The High Court has allowed a building contractor to issue a third-party notice against the grandmother and next friend of a child bringing a personal injuries claim over an incident at a construction site.
In an ex tempore judgment delivered on 2 March 2020, Mr Justice O’Connor rejected the contractor’s submission that the grandmother might be unable to pursue the child’s claim independently if also facing a claim for indemnity or contribution. The judge said the child’s interests would not be compromised and that the trial judge would be aware of any potential pressure.
The personal injuries summons, issued on 19 June 2019, says the child climbed a wall and railing at Castleland Construction Site on 5 January 2016, when she was ten. The site was described as adjacent to the Willows, where she lives with her grandmother. The summons alleges a 7cm by 5cm laceration to her left arm, which is now scarred.
The defendants’ defence traverses the allegations of negligence and breach of duty, including the allegation that the contractor created a trap by having spikes on top of a fence. The judgment also records that an application to the Personal Injuries Assessment Board referred to a shortcut through the construction site and alleged that the grandmother should have supervised the child to prevent her trespassing. These are claims recorded in the judgment, not findings on liability.
The contractor sought leave to join the grandmother as a third party. Its counsel acknowledged that the contractor had no evidence apart from the grandmother’s own affidavit in reply to the application. The court considered Supreme Court decisions concerning applications to join a relative who is also a child plaintiff’s next friend. It noted that a defendant’s solicitor should not ordinarily be the person making the supporting affidavit, while the circumstances may require direct evidence from a defendant.
The court granted leave to issue the third-party notice in the form exhibited to the application, subject to directions. The contractor’s solicitors must send the grandmother an appearance form and instructions for completing it, and the notice must be issued within the standard time prescribed by the orders. The trial judge is to give directions on how the third-party issue will be tried. No defence from the grandmother is required unless the trial judge directs otherwise.
The contractor must provide the grandmother or her solicitor, at least 28 days before trial, with details of its witnesses and reports from experts it intends to call. Its factual witness list cannot include anyone who did not swear an affidavit in the application to join the grandmother.
The judgment decided only the application to issue the third-party notice. It did not determine liability for the child’s alleged injury.