The Court of Appeal has set aside a High Court finding that John Walsh and Darren Walsh were liable for injuries sustained by Paul Gore, a minor, in a rented Dublin home. It directed a retrial on liability only and reduced the damages award from €50,000 to €25,000.
Paul was four when he fell from his sister’s bed on 11 December 2011 onto the exposed valve of a radiator, sustaining a laceration to his back that required stitches. The parties agreed the radiator spindle was fractured and uncovered when John Walsh inspected it on the night of the accident or the following day. They disputed how it had come to be in that condition.
At the original High Court trial, the judge found the defendants liable, concluding that the spindle had probably been damaged by a heavy blow from a tool during renovation work and left exposed. The defendants appealed, arguing there was no evidential basis for that conclusion and that they had not been given a chance to answer the allegation. They also challenged the damages as excessive.
The Court of Appeal found that the tool-impact theory was not pleaded and was absent from the engineer’s report. The engineer had offered only speculation about possible causes and had not said that a hammer or spanner was used during installation. Nor had the allegation been put to the plumber who installed the radiators. The court said the defendants were denied an opportunity to respond, and the finding could not stand.
The court also rejected the argument that the tool-impact finding was peripheral. It said the High Court had relied on that theory and on the mother’s phone call to the landlord when finding that the radiator had been damaged during the defendants’ work. With the tool-impact finding removed, the liability question required reassessment. The court did not dismiss the claim, saying a plaintiff might be able to produce sufficient evidence of negligence at a retrial.
On damages, the Court of Appeal considered the injury and scar, which medical reports described as a pale scar between about four and six centimetres long, with no need for treatment. It held that the High Court’s €50,000 award was excessive and disproportionate. The court proposed replacing it with €25,000: €15,000 for pain and suffering to date and €10,000 for future pain and suffering.
The appeal was allowed on both liability and damages. The action was remitted to the High Court for a retrial on liability only; the reduced damages award was to replace the original award.