The Court of Appeal has dismissed a woman’s appeal seeking to be removed from a child’s action over alleged severe burns sustained from deep fat fryer oil.
Kathleen Rowland, of Ballygarvan, Ballycroy, Co Mayo, was brought into the case by her sister, the defendant homeowner, as the person alleged to have been supervising the child and to have switched on the fryer and left it unattended.
In a ruling on Tuesday, the Court of Appeal upheld the High Court’s decision to dismiss Ms Rowland’s application seeking to set aside the third-party notice.
Writing on behalf of the three-judge court, Ms Justice Teresa Pilkington found the High Court did not err in fact or in law in deciding Ms Rowland did not act as soon as was reasonably possible in bringing in her application.
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The proceedings are brought by Ruth Kilcoyne, a minor suing through her uncle David Kilcoyne, of Bayview, Binghamstown, Belmullet, against her grandmother, the home’s owner, Sarah Jane McHale, of Muing Road, Belmullet.
Ruth, then a toddler, suffered scalding injuries to her skin from the accident at the private dwelling on May 16th, 2015, and underwent split skin grafting on her leg, it is claimed.
Ms McHale, and her insurer RSA, denies she is liable for the injuries. She pleaded that the personal injuries, loss and damage suffered were a consequence of the negligence and breach of duty on the part of Ms Rowland, who denies the claims.
The High Court’s Mr Justice Mark Heslin had pointed out that it was difficult to ignore that Ms Rowland’s application to set aside the third-party notice came two years and five months after she was served with the notice in July 2018. The appeal court agreed, saying there is an imperative that litigation proceeds without undue delay, particularly when the plaintiff is a minor.
Ms Justice Pilkington said Ms Rowland was initially contacted by Ms McHale’s insurer in March 2016.
The judge noted Zurich Insurance Plc, Ms Rowland’s insurer, took some three years to clarify its position in “what appears to be a straightforward matter”. Zurich finally confirmed in November 2019 that it would not provide indemnity cover for Ms Rowland, the judge added.
It was not unfair for the High Court to find that an application to set aside the third-party proceedings could have been made when a solicitor entered an appearance for Ms Rowland, said the judge.
Ms Justice Aileen Donnelly and Ms Justice Mary Faherty agreed with the decision to dismiss the appeal.
