THE SUPREME COURT

[S.C. No. 248 of 2002]

Denham J.
Murray J.
Hardiman J.

BETWEEN/

JOHN O’FLAHERTY

PLAINTIFF/APPELLANT

AND

O’MATHUNA BAID TEORANTA

DEFENDANT/RESPONDENT

AND

BAID CLOS AN DAINGEAN TEORANTA

THIRD PARTY

[Judgments delivered by Denham J & Hardiman J; Murray J agreed with the judgment of Denham J]

Judgment delivered on the 6th day of May, 2004 by Denham J.

1.	This is an appeal by John O’Flaherty, the plaintiff, hereinafter referred to as the plaintiff, from the order of the High Court (McCracken J.) given on the 25th day of June, 2002, after a three day hearing.  The plaintiff brought an action for damages for personal injuries.  The High Court found that there was no negligence on the part of the defendant as alleged and dismissed the plaintiff’s action.  It was ordered that the defendant recover against the plaintiff the costs of the action when taxed.  It was further ordered that the issue between the defendant and the third party be struck out of the list and that the defendant pay to the third party €2,500.00 measured costs of the issue.

2.	The plaintiff was the skipper of a fishing vessel which was tied up at the pier in Dingle alongside a number of boats, one of which, Resolution II, was owned by the defendant.  The plaintiff claims that in crossing at night the boat of the defendant to get to his boat he fell through an uncovered opening, into an open hold and sustained personal injuries.  

3.	The High Court held that on the evidence the injury did not occur in the manner described by the plaintiff and that the negligence claim could not be sustained.

4.	The grounds of the appeal are:
1.	That the learned trial judge erred in law in finding that the plaintiff had failed to discharge the onus of proof of negligence.
2.	That the findings of the learned trial judge were against the evidence and the weight of the evidence.
3.	That, in finding that the coaming was not present at the time of the plaintiff’s accident, the trial judge erred in fact and law in proceeding to find a failure to discharge the onus of proof, when, in fact, the circumstances which led to the plaintiff’s accident was a failure in the defendant’s duty of care to the plaintiff.

5.	On behalf of the plaintiff written and oral submissions were made to the court.  In essence it was submitted that:
1.	The only issue which the trial judge had to determine in the case was whether the defendant was guilty of negligence in failing to cover the hatch and thereby creating a trap situation.
2.	In the course of his judgment the learned trial judge erroneously summarised the plaintiff’s case as being “that he fell over a coaming” when on the evidence what caused the plaintiff to fall into the hatch was the absence of a cover on it.
3.	It was submitted that the evidence regarding the coaming is insignificant and any inferences derived from that did not have any bearing on the issue to be determined.
4.	The trial judge in the course of his judgment accepted that it would be negligent to leave a hatch to a fish hold uncovered.  In the circumstances it would appear that the trial judge accepted the plaintiff’s evidence regarding the hatch.  It was submitted therefore that there was sufficient evidence before the trial judge to conclude, on the balance of probabilities, that the accident had occurred in the manner in which the plaintiff claimed it had occurred.
5.	In the circumstances it was submitted the appeal should be allowed.

6.	On behalf of the defendant it was submitted that at the trial of the action the plaintiff gave a very specific account of what happened.  The plaintiff asserted that (a) he was crossing the boat (of the defendant) via the shelter deck which was effectively in darkness, (b) that there was quite a number of obstacles in his path by reason of repairs to the boat which he knew were being executed, (c) that he negotiated a number of these objects and eventually came to an object which he asserted in evidence was a knee high coaming around a hatch in the shelter deck, albeit that he had first thought it was another set of boards or something similar, and (d) that he stepped over this coaming and fell into an uncovered hatch thereby sustaining his injuries.  The defendant submitted that (a) there was no such coaming, and (b) that it was improbable that he fell into the hatch and thereby sustained injuries.

