of her duties to place a fairly heavy ice cream container into a refrigerator. To do this she said she had to squat down on her hunkers. No sooner had she placed the ice cream container in the refrigerator, and while she was still in a squatting position, someone called for the ice cream container again. She went to get the ice cream container from the refrigerator and, with that, her feet went from under her and she fell on her back causing herself injuries.

5. She says that the reason why her feet gave way under her was that the floor, in the vicinity of the refrigerator, was wet.

6. An interesting aspect of the case was that doctors who gave evidence on either side were agreed that the Plaintiffs injuries were consistent with a fall such as she described.

7. Dr. Dominic Cooke, Consultant Rheumatologist, Ennis, who had treated the Plaintiff for her back problem (Day 3, Q. 50-52; Q. 169; Q. 175; and in answer to judge at p.27):

8. There were however major disputes between the parties as to (a) the state of the floor at the time of the accident and (b) the normal condition of the floor.

9. The Plaintiff swore that the floor was wet at the time of the accident and that it was frequently wet. No person, other than the Plaintiff actually witnessed the accident but the Plaintiff was supported in her description of the general condition of the floor in the neighbourhood of the refrigerator by a fellow worker Ms. Madden who said that there always seemed to be water seeping out from the fridge and there was a little channel towards the centre of the kitchen floor and that, after the Plaintiffs accident, she found that there was constant water coming out from the fridge.

10. Two experienced chefs Mr. Tannion, who was in charge on the night, and Mr. Stafford, denied this. Mr. Tannion said that there was no water on the floor immediately after the accident and that he did not notice any sign of wetness or water on the Plaintiffs clothing. Mr. Stafford said that the kitchen was a hostile environment; that spillages were a fact of life; but that there was no question of water constantly leaking on to the floor.

11. The Defence case was that they employed a team of porters who mopped up any spillages and that the refrigerator, if properly maintained and cared for, would not spill water on to the floor. A disturbing feature of the case, however, was that no Porter was called to give evidence nor was any maintenance engineer called to give evidence as to the servicing of the refrigerator.

12. Mr. Tannion did not witness the Plaintiffs fall but he did say that the account she gave him just after the accident was different from the account she was giving in Court. He describes the scene after the accident as follows:-

13. The issue then became one of credit as between the Plaintiff and Ms. Madden on the one hand and Mr. Tannion and Mr. Stafford on the other hand as to how the accident happened, whether the floor was wet on the occasion and as to the condition of the floor on other occasions.

14. In the event the Trial Judge decided that the Plaintiff had failed to prove her case on the balance of probability.

15. The Trial Judge took great pains with this Personal Injuries Action. This is illustrated by the fact that he reserved his Judgment. Moreover, in deciding the issue of costs, he made this remarkable statement:-

16. In making this analysis the learned Trial Judge referred to two hospital notes which he assumed tended to undermine a portion of the Plaintiffs evidence and to support that of Mr. Tannion. The trouble is that neither note is evidence. While either note could have been put to the Plaintiff in cross-examination (and one was) the cross-examiner would have been bound by her answer. The persons who made these notes were not called to give evidence. They were not cross-examined and the possibility that either, or both, of them might have made a mistake was not explored. There is also the fact that the notes are mutually contradictory and inconsistent with the nature of the Plaintiffs injuries as described by all the doctors who gave evidence. These notes are of no evidential value and should not have been used by the Trial Judge to the detract from the weight of the Plaintiffs testimony. It would therefore appear to me that the Trial Judge’s finding that the Plaintiff had failed to prove as a matter of probability that there was water on the floor on the night of the accident cannot stand.

17. The Trial Judge made a second finding that it appeared to him as a matter of probability that there was no water constantly in the area of the refrigerator. This is a clear finding of fact and, again, could not normally be interfered with by this Court. But again, on this matter there was a conflict of testimony between the Plaintiff and Ms. Madden on the one side and Mr. Tannion and

18. Mr. Stafford on the other. The learned trial Judge had based his first finding on an assessment of the weight to be given to the Plaintiffs testimony and one cannot be sure that this same sentiment did not influence his finding on the second matter.

19. In these circumstances it appears to me that the trial was unsatisfactory, that the Appeal should be allowed and that the matter should be remitted to the High Court for retrial.