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Judgment Title: Wright & anor -v- AIB Finance & Leasing & anor Neutral Citation: [2013] IESC 55 Supreme Court Record Number: 066/2008 High Court Record Number: 1999 4190 P Date of Delivery: 11/12/2013 Court: Supreme Court Composition of Court: McKechnie J., Clarke J., MacMenamin J. Judgment by: Clarke J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No: 66/2008] McKechnie J. Clarke J. MacMenamin J.
Thomas Wright and William Wright Plaintiffs/Respondents and
AIB Finance & Leasing and Geary's Garage Limited Defendants/Respondents and
John Deere Limited Third Party/Appellant Judgment of Mr. Justice Clarke delivered the 11th December, 2013.
1. Introduction 1.2 The incident which gave rise to these proceedings involved a serious injury to a Mr. Denis Scollard. Mr. Scollard was an employee of the plaintiffs/respondents ("the Wrights"). His injuries occurred while he was attempting to clear a blockage in a combine harvester. The Wrights compromised proceedings brought by Mr. Scollard in the sum of IR£375,000 for damages together with costs, ultimately measured in the sum of IR£53,829.70. In addition, the Wrights incurred costs of IR£40,592.80 in dealing with Mr. Scollard's claim. On that basis, the whole exercise of dealing with Mr. Scollard's claim cost the Wrights IR£469,422.50. The Wrights commenced these proceedings against the first named defendant ("AIB Finance") in its capacity as the party who had leased the harvester in question to them and as against the second named defendant ("Geary’s") as the supplier of same. The Wrights contended that the machine was defective in a way which caused or contributed to the injuries of Mr. Scollard and that, therefore, both defendants were liable to indemnify or alternatively made a contribution towards the cost of dealing with Mr. Scollard's claim. 1.3 In turn, Geary’s successfully applied to have the third party/appellant ("John Deere") joined as a third party in the capacity of the manufacturer or supplier of the harvester in question. The trials both of the action between the Wrights and Geary’s (who, in substance, it would appear, dealt with the case both on their own behalf and on behalf of AIB Finance) and of the third party issue between Geary’s and John Deere were conducted together before the High Court (Irvine J.) over a period of eight days. Thereafter, each of the parties submitted written argument leading to a reserved judgment of Irvine J. on the 5th December, 2007 (Wright and Anor v AIB Finance and Leasing Ltd and Ors [2007] IEHC 409). For the reasons set out in her judgment, Irvine J. concluded that there was a breach of contract on the part of AIB Finance and Geary’s such that entitled the Wrights to recover the full sums claimed together with significant interest which had accrued in the intervening period. Irvine J. rejected an allegation of contributory negligence against the Wrights. In addition, the trial judge concluded that the harvester in question was subject to a defective design, thus entitling AIB Finance and Geary’s to a complete indemnity against John Deere. 1.4 In those events, therefore, the entire cost of dealing with Mr. Scollard's claim was found to fall on John Deere. It is against that finding that John Deere appeals to this Court. 1.5 In order to understand the issues with which this Court was concerned it is necessary to set out in brief outline the way in which counsel for John Deere approached the appeal. 2. John Deere's Appeal 2.2 First, counsel, while acknowledging the limited basis on which it is appropriate for this Court to revisit the facts as found by the trial judge, nonetheless asserted that the findings of fact as to how the accident to Mr. Scollard actually occurred were not, as a matter of law, sustainable. 2.3 Second, counsel asserted that, even if the findings of fact of the trial judge were upheld, the trial judge was, it was said, in error in concluding that the injuries suffered by Mr. Scollard were a foreseeable consequence of any wrongdoing that might thus be established against John Deere. 2.4 Third, it was argued that, in the light of certain findings made by the trial judge concerning the failure on the part of the Wrights to give any instructions to Mr. Scollard in relation to the manner in which he should carry out his duties (with particular reference to how to deal with the question of blockages), the trial judge was, it was argued, incorrect in failing to find the Wrights guilty of some degree of contributory negligence. 2.5 It is possible to deal with the final point raised very briefly. While it will be necessary to address the findings of fact of the trial judge in due course it is, I think, fair to summarise those findings as being to the effect that Mr. Scollard had disengaged the engine of the combine harvester from its moving parts prior to embarking on the operation of trying to clear a blockage. In those circumstances, the trial judge went on to conclude that the paddles of the harvester had, for reasons which it will be necessary to consider in some detail, moved thus causing a serious injury to Mr. Scollard. If that finding of fact is sustained then it is difficult to see how any failure on the part of the Wrights to give Mr. Scollard adequate instructions on disengaging the engine prior to attempting to clear any blockage could have had a material contribution to this accident. It should be noted that the trial judge placed reliance on the fact that there was nothing in the manuals supplied, or instructions given generally to the Wrights, which concerned how blockages should be cleared or which suggested that there was any possibility that the relevant paddles could move even if the engine was disengaged. On the basis of her findings of fact (and assuming those findings are sustained), it is impossible to disagree with the conclusion of the trial judge that, while the Wrights were technically negligent, such negligence had had "no causative effect on the occurrence of Mr. Scollard's injuries". 