Judgment: 2021-09-27 · Court archive

Court of Appeal sets aside footpath injury dismissal and orders retrial

The appeal court found that the High Court failed to address its use of disputed, unproven medical notes and the absence of their author for cross-examination.

Court of Appeal; High Court (trial court) · [2021] IECA 253

Who, what, where, when and why

Who
  • Seamus Comerford (Appellant)
  • Carlow County Council (Respondent)
What

The appeal court found that the High Court failed to address its use of disputed, unproven medical notes and the absence of their author for cross-examination.

Where

Places mentioned in the report

  • Tullow, Co. Carlow
  • Carlow
  • Tullow
  • Kilkenny
When

Judgment:

Other dates in the report
  • 2 March 2013

    Comerford claimed he tripped and fell on a public footpath near his home in Tullow, Co. Carlow, on 2 March 2013. The High Court dismissed his claim in November 2017, finding that he had not established that the accident happened as alleged and that, even if it did, it was his own responsibility.

Why

Reasons reported in the judgment

Comerford claimed he tripped and fell on a public footpath near his home in Tullow, Co. Carlow, on 2 March 2013. The High Court dismissed his claim in November 2017, finding that he had not established that the accident happened as alleged and that, even if it did, it was his own responsibility.

The Court of Appeal has set aside the dismissal of Seamus Comerford’s personal injury claim against Carlow County Council and ordered a full rehearing in the High Court. It also vacated the High Court costs order and awarded Comerford the costs of that hearing and the appeal, subject to any alternative costs submissions.

Comerford claimed he tripped and fell on a public footpath near his home in Tullow, Co. Carlow, on 2 March 2013. The High Court dismissed his claim in November 2017, finding that he had not established that the accident happened as alleged and that, even if it did, it was his own responsibility.

On appeal, Comerford argued that the trial was unfair because the Council relied on disputed CareDoc notes during cross-examination without producing their author, Dr Carole McInerney, for cross-examination. The notes included entries suggesting that the injuries might be older than Comerford said and were not entirely consistent with a fall. The Council had initially indicated that it would arrange for the relevant witness to attend and prove the notes. Dr McInerney did not attend the resumed hearing, and no witness was called by the Council.

The Court of Appeal said the High Court judge had granted time for the notes to be proved, but then gave judgment without explaining whether he had disregarded them or what effect he gave to the cross-examination based on them. The appeal court said the trial judgment’s reasoning included matters that echoed the disputed notes, including the absence of hand injuries, while not addressing medical evidence from Dr A.K. Murali Nair that a facial injury could occur in a fall without hand injuries.

The Court of Appeal held that the failure to address the notes and the evidential consequences of their not being proved resulted in fundamental unfairness. It also found that the High Court had not adequately engaged with Dr Nair’s evidence. The Council had conceded that the footpath repair was substandard and had not called evidence to contradict Comerford’s engineer.

The appeal court did not decide whether Comerford’s account of the accident was true or determine liability. It set aside the High Court determination and remitted the case for a full rehearing. The rehearing is to take place in the High Court at the next sittings in Kilkenny.

Read the original court judgment

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