Closing time for inadequate pleadings

Michelle McGeoghan v Christopher Kelly, Martin McBrierty and Pauric McInern [2021] IECA 123

18 May 2021

Author: Ciara Fitzpatrick
Practice Area: Healthcare
Sector: Healthcare

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The Court of Appeal overturns the High Court decision, which held the Defendants liable for allegations that were not set out in pleadings, but arose through the course of evidence. This Court of Appeal judgment confirms that the Court must focus on the Plaintiff’s pleaded case when assessing liability.

In August 2012, the Plaintiff attended the Defendants’ bar and after having a few drinks, she left the premises through a side door, as it was after closing hours. The Plaintiff attempted to open the door, which was secured with a snib lock and whilst doing so, the door slammed and caught her left little finger, causing a severe crushing injury. As a result, the tip of her finger was amputated.

A Personal Injuries Summons was issued on 13th June 2013, in advance of a joint engineering inspection. The Plaintiff’s pleaded case was that there was no closing device on the door, thus causing the door to slam.

On 18th September 2013, a joint engineering inspection took place and Mr O’Brien (Engineer), noted that the door was fixed with a closing device with two adjustments, allowing variation in swing speed.

A second joint engineering inspection took place in October 2018, which led to further particulars of negligence being served, two days before the trial. The Plaintiff alleged that on the night in question, there was no handle fitted to the door and no closing device on the door. It was further alleged that the Defendants failed to escort the Plaintiff safely off the premises after hours, causing the Plaintiff to exit the premises without any adequate lighting or supervision.

On 6th November 2018, the trial judge found the Defendants negligent on the basis that the closer on the door was not functioning correctly at the material time. However, the trial judge accepted evidence from the barman that a light was on in the hall at the time of the incident and so it was held that there was no duty on the Defendants to escort the Plaintiff off the premises.

The Plaintiff was awarded €75,000 in general damages, subject to a 25% deduction for contributory negligence on the part of the Plaintiff.

Court of Appeal

The Defendants appealed this decision on the basis that there was no evidence to suggest what caused the door to slam. The Plaintiff crossed-appealed against the finding of contributory negligence on the basis that the trial judge erred in finding that there was no duty on behalf of the Defendants to escort her off the premises.

It was held that there was no evidence before the High Court of any requirement or obligation on the Defendants to have a closer on the door. The basis upon which the Defendants were held liable was not one that was ever pleaded by the Plaintiff, but simply one that emerged in the course of evidence.

As the trial judge rightfully found, there was a light on in the corridor and therefore, the suggestion of any alleged need for supervision, fell away.

The Court of Appeal ruled in favour of the Defendants and dismissed the Plaintiff’s cross-appeal, on the basis that no negligence was established. The Order of the High Court was therefore, set aside and the Defendants were entitled to their costs.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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