O'Regan v McGuinness & anor [2019] IEHC 931 (25 October 2019)

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JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 25th day of October, 2019

1. These proceedings are brought in negligence and for breach of statutory duty and arise as

a result of an accident which occurred on the 20th March, 2014 when the plaintiff claims

she was knocked down by the defendants horse as it bolted from a stable on the

defendant’s premises at Reacasla, Brosna, Co. Kerry (the “Reacasla” premises).

2. The case for breach of statutory duty is grounded on the Occupier’s Liability Act, 1995

(the 1995 Act). Having considered all the evidence, it may be stated at the outset I am

satisfied the static condition of the premises was not the proximate cause of the accident.

Accordingly, the provisions of the 1995 Act have no application to the accident

3. A full defence, incorporating a plea of contributory negligence on the part of the plaintiff

was delivered thereby putting the plaintiff on full proof of her claim. The plea of

contributory negligence included an allegation of trespass; for the reasons which follow

4. The parties were neighbours and are well known to one another. The second defendant

had befriended the plaintiff following a hip replacement operation she had had in or about

2010. The Reacasla premises consist of an old farmhouse and approximately 12 acres of

land which the defendants bought in two transactions. The first in 1998 consisting of the

farmhouse and a small amount of land on which it stood and the second in or about

5. Subsequently, the defendants purchased another property, in which they now reside at

Meenkilly, Abbeyvale, Co. Limerick (the Meenkilly premises). The plaintiff and her

partner’s home is located nearby. The defendants were instrumental in this acquisition.

Finally, the Meenkilly premises are located approximately nine miles distant from the

6. The plaintiff grew up with and kept horses all of her life. In the 1990s the defendants

came from England to live in Ireland. For a number of years, immediately before they

emigrated, the first defendant was employed by a well-known estate agent. Prior to that

he had worked with horses and like the plaintiff had been brought up with them from a

very young age. Before taking up employment with the estate agency he had worked all

his life in the equine industry occupying various positions including that of stud manager.

7. The case advanced by the plaintiff questioned the extent of the first defendant’s

knowledge of horses, however; I am satisfied and the Court finds that the first defendant

was very knowledgeable and experienced in the nature and behaviour of horses, nor was

the second defendant a stranger to matters equine. A finding which has a significant

8. In or about 2012, an arrangement was entered into whereby the plaintiff’s miniature

ponies were to be stabled in the Reacasla property as a quid pro quo for the feeding and

mucking out of a yearling and a Clydesdale cob owned by the first defendant. However,

among the many matters of fact upon which there was a complete conflict of evidence;

there was controversy as to precisely with whom the arrangement had been made. The

plaintiff claimed she was a party (an assertion disputed by the first defendant) who

9. As a result of the accident, the plaintiff suffered a serious back injury and advanced the

case that this has had devastating consequences. The medical reports prepared on behalf

of the parties, together with the plaintiff’s relevant pre-accident medical notes and

records, were admitted in evidence and have been considered by the court.

10. Given the case made and their pre-accident relationship, it is perhaps unsurprising that

the parties have very different recollections of and attitudes towards the events which

have given rise to the proceedings. This no doubt explains, at least in part, the conflict in

the evidence that emerged in the course of the trial, a conflict which falls to be resolved

by the court. I have had an opportunity to assess the witnesses as they gave their

evidence and having viewed their demeanour I am satisfied that the witnesses were

trying to do their best and that no one was trying to mislead the court, indeed; there was

no such suggestion nor is there any suggestion that this was in any way a fraudulent or

exaggerated claim. It emerged in the course of the evidence that the witnesses have

become entrenched in their recollection and view of the circumstances and what occurred

not only in relation to the arrangement but also with regard to the events which arose

from its subsequent implementation. An assessment which presents a problem with

regard to the resolution of the resulting evidentiary conflict. I am satisfied that the

solution best lies in having regard to objective circumstantial evidence and inferences

from facts which might properly be drawn and which, as a matter of probability, tend to

11. Mr. Paul O’Dowd, Consulting Engineer, was called as a witness by the plaintiff to give

expert evidence. He carried out an inspection of the Reacasla property in April 2009

several years after the events giving rise to these proceedings. During this inspection he

took photographs and subsequently prepared a report which was made available to the

12. The structures on the Reacasla property consist of an old farmhouse together with a

number of stables. The plaintiff kept three miniature ponies owned by her in one of the

stables. A separate stable block, consisting of two stables, each measuring 3 metres by

3.2 metres with conventional half doors, was located nearby. One stable was occupied a

yearling and the other by a Clydesdale cob; both horses were unbroken. The cob had

been gelded and was described by the first defendant as docile. The stables led directly

out onto grass covered ground rather than a yard and from there led to a nearby paddock

13. The plaintiff’s evidence was that around lunchtime on the day of the accident she went to

the Reacasla property to feed and water the horses on foot of the arrangement entered

into between the parties. It was common case that in order to gain access to the stables

and yard area of the farmhouse it was necessary to unlock a number of gates. The

plaintiff said that she had been given a set of keys for this purpose by the first defendant

as well as a key for the house which had been given to her by the second defendant,

14. The plaintiff gave evidence that she went to the stable in which the cob was kept in order

to feed him and that when she opened the door he bolted out knocking her to the ground

in the process. As a result of the fall she found herself unable to get up. She phoned her

partner, who was at home, and he came to her assistance; he was the first to arrive at

the scene. When he arrived the plaintiff was still on the ground and unable to move. He

phoned for emergency assistance. Thereafter, the Listowel ambulance was dispatched.

