The High Court has barred witnesses still to be heard in a farm injury trial from giving evidence relevant to a new allegation that was not included in the pleadings. It declined to strike out the case, finding that restricting the evidence was sufficient.
In an ex tempore judgment delivered on 15 June 2021, Ms Justice Niamh Hyland considered an application by Daniel Irish to dismiss the case brought by his brother, James Irish. The defendant argued that the plaintiff was seeking to advance a case that had not been pleaded. The plaintiff’s counsel argued that the application should instead be treated as one to prevent the plaintiff’s remaining witness, an engineer, from addressing those new matters.
The claim arose from a wrist injury sustained while James Irish was worming cattle on his brother’s farm. The judgment records that, in cross-examination, he said a bullock “went cracked” as he injected it, knocking his wrist against a fence. This differed from the account in his engineer’s report, which attributed the accident to another bullock moving the animal being injected in a crowded crush.
After the plaintiff’s evidence, his counsel withdrew the claim that there should have been only one animal in the crush or that another bullock had pushed the animal being injected. The proposed new case was that the defendant was negligent in allowing his brother to inject cattle through the crush bars when his stature, the crush measurements and the platform height meant he could not reach over the top bar. The judge noted that this formulation had not been identified as such by counsel.
The plaintiff argued that the existing pleadings covered the allegation, that it emerged in cross-examination, and that there was no identified prejudice to the defendant. The judge rejected those submissions. She found that the pleadings gave no notice of the new allegation and that it could not be advanced at trial merely because it arose from evidence. Assessing it would involve more than measurements, including whether the defendant knew of the plaintiff’s practice and whether the plaintiff’s own methods were relevant to contributory negligence.
The judge also found that requiring the defendant to meet a different case at trial, without notice and with an engineer’s report prepared on the earlier allegations, would cause some prejudice. She concluded the new case would need to be pleaded in the usual way. Rather than impose the requested “draconian” step of striking out the case, she directed that the plaintiff’s witnesses not yet heard could not give evidence relevant to matters outside the pleadings.