The Court of Appeal has allowed an appeal by Stephen Burke and remitted his motocross injury claim to the High Court for a retrial, finding that a defendant should not have been dismissed before all the evidence was heard.
The appeal concerned a High Court order dismissing Burke’s claim against Stephen Mullally, Michael McGinn, North Dublin Motocross Limited and, by order, Motor Cycle Union of Ireland Limited, trading as Motorcycling Ireland. The High Court had also awarded costs to the third and fourth defendants.
Burke was injured during a practice event at a racetrack in Gormanstown, County Meath, on 19 January 2014. He fell from his motorcycle at a double jump and was struck by a motorcycle ridden by Mullally. Burke’s claim included allegations about Mullally’s conduct and the event’s organisation, including the absence of a flag marshal near the accident site.
At the end of Burke’s case in the High Court, Mullally applied for a non-suit, a ruling that a claim cannot proceed for lack of sufficient evidence. The trial judge granted it and dismissed the case against Mullally before hearing the rest of the evidence. The other defendants did not seek contribution or indemnity from Mullally. The trial then continued against them, and the judge dismissed those claims after concluding that Mullally had been so close behind Burke that a marshal could not have prevented the collision.
The Court of Appeal said the evidence presented by Burke, an engineer called on his behalf and an expert called by the other defendants could support an inference of negligence. Burke maintained that he had not seen another rider behind him before the jump. The evidence raised a disputed question about whether Mullally was close behind or far enough back to react. The court said Mullally had indicated that he would give evidence if his application failed, but he was not called after the non-suit was granted.
The appeal court held that the trial judge should have deferred the non-suit decision until all the evidence had been heard. Deciding the issue early had, the court said, seriously compromised Burke’s case against the other defendants because Mullally’s evidence could have affected how liability was assessed. It also said the trial judge had not applied the correct test, which was whether there was evidence from which negligence could be inferred, rather than whether Burke had already proved negligence on the balance of probabilities.
The Court of Appeal allowed the appeal and ordered a retrial in the High Court. It did not decide that any defendant was liable. The judgment was delivered on 21 March 2019.