On arrival the crew attended the plaintiff and removed her from the scene to Kerry

General Hospital where she was examined and admitted. It is of some significance to the

resolution of the controversy between the parties that when Mr O’ Brien arrived at the

15. The plaintiff had fallen at home some weeks previously and on that occasion had been

found near the bottom of the stairs. The second defendant gave evidence that she

received a call from the plaintiff on the day of the accident telling her she had fallen over.

She did not ask the plaintiff what had caused the fall or where the fall had occurred.

Instead she assumed that she had fallen at home (as had happened some weeks

16. On arrival she found Mr. O’Brien alone. There was no sign of the plaintiff. On her account,

Mr. O’Brien told her that he had received a call from the plaintiff and knew where she

was; at which point the conversation appears to have more or less come to an end. The

second defendant neither asked Mr O’Brien where the plaintiff had fallen nor did she

enquire about the circumstances of the fall. In answer to a question from the Court “did

you not ask Mr. O’Brien where the plaintiff was?” the second defendant very fairly

accepted she did not. Her explanation for not doing so was that Mr. O’Brien had said he

knew where she was at this point in time. In response to this her evidence was “well you

17. On the second defendant’s evidence when a telephone call was received from the plaintiff

she made no enquiry as to her whereabouts or what had happened. In the ordinary way

such evidence might be considered of little significance, however; in light of the

controversy in this case it carries greater significance because the second defendant

hinted, suggested or implied that the accident may not have happened at the Reacasla

property at all and indeed may have happened somewhere else. In relation to this

particular matter the second defendant’s evidence was that the plaintiff and her partner

had horses everywhere and that the plaintiff could have fallen anywhere.

18. I took this to be if not an absolutely express, then certainly an implicit, suggestion that

the plaintiff fell other than where she said she had fallen. Given the nature of the issues

raised the Court is required to approach the case on the basis that the plaintiff has to

establish on the balance of probabilities that the case she has brought to court which is to

prove not only that it occurred in the way, manner and circumstances claimed but that it

19. I consider it pertinent at this juncture to observe that at the time of the accident the

defendants had moved to the Meenkilly property long before the date of the accident.

Indeed, the plaintiff’s evidence was that herself and her partner had moved into their

house nearby some two years previously. Neither defendant was on the Reacasla property

on the day of the accident. The first defendant said that he used to go between both

properties staying in one or the other; this evidence was corroborated by the second

named defendant. Although it was not his evidence, the second defendant said that he

kept pigeons at the Reacasla property and had to go there to keep an eye on them; he

20. I have already referred to Mr. O’Brien’s evidence that when he arrived at the Reacasla

premises he noticed the cob in the exercise paddock; he was not the only person to do

so. When the first defendant arrived there later the same day he also noticed the cob in

the paddock, which begs the question as to how he got there. The first defendant gave

evidence that the cob and the yearling were let out for exercise in the exercise paddock

together. They were fed, watered and mucked out. The plaintiff’s evidence was that in or

about January of the year of the accident she had been told not to let the horses out of

the stables because they were ‘cutting up’ the ground of the paddock. She also gave

evidence that the horses were not to be mucked out, a contention totally refuted by the

21. On the question of the accident circumstances and the issue of whether or not an accident

occurred on the Reacasla premises; I accept the plaintiff’s evidence and find that when

she opened the stable door the cob rushed out knocking her to the ground in the process

and as a result of which she was unable to get up. I also accept the evidence of Mr.

O’Brien with regard to the immediate post-accident circumstances and make the following

(ii) on arrival he found the plaintiff lying on the ground and unable to move;

(iv) the plaintiff was attended to at the scene by the Listowel ambulance crew; and

(v) the plaintiff was removed from there by ambulance and taken to Kerry General

These findings are corroborated by the hospital records admitted in evidence and in which

an account of the accident is also recorded; findings which the defendants are not

individually in a position to contest by way of primary evidence since neither were present

on the premises at the material time. As mentioned earlier, although the second

defendant questioned the locus and circumstances of the accident as well as whether the

injuries were consistent with being knocked over by a horse, it follows from the findings

made and conclusions reached that the Court is satisfied on the balance of probabilities

that the accident occurred at the location and in the way, manner and circumstances

22. Apart from the content of the hospital records, I am fortified in reaching this conclusion

by a salient fact which is common to the evidence of Mr. O’Brien and the first defendant;

both noticed the cob in the paddock on arrival at the premises after the accident. It is

worth recalling that at the relevant time the second defendant had been and was residing

permanently in the Meenkilly premises. Her husband, though a regular visitor to the

Reacasla property, was absent on the day and only arrived there some time later after

the plaintiff had been removed to hospital. There was neither any evidence to suggest

that anyone else visited the property prior to the accident for the purpose of feeding,

watering or exercising the horse nor was there any suggestion that the cob had been let

out of its stable by the first defendant or by Mr O’Brien. Absent a plausible explanation to

the contrary it follows that the only other person who could have done so was the

