Maria Bailey, the Fine Gael TD who fell off a swing in a Dublin hotel, the Dean, and brought a personal injury action as a consequence still doesn’t get it, I fear.
For in an exclusive interview with the Sunday Independent today she said,
“I was holding somebody’s bottle. The bottom line is I was injured, nobody was drunk, nobody was messing. We had one glass of wine before going out and we had just one glass at the hotel. I was seriously hurt and I was mortified”.
She appears to lack understanding that the fact of her being injured is not the bottom line. It is only one factor in a successful personal injury claim.
An equally important hurdle to clear to win such a case is to prove somebody else was negligent and that negligence caused the accident and the consequential injuries and loss.
Plaintiffs regularly lose personal injury claims even if they have suffered injuries if the injuries are caused by a mere unfortunate accident where nobody is negligent.
She also says, “I am a citizen and I am entitled to the same due process in law as everybody else.”
Yes, she certainly is entitled to due process, and that involves her proving a certain number of things in a successful personal injury action:
- Was there a duty of care owed by the defendant hotel to the plaintiff? Yes, absolutely because the hotel owes a duty of care to its patrons, customers and anyone who is proximate;
- Did the defendant discharge that duty of care by acting as a reasonable person would in discharging their duty of care? This was a problem for Ms Bailey’s case;
- Did the plaintiff suffer damage, and was that damage/injury foreseeable? Maria Bailey TD tells us she did suffer an injury and this would be easily proven with a medical report and records;
- Was there causation-that is, a sufficiently close connection between the conduct of the defendant and the loss suffered by the plaintiff?
A cursory look at these 4 factors that need to be present to win her case would leave you in no doubt that the difficult part of her case would have been to prove the hotel failed to discharge their duty of care and was, as a consequence, negligent.
If the hotel is held to be negligent, the hotel is liable for the losses that flow.
So, how was Maria Bailey to prove the hotel was negligent when it came to her falling off the swing? I have not seen the pleadings or the particulars in this case and am relying on what has been reported in the media.
What has been reported in the media is that Ms Bailey was holding something in each of her hands which would have prevented her from holding on to the swing when she mounted.
What has also been reported is that the acts of negligence alleged by Ms Bailey against the hotel was the hotel’s failure to provide a supervisor for the operation of the swing.
This is a proposition which, if successful, would have appalling consequences up and down the country for anybody providing a swing for the enjoyment of children.
Lord Denning said when upholding the appeal of the West Midlands Police in a case brought by the Birmingham Six it would be an “appalling vista” for the English legal system to hold that the police officers had lied as argued by the Birmingham Six.
The notion of playground operators having to provide supervision for the operation of their swings takes removal of personal responsibility from the individual to a type of Kafkaesque state. This is an equally appalling vista, in my view.
What next? Supervisors for the operation of slides? Water slides? Bouncy castles?
Maria Bailey TD has instructed her solicitor to drop her claim and she has insisted she has done nothing wrong.
Unfortunately, we will not now see how her obligation to prove negligence against the hotel would have got on, nor the proposition that the hotel should have had a supervisor to supervise the operation of a swing on their premises.
Ms Baily tells us
“I have a vision and I want to keep my focus on that.”
Hopefully that vision includes putting her shoulder to the wheel in her party’s avowed intention to tackle the cost of personal injuries payouts and spiralling insurance costs for businesses.
Nobody denies Ms Bailey’s right to bring a personal injury claim, she’s perfectly entitled to do so.
To win her case, however, she needed to prove negligence by the hotel which led to her fall and injuries. It would have been interesting to see how that would have been dealt with by the Court.
Learn more about personal injury law in Ireland.