Fiona Maloney (appellant) v Jury's Hotel plc (respondent).

Personal Injuries - Appeal - Conflict of evidence - Burden of proof - Whether hospital notes of no evidential value can go to weight of plaintiff's evidence.

The Supreme Court (Mr Justice Barrington, Mr Justice Lynch and Mr Justice Barron); judgment delivered 12 November 1999.

Where hospital notes were relied on by the judge in the circumstances where the persons who made the notes were not called to give evidence and were not cross-examined to determine if they might have made a mistake, such notes were of no evidential value and should not have been used by the trial judge to detract from the weight of the plaintiff's testimony.

The Supreme Court so held in allowing the plaintiff's appeal.

Dr John O'Mahony SC, James O'Driscoll SC, and Patrick Horgan BL for the appellant; Henry Hickey SC and James Duggan BL for the respondent.

Mr Justice Barrington said that the plaintiff was a young woman who at all material times was employed by the defendants as a trainee chef at their hotel in Cork City. On 27 July 1997, the date of the accident, the plaintiff was required in the course of her duties to place a fairly heavy ice cream container into a refrigerator. She stated that she had to squat down in order to be able to do this. As soon as she had 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 sustaining injury. She stated that the reason her feet gave way under her was that the floor in the vicinity of the refrigerator was wet. She reported the injury to the chef-in-charge on the date in question.

Mr Justice Barrington noted that an interesting aspect of the case was that doctors who gave evidence on either side were in agreement that the plaintiff's injuries were consistent with a fall such as she described.

Mr Justice Barrington examined the testimony given at trial by the consultant rheumatologist who treated the plaintiff and who stated that her injuries were consistent with the type of impact injury which she described. The testimony of the plaintiff's general practitioner was also that her complaints were in keeping with that type of injury. The consultant orthopaedic surgeon, who examined the plaintiff for the defendant, concluded that "she suffered obviously a helpless fall in July 1993".

Mr Justice Barrington stated, however, that there were 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's sworn testimony was 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 who confirmed that water often seeped from the fridge and that after the plaintiff's accident, she observed water coming constantly from the fridge.

Mr Justice Barrington stated that two experienced chefs denied that this was the case. One chef, who was in charge on the night in question, stated 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 plaintiff's clothing. The second chef further contradicted the plaintiff's evidence by stating that there was no question of water constantly leaking on to the floor.

Mr Justice Barrington considered the defence case that a team of porters was employed to mop up any spillages and that the refrigerator, if properly maintained and cared for, would not spill water on to the floor. Mr Justice Barrington remarked, however, that one disturbing feature of the case was that no porter was called to give evidence as to the servicing of the refrigerator.

The chef-in-charge also disputed the plaintiff's account of her accident to the court and stated that the account she gave to him just after the accident was different. He claimed that she said she was bending over when she heard a click in her back and that there was no mention of her slipping on a wet floor.

Mr Justice Barrington observed that the issue at this point became one of credit between the plaintiff and her fellow-worker on the one hand and the two chefs on the other hand as to how the accident happened, whether the floor was wet on the occasion of the accident and as to the condition of the floor on other occasions. Mr Justice Barrington continued that in any event the trial judge decided that the plaintiff had failed to prove her case on the balance of probability. This was an appeal from the judgment and order of Mr Justice Kelly in the High Court whereby he dismissed the plaintiff's claim with no order as to costs.

On reviewing the lower court's decision Mr Justice Barrington made it clear that the trial judge took great pains with this action, as was illustrated by the fact that he reserved his judgment. Moreover, he stated that in deciding the issue of costs the trial judge made the remarkable statement that the issue was not that the plaintiff had set out to deliberately mislead the court or to tell a false story. The issue was that there was a conflict of evidence as between the two sides. While the trial judge did not suggest the plaintiff was not telling her story to the best of her ability, her story, when weighed against the contradictory evidence of both chefs did not carry sufficient weight to satisfy him that she had discharged the onus of proof which rested on her. In the circumstances it seemed the just thing for the trial judge to do was to make no order as to costs. Mr Justice Barrington stated that a question of credit was involved and the conclusion of the trial judge on this issue could not normally be disturbed on appeal on the principle in Hay v O'Grady [1992] 1IR 210.

Mr Justice Barrington examined the trial judge's analysis of the dispute between the plaintiff on the one hand and the chef-in-charge on the other, as to what happened and as to the condition of the floor on the date of the accident. The trial judge found that a number of pieces of evidence were of assistance. The first was a statement from the individual who drove the plaintiff to hospital that she told him that her feet went from under her on a wet floor. Although the trial judge treated the statement as merely proof of the fact that it was made and not as proof of the facts within it, he nonetheless found it surprising that a detail concerning water on the floor was not given to the chef after the accident. The next piece of evidence was an extract from the hospital note "felt sprain in back while standing from sitting position." The plaintiff had no recollection of saying such a thing to the hospital authorities and the writer of the note did not give evidence. While the trial judge stated that he might not attach much weight to the statement, he nonetheless found it strange in light of the plaintiff's report to the chef.

Some days later the plaintiff was again admitted to hospital with an unrelated complaint. On this occasion the hospital notes recorded "sudden onset of pain in back while getting up from bending forward". There was no mention of slipping in the hospital notes. Again, the plaintiff could not recollect what she told the hospital authorities. However, in support of the plaintiff's account of her accident, the consultant who attended her recalled that along with her present complaint she complained of back pain following a lifting accident at the hotel. Similarly, there was evidence from her general practitioner that the plaintiff told him that she fell at work although she could not recall that conversation.

The trial judge concluded that having regard to the conflict of evidence and the aforementioned matters, the plaintiff failed to prove as a matter of probability that there was water on the floor on the date in question.

Mr Justice Barrington stated that in making this analysis, the learned trial judge referred to two hospital notes which he assumed tended to undermine a portion of the plaintiff's evidence. He stated further that the persons who made the notes were not called to give evidence, that they were not cross-examined and the possibility that either or both of them might have made a mistake was not explored. Mr Justice Barrington drew attention to the fact that the notes were inconsistent with the nature of the plaintiff's injuries as described by all the doctors who gave evidence. He continued that the notes were of no evidential value and should not have been used by the trial judge to detract from the weight of the plaintiff's testimony. For this reason, Mr Justice Barrington concluded that the trial judge's finding that the plaintiff failed to prove as a matter of probability that there was water on the floor on the date of the accident could not stand.

Mr Justice Barrington considered the second finding of the trial judge which was that it appeared to him as a matter of probability that there was no water constantly in the area of the refrigerator. He stated that this was a clear finding of fact and normally would not be interfered with on appeal but again he stated that on this matter there appeared to be a conflict of testimony between the plaintiff and her fellow-worker on the one hand and both chefs on the other. He further stated that since the trial judge had based his first finding on an assessment of the weight to be given to the plaintiff's testimony, one could not be sure that this same sentiment did not influence his finding on the second matter.

Mr Justice Barrington decided that in these circumstances it appeared that the trial was unsatisfactory, that the appeal should be allowed and that the matter should be remitted to the High Court for retrial.

Mr Justice Lynch and Mr Justice Barron concurred with the judgment of Mr Justice Barrington.

Solicitors: Denis O'Sullivan & Co (Cork) for the appellant; Messrs T. J. Hegarty & Son (Cork) for the respondent.