23. Moreover, there was no evidence that the yearling was found in the paddock with the cob,

a fact which would have been consistent with the first defendant’s evidence that it was he

who ordinarily let the horses out of their stables together in order to exercise. On my

view of the evidence the most likely explanation for the presence of the cob on his own in

the paddock is that he got out of his stable when the plaintiff opened the stable door. This

conclusion calls for an explanation as to why the cob would have wanted to get out of his

24. In the interests of completeness and in light of the conflict of evidence on the matters in

controversy between the parties the Court considers it appropriate and desirable that the

reasons and most likely or probable explanation for the accident should be examined in

some detail. It was common case that it would be most unusual for a horse to attempt to

leave its stable in circumstances where he just about to be watered and fed, as was the

plaintiff’s purpose. As mentioned earlier, the case made on behalf of the plaintiff was that

she and her partner had been told not to let the horses out of their stables, the reason

given being that they were ‘cutting up’ the ground of the paddock. Furthermore, they had

been told not to muck out but just to water and feed the horses, giving two scoops of

25. Mr. Billy O’Riordan, Veterinary Surgeon, was called as witness on behalf of the plaintiff to

give expert veterinary evidence. He prepared a report which was made available for the

assistance of the Court in the course of the trial. He gave evidence that the stables were

wholly inadequate for horses as they were too cramped, being four to five feet short of

the minimum required. In this regard, I understood the evidence of Mr. O’Dowd to be

that the minimum stable size recommended by the British Horse Society was 3.6 by 3.6

metres. Given the actual stable dimensions Mr. O’Riordan was recalled. He gave evidence

about the positioning of the cob having regard to the dimensions of the stable in situ. In

his opinion even if the cob was standing with his back legs close to the rear of the stable

his head would only have been a few feet from the stable door and he would have had

26. It has to be said, however; that Mr. O’Riordan’s evidence was based on the assumption

that the horse was fifteen ‘hands’ high, a measurement taken from the withers (base of

the neck) to the ground. On the evidence of the second defendant the cob was only 14.4

hands high, a difference which in her view was significant since the cob would be classed

as a pony. As a ‘hand’ approximates to four inches the difference between this evidence

and that of Mr. O’Riordan with regard to the proximity of the horse’s head to the stable

27. In relation to the instruction not to let the horses out of the stables Mr O’Riordan’s

evidence was that if it had been locked up in its stable since January and had been fed

even one scoop of feed a day, the horse would have “hotted up” and would have been

desperate to get out and exercise to let off energy, a consequence about which there was

no real dispute. Indeed, the first defendant gave evidence that if the horse had not been

mucked out, as suggested by the plaintiff and Mr. O’Brien, he would have been “in the

rafters” and as a result would also have been desperate to get out of his stable.

28. It was also common case that feeding a horse oats in addition to hay will increase the

animal’s energy levels with the consequence of needing to “let off steam”; put another

way the horse would need get out for exercise. On the plaintiff’s evidence she was

instructed to give the horses two 2 kilo scoops of feed, whereas; on the first defendant’s

evidence it was one 3.5 kilo scoop. Although they disagreed on the quantity and number

of scoops, the difference in the overall quantity results in a difference of half a kilo. The

other difference between them on this question concerned the nature of the feed. Mr.

O’Riordan’s opinion was based on the premise that the horses were fed oats, whereas;

the second defendant’s evidence was that they were to be fed a low energy feed called

“Simply Natural”; in either case the horses were getting feed in addition to hay and as a

29. Mr. O’Riordan was critical of the paddock, which he considered to be wholly insufficient for

the purposes of enabling horses gallop since the area was too small for this purpose.

Moreover, the farm in general was unsuitable for horses, an opinion he had previously

shared with the defendants. They questioned the number of times he had previously

visited the Reacasla premises in his capacity as a veterinary surgeon and challenged the

assertion he had advised them that the land was unsuitable for keeping horses. On the

evidence, it would appear that he had visited once or at most twice some considerable

period of time prior to the date of the accident. In fairness, I understood Mr. O’Brien’s

evidence to be that he understood this was Mr. O’Riordan’s opinion; rather than that he

30. With regard to the question of exercise the first defendant’s evidence was that the horses

were always let out for exercise. He said there was absolutely no basis for the assertion

by Mr. O’Brien, with whom he had made the arrangement, a fact in which he was

supported by the second defendant, that the horses were not to be mucked out or let out

for exercise or that the reason for this was that the horses were to be kept in their stables

31. I am unable to accept the evidence of the plaintiff or Mr. O’Brien that they were

instructed not to muck out the stables or let the horses out for exercise. On this aspect, I

consider that they are both mistaken. However, subject to the resolution of the dispute

with regard to the identity of the parties to the arrangement, it was accepted by the

defendants that the service to be provided in return for the stabling of the plaintiff’s

ponies was the feeding, watering and mucking out of the defendant’s horses. While I am

satisfied there was no prohibition on letting the horses out of their stables it was not

suggested the stabling and maintenance arrangement included responsibility for

exercising the horses rather on the first defendant’s account the plaintiff’s ponies were to

be stabled on the Reacasla premises in return for mucking out, feeding and watering the

defendants’ horses. In these circumstances it seems highly unlikely that the first

defendant would have wanted to do the mucking out himself; mucking out was an

32. It was not suggested by any of the witnesses that the plaintiff’s ponies were to be kept in

their stable to protect the paddock or for any other reason. In my judgment if the

paddock was not to be cut up by the ponies any instruction, if given, not to let the horses

out for exercise would also have had to apply to the ponies. Giving an instruction that

the horses were not be let out because they were cutting up the paddock while at the

same time permitting the plaintiff’s ponies to do so by exercising there would have been

33. There was some conflict between the plaintiff and Mr. O’Brien in relation to this alleged

instruction. Mr. O’Brien’s account in this respect differed from the plaintiff and from the

account recorded in the report of Mr. O’Riordan. I was concerned when he gave his

answers, especially to questions put to him by senior counsel for the defendants, Mr.