7.	The learned trial judge referred to the case made by the plaintiff that he stepped over the coaming of the hatch that was roughly knee high.  The learned trial judge stated that it had been put to the plaintiff in cross-examination that there was no coaming and that the hatch area was flush with the deck.  Reference was made by the learned trial judge to the evidence of Sean Fitzgerald and Michael Hennessy that at the date of the accident the old coaming of the hatch had been removed.  The learned trial judge held:-
“I feel I must accept the evidence of Mr. Fitzgerald and Mr. Hennessy that there was no coving (sic) in place at the relevant time.  Therefore the probability is that this accident could not have happened in the manner described by the plaintiff.
I should say that I also accept fully, it is not really denied by the defendant, that it is negligent to leave a hatch to a fish hold uncovered, particularly where it must have been known to the defendant that other vessels might tie up outside it.
I do not know what happened to the plaintiff, he clearly fell and he clearly sustained an injury.  He may even have fallen on Resolution II, but the onus is on the plaintiff to prove negligence on behalf of the defendant.  I can only decide this case on the evidence which I have heard, I cannot make a case for the plaintiff that he has not made himself.
His case has been quite clear, that he fell over a coving (sic), which I believe was not there on the relevant date.  Therefore the injury did not occur in the manner described by the plaintiff and the negligence claimed could not have followed.”
(Transcript, Day 4, 25th June, 2004).
8.	This appeal revolves around issues of fact.  It was submitted by the plaintiff that the learned trial judge approached the question of liability on an erroneous basis when he summarised the plaintiff’s case in stating “that he fell over a coaming.”  On the evidence the plaintiff fell into the hold of the boat, when he stepped over an obstacle onto the hatch area, due to the absence of a cover on the hatch.  It was submitted that the phrase used by the learned trial judge meant that he considered the plaintiff to have been tripped and caused to fall by the coaming which was never the case.

	As regards this point, in my view the learned trial judge’s comment must be taken in the context of his judgment as a whole.  Earlier in his judgment he referred to the plaintiff’s evidence in the following terms: “Then he says he felt another obstacle, he put his leg over it expecting to stand on the deck on the other side and fell into an open hatch into the fish hold of the vessel.”  It is quite clear from this passage and from reading the judgment as a whole that the learned trial judge dealt with the plaintiff’s case on the basis of his claim that he had been caused to fall due to stepping on the area of an uncovered hatch after he had stepped over coaming which he said was there at the time.  In doing so it seems inevitable that the plaintiff would have had some contact with the coaming as he fell and I do not consider that the general phrase alluded to by the plaintiff in his submissions is open to the interpretation that the trial judge considered the plaintiff to have simply tripped over the coaming.
  
A central matter is the question of coaming on the boat of the defendant, the boat upon which the plaintiff claims he suffered personal injuries.  As will have been seen from the quotations above from the transcript, the term “coaming” is transcribed as “coving” and “combing.”  “Coaming” is defined in the Concise Oxford Dictionary as:-
		“a raised border around the hatches etc. of a ship to keep out water.”

	The plaintiff introduced the question of the coaming in his direct evidence.  He described the coaming stating:-
“When I came to which must have been the combing (sic) at the time and I just thought it was another set of boards or something similar and stepped over it and down into the hole.
Q.48	You fell into the hole?
A.	Yes.”
(Transcript of evidence, Day 1, 20th June, 2002).