2.6 Obviously, John Deere contest the findings of fact which underlie that determination on the absence of contributory negligence. It will be necessary to turn, shortly, to the facts. However, unless John Deere succeed in establishing that the relevant findings of fact cannot be sustained, then it does not seem to me that the question of contributory negligence arises as a separate heading of appeal for, on the basis of the facts as found by the trial judge, the conclusion of no causative effect necessarily follows. For those reasons, the contributory negligence issue is not really a stand alone issue but rather is one which arises only if the findings of fact can be disturbed. In fairness, I did not understand counsel for John Deere, while not abandoning the point, to strongly press the question of contributory negligence as a stand alone ground of appeal for that very reason. 2.7 Finally, it does seem to me to be important to emphasise that, while there are undoubtedly connections between the two points, there is a difference between the issues which arise on the question of how the accident actually occurred, on the one hand, and the issues which arise in relation to foreseeability, on the other. The question of fact depends on whether the Wrights and AIB Finance and Geary’s had discharged the respective onus of proof which undoubtedly lay on them to show how the accident occurred and whether the trial judge's assessment of the evidence permitted her to come to a sustainable conclusion on the facts in the way in which she did. The issues which arise in relation to the findings of the trial judge on the facts are concerned, therefore, with the onus of proof, the evidence and the trial judge's assessment of that evidence. Those issues must, of course, be viewed against the backdrop of the limited basis on which an appeal court can seek to interfere with findings of fact of the trial judge. 2.8 Assuming that any findings of fact of the trial judge are sustained, then the question of foreseeability involves a purely legal question as to whether the test of foreseeability is met on the facts as found. 2.9 Against the background of those issues it is, perhaps, appropriate to start with an account of the uncontroversial facts of this case passing over for the moment, while identifying them, the areas in respect of which there was conflict. 3. The Uncontroversial Facts 3.2 It is of some relevance to the way in which the case ran in the High Court to note that the Wrights obtained with the harvester a manual running to some 400 or so pages but including a one page summary which made clear, at point no. 14, that work should not be done on the machine while the engine was running or if someone was in the cab. It was clear on the evidence and found by the trial judge that blockages within the harvester were a regular feature which required clearing out. It was in the course of attempting to clear such a blockage that Mr. Scollard unfortunately suffered his significant injuries. 3.3 As pointed out, Mr. Scollard commenced proceedings against the Wrights (Record No. 1995 No. 8526P) which were compromised. As pointed out by the trial judge, there was nothing surprising in the pleadings in this case with the Wrights asserting that the machine did not reach the standard required by virtue of it being possible to gain access to a potentially moving part and, thus, being dangerous and with AIB Finance and Geary’s asserting that, if the Wrights were correct in that regard, the machine was subject to a design fault such that they were entitled to a complete indemnity from John Deere. 3.4 Certain features of the harvester model 6810 were also not controversial. At pp. 4 and 5 of her judgment, Irvine J. set out a helpful synopsis of the relevant evidence. Having referred to a diagram produced in the course of the Wrights’ evidence, she went on to state the following:-
The purpose of the blower drum is to drive the grass up and out of the harvester through a lengthy chute from whence the grass is ultimately discharged onto a trailer which is driven alongside the harvester. The blower box has four paddles which, when the engine is running and the clutch is engaged, rotate 30 times per second. The grass is then propelled into the lengthy exit chute by reason of the fact that there is a deflector plate at the point where the blower box meets the chute and this deflector plate diverts the grass into the chute rather than permitting it to travel around the blower box. In other words, on the diagram presented, and using the dial of the clock for assistance, the grass enters the blower box at approximately 7.00 o’clock and leaves it at approximately 1.00 o’clock. It was accepted by all parties that harvesters of this nature do experience blockages. In this particular case Mr. Wright marked the areas where such blockages were most likely to take place on the first exhibit. These blockages can be seen just prior to where the cut grass enters the blower box and immediately beyond the blower box at the start of the exit chute. Red Xs on the diagram reflect the positions referred to by Mr. Wright in his evidence. The method used for clearing such blockages was described by Mr. Wright and was not disputed by any of the parties. Leaving aside the appropriate steps to be taken in relation to the engine prior to clearing any blockages the court received evidence as to how the respective blockages would be cleared. Blockages of grass in the chute entering into the blower box would be cleared by the operative opening up the hatch of the blower box itself.”