Johnson, that Mr. O’Brien did not understand the questions fully due to a hearing

impediment which may explain, at least to some extent, the difference in the accounts.

However, irrespective of which account one takes the net result is the same save for the

34. The consequence is that the horse was: (a) kept locked up (b) overfed and (c) the stable

was not mucked out. I understood this to be a scenario advanced to explain why the cob

burst out of his stable knocking the plaintiff down in the process, a foreseeable

consequence of overfeeding, lack of exercise and confinement. In reaching its conclusion,

the Court had to have regard to the evidence of Mr. Riordan’s that to keep a horse locked

up for lengthy periods without mucking out, the situation suggested by the plaintiff, would

amount to reportable misbehaviour. Evidence which I took to refer to a potential

prosecution for cruelty to animals and with it the risk of conviction. I cannot see any

reason why the first defendant would issue an instruction which was contrary to the terms

of the arrangement, to his own interest and which would have exposed him to the

35. The question remains, therefore, as to why the horse bolted or burst out of his stable in

circumstances where he was about to be fed. The first defendant’s evidence, which I

accept, was that a docile horse in this case the cob, which is about to be fed and watered

would in the ordinary way remain in his stable for that reason; it was not suggested

otherwise. This is relevant to the knowledge and experience of horses possessed by the

plaintiff and the first defendant who gave evidence that he had never known a horse to

leave or attempt to leave a stable when it was about to be fed; if it did so there had to be

some sort of explanation. As to that senior counsel for the plaintiff, Mr. Kiely, put a

proposition to the first defendant, namely, that if a horse would not leave its stable when

about to be fed it followed did it not if he did in such circumstances that there had to be a

good reason for such behaviour. In response, while not accepting that the horse had

been overfed, the first defendant did accept that the lack of sufficient exercise could

36. The first defendant has had serious medical health issues associated with diabetes which

had affected him in a number of ways, particularly with regard to mobility prior to and at

the time of the accident, about which he was very frank in evidence. So serious was his

condition and its consequences that he was facing a foot amputation; on his own

37. The Court has already found that the cob had not been let out for exercise on the day of

the accident before the plaintiff came to the stable. Moreover, there is no evidence he had

been exercised the previous day but even if he had been let out the previous day by the

first defendant, as was his habit, and on previous days the uncontroverted veterinary

evidence of Mr. O’Riordan is that the paddock was too small to enable a horse to exercise

properly. I accept his evidence and find that the cob would not have been able to gallop

and burn off excess energy. It follows that even if the first defendant was correct in

saying that the cob was only getting one scoop of low energy feed together with a ration

of hay it would still have been too much for a young unbroken horse if he could not

38. On my view of the evidence, the most likely explanation for the cob wanting to leave the

stable just before he was about to be watered and fed is that he had had insufficient

exercise and needed or wanted to get out in order to burn off excess energy and the

Court so finds. In the interest of completeness although there was other land in the

vicinity of the stables there was no evidence this was utilised or that the horses and

ponies were exercised elsewhere than in the paddock the area of which, on Mr.

O’Riordan’s evidence which the Court has accepted, was simply insufficient for exercise

39. Accepting the first defendant’s evidence that the cob had been gelded and was docile the

fact that he pushed past the plaintiff when she opened the stable door knocking her down

in the process is indicative that the cob had “hotted up”, most likely due to the lack of

exercise or lack of sufficient exercise and/or a combination of this and overfeeding; in

the event he would have been desperate to get out of the stable. If two scoops of feed

with a ration of hay per day were given, as was the evidence of the plaintiff, the situation

would have been further exacerbated and about which, given her knowledge and

40. However, I do not consider it necessary to decide whether or not the horse was getting

one scoop or two scoops of oats or one scoop of low energy feed since if he had been

getting sufficient exercise whatever his feed regime it is highly unlikely he would have left

his stable when he was about to be fed, quite the contrary he would have been content to

stay put and have his feed. On his evidence, it was the first defendant who was

responsible for exercising his horses, accordingly, it was reasonably foreseeable that if the

horse did not get sufficient exercise the time would have had to come when he would

attempt to break out of the stable when the door was opened irrespective of who opened

it and which as the Court has already found most likely explains what occurred on the day

of the accident. The Court makes these findings on the balance of probability for the

41. There is a plea in the defence that the plaintiff was a trespasser. She was certainly

pressed on the issue as to the identity of the parties to the arrangement, it being

suggested that she was not a party. The case advanced on behalf of the defendants is

that she had no right to be on the premises and that they did not know that she was

there. In this context, it has to be remembered that the parties are neighbours and to be

fair to senior counsel for the defendants, Mr. Johnson, I think quite properly, he did not

press the question of trespass as such in the course of the trial. In circumstances where

the parties were neighbours and friends it seems to me to be highly unlikely that one of

them would not have been permitted to visit the Reacasla property.

