The High Court has dismissed a personal injury case brought for a child against Westwood Club Limited, finding that delay and changes in the account of the accident created a real risk of an unfair trial.
The case concerned an alleged accident at the club’s play premises in Clontarf, Dublin, on 5 April 2009, when the plaintiff was 18 months old. The judgment says she was with her mother, two siblings and an aunt, and was being supervised by her aunt while her mother was away. The claim was that the child fell near a water fountain and broke her elbow.
The court traced changes in how the accident was described. Early solicitor letters gave an incorrect date and no details of how or where the fall happened. A 2012 application to the Personal Injuries Assessment Board said the child slipped on a wet “step-stool” while getting water. The 2013 personal injury summons described a fall on excess water on a footstool. The summons also gave the wrong club location, identifying Leopardstown rather than Clontarf.
In an engineer’s report disclosed during the dismissal motion, the account changed again: the child was said to have slipped on a wet foam-style cube used to reach the fountain. The judge said this was the first time that version had been provided, about 14 years after the alleged accident. The child’s mother had also said her sister told her the child slipped on a wet cube.
Westwood Club argued that it had been prejudiced because there was no accident report or contemporaneous investigation, and the area had been renovated around 2019 or 2020. The fountain no longer existed, making an engineer’s inspection impossible. The judge said the club first received the correct accident date in the 2012 board application, nearly three years after the event, and had no records of any complaint.
The court accepted that the renovations and delay in explaining the accident had caused significant prejudice. It also considered the further delay that would be needed to amend the summons to state the correct location. The judge concluded that a fair trial was impossible on the evidence then available and applied the O’Domhnaill test for a real risk of an unfair trial or unjust result.
The proceedings were dismissed. The judge listed the matter for 10.30am on 10 October 2024 for final orders; the judgment does not itself set out those final orders.