	He then went on to describe the coaming in photograph number seven.  On cross-examination the plaintiff was very specific as to the coaming.  It is recorded in the transcript as follows:-
“279	Q.	I am just wondering did this accident happen at all as you have 
suggested because you have told us that there was this combing?
			A.	That’s right.
280	Q.	How did you know there was a combing there if you could not 
see…
			A.	I did not know what it was at the time, it was just another 
obstacle in my way that I stepped over at the time.
		281	Q.	When did you learn that it was combing (sic)?
			A.	Afterwards.
		282	Q.	When?
A.	I knew it was a combing (sic) straight away when I was falling down the hole.
		283	Q.	When did you first learn it was a combing (sic)?
A.	When I fell down the hold I knew it was part of the hatch then but it was too late.
284	Q.	Did you report this when your engineer went along to take 
photographs of it?
			A.	Certainly not.
285	Q.	Let us be sure what we are talking about, looking at the 
photographs, as I understand it, if you look at photograph number three you are talking about that raised barrier, if you like, around the hold, is that right?
			A.	That is right.
		286	Q.	What height is that, do you know?
			A.	I don’t know, it is around, roughly, knee height.
		287	Q.	Roughly, knee height?
			A.	Roughly, knee height.
		288	Q.	If you did see this obstacle are you saying to the court that you 
put your leg in over it?
			A.	Yes.
		289	Q.	Did you not hold on to anything?
			A.	No, there was nothing there to hold on to.
		290	Q.	It seems there is an awful lot of things there to hold on to?
A.	They were there when this photograph was taken but they weren’t there at the time.
		291	Q.	Did you simply put your foot down without testing what the 
ground was like beyond it, if there was ground at all?
			A.	I had already stepped over, I suppose, three or four separate 
objects like that and I just assumed this was another one and given that I always close a hatch myself I just assumed that any hatch I would encounter would also be closed.
		292	Q.	Did you know there was a hatch here?
A.	I knew it was there somewhere, I didn’t know exactly where it was.
293	Q.	Presumably you did not know that that obstacle was there 
either?
A.	I assumed that when I came to the hatch that the hatch would be 
closed.
		294	Q.	Did you know what that obstacle was that you met?
			A.	No.
295	Q.	Again I have to suggest to you, Mr. O’ Flaherty, my client will 
tell the court that that combing (sic) was not there at the time.  That combing represented one of the features which was being built into this vessel?
			A.	There was combing there.
		296	Q.	No, he will say that the hatch area was flush with the floor as 
near as does not matter? 
			A.	Not true.
297	Q.	What he will tell the court is this that as the job progressed old 
winches and old machinery had to be pulled out as you described and, indeed, you have confirmed that there was a winch there with chains and tackle around it?
			A.	There was.
		298	Q.	This work could not be done to the hold that was removed and 
was not done?
			A.	It was there that night anyway.
		299	Q.	He will say, no.
			A.	I am saying, yes.
		300	Q.	Not only that, Mr. O’Flaherty, he will say that, in fact, at the 
time the area leading to this hold was obstructed by the winch which was being removed such that the only way in which you could get to the hold was by climbing over the winch?
			A.	Not at all, ridiculous.”

The issue as to the coaming falls to be considered in the context of the defendant submitting that the accident did not happen as alleged or at all and not in any event on his boat.

	The question of the coaming was not a matter which arose first on cross-examination, it arose in the direct evidence of the plaintiff.  Also, it was already part of his case when he instructed his engineer.  The survey of the engineer was conducted on 28th April, 1994/1995 (the report is dated 1994, the oral evidence was that it was 1995) the event in issue occurring on the night of 23rd/24th September, 1993.  The engineer gave specific evidence as to the coaming.  He was asked if the plaintiff pointed out the coaming to him.  He replied:-
		“175	A.	That is correct, my Lord, yes.
		176	Q.	Is it that he says he fell over?
			A.	That is correct.
		177	Q.	That that was in position on the day in question?
			A.	That is my understanding.”
		(Transcript of evidence, Day 2, 21st June, 2002). 

	The medical evidence introduced by the plaintiff included that of Dr. Fionan O’Carroll which was also inconsistent with the evidence of the plaintiff as to how the fall occurred.  However, the learned trial judge ignored the medical evidence, as will I.  

It is clear that there was no coaming at the time of the event alleged.  The coaming had been removed.  Counsel for the plaintiff on this appeal submitted that the plaintiff made a mistake about the coaming but that the plaintiff went into the hold and was injured.  He submitted that the plaintiff stepped over something which he described as coaming – on which point he was wrong.