42. I do not accept that this is what happened at all. Indeed, it is an untenable proposition,

especially in circumstances where the plaintiff’s ponies were being stabled there. Given

the terms of the arrangement and that access to the stables where the horses and ponies

were kept was trough locked gates, it is clear that to gain access, if only to visit/ look

after her own ponies, not to mention the defendants horses, the plaintiff would have had

to have been given the keys to the locks by either Mr. O’Brien or one or other of the

defendants. On my view of the evidence I consider it highly unlikely the plaintiff was not

43. Having regard to their proximity as neighbours and the nature of the relationships

between them there is, in my judgment, an air of fantasy to the suggestion that the

plaintiff was excluded from the ambit of an arrangement which included her ponies

because its terms had been agreed between the first defendant and the plaintiff’s partner,

Mr. O’Brien, particularly when it is common case that in order to reach, feed and exercise

the ponies and/ or the horses keys to unlock the farm gates would be needed. While I

accept that the second defendant did not see the plaintiff attending to her ponies it seems

to me the most likely explanation for this is because she had long since moved out of the

Reacasla property and was living nine miles away in her new home at Meenkilly.

44. An issue also arose in the course of the trial concerning possession of the keys to the

farmhouse on the Reacasla property. The plaintiff’s evidence was that not only had she

been given the keys but she had been involved in and had been asked by the second

defendant to help clean out the house. If the plaintiff is correct in that assertion there

can be no realistic basis for the proposition advanced by the defendants that the

arrangement did not extend to include the plaintiff or that they did not know she was on

the property nor had any reason to believe she would become involved by going there to

45. As to whether there was any evidence to corroborate the case advanced on behalf of the

plaintiff it happens certain evidence given by the second defendant comes close enough.

While she disputed having agreed to give the plaintiff the key and did not agree that the

plaintiff had actually carried out work in the farmhouse, she did concede having visited

the house in the company of the plaintiff and having enquired whether she would be

interested in helping clean out the house out. So there is some basis to the suggestion

that the plaintiff was involved albeit that the second defendant was not prepared to

concede that the plaintiff had carried out such work on foot of the discussion. This was no

doubt because to do so would have contradicted other evidence and would have run

contrary to the proposition that the plaintiff was not a party to the agreement and had

46. To conclude on this issue the arrangement was informal and less identity specific than

has been suggested. The plaintiff, Mr. O’Brien and the defendants were neighbours and

friends. On my assessment of the evidence it is more consistent with their relationship

that the arrangement extended to and was for the benefit of all. There was no suggestion

that the arrangement was for the sole benefit of the first defendant, nor could there have

been, the defendants owned the Reacasla property and the horses jointly. Similarly, it is

quite clear that the arrangement would involve either the plaintiff and/or Mr. O’Brien

looking after the defendant’s horses when visiting the premises to look after the ponies.

47. Accordingly, the Court finds that the plaintiff was a party to the arrangement in this sense

and was not therefore at any time a trespasser on the Reacasla property. Moreover, I am

quite satisfied that neither defendant would have been one bit surprised to discover the

plaintiff had attended at the Reacasla property on foot of the arrangement to look after

the horses while attending to her ponies. Nor, if it was a surprise to either of them would

48. In light of the foregoing, the next task for the Court is to determine where liability for the

accident should fall. In this regard the knowledge of horses and their nature by the

parties is material. While the plaintiff accepted that the first defendant had an interest in

horses her opinion as to his knowledge and experience of horses was that he hardly knew

anything at all, an opinion which for reasons discussed earlier is wholly wrong. The Court

has already found that the parties were very knowledgeable and experienced in equine

49. As a consequence and having due regard to the findings made, it was reasonably

foreseeable on the part of the defendants as owners that if the cob was insufficiently

exercised and/or overfed he would eventually want to get out of his stable. It follows that

the consequential occurrence of such an event which causes injury and/or loss amounts

to common law negligence. Simply put it is a breach of the ‘neighbour principle’

exemplified in the judgement of Lord Atkin in Donohue v. Stephenson [1932] AC 562 at

580, namely to take reasonable care to avoid acts or omissions which can reasonably be

foreseen would be likely to injure one’s neighbour who, in this instance, is the plaintiff.

Accordingly, the Court finds that the cause of the accident is attributable to the

negligence of the defendants. This, however; is not the end of the matter.