4. How did the accident happen? - The account given by those present 4.2 Mr. Tom Wright, the first named plaintiff, gave evidence that when the blockage occurred he left the engine idling and disengaged the clutch. Mr. Wright gave evidence that, while Mr. Scollard went to free the blockage in question, he spoke to two farmers (including a Mr. McCarthy who also gave evidence) who appeared to have been next in line to have their silage harvested. Mr. Wright, as the trial judge put it, “was adamant” that he did not get back into the harvester for the purposes of re-engaging the clutch nor did he carry out any manoeuvres which might have re-engaged the engine for the purposes of putting the front rollers into reverse mode. The Mr. McCarthy to whom reference has been made gave evidence that he was standing with Mr. Wright when Mr. Scollard emerged from under the harvester having suffered his injury. 4.3 The factual evidence presented on behalf of the Wrights was, therefore, that there was a blockage, that while the engine remained idling the clutch was disengaged and that for some reason the paddles had moved inside the chute while Mr. Scollard was attempting to free the blockage thus causing his injury. 4.4 That factual evidence was the backdrop to a significant amount of expert engineering evidence which was tendered on behalf of all parties. However, before going on to deal with that evidence, it is important to say something about the role of expert evidence in attempting to provide explanations as to the way in which a particular accident might have occurred. This is particularly so in the light of the submissions made on behalf of John Deere concerning an issue which has been addressed in a recent report of the Law Reform Commission and elsewhere and has been colloquially referred to as “junk science”. 5. The Role of Expert Evidence 5.2 However, sometimes expert evidence is tendered with a view to assisting the court in its task of deciding what actually happened on a relevant occasion. Such evidence can, of course, be of considerable assistance to a court. Expert evidence may suggest that an eye witness account, even though given by an apparently truthful and reliable witness, may have to be doubted for it may become impossible to reconcile the eye witness account with objectively established forensic findings and expert evidence as to the inferences which ought, as a matter of science, be drawn from those forensic findings such that the court is forced, on the balance of probabilities, to conclude that relevant eye witnesses were mistaken. Expert evidence tendered on that basis needs to be addressed in context. 5.3 For example, evidence is often tendered from qualified engineers who seek to re-construct a motor accident in the light of some eye witness accounts coupled with forensic findings such as the location of vehicles post accident, debris, marks on the road and the like which may, for example, be recorded by members of An Garda Síochána investigating the accident in question. A court in attempting to reach a conclusion as to how such an accident occurred must, of course, take into account all of the evidence including accounts given by participants and independent eye witnesses but also any such expert or forensic evidence tendered. However, it needs to be noted that such evidence is not necessary to establish the facts. Eye witness accounts themselves can, if the court is satisfied as to their reliability, be sufficient to enable the court to reach a conclusion as to what actually happened. Such expert evidence can, of course, be led for the purposes of attempting to persuade the court that one or other account of the accident as given by the eye witnesses on either side should not be relied on because of what might be said to be an inexplicable inconsistency with the forensic record. Where one party has no direct evidence of its own but needs to challenge the account given by its opponent such expert evidence is also often important. Obviously, where such a case is made then the court needs to engage with all of the evidence and explain its findings of fact by reference to all of that evidence. 5.4 In some cases, of course, expert engineering evidence may be tendered with a view to assisting the court on the question of negligence or other wrongdoing. Such evidence may be material to the question of the standards which ought have been applied by, for example, an employer or even a motorist by reference to, for example, an appropriate distance to keep from a car travelling in front in the same direction having regard to the speed of the cars concerned and the road conditions prevailing. However, it is important to keep in mind the distinction between those two types of expert evidence. One is relevant to the question of what actually happened and, in that regard, needs to be seen in light of all evidence touching on that question including eye witness accounts. Evidence of the second type is not relevant to what actually happened but is relevant to whether, on the facts as found by the trial judge, wrongdoing may be established. 5.5 Against that background, it is appropriate to turn to the expert evidence insofar as it is relevant to the question of what actually happened in this case. That is not to say that the expert evidence may not be relevant to other questions but insofar as the expert evidence was tendered for the purposes of assisting the court to come to a view as to what actually happened it is important, in addressing that evidence, to have regard to the function of such evidence as already analysed. 