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Time Wasters

In Cosgrave v Ryan & Anor. IESC [2008] Goeghegan J. remarked on the fact that the plaintiff’s action, in the High Court, had lasted four days. This happened despite the fact that the ultimate defendant, the Electricity Supply Board, offered no witness evidence from its employees.

The High Court judge, (whose judgment was reversed in the Supreme Court) had acceded to the defendant’s proposition that the plaintiff had failed to prove negligence by the defendant.

The plaintiff, an agricultural contractor, had been injured when an agricultural machine he was driving, in a field, came in contact with power lines owned by the defendant.

The machine was 13 feet high at its maximum. The fact that the accident happened implied therefore that the power lines were at that height at least.

Despite this, the defendant (as recounted by the Supreme Court) spent a considerable time in its cross-examination of the plaintiff and his witnesses in advancing various theories to explain the accident.

The one which appealed to the High Court judge was one which the defendant had not actually “put” to the plaintiff; the defendant advanced it late in the hearing.

As the Supreme Court remarked:

There is, of course, no law which requires a defendant to give any evidence at all, to say nothing of any particular evidence. But if a plaintiff puts forward a prima facie case which has not been answered he is usually entitled to succeed.”

This writer has advanced his own opinion above that “the fact that the accident happened implied the power lines were at a height of [13 feet] at most”.

And why not? According to the Supreme Court, it appeared counsel for the defendant had done as much himself (but with a different explanation)

As the Court remarked:

The most interesting feature of these six criticisms is one to which I have already briefly adverted. They do not include the suggestion which afterwards featured heavily in the cross-examination of the appellant’s engineer that even assuming the machine was thirteen feet high and the wires were not lower than fifteen feet the machine at the time of the accident might have been driven on a hilly bit of ground with the effect that the chute reached a height of fifteen feet. I draw the inference and I think I can legitimately draw the inference from that, that whatever investigation was done by the ESB (if any) prior to the trial of the action did not include this explanation and that this was a suggestion thought up by counsel either on his own or more likely after consultation with the outside engineer called on behalf of the ESB. I will, of course, be returning to this subject when covering the cross-examination of the engineer called on behalf of the appellant and the examination and cross-examination of the engineer called on behalf of the ESB. In the meantime, I intend to comment in turn on each of the six above listed theories or suggestions put to the appellant in cross-examination.”

In summation the Supreme Court made this remark:

Most of the suggestions put in cross-examination to the plaintiff as to what he should have done were farfetched and wholly unreal as I have already indicated.”