50. Contributory negligence alleged in the Defence was pursued in the course of the case,

accordingly, the next task for the Court is to determine whether there was any breach of

the common law duty or care which the plaintiff owed to herself. In this regard there

would certainly have been very significant contributory negligence if there was any basis

to the suggestion, on her own evidence, that she had been instructed not to muck out the

horse and/ or not to let the horse out for exercise. As it is the Court has found that it was

no part of the arrangement that the plaintiff and/or Mr. O’Brien were responsible for

letting the horses out to exercise. While the Court has also found that no instruction of

the nature suggested was given it does not necessarily follow that the plaintiff cannot be

found guilty of contributory negligence. In my judgment the old adage that what is sauce

for the goose is good for the gander is apposite and in this instance the plaintiff, on her

own evidence, was every bit as knowledgeable of and experienced with horses as the first

defendant. The question of contributory negligence falls to be determined on the findings

51. Although responsibility for exercising the defendants’ horses was not part of the

arrangement which had been entered into; the plaintiff knew that the only place available

for exercise was the paddock where her own ponies were turned out. Given her very

considerable knowledge and experience of horses it was reasonably foreseeable in the

circumstances that on opening the stable door the cob might try to get out and injure her

in the process, a risk to which she exposed herself. Whereas someone with no knowledge

or very little knowledge or experience of horses might be excused, the plaintiff is not such

a person. In determining contributory negligence the courts apply an objective test to the

facts which in this case involves consideration of subjective elements material to the

outcome, such as the plaintiff’s equine knowledge and experience which was every bit as

comprehensive as that of the first defendant. Accordingly, I am satisfied and the Court

52. The next matter with which the Court is tasked concerns the apportionment of liability.

Section 34 (1) of the Civil Liability Act, 1961 requires the apportionment of damages to

be made having regard to the degrees of fault of the plaintiff and the defendant. In this

regard the law in this regard is well settled. In approaching this aspect of the case an

important distinction is made between causation and fault which may be summarised as

follows. The degrees of fault between the parties are apportioned not on the basis of the

relative causative potency of the respective causative contributions to the damage but

rather on the basis of the blameworthiness of the respective causative contributions by

reference to what a reasonable man or woman would have done in the circumstances.

53. Put another way, fault or blame is to be measured against the standard of conduct

required of the ordinary reasonable man or woman in the class or category to which the

party whose fault is to be measured belongs. In this instance the creator of the state of

affairs which led to the accident was the defendants. Applying these principles to the

findings reached the defendants should bear the greater degree of fault, however, having

regard to the particular circumstances of the case in my judgment the degree of fault to

be borne by the plaintiff should not be insignificant, consequently, in all the circumstances

the Court considers the fairest apportionment of fault should be 30 % to the plaintiff and

54. The plaintiff was born on the 3rd December, 1953. She has a pre and post-accident

medical history that has been the subject of Discovery and on foot of which relevant

medical notes and records were obtained and subsequently admitted in evidence. Apart

from the plaintiff’s own account of the injuries and of the consequences for her, the

medical evidence is to be found in a number of medical reports which were also admitted.

Following her admission to Kerry General Hospital (KGH) she was discharged into the care

of her GP Dr O’Dowd who examined and treated her by several physicians from some of

whom reports have been obtained, namely, Dr. Tony O’Dowd, the plaintiff’s GP and Mr.

Dermot O’Farrell, Consultant Orthopaedic Surgeon. Dr. O’Dowd’s reports are dated June

30th, 2014 and the 1st April 2019 and Mr. O’Farrell’s are dated the 28th June 2017 and

5th June 2019. The plaintiff was also medically examined on behalf of the defendants by

Prof. Eric Masterson, Consultant Orthopaedic Surgeon, who reported on the 1st March

2018 and by Dr. Brian J. Spillane, Sports and Consultant Physician, who reported on the

55. The plaintiff gave evidence that she suffered severe soft tissue injuries, principally

affecting her neck and back as a consequence of which she developed and continues to

suffer from a chronic pain syndrome. Her mobility has been severely compromised; she

has particular difficulty with sitting and walking and requires crutches to ambulate.

Following discharge from hospital the day after the accident the plaintiff attended her GP

on approximately 7 occasions in the first few months post-accident with ongoing

complaints of constant pain, particularly in her lower back, which he described as

significant and secondary to the accident. On examination the plaintiff had very restricted

56. Over the intervening years Dr O’Dowd has prescribed physiotherapy, anti-spasmodic,

anti-inflammatory and analgesic medication to help control her ongoing symptoms

including Paracetamol, Tramadol, Celecoxib, Etoflam, topical gel, Diclofenac, Meloxicam,

and Amitriptyline. The plaintiff was also seen by Mr Din, Consultant Orthopaedic Surgeon

and Dr Hassan, locum Rheumatology Consultant attached to KGH. She was continued on

pain relief medication by them and subsequently referred to their hospital colleague Dr

Zaheer, specialising in pain management. He administered an epidural injection and

prescribed Palexia and Pregabalin a treatment from which the plaintiff initially derived

good symptomatic relief for approximately 8 or 9 weeks before her symptoms returned.

57. Mr. O’Farrell noted complaints of severe pain affecting all daily activities which also

interfered with her sleep. He expressed the view that the plaintiff was suffering from

severe spinal pain since the accident and was very disabled by her symptoms and had

developed a chronic pain syndrome although there was no objective evidence of any

pathology to explain the degree of disability. Although neurological examination carried

out by him had disclosed no neurological abnormality he recommended a neurological

review together with ongoing medication, physiotherapy and a home exercise programme

and, if possible, swimming. With regard to prognosis his view was guarded but suggested

the plaintiff would benefit from ongoing treatment and advice from a consultant pain

