Be careful – Court of Appeal Recent Case

In a judgment, in which it set out in very clear terms the role of expert witnesses, the Court of Appeal overturned a High Court award of €158,864 to a public servant.

The public servant in question claimed she was injured when she fell because of what she alleged was the dangerous and defective condition of her employer’s courtyard, over which she accessed and left her workplace.

Following the accident, the injured woman sued her employer and State agencies and others who shared ownership of the yard. She was successful in her High Court case and awarded damages totalling €158,864. Her employer and the other defendants appealed both the liability finding and the quantum of the judgment.

Delivering the Court of Appeal’s judgment, Mr Justice McGovern said the fall was captured on CCTV. From the CCTV footage, the Court of Appeal held, it was possible to pinpoint precisely where the injured employee fell, and the court held it was not the actual location where she claimed to have fallen.

Presenting the injured woman’s claim to the High Court, her counsel claimed she tripped on a raised edge of a pavement slab, which was illustrated in photos taken by her engineer. The photos were taken on the basis of an account of the accident given to the engineer by the employee.

However, Mr Justice McGovern noted that in the course of the trial it was accepted – as a result of the CCTV footage – that the injured woman had given an incorrect account of where the accident occurred. This, he said, was accepted by both the woman and an engineer giving expert independent evidence on her behalf.

He also noted that the woman told the engineer she was assisted by a woman after her fall. The CCTV footage showed this was not the case. She also told the engineer that her mobile phone flew from her pocket when she fell, while the CCTV footage showed she was using the phone when she fell. Mr Justice McGovern said the High Court judge did not address “these inconsistencies” in the employee’s evidence.

The Court of Appeal then considered the evidence given by the engineer and that he accepted the accident did not occur at the place he inspected (as pointed out by the injured woman) and that, as shown by the CCTV footage, there was no trip hazard at the location at which she actually fell.

Mr Justice McGovern said the engineer then presented, what he described as the engineer’s “thesis”, that as the employee fell, there must have been a lip when in fact there was none. The judge then went on to say the engineer crossed the line from giving independent evidence, to advocating a particular position in favour of the injured woman.

Setting out clearly and, perhaps, reflecting some recent criticism by the Court of Appeal of the way some expert witnesses present their evidence, Mr Justice McGovern said the “overriding duty of the expert is to the court, rather than to take a partisan position on behalf of their instructing client”. It is, he said, of the highest importance that expert witness remember and respect their obligations and their overriding duty to the court.

Delivering the Court’s conclusion, Mr Justice McGovern said it was established that the accident did not occur where the injured woman said it did and that her engineer accepted there was no trip hazard at the place where she actually fell.

He said the High Court judge’s conclusions on liability were based on comments by the engineer that the snagging of the employee’s toe was consistent with a raised lip of a concrete paver. That conclusion, he said, was “against the weight of evidence”.

The trial judge had adopted what he says was the fallacious thesis of the engineer: that the employee fell, she must have tripped, there must have been a trip hazard (though none was identified) and if there was a trip hazard there must have been negligence. There was, he said, “no credible evidence to support the liability finding” of the High Court judge“.

Having overturned the High Court determination, it was, said Mr Justice McGovern, “unnecessary to deal with the appeal on quantum”. (McHugh v Revenue Commissioners and others: Court of Appeal, January 2020)

Source: Health & Safety Review