	In this case the learned trial judge accepted the evidence of Mr. Fitzgerald and Mr. Hennessy that there was no coaming in place at the relevant time.  He then held that the probability was that the accident did not happen as the plaintiff had alleged.  This was a finding of primary fact.  There was evidence upon which the learned trial judge could make such a finding.

	This finding of fact was made in circumstances where the coaming was a significant issue given that the defendant was raising the defence in cross-examination that the fall had not taken place as claimed by the plaintiff.  Furthermore, at the very least an essential part of the account of the plaintiff is that the accident occurred in circumstances where he had to step over an obstacle immediately adjacent to the edge of the hatch.  Having stepped over something which was knee high he fell down the hatch and afterwards, using a ladder climbed out of the hatch.  He, as an experienced boat owner himself, and as already pointed out, identified that “something” as the hatch coaming to his engineer prior to the trial and at successive points in his evidence at the trial.  Moreover, insofar as it was contended at the hearing of this appeal that the plaintiff was mistaken and that he could have stepped over a set of “pound boards” there was no evidence at the trial that any such boards were in situ immediately adjacent to the hatch opening.  In these circumstances, and given that the learned trial judge was entitled to find, as he did, that there was no coaming present at the time inspite of the plaintiff’s repeated assertions to the contrary, a question inevitably arose as to whether the accident happened at all in the manner alleged by the plaintiff, even if one accepted that there was no cover on the hatch.  That was a question for the trial judge to resolve on the basis of the evidence before him.

	The learned trial judge made clear his view that, inspite of all the evidence given, he did not know what had happened to the plaintiff.  It is clear from his judgment that he did not consider the account given by the plaintiff to be a reliable one.  He refused to speculate.  In this he was correct.  Further, the learned trial judge referred to the fact that the burden was on the plaintiff to prove his case on the balance of probabilities and that this he had failed to do.

	In this case the High Court acted reasonably and within its jurisdiction in making the determination.  The learned trial judge held that the accident did not happen as alleged by the plaintiff and in so doing put the credibility and reliability of the plaintiff at the heart of the case.

	It is well established in our jurisprudence that if the findings of fact of the trial judge are supported by credible evidence the court is bound by those findings.  As to the drawing of inferences, the demeanour of witnesses may be an important aspect of the case, and this court is slow to substitute its own inference of fact where that depends on oral testimony where inferences have been drawn by the trial judge, including the credibility of the witness.  See Hay v. O’Grady [1992] 1 I.R. 210 at p. 217.

	In all the circumstances I would not interfere with the determination of the trial judge where the issues of fact and the credibility of a critical witness are at the core of the case.  I would dismiss the appeal of the plaintiff and affirm the order of the High Court.

THE SUPREME COURT

 248/02                                                                                              

Denham J. 
Murray J.
Hardiman J.

Between:

JOHN O’FLAHERTY
Plaintiff/Appellant
and
O’MATHUNA BAID TEORANTA
Defendant/Respondent
and
BAID CLOS AN DANGAIN TEORANTA
Third Party

JUDGMENT of Mr. Justice Hardiman delivered the 6th day of May, 2004.

	I agree with the judgment of Denham J. in this case and with the order which she proposes.  

	I wish to add some observations of my own in relation to the conduct of the trial and the appeal in this matter.  I do so in the hope that they may be of some assistance in the hearing of personal injuries actions in the future.  

Aspects of evidence.
	The relevant evidence has been very substantially summarised by Denham J. in the course of her judgment and I do not intend to repeat that summary here.  I would, however, emphasise two things.  The first is that at all times during the trial there was an issue as to whether the injury which the plaintiff sustained had occurred on the defendant’s boat at all.  The onus of proof in this issue was on the plaintiff.  