6. The Expert Evidence 6.2 It is important to note a number of aspects of the way in which the trial before the High Court developed. First, it is clear both from the transcripts and from the judgment of the trial judge that the real case advanced on behalf of John Deere was to the effect that the Court should not accept the evidence of the eye witnesses for there was, it was said, no way in which the paddles could have moved without the engine being engaged. Against that backdrop a particular focus of the expert evidence given on behalf of the Wrights and, to an extent, Geary’s, was concerned with attempting to provide an explanation as to how the accident could have occurred in the manner described by Mr. Scollard and consistent with the accounts of the eye witnesses. The expert evidence tendered against John Deere needs to be seen in that context. In a sense, it was not expert evidence which was a necessary part of the case which both the Wrights and Geary’s sought to make. That case was simple. Eye witness evidence was tendered which, if believed, could lead to a conclusion that, for whatever reason, the paddles moved without the engine being engaged. On that factual assertion the arguments as to negligence were based. However, given that John Deere, as a matter of defence, suggested that such evidence could not be believed, or, at any rate be regarded as reliable, because of what was said to be the absence of any acceptable scientific explanation as to how the paddles could have moved with the engine not engaged, it became necessary for the parties opposed to John Deere to deal with John Deere's expert evidence by means of directing their own expert testimony to the question of possible explanations for how the paddles could have moved with the engine disengaged. 6.3 It does also need to be noted that the expert evidence led by both the Wrights and Geary’s was also directed to the question of negligence and whether, on the assumption that the accident occurred as those parties asserted, it could be said that the accident was caused or contributed to by a design fault. Evidence on that latter question was "pure" expert evidence as to standards rather than evidence tendered to assist the court in deciding what actually happened. So far as the expert evidence led by the Wrights and Geary’s, which was relevant to how the accident actually happened, is concerned, it seems to me to be appropriate to characterise that evidence as being responsive to the expert evidence on the same point tendered on behalf of John Deere. John Deere's experts suggested, of course, that there was no scientific explanation as to how the accident could have happened in the way which the eye witnesses described. 6.4 That leads to a further observation. There was some confusion at the hearing of this appeal as to the manner in which expert reports of the witnesses sought to be called by the various parties were exchanged in advance of the hearing in the High Court. At the conclusion of the appeal, the Court invited the parties to attempt to agree what had actually occurred. Happily it was possible for the respective solicitors to reach such agreement, which was communicated to the Court by letter of the 28th January, 2013 from Messrs A & L Goodbody, solicitors for John Deere. In material part, the relevant letter reads as follows:-
1. Tony O'Keefe, 29 April 1997. 2. John G Sullivan, 13 May 1997. 3. Joseph R O'Neill & Associates, 24 February 2006. 4. John G Sullivan, 13 October 2007. 5. A Brennan & Company, October 2007. The trial commenced on Tuesday 23 October 2007. The exchange of reports took place via counsel as follows: • From the plaintiffs to the defendant: Friday 19 October 2007 • From the defendants to the plaintiffs: Tuesday 23 October 2007 • As between plaintiffs and third party: Tuesday 23 October 2007 • As between defendant and third party: Tuesday 23 October 2007"
• Mr. Sullivan, consulting engineer, tendered by the Wrights; • Mr. Foy, consulting engineer, (of A. Brennan & Co.) tendered by Geary’s; • Mr. O’Neill, consulting engineer, tendered by John Deere; and • Mr. O’Shaughnessy, consultant plastic surgeon, tendered by the Wrights. 6.6 Be that as it may, the problems which derived from the late exchange of expert reports in this case seem to me to have a bearing on the proper approach to the expert evidence. To take but one example which it will be necessary to address in early course, when questioning the expert evidence tendered against John Deere, it became clear that one of the relevant experts was under a misapprehension as to the material which was to be found in the drive belt. The basic thesis of the expert witnesses who gave evidence against John Deere was to suggest that the relevant paddle could have moved, even though the engine was not engaged, because of a release of tension within the mechanism of the combine harvester or because of grass falling in the context of Mr. Scollard's attempt to relieve the blockage within the machine. In the middle of the case, it was made clear that the material found in the drive belt was kevlar. It was said by the experts called on behalf of John Deere that kevlar does not retain any significant amount of tension so that there could not have been, it was said, tension in the machine which had built up and whose release could have caused a movement of the relevant paddles even though the engine was not engaged. Mr. Foy, called on behalf of Geary’s, and Mr. Sullivan, called on behalf of the Wrights, were, in those circumstances, left with the difficult task of having to revisit