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Failure to engage with issue relating to consultation notes fatally undermined lawfulness of decision

By: Colm Scott Byrne BL

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Court of Appeal allows appeal and overturns decision of the High Court dismissing the appellant's claim for personal injuries and directs that the case be remitted to the High Court for a full rehearing, on the grounds that: (a) there was no probative evidence before the court that the appellant’s account of how he fell was rendered improbable by reason that he did not have any injuries to his knees; (b) the trial judge disregarded the expert evidence of the appellant's witness notwithstanding the fact that the respondent adduced no expert evidence to contradict his expert view; (c) a fundamental evidential injustice was visited upon the appellant by the failure to prove the consultation notes and the trial judge failed to engage with or address the clear risks arising as the proper administration of justice required; (d) the failure of the trial judge to address the issue of costs with due regard to the non-admissibility of the consultation notes further fatally undermines the lawfulness and fairness of the approach adopted by him; and (e) the total non-engagement with the Phipson Rule in light of the clear authorities which had been open to the trial judge was an error which visited a fundamental injustice on the appellant, depriving him of his right to a fair trial, and undermined the validity of the trial judge’s findings on liability.

Whelan J (nem diss): Personal injuries - negligence - rules of evidence - admissibility of evidence - appeal of a decision of the High Court dismissing plaintiff's claim for personal injuries arising from a trip and fall - the Phipson Rule - this rule has been characterised as the principle that counsel ought not to rely in the course of cross-examination on the contents of a document unless they are in a position and entitled to put it in evidence when called upon to do so - the plaintiff tripped and fell on 2 March 2013 - the plaintiff attended at a locum GP the following day - the consultation notes indicated that the locum doctor was of the view that the injuries were not entirely consistent with the fall as described - the respondent did not include the locum doctor in its schedule of witnesses - the defendant sought to hand in the medical notes to the Court - plaintiff objected - the defendant sought to amend their schedule to include the locum and indicated that they would be available to give evidence - the defendant cross-examined on the basis of the notes - the defendant was unable to locate the locum and sought an adjournment - the plaintiff objected - trial judge took papers to consider whether he would give judgment or adjourn - trial judge dismissed the claim - trial judge made no reference in judgment to consultation notes or the dispute or the application for an adjournment - whether the failure of the trial judge to apply the Phipson evidential rule correctly gave rise to a trial which was fundamentally unfair - Order 39, Rule 1 of the Rules of the Superior Courts - whether the trial judge failed to decide the case on the basis of the evidence and took into account wholly irrelevant matters in his judgment - appeal allowed - Court directs that the matter be remitted to the High Court for rehearing - Court indicates provisional view that the plaintiff be entitled to the costs of the High Court and Court of Appeal.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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