	Secondly, I do not consider that the medical evidence called on behalf of the plaintiff is without significance.  On the transcript, the very brief direct evidence and only slightly longer cross-examination reads quite remarkably.  McCarthy J. rightly said in his judgment in Hay v. O’Grady [1992] 1 IR 210, at 217, that “the arid pages of a transcript seldom reflect the atmosphere of a trial”.  That is certainly the position in relation to this witness, Dr. Fionan O’Carroll.  Dr. O’Carroll was called by the plaintiff as the first witness on the third day of the trial.  He was asked only three questions.  In answer to the first he confirmed that he was from Dingle, Co. Kerry.  In answer to the second he confirmed that he was the doctor who first treated the injuries of the plaintiff.  In answer to the third and final question he said that, at the time he saw him at the out-patient clinic, the plaintiff complained of back pain and pain on his elbow.
	This is an extraordinarily perfunctory examination, so much so as to make the reader wonder why the witness was called at all.  But the difficulties of the position, from the plaintiff’s point of view, become apparent on a consideration of the ten questions asked in cross-examination.  
	Dr. O’Carroll first confirmed that he had no further dealings with the plaintiff after the time he first saw him.  He was then shown the photographs of the locus in quo, and given a summary of the accident as the plaintiff had described it.  He agreed that if the accident happened as the plaintiff described it he would have expected the plaintiff to fall first of all on his crotch and then sideways.  He agreed that the injury actually sustained was consistent with the plaintiff landing on his feet – “that could be an explanation for it”.   Asked frankly whether it was an unlikely explanation for the injuries actually received he said he did not know.  Pressed further he said “I would have thought it hard to get your leg and the side of your leg into that gap”.

	The substance of the doctor’s evidence was to the effect that, in his view, the accident as described by the plaintiff was an improbable source of the injuries actually received.  As appears from the judgment of Mrs. Justice Denham, the plaintiff was adamant as to the mechanism of the accident and dismissed alternative suggestions as “ridiculous”.  But the learned trial judge accepted, and this was not the subject of appeal, that the accident could not have happened as the plaintiff described it because the coaming around the hold which was vital to the plaintiff’s account was simply not there at all on the relevant day.  The balance of the evidence, including the medical evidence, underlines the fact that once the plaintiff’s account of falling as he stepped over the coaming had been rejected, no other factor in the case could be regarded as providing an alternative basis of liability, either consistently with the plaintiff’s account or at all.  Accordingly, the learned trial judge was in the position where, as he said:-
“I do not know what happened to the plaintiff, he clearly fell and he clearly sustained an injury.  He may even have fallen on Resolution II but the onus is on the plaintiff to prove negligence on behalf of the defendant.  I can only decide this case on the evidence which I have heard.  I cannot make a case for the plaintiff that he has not made himself”.

No submissions in the High Court.
	It is a very striking feature of this case, as of other personal injuries appeals which we have heard over the past number of years, that neither side addressed the learned trial judge at the end of the evidence.  The significance of this will be considered below.

Substance of the appeal.
	The central point made on the hearing of the appeal in this case was that the learned trial judge, though correct in his finding that there had been no coaming around the hold at the time of the accident, attributed far too much significance to this fact.  The plaintiff’s case, said Mr. Liam Reidy S.C. who had not appeared in the Court below, was that the plaintiff had fallen down an uncovered hold, not, or at least not necessarily, that he had fallen over a coaming or anything else.  The very use of the phrase “fallen over” was an inaccuracy, said Mr. Reidy.  But the nub of Mr. Reidy’s case was that the plaintiff’s own evidence, given both in direct examination and in cross-examination, that he had fallen over coaming about 22 ½ inches high, was a mistake.  This Court should, he said, approach the evidence on that basis, ignore it, and consider the case simply as one of a man who fell into an uncovered hold.   
	For the defendant, Mr. Patrick Connolly S.C. emphasised that the great bulk of the plaintiff’s submissions were directed to explaining away a central portion of the plaintiff’s own account of the accident – that he fell over the coaming already described.  He pointed out that the case was opened on that basis and it was supported by reference to photographs. The plaintiff’s engineer contradicted the plaintiff’s account that he had not shown the coaming to him:  he had done so.  This was in 1995, two years post accident.  Mr. Connolly emphasised that the defendant had at all times challenged if and how an accident of the type described by the plaintiff had occurred on the defendant’s vessel.

