A damages claim against a Dublin gym and health club over an elbow injury allegedly suffered by a child there 15 years ago has been dismissed by the High Court.
Ms Justice Marguerite Bolger found “inordinate delay” in progressing the personal injury case against Westwood Club Limited had rendered a fair trial “impossible”.
In proceedings initiated four years ago by Deirdre Donohoe on behalf of her daughter Emma Graydon, it was alleged Emma had suffered an elbow injury in a fall in 2009 at a water fountain at the defendant’s gym in Clontarf.
It was claimed Emma, then aged 18 months, was at the gym with her mother, two siblings and an aunt, and had slipped and fallen off an object while at a water fountain.
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Ms Justice Bolger said the plaintiff’s solicitor had, in letters to the defendant in late 2010 and 2011, alleged the incident occurred on April 1st, 2009, but gave no details about how or where it happened.
An application to the Personal Injuries Assessment Board in March 2012 claimed the child slipped on a wet “step-stool” while getting water at the fountain, and the personal injuries summons of February 2013 had a similar description.
The summons was served on Westwood in January 2015, in 2018 it had sought and secured particulars of the incident, and it filed a defence in January 2019.
In late 2022, the plaintiff’s solicitor sought inspection facilities but was told the area of the alleged incident was renovated in 2019 and the water fountain no longer existed.
Westwood, in a pretrial application to dismiss the case, argued it was prejudiced in its defence for reasons including no investigation was carried out in 2009 of the fountain site because the incident had not been reported. Ms Donohoe argued the incident was reported to an unidentified male member of the gym staff.
An incorrect date of the incident was identified to the defendant at all times until the 2012 PIAB form, the judge said.
Even if it had taken photographs of the fountain before renovations, that would not have assisted either side because a “different” version of the incident was exhibited for the first time in 2023 in a report of the plaintiff’s engineer, she said. That alleged the child slipped on a “foam style cube” and the engineer opined that a soft play shape was unsuitable for a young child to stand on to access a water fountain.
Any photographs taken before the renovations would not have included the cube object because the personal injury summons was limited to a claim the child slipped on excess water on a footstool, the judge said.
The judge said she was not criticising the plaintiff for the delay in commencing and progressing the case, as she was a child.
However, that delay had led to real prejudice for the defendant, which was exacerbated by the “dramatic” change in the description of the incident from 2012/2013 to 2023.
Dismissing the case, she said the prejudice to the defendant was “significant” and the delay rendered a fair trial impossible. Final orders, including on costs, will be made next month.
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