The Supreme Court rejected an attempt to advance a new account of a personal injury accident on appeal, in a judgment that also urged lawyers to make brief submissions to trial judges in all but the simplest injury cases.
Justice Hardiman delivered his observations on 6 May 2004 in an appeal by John O’Flaherty against O’Mathuna Baid Teoranta, with Baid Clos an Dangain Teoranta named as a third party. He said he agreed with Justice Denham’s judgment and the order she proposed. The source does not set out that order, so its precise terms cannot be stated from Justice Hardiman’s judgment alone.
At trial, the plaintiff said he had fallen over a coaming around a hold on the defendant’s boat, Resolution II. The trial judge found that the coaming was not there on the relevant day. The plaintiff’s doctor gave evidence that the injuries were consistent with landing on his feet and that the accident as described was an improbable source of those injuries.
The trial judge said he did not know what had happened or whether the plaintiff had fallen on the vessel. He concluded that the plaintiff had not proved negligence, for which the burden of proof rested on him. The appeal did not challenge the finding that there was no coaming. Instead, counsel for the plaintiff argued that the case should be considered as a fall into an uncovered hold, and that the plaintiff’s account of falling over the coaming was mistaken.
Justice Hardiman said that proposed account directly contradicted the plaintiff’s evidence at trial and had not been put to the trial judge. It was therefore impossible for the appeal court to consider the case on the basis that the plaintiff’s evidence was mistaken and that a legally relevant cause had existed which the trial judge was never asked to assess. He agreed that the trial judge’s finding that he could not determine how or when the injuries occurred was sufficient to dispose of the defendant’s liability in the case.
The judgment stressed that in an adversarial trial the judge must decide the case presented by the parties and should not construct a plaintiff’s case or speculate in the plaintiff’s favour. Justice Hardiman said brief closing submissions would help counsel identify, in light of the evidence, a specific basis for liability. He said such submissions would usually take only three or four minutes and should be made in all but the simplest personal injury cases.