their evidence while the case was at hearing. Any proper conduct of this litigation ought to have allowed for a timely exchange of expert reports so that problems of that type could have been identified in advance so that, in turn, the relevant experts could have been given a reasonable chance to deal with any issues on which the experts called by other parties might differ from them. 6.7 Be that as it may it is also important to note that there was expert evidence on the other side of the case which was said also to be relevant to the court's consideration of how the accident actually occurred. Medical evidence was tendered which suggested that Mr. Scollard's injuries were not consistent with his hand having been caught in the mechanism of the paddles while same were moving under power from the engine. It was said that, had Mr. Scollard's hand come into contact with paddles in those circumstances, his injuries would have been both very different and, almost certainly, much more severe. While the relevant witnesses were cross-examined on that question no contrary evidence was called on behalf of John Deere on this point. 6.8 The trial judge was, therefore, faced with an assertion on one side which suggested that there was no scientific basis on which the accident could have occurred in the way described by those present unless the paddles were engaged with the engine and on the other side with evidence which suggested that there was no scientific basis on which Mr. Scollard could have suffered the injuries which he did if the paddles had been engaged with the engine. It is against the background of that evidence, coupled with the trial judge's view of the evidence of those who were actually present, that the ultimate conclusions of the trial judge concerning what actually occurred needs to be assessed. However, before conducting that assessment it is next necessary to turn to the submissions made by counsel for John Deere concerning what counsel termed "a threshold of reliability" which, it was said, expert evidence should have to meet before the court considered what weight to attach to it in the face of any conflicting expert evidence. 6.9 As counsel put it, there may be a requirement that expert evidence be of some minimal weight in order for it to be considered further by the court. In that context, counsel drew attention to the recommendations in the Law Reform Commission's Consultation Paper on Expert Evidence (at para. 2.396 on pp. 128 - 129). As counsel pointed out, the Law Reform Commission in its recommendations placed significant reliance on the jurisprudence of the United States courts in respect of expert evidence. 6.10 The Court invited counsel to formulate, as precisely as possible, the proposition which he wished to assert. Counsel did so in the following terms:-
1. if it is based on other admissible evidence; 2. if the opinion is supported by scientifically valid principles and criteria which enable the judge to test the accuracy of the expert's conclusions; 3. whether the proposition advanced by the expert is both capable of being empirically tested and has, if practicable, been tested by the expert (or, where appropriate, by somebody else)."
‘ it by no means follows that the Court must follow it. On its own (unless uncontested) it would be "a mere bit of empty rhetoric" Wigmore, Evidence (Chadbourn Rev) para. 1920. What really matters in most cases are the reasons given for the opinion. As a practical matter a well-constructed expert's report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up the opinion does, if not, not’" 6.13 The problem, of course, for the trial judge, was that there was overwhelming evidence that the accident did, in fact, occur. Also, as a matter of logic, the engine either had to be engaged or not be engaged. Thus, as a matter of probability, the trial judge had to determine how the accident occurred in the light of the onus of proof and also having regard to her assessment of the credibility and reliability of the evidence of those present when the accident occurred. This was not, therefore, a case where a trial judge was being invited to place weight on a scientific theory which falls outside established scientifically valid principles and criteria. Rather, it is a case where the trial judge was being invited to regard eye witness accounts as being unreliable because, it was said, those accounts were inconsistent with a scientific analysis of how the accident might have occurred. On that basis, it was said that the expert evidence tendered against John Deere was of little weight because it did not stand up to scientific scrutiny. However, in the same context, it could equally be said that the contention advanced on behalf of John Deere did not stand up to scientific scrutiny because no adequate scientific basis had been put forward as to how Mr. Scollard could have suffered his injuries if the engine had been engaged. Against that background, it is necessary to consider the conclusions of the trial judge. 7. The Trial Judge's Conclusions 7.2 This approach has been the subject of judicial comment in particular in the speech of Lord Brandon of Oakbrook in “The Popi M” Rhesa Shipping Co SA v Edmunds (1985) 1 WLR 948 where, at p. 955, the following is stated:
In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned. The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water a diver’s examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out. The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have concurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden”.