58. Professor Masterson’s assessment and opinion of the plaintiff’s situation was that she had

developed an entrenched pattern of illness behaviour which was more than what he would

have expected from purely organic pathology. With regard to prognosis this behaviour

was unlikely to improve in the short term but might be expected to improve gradually

after the resolution of the litigation. However, it appears from the report of Dr Spillane, a

well-known Sports and Orthopaedic Physician that he was very sympathetic to her and

expressed the opinion the plaintiff is unlikely to make a full recovery from her injuries;

she presented to him as being very disabled on examination and he was satisfied that her

complaints were genuine. On the face of it, the medical notes, records and reports, which

the parties have admitted into evidence without condition, raise a number of matters

about which there are differences which, as a result of the admission, the Court is called

59. In circumstances where a difference of opinion between experts retained by the parties

to any proceedings results in a conflict between them. The unconditional admission of the

reports as evidence of the content may depending on the nature of the conflict arising,

pose a potentially intractable problem for a court in determining, for the purpose of

resolving the conflict, which evidence is to be accepted as more probably correct and how

60. The foregoing is not intended by me nor is it be taken as impugning the practice which

has evolved, particularly in personal injuries litigation, of agreeing the admission in

evidence of medical notes, records and reports, a practice which is, generally speaking, to

be encouraged, assisting as it does in contributing to the effective and efficient disposal

and reduction in the cost of litigation. Nevertheless, where a significant conflict of opinion

arises on the face of the documents or reports in respect of which no viva voce evidence

from the experts concerned is intended to be adduced, practitioners should give careful

consideration as to whether the unconditional admission in evidence thereof is

appropriate, particularly in circumstances where, as a consequence, the court may be

Admission of the plaintiff’s Medical Notes and Records; Pre-Accident History;

61. The plaintiff’s injuries are soft tissue in nature and now predominantly affect her lower

back. It is apparent from the medical reports as, indeed, it is from the medical notes and

records, that the plaintiff experienced intermittent episodes of back pain prior to the

accident, something which was only fully acknowledged and accepted when her attention

was drawn thereto under cross examination. Similarly, she had no recollection of an

accident which befell her in 2009 until she was reminded of it by counsel for the

defendants, albeit a perusal of the medical notes and records shows that the plaintiff had

62. While I don’t consider there was anything deliberate or malevolent about the deficiencies

in the plaintiff’s recall about these matters, she appears to be on what seems to me to be

a mind-numbing cocktail of medication, it also seems some of the medical reports appear

to have been prepared without the benefit of a full medical history or access to the pre-

accident medical notes and records and must therefore be read with this caveat.

Nevertheless, as is their right, the parties have agreed the unconditional admission of the

discovered medical notes and records together with the medical reports furnished as

evidence without also arranging or inviting further medical examination or opinion. Given

the plaintiff’s pre and post-accident medical history, including two hip replacements for

which the defendants quite clearly bear no responsibility, the Court is tasked with

untangling from this background the injuries and consequences of the accident for which

63. The Court has already found that the plaintiff suffered a heavy fall to the ground when

she was knocked over by the horse as it bolted from its stable and that as a result she

was unable to get up. From the outset the plaintiff complained of pain from the back of

her neck to her lower lumbar spine. X-Rays and MRI scanning have disclosed multiple

degenerative disc and facet joint disease in the spine and elsewhere which predated the

accident, but which was relatively quiescent when compared to post the accident history.

The plaintiff requires sleeping tablets to help her sleep and has been prescribed pain

relieving and analgesic medication since the accident which she is required to take on an

64. Mr. Johnson made the point on behalf of the defendants that the plaintiff was also taking

a number of relevant medicines prior to the accident. In this regard, I have carefully

considered in some considerable detail the pre-accident medical history and note the

plaintiff’s evidence that although advised to take these she did not do so. Her evidence in

this respect and the explanation offered for noncompliance was that she was unable to

tolerate the medication; that she was noncompliant is corroborated by her GP’s notes.

65. Some six weeks before the subject accident the plaintiff was found collapsed on the

ground at the foot of the stairs in her home. She has no memory of what caused the fall.

She had no history of seizure and her medical notes refer to her attributing the collapse

to tiredness. She had developed pain in her right knee following the accident in 2009 and

she had also developed intermittent joint pain in her elbow as well as in her hips for which

she subsequently required hip replacements one before, and one after the accident.

66. To use a colloquial phrase the plaintiff is “riddled with rust”. As already mentioned, X-ray

and MRI scanning disclosed generalised osteoarthritis throughout her spine and in her

joints. She was, however; relatively active pre-accident whereas subsequently she has

become quite disabled and has become quite dependant on her partner to assist in her

mobility; she is unable to carry out household chores leaving this aside she isotherwise

relatively independent in living. As mentioned earlier, the plaintiff underwent a spinal

epidural injection. This procedure was carried out in 2015 at the Bon Secours Hospital,

Tralee. She derived relief from the treatment, but it did not last.

67. Based on the medical reports of her treating physicians and of Dr. Spillane she would

benefit from further pain management advice and treatment as well as from

physiotherapy and occupational therapy although previously it seems she was unable to

tolerate the former. Professor Masterson believes that the plaintiff was suffering from

what he described as “an entrenched pattern of illness behaviour” which appears to me to

be a psychological diagnosis even though he is not a psychiatrist or psychologist.

