Noreen Fagan plaintiff/ appellant v Michael Wong and David Wong trading as the Pearl River Restaurant (defendants/ respondents).

Noreen Fagan (plaintiff/ appellant) v Raymond Leahy (defendant/ respondent).

Appeal - Whether awards inadequate - Whether excessive intervention by trial judge - Comments made by trial judge - Whether bystander would perceive trial was unfair and biased - Whether trial judge should have excluded hospital records - Whether all the evidence taken into account Costs.

The Supreme Court (Mr Justice O'Flaherty, Mr Justice Lynch and Mr Justice Barron); judgment delivered 7 May 1997.

A TRIAL judge may comment on the evidence being given by a witness during a trial and such comments do not result in the trial being unsatisfactory and uneven. Where there is evidence to support a trial judge's conclusions about the trustworthiness of a witness an appeal court will not interfere with the awards made.

Costs are a matter for the trial judge.

The Supreme Court so held in dismissing the plaintiff's appeals in both actions.

James O'Driscoll SC, Paul Sreenan SC and Pearse Sreenan BL for the plaintiff/ applicant, Brian McGovern SC and Declan Buckley BL for the defendants/ respondents in the first action, Michael Gleeson SC and James O'Mahony BL for the defendant/ respondent in the second action.

MR JUSTICE LYNCH, delivering the unanimous judgment of the court, said that both actions had been heard together in the High Court before Mr Justice Flood over a period of 6 days. In a reserved judgment, Mr Justice Flood awarded the plaintiff £7,500 damages against the defendants in the first action on foot of an injury she sustained on the defendants premises.

The second action, in which liability was not an issue, arose as a result of a collision in which the plaintiff's vehicle was rear ended.

She was awarded £13,750 damages.

In each case the plaintiff was allowed costs of one day on the Circuit Court scale with a certificate for one senior counsel. The plaintiff appealed against both awards on the basis that they were both inadequate.

Mr Justice Lynch said that there were 25 grounds of appeal listed in respect of the first action and 16 grounds of appeal in relation to the second action. In both, the plaintiff contended that the trial judge failed to take into account certain medical treatment afforded to the plaintiff by Dr Fogarty and failed to address the issue of compensating the plaintiff for enduring such treatment; that the trial judge had erred in finding that the plaintiff had grossly exaggerated her injuries to her medical advisers and had prejudiced the plaintiff from an early stage of the trial and that the trial was unfair and unsatisfactory and was seen to be so due to the interruptions and comments of the trial judge throughout the trial which were unwarranted in all the circumstances.

In respect of the first action further grounds of appeal related to the intervention of the trial judge in the cross examination by the plaintiff's counsel of one of the defence witnesses and the decision of the trial judge to exclude hospital records relating to the plaintiff's admission to hospital.

Mr Justice Lynch addressed the issue as to the findings of the trial judge in the first action relating to the circumstances of the incident.

Mr Justice Lynch said that it did not matter whether the coat stand hit her as alleged by the plaintiff or just missed her. What was important was that the trial judge accepted that the fright the plaintiff got and her consequent jerking reaction caused her to sustain personal injuries. What mattered was the true extent of the injuries sustained.

The plaintiff contended that the intervention of the trial judge in the cross examination of the defence witness, a waitress, amounted to obstruction and the trial judge failed to maintain an even balance.

It was submitted that a bystander would get the impression that the plaintiff was not getting a fair trial.

Having reviewed the transcript of the trial, the court concluded that the interventions by the trial judge were manifestly within his proper competence to make and did not give any valid grounds of appeal.

During the course of the trial the judge commented that he regarded the evidence being given to him by the plaintiff as being unsatisfactory and unreliable.

The plaintiff had submitted that a disinterested bystander would get the impression that the trial was unfair and biased and there fore that the trial itself was unsatisfactory and that a new trial should be ordered.

Mr Justice Lynch said that a trial judge must carefully listen to all the evidence and form a view as to its reliability as the trial proceeds.

A trial judge is quite entitled to indicate his reaction to the evidence being given before him which provides an opportunity to resolve misunderstandings which otherwise might arise. Mr Justice Lynch referred to the decision in Donnelly v Timber Factors Ltd [1991] 1 IR 553 where the Supreme Court said that a trial judge was no more a robot than a member of a jury and if a judge believed a witness he was entitled to say so.

Mr Justice Lynch said that the converse was also the case. It would not be in keeping with common sense for a judge to remain totally impassive throughout the trial. It was quite in order that a bystander would gain some impression as to which party was doing well.

Accordingly, the court rejected the submission that the trial was unsatisfactory on the grounds of unevenness or perceived unfairness.

In relation to the hospital notes, Mr Justice Lynch said that the trial judge was correct in excluding the hospital notes once the defendants objected to them on the grounds that there would be no evidence from those who prepared them to they effect that they accurately stated what they purported to describe. Indeed, the trial judge was bound to reject them and consequently that ground of appeal failed.

Mr Justice Lynch then considered the question of damages. It was clear from his judgment that the trial judge took the view that the plaintiff had greatly exaggerated her injuries. The court considered whether, on the evidence, the trial judge was justified in his view.

In light of the evidence given by the plaintiff's general practitioner and that of an experienced neurologist on behalf of the defendants it was clear that the plaintiff was malingering. The court said that there was ample evidence to justify the conclusions of the trial judge and therefore the appeal in relation to the amount of damages failed.

Mr Justice Lynch concluded that, as costs were in the discretion of the trial judge, the objections regarding the level of costs awarded by the trial judge could not be sustained.

Solicitors: David Guilfoyle & Co (Cork) for the plaintiff/ applicant; J. B . O'Herlihy & Co (Cork) for the defendants/ respondents in the first action; George Mills & Co (Cork) for the defendants/ respondents in the second action.