7.6 However, it is also necessary to note the second point made by Lord Brandon. There may be circumstances where the dictum of Sherlock Holmes is applicable. As pointed out in the subsequent cases cited, an analysis of the relevant circumstances may reveal that there are, as a matter of logic, only a small number of possibilities. An analysis of those possibilities may demonstrate that an explanation which might, in advance, have appeared to be intrinsically improbable has, in fact, become probable or even very probable. It is important in that context to distinguish between how one might have viewed a situation in advance and how one views the same event after the event in the light of the available evidence concerning what might have occurred. 7.7 Thus, a proper analysis of the overall situation may lead the Court to conclude that there are, for example, only two possible explanations as to the manner in which an event occurred. Neither of the possibilities might, before the event, have seemed likely to provide an explanation for a possible future event which, itself, might seem unlikely to occur. However, if the event did, in fact, occur then one or other explanation, however unlikely same might have appeared in advance, must be true. In that context one of the possible explanations may appear, on the evidence, to be more probable than the other. Such an approach seems to me to accord with a proper evidence based approach coupled with logic and may lead a court to properly conclude that an event which might, in advance, have seemed unlikely to occur in a particular manner, has, as a matter of probability, actually occurred in that manner. Counsel for John Deere made the point, correctly so far as it goes, that the trial judge came to the view that she was satisfied to a high degree that the facts were as she found them. This, it was argued, was inconsistent with a “least improbable” approach. However, for the reasons I have sought to analyse, there is no reason in principle why, given that a potentially improbable event did in fact occur, an explanation which, in advance might have been seemed unlikely, becomes, in fact, probable or even highly probable. 7.8 On the facts of this case it could well be said that, in advance, it would have seemed improbable that the paddles could move without the engine being engaged. However, the fact is that there was overwhelming evidence that the paddles did move. There was also evidence which made it appear improbable that Mr. Scollard’s injuries could have been suffered in the way in which they were if, in fact, those injuries happened while the engine was engaged. 7.9 Thus, the trial judge was faced with choosing, as a matter of probability, between two eventualities. One or other of those eventualities must have occurred for the engine either was or was not engaged. Therefore, the accident undoubtedly occurred in a way which might have, in advance, appeared to be unlikely. The accident either occurred because, improbable as it might have seemed in advance, the paddles moved without the engine being engaged or, alternatively, the accident occurred, again improbable as it might have seemed in advance, in a way which somehow caused, contrary to the medical evidence, Mr. Scollard to suffer injuries which seem incompatible with an injury caused by engaged paddles. The trial judge was, therefore, faced with a choice between two eventualities which, without the benefit of hindsight, might have appeared improbable but where, as a matter of near certainty, one or other eventuality did, in fact, occur. Based on that analysis I am more than satisfied that the findings reached by the trial judge were within the range of findings of fact open to her on the evidence and are more than sustainable. 7.10 That the trial judge was placed in a difficult position because of the unsatisfactory way in which the expert engineering evidence was presented cannot be doubted. However, the findings of fact of the trial judge can, in accordance with Hay v. O’Grady [1992] 1 I.R. 210, only be disturbed if there was no evidential basis for them or if the reasoning of the trial judge in reaching those conclusions of fact does not stand up. It is important to recall that Hay v. O’Grady is concerned specifically with the assessment of the facts by a trial judge where the trial judge is required either to weigh conflicting evidence or assess the credibility or reliability of testimony. It is also clear that findings of fact can be disturbed where there is a material and significant error in the assessment of the evidence or a failure to engage with a significant element of the evidence put forward (see for example Doyle v. Banville [2012] IESC 25). 7.11 In this case there clearly was evidence on which the trial judge could make the findings of fact which she did. That evidence was the eye witness accounts of the various witnesses who were present. The trial judge had, of course, to assess that evidence by reference, amongst other things, to the expert testimony which attempted to provide explanation as to how the accident might have occurred. There may well be cases where, therefore, notwithstanding the availability of eye witness accounts, there is no sustainable basis on which that eye witness evidence could be accepted given uncontroverted scientific evidence to that effect that it could not be correct. However, this is not such a case. Whatever about the engineering evidence (and the unsatisfactory way in which that evidence ran has already been commented on) here the expert medical evidence touching on how the accident might have occurred also had to be taken into account. 