68. That said, all of the physicians have found the plaintiff to be greatly compromised in

terms of her mobility, indeed, she is so compromised that some of them could not carry

out a full medical examination. This presentation could, of course, be relied on to call into

question the veracity of her complaints, especially when considered in the context of the

comments made by Prof. Masterson, the question being whether there is any basis for her

69. The person who probably knows the plaintiff best is her GP, Dr. O’Dowd, who is clearly

quite supportive. As mentioned earlier, he is supported by Dr Spillane in his opinion that

the accident caused soft tissue injuries which aggravated an underlying degenerative

condition from which she is unlikely to make a full recovery, evidence which I accept,

moreover; in so far as there may be any question concerning the veracity of the plaintiff’s

complaints I also accept the evidence of Dr Spillane that he was satisfied she was entirely

70. Accordingly, and having regard to the medical notes, records and reports which have

been admitted and to the evidence of the plaintiff with regard to her injuries, which I also

accept, the Court finds that as a result of the accident she suffered significant soft tissue

injuries, principally involving her neck and lower back, superimposed on pre-existing but

intermittently symptomatic degenerative changes throughout her spine. In reaching this

conclusion, the Court is mindful that the plaintiff had other degenerative changes in her

joints, particularly in her hips for which she has had hip replacements, and for which the

71. She also complained in May 2016 of a right wrist injury which she attributed to the

accident at that time, however; there is no contemporary reporting of a wrist injury in

2014. The Court is also conscious of other medical problems, referred to in the medical

notes, records and reports, both pre and post-accident for which the plaintiff has had to

seek medical attention. However, so far as her pre-accident status is concerned it also

appears from perusal of the medical notes and records, as was her evidence, that the

plaintiff was well able to get around and mobilise in a way which she was not able to do

post-accident. She was able to travel by car to go and feed her ponies and did not need a

stick or crutches. All that has changed. She is now very significantly compromised in her

mobility. I am satisfied and the Court finds that she is in a very different state in terms of

72. While it was very fairly accepted on behalf of the defendants that the accident probably

accelerated or brought forward degenerative changes in her spine albeit that it was not

possible to say by how much, the Court also finds as a matter of probability that the

plaintiff was likely to have experienced progression in her generalised pre-existing

degenerative condition as a result of which she was going to experience progressive

symptomology, this notwithstanding the occurrence of the accident although the period of

time or degree of symptomology involved is unknown. There is no doubt that throughout

2011, 2012, 2013, indeed, right up to the time of the accident that the plaintiff had

complained of intermittent backache referred to variously in the medical notes as “back

pain” but also in one entry as “severe back pain” for which she was medicated.

73. It is also noted by the plaintiff’s GP that if these complaints did not resolve she should be

referred for specialist attention. Significantly in the present context, there was no

referral, a fact consistent with the plaintiff’s evidence that she was relatively active and

that any problems she had in this respect were intermittent from all of which I consider it

reasonable to infer that her intermittent pre accident back complaints were attributable to

an underlying degenerative condition which was waxing and waning. There were periods

when she experienced symptomology and periods when she did not. Indeed, when one

considers the content of all of the attendances recorded in the medical notes and records

there are many attendances for other matters where there is no mention of problems with

her neck or her back pre-accident. However, she is now experiencing constant back pain

for which she has to take medication on a daily basis. In follows her current presentation

74. There is fairly broad acceptance on the part of the reporting physicians that the plaintiff

would benefit from further treatment, including pain management advice from which it

seems reasonable to conclude she may experience some improvement in symptomology,

something which Professor Masterson thought might occur in due course following the

conclusion of the litigation, accordingly, the Court will approach the assessment of

damages on the basis that the plaintiff will undertake the medical treatment and advice

which she has received in mitigation of her loss, that this will have a positive impact in

helping her to cope with the chronic pain syndrome and the undoubtedly significant

situation in which she finds herself involving as it does daily pain and severely restricted

75. Finally, the Court is also mindful in carrying out the assessment of general damages that

the defendants are only liable for the injuries and loss suffered by the plaintiff as a

consequence of the defendants’ negligence and not for the consequences which would

or might likely have occurred in any event as a result of pre-existing medical conditions.

In this regard, the law and the approach which the Court is required to take on the

assessment of general damages is well settled. The award must be just and to be just it

must be fair to both parties, it must be reasonable and that means it must be

proportionate to and commensurate with the injuries and loss sustained as a consequence

76. In carrying out its assessment the Court invited the parties to make submissions in

relation to the ranges of damages set out in the Book of Quantum into which the injuries

properly fall. In this regard I accept Mr. Kiely’s submission, bearing in mind that not all of

the plaintiff’s problems and presentation are attributable to the accident, that this is a

case which comes within the severe rather than the moderate / moderate to severe range

77. Applying the legal principles to which I have referred and making allowance for those

matters in respect of which the defendants have no liability the Court considers that a fair

and reasonable sum to compensate the plaintiff for pain and suffering to date is €50,000

and for future pain and suffering is the sum of €25,000 making in aggregate a total of

€75,000 from which, having regard to the apportionment fault herein, the amount of

€30,000 must be deducted leaving a net amount by way of damages of €52,500. And the

court will so order. There are no special damages.

Result: Damages were awarded to the plaintiff for pain and suffering and for future pain and suffering.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Regan v McGuinness & anor [2019] IEHC 931 (25 October 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC931.html Cite as: [2019] IEHC 931

High Court of Ireland Decisions