THE SUPREME COURT
160/97
Barrington, J.
Lynch, J.
Barron, J.

Between:
FIONA MOLONEY
Plaintiff
and

JURY’S HOTEL PLC
Defendants

JUDGMENT of Barrington, J. delivered the 12th day of November, 1999 [Nem. Diss.]

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

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

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

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

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

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

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

“Q.	You have addressed the ... right sacroiliac joint. Perhaps you would deal with the facet joints ?

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A.	The facet joints .... are vulnerable, particularly vulnerable to the type of injury this lady sustained, a jolting or impact injury would easily pain those.

Q.	How did your diagnosis tally with the type of injury described by the Plaint if?

A.	Well, she would certainly be vulnerable to injuring one or other of those structures.

Q.	And is it your view that she injured one or other, or both?

A.	Yes, it is - it was and it is....

Q.	If she described her back pain in the terms she described it to you her chances of getting a job would not be great. It all boils down as to whether one believes the Plaintiff?

A.	She did have restriction. There were clinical signs. The history was very convincing. The examination was convincing and that is what I would base my diagnosis on....

Q.	On her account of the accident she was squatting down in front of the fridge with her weight on her toes and her heels up in the air, and that her feet went forward, she went backwards but obviously from a very low position?

A.	That is the classic type of injury....

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Mr. Justice Kelly: As to how she fell, how is it documented?

A.	‘History of present complaints. The patient was well until the 22nd of July, 1993. She fell on her back while putting food in a fridge at work (from a sitting or squatting position) . She had sharp, severe pain at lower back  

Dr. Eugene Casey, General Practitioner, Ennis, who had also treated the Plaintiff for her back problem (Day 3, Q. 230):

“Q.	I don ‘t want to take you through her medical state again. You appreciate the defence case is she did not fall and hurt her back on the 22nd of July, and that her complaints are completely out of keeping with any such injury. I presume you say that they are in keeping, is that correct?

A.	That is correct....

Mr. John Curtin, Consultant Orthopaedic Surgeon, who examined the Plaintiff for the Defendants (Day 3, Q. 585; Q.622):

“Q.	Now, did you form any conclusion as to what her condition was as of the 20th of December of last year?

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A.	... I concluded that she suffered obviously a helpless fall in July, 1993....

Q.	Would you also agree that - if given that more than three and a half years has elapsed - that the condition which she now complains of is chronic and is likely to continue because of the period that   2

A.	I would think not. I think the objective examination combined with all the normal investigations would suggest that this pain that she has will resolve at some future date.”

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

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

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

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

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

“343 A. Well, I was sitting in the office when I was summoned to go into the kitchen. I made my way up to the kitchen. I could see through the corridor Fiona was standing against a fridge appliance. I went up to her and asked her what had happened. She said she had been

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bending over and she felt a click in her back. I then asked her to show me where it happened. She brought me over to a section between the fridge and the bain marie. I asked her to explain to me what happened. She said she was bending over and she felt a click in her back and with that she was obviously in distress.”

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

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

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

“The Plaint if has failed in her case. She has done so because she hasn‘t discharged the onus of proof Nothing that I have said in the Judgment or nothing that I say now should be interpreted as suggesting that the Plaintiff deliberately set out to mislead the Court

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or to tell a false story. It was a case where there was a conflict of evidence as between the two sides. I have found that the Plaint if failed to discharge the onus of proof and in the circumstances it seems to me the just thing to do would be to make no order as to costs.

While the Trial Judge did not suggest that the Plaintiff was not telling the truth to the best of her ability. Her story, when weighed against the contradictory evidence of Mr. Tannion and Mr. Stafford did not carry sufficient weight with the Trial Judge to satisfy him that she had discharged the onus of proof which rested on her. This was essentially a question of credit and the conclusion of the Trial Judge could not normally be disturbed in this Court on the principle of Hay v. O’Grady [1992] 1 IR 210.

In attempting to resolve the dispute between the Plaintiff, on the one hand, and Mr. Tannion on the other hand, as to what happened and as to the condition of the floor on the night of the accident the learned Trial Judge made the following analysis of the evidence:-

“In attempting to find out which of these versions is more probably correct there are a number of pieces of evidence which assist. First, there is evidence from Mr. Michael Guerin, who drove the Plaint if to

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the Mercy Hospital. He said that the Plaint if told him that her feet went from underneath her as she was putting something in a refrigerator or cooker, and she couldn‘t straighten up. She said to him that the floor was very wet and her feet went from under her on the wet floor. Such a statement made to Mr. Guerin is not of course, proof of the facts stated in it, but I treat it as evidence that such a statement was in fact made. But as against this I find it surprising that such a detail concerning water on the floor was not given to Mr. Tannion, who would have had a considerable interest in what occurred. This was Mr. Tannion ‘s evidence, namely that it was not said to him, and the Plaint if had no recollection of saying anything to him concerning slipping on water.

The Plaint if was taken to the Mercy Hospital. In cross-examination an extract from the hospital notes was put to her. It read, ‘Felt sprain in back while standing from sitting position.’ The Plaint if had no recollection of saying such a thing to the hospital authorities. The writer of this note did not give evidence, but such a note was undoubtedly made and the only person who could have imparted such information was the Plaint if herself I might not be inclined to attach much weight to that, particularly as I am sure the Plaintiff was

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not very well on admission to hospital. Nevertheless, I find it a little strange, but matters become more curious when one considers the conversation that the Plaint if had with Mr. Tannion and the following. Some days later the Plaintiff was admitted to Ennis Hospital. The primary cause of her hospitalisation was a urinary tract infection. Having noted that she complained of being unwell for two days, poor stream, frequency of micturition and vomiting with rigors and sweating, the hospital records went on to note that she also complained of and I quote, ‘sudden onset of pain in back while getting up from bending forward’. There is no mention of slipping in the hospital notes. Again the information given to the hospital authorities could only come from the Plaintiff and again the Plaintiff could not recollect what she told the hospital authorities.

Dr. Curtin, who was her consultant in Ennis Hospital, was primarily concerned with the urinary tract infection, but his recall of her hospitalisation was that in addition to the urinary tract infection she had back pain following a lifting accident at the hotel. Again the Plaintiff has no recollection of what she told Dr. Curtin on this topic. In fairness, the minutiae of the incident were not of that much concern to the doctor, because he was primarily involved in the

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treatment of the urinary tract infection. So again this particular element of the case of itself might be of little significance. But when coupled with the other matters that I have alluded to, in my view is of some signifigance.

Dr. E. Casey, a general practitioner in Ennis, saw the Plaint if on the 5th of August of 1993. He had a letter from Dr. Curtin, which spoke of a sudden onset of pain when she bent down replacing a light container in a refrigerator at her place of work. Again the Plaint if could not recall what she said to Dr. Casey, but he told me that she told him that she fell at work.

The onus is on the Plaint if to prove to me on the balance of probabilities, that there was water on the floor on the night in question, that it was as a result of the Defendant ‘.s’ negligence that she slipped because of the water and that her injuries resulted.

In my view having regard to the conflict of evidence and the matters to which I have alluded, the Plaintiff has failed to prove as a matter of probability that there was water on the floor on the night in question.”

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

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

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

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