7.12 It was not, in my view, necessary for the trial judge to reach a definitive conclusion as to just how the paddles might have moved without the engine being engaged. If the only expert evidence pointed to the fact that the paddles could not have moved without the engine being engaged then the situation might be different. However, for the reasons already analysed, that was not the case not least because of the medical evidence as to the consistency or otherwise of the injuries sustained with paddles moving under the force of an engaged engine. On that basis it seems to me that the trial judge’s underlying finding that the paddles did, in fact, move even though not engaged with the engine was based on evidence which entitled the trial judge to come to that conclusion, was not rendered unsustainable by any failure to address adequately expert testimony and can not be said to have been vitiated by any failure to adequately deal with all of the evidence. 7.13 For those reasons I would reject the ground of appeal put forward on behalf of John Deere which challenges the findings of fact by the trial judge as to how the accident actually occurred. In order to consider the second limb of John Deere’s appeal, which is based on the trial judge’s finding on foreseeability, it is necessary to address the precise basis on which the trial judge found John Deere to be liable. 8. The Findings of Defect
9. Foreseeability 9.2 It is clear that the degree of care required can depend on the surrounding circumstances and may vary according to the amount of the risk to be encountered and to the magnitude of any prospective injury. See, for example, Paris v Stepney Borough Council [1951] AC 367, where the House of Lords did not accept the dictum of Asquith L.J. in the Court of Appeal in the same case where he said that “a greater risk of injury is not the same thing as a risk of greater injury; the first alone is relevant to liability”. 9.3 To similar effect in O’Byrne v Gloucester (Unreported, Supreme Court, 3rd November 1988), Finlay C.J. said:
9.5 On the facts of this case, it was clear that all of the moving parts of the machine were connected so that anything causing one moving part of the machine to actually move was likely to lead to some movement (or risk of movement) in any of the other connected parts. It seems to me that the proper basis for analysis of the question of foreseeability is not to determine whether the particular reason for movement (in the absence of the engine being engaged) that actually occurred in this case was, in itself, directly foreseeable but rather whether it was foreseeable that there might, for whatever reason, be some movement, unconnected with the engine, in any part of the mechanism with which the paddles were connected, which was sufficient to cause injury. 9.6 As pointed out it is clear from the findings of fact of the trial judge that the location of the opening designed to facilitate the clearance of blockages did not have to be where it was. Evidence was given of other similar machines where the opening was in a different and safer location. It follows that the placement of the opening at the location where it was exposed, on the facts of this case, any operator to a risk of significant injury in the event that a sufficient movement, caused in any way, occurred to the mechanism with which the paddles were connected without the engine being engaged but while the operator was attempting to clear a blockage. Given that the mechanism was not in any way locked so as to prevent movement when the engine was disengaged and that the trial judge found that 5 or 6 kgs of force would be sufficient to give rise to a material degree of movement, it seems to me that it was foreseeable that, for whatever reason, such movement might occur. On that basis it was foreseeable that locating the opening where it in fact was, exposed operators to an unnecessary and avoidable risk of significant injury. 9.7 In those circumstances, it seems to me that the trial judge was correct in concluding that John Deere was negligent and that an injury of the type suffered by Mr. Scollard was a foreseeable consequence of such negligence. 10. Conclusions 10.2 In the light of that conclusion, there could be no causative connection between any of the matters which, it was argued, should have led to a finding of contributory negligence on the part of the Wrights and the injury suffered by Mr. Scollard, so that the claim in contributory negligence must be rejected and the trial judge’s findings in that regard also upheld. 10.3 Finally, for the reasons set out in this judgment, I am satisfied that locating the opening designed for the clearance of blockages where it was created a foreseeable risk of significant injury such that it amounted to negligence on the part of John Deere so to design and sell the combine harvester which is the subject of these proceedings. 10.4 On that basis, I would dismiss the appeal of John Deere and affirm the order of the trial judge.
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