	Mr. Connolly emphasised that the effect of the learned trial judge’s judgment was that, at the end of the evidence, he had not been satisfied that the plaintiff fell into the hold of Resolution II or indeed that he fell on that vessel at all.  Having regard to the onus of proof which was on the plaintiff, the learned trial judge’s finding that he simply did not know how and when the injuries had been sustained was sufficient from the defendant’s point of view.  

	I agree with this.  

A new factual case on appeal.
	The submission which Mr. Reidy S.C. was constrained to make, and which is summarised above, amounts to suggesting that the Court should accept a version of the accident which is in direct contradiction of the one his client gave in the High Court.  Furthermore, he suggested that that should be done because his client’s evidence was clearly mistaken.  Naturally, the learned trial judge was not invited to consider the plaintiff’s evidence in that light at the trial.

Conduct of a trial.
	It is necessary to repeat what has already been said in strong terms by this Court, for example in Vesey v. Bus Eireann [2001] 4 IR 192, at 198ff.   There, the plaintiff’s evidence had been confused and contradictory.  Dealing with a criticism by the plaintiff/appellant that in those circumstances it was the trial judge’s responsibility to “disentangle” the plaintiff’s case, I said:-
“I cannot agree either that it is the responsibility of a trial judge to ‘disentangle’ the plaintiff’s case where it has become entangled as a result of lies and misrepresentations systematically made by the plaintiff himself.  

The procedure in our courts is an adversarial one and the defendant is entitled to have the plaintiff’s case presented by him and accepted on its merits or otherwise as these appear from the plaintiff’s presentation and cross-examination.  For the trial judge to make on behalf of the plaintiff the best case he can in such circumstances would risk the loss of the appearance of impartiality.  The learned trial judge was quite correct to point out that the onus was on the plaintiff and that he had, in significant respects, failed to discharge it”.

	The same case is authority, if such were needed, for the proposition that a trial judge is not entitled to speculate in the plaintiff’s interest:-
“It seems to me that this is not a correct basis on which to approach the assessment of damages and that a defendant is entitled to have the exercise approached in a more specific and evidence based fashion”.

	This, of course, applies all the more strongly to liability issues.  I believe the learned trial judge in this case followed the principle just summarised when he said:-
“… The onus of proof is on the plaintiff to prove negligence on behalf of the defendant.  I can only decide this case on the evidence which I have heard, I cannot make a case for the plaintiff that he has not made for himself”.

	In my view it is quite impossible for an appellate court to approach the hearing of an appeal on the basis that the appellant’s own evidence, which was put before the trial judge as being truthful and accurate, is in fact mistaken, and that the essential or legally relevant cause of the accident was one which the learned trial judge was never invited to consider at all.

Need for submissions.
	In my opinion this case emphasises the need for brief submissions to be made to the trial judge in personal injuries cases in all but the very simplest of cases.  The present case could not be described as being in that category.  This Court has made this point on a number of occasions, but it does not seem to have had any effect.  It was done in Vesey, cited above at page 202.  It had earlier been done in Kelly v. Bus Atha Cliath,
judgment in which was given in March 2000.

	A submission of the kind I describe would not in most cases take more than three or four minutes.  It would, however, require that the plaintiff’s counsel develop and expound, in light of the evidence, a specific basis in support of the contention that the defendant is liable for the plaintiff’s injuries in whole or in part.  Having regard to the significance of these cases to the people involved, and to the community, the size of the damages at issue and the importance of demonstrating that the assessment of liability, and of damages, is a rigorous, evidence based process as opposed to a merely impressionistic one, such submissions could quite readily be made, and should be.  Certainly, it will not be possible to urge this Court to act on a view of the facts never canvassed in the Court of Trial.