The Court of Appeal has allowed an appeal by the Electricity Supply Board (ESB) against a High Court finding of liability in a personal injury action brought by Terence, otherwise Terry, Morgan, over a fall on a stairway.
In a judgment delivered on 5 February 2021, Mr Justice Maurice Collins agreed with the judgment and proposed order of Mr Justice Noonan. He said the High Court’s liability finding was unsustainable and could not stand. The appeal was therefore allowed.
The High Court had found that wetness caused Mr Morgan to slip and fall, but could not determine whether it came from a leaking skylight or from someone spilling something or otherwise causing it. The Court of Appeal judgment said Mr Morgan’s pleaded case was that water had leaked through the skylight onto the stairs. A further particular alleged that worn and disintegrating stair nosings had contributed to the fall.
Mr Justice Collins said the High Court judgment did not explain why the trial judge preferred Mr Morgan’s evidence and that of his engineer, Mr Osborne, over evidence from the ESB’s witnesses. Nor, he said, did it explain the expert evidence preference. Those conflicts were material to the claim.
He also identified a tension between the High Court’s apparent acceptance of Mr Morgan’s and Mr Osborne’s evidence and its inability to resolve where the wetness came from. The judgment noted that Mr Osborne had not carried out slip-resistance testing, traced where water from the skylight might land, or tested whether water penetrated the skylight.
Mr Justice Collins said the source of the wetness mattered because the claim as pleaded relied on a leak from the skylight. If Mr Morgan failed to establish that case, his claim failed. The High Court judgment had not explained how the presence of wetness, regardless of its source, established negligence by the ESB. A broader argument that the ESB bore an onus to show it was not negligent had not been pleaded or advanced at trial, the judgment said.
The appeal judgment also discussed the statutory requirement for detailed pleadings in personal injury actions and for allegations in pleadings to be verified by affidavit. It said the pleaded case defined what Mr Morgan could properly advance at trial and what the ESB had to meet. The Court of Appeal’s stated disposition was to allow the appeal and set aside the High Court’s liability finding; the source does not state a damages award or any further order.