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Court of Appeal: A Plaintiff must prove negligence



Moloney v Templeville Developments [2018] IECA 47

Sarah Moloney was a fitness instructor at a well-known fitness centre in Clontarf. On 07 November 2007, while leading a high octane ‘body attack’ class, she went over on her ankle and sustained a nasty soft tissue injury. Ms. Moloney sued the owner of the centre, alleging that the floor of the premises was uneven and not fit for purpose.

High Court

In the High Court, both sets of engineers agreed that there was no specific defect in the flooring used by the Defendant and that it was in fact entirely suitable for use as a gym floor. It was clear that the Plaintiff’s arguments in relation to the unevenness of the floor could not be sustained. During the hearing, the Plaintiff produced a Facebook photo of the locus from the Defendant’s promotional page. The photo showed the floor covered with water or other moisture and she claimed that this was the reason for her fall. Although this had never been previously submitted by the Plaintiff, Moriarty J concluded that it was unlikely that [the Plaintiff] would have fallen for no reason”. He awarded her €30,050 in damages (with 30% contributory negligence).

Court of Appeal

The Defendants appealed the outcome. Mr. Justice Peart, delivering judgement in the Court of Appeal, outlined issues with the High Court decision;
  1. The trial judge failed to say what actually caused the accident.
  2. No evidence had been led from any expert in relation to the Facebook photograph which had simply been printed off by the Plaintiff and brought to Court.
  3. The trial judge was not given any evidence that there was any moisture on the floor to cause the Plaintiff to fall.
  4. The Plaintiff had never pleaded any case of negligence in relation to the presence of moisture or liquid on the floor.
  5. The Defendant had no opportunity to defend that allegation, until the day of the trial.
Peart J concluded that there was no evidential basis for a finding of negligence against the Defendant and that the Plaintiff had simply failed to prove her case, in respect of the uneven floor. Peart J further stated that it is insufficient for a judge to hold that there must have been “some reason” to cause the Plaintiff to fall, when no evidence was provided to support that position. This case is further example of the efforts of the Court of Appeal to highlight the requirement for a Plaintiff to prove negligence and for trial judges to provide reasoned decisions. A link to the judgement can be found here.