IEHC 61 — IEHC 61 — High Court

THE HIGH COURT

[2026] IEHC 61

[Record No. 2017/2163P]

BETWEEN

PATRICK MCINERNEY (A MINOR) SUING BY AND THROUGH HIS

MOTHER AND NEXT FRIEND, HELEN MCINERNEY

PLAINTIFF

AND

KILDARE COUNTY COUNCIL

DEFENDANT

JUDGMENT of Mr Justice Barr delivered on 13th day of February 2026.

Introduction.

1. There are two applications before the court. The first is a motion brought by the

plaintiff by notice of motion dated 22 May 2025 wherein the plaintiff seeks a direction

that there should be a modular trial, whereby the issue of liability should be determined

by the trial judge first; to be followed by a hearing on quantum, in the event that the

trial judge finds some liability in favour of the plaintiff. Secondly, the plaintiff seeks an 2

order that if a modular trial is directed by this Court, the issue as to whether quantum

should be decided on an interim basis, or on a whole life basis, should be left over to

the decision of the trial judge.

2. The second application before the court is the defendant’s motion dated 25

November 2024, wherein it seeks an order directing the plaintiff to furnish full

particulars of his claim for special damages on a whole life basis.

3. In order to understand the basis of the application made on behalf of the plaintiff

for a modular trial, it is necessary to set out in some detail the background to these

proceedings and the issues that arise in relation thereto.

Background to the Proceedings.

4. The plaintiff is a young man, who was born on 6 April 2010. At the time of the

accident, he was living with his parents at a halting site known as Ardrew Halting Site,

Athy, Co Kildare.

5. It is the plaintiff's case that on 15 June 2015, when he was five years of age, he

ascended onto the top of a wall surrounding the halting site. This wall was

approximately 9 feet (3m) in height. It is alleged that the plaintiff was able to get onto

the top of the wall due to the fact that mounds of earth, rubbish and other debris had

been left leaning against the wall, thereby permitting easy access onto the top of the

wall.

6. It is the plaintiff's case that this mound of earth, rubbish and debris had been

present for quite some time. The plaintiff pleads that children at the halting site had

been using the mound of earth to gain access onto the top of the wall. In addition, it is

pleaded that the top of the wall itself was in a dangerous and defective condition due to 3

the fact that the capping stones thereon had broken away meaning that the top of the

wall was unsafe and dangerous.

7. The exact circumstances of the accident are pleaded in the following way at

para. 3 in the personal injury summons:

“On or about the 15th day of June 2015 the infant plaintiff was playing in an

open area on the halting site and proceeded to climb a wall, during the course

of which, the infant plaintiff fell and suffered serious personal injuries, loss,

damages, inconvenience and expense.

The defendant had caused, allowed and/or permitted a mound of earth and other

debris to be banked up against the wall. This mound of earth constituted a trap

for children and would invariably attract children. By reason of the presence of

the mound of earth together with the debris, the infant plaintiff was able to climb

up on the wall.

The defendant, its servants or agents failed to remove the mound of earth and

other debris, failed to properly secure their property preventing access to

children to the area.”

8. It is common case that as a result of falling from the wall the infant plaintiff

suffered a fracture of his skull. This was demonstrated on a CT scan taken on the night

of the accident.

9. Proceedings were brought on behalf of the infant plaintiff by personal injury

summons issued on 8 March 2017. After the exchange of a notice for particulars and

replies thereto, a defence was filed on behalf of the defendant on 8 October 2019. This

was a fairly standard form defence, which put liability and quantum in issue. It also

included a plea that damage had been caused to a fence adjacent to the wall, which 4

damage had been caused by the unlawful acts of third parties unknown to the

defendant. The defence also pleaded that if the accident occurred in the manner alleged

by the plaintiff, or at all, the injuries sustained by the plaintiff were contributed to by

the negligence and breach of duty on the part of his parents for failure to adequately

supervise him while playing in the halting site. The defence set out particulars of the

negligence and breach of duty that was alleged in this regard. Essentially the defence

put all matters in issue.

10. On consent of the parties, the defendant was given liberty to amend its

defence. It delivered an amended defence on 19 May 2025. There were three significant

amendments made to the defence that had been filed on its behalf. Firstly, an additional

plea was added to the defence to the effect that the plaintiff's claim to special damages

had been exaggerated. Secondly, it was pleaded that the defendant had obtained

information from a member of An Garda Síochána to the effect that while the plaintiff's

mother and next friend was incarcerated in prison, recordings had been made of her

telephone conversations with her husband. It was alleged that in two telephone calls

made on 19 April 2024 and 21 April 2024, the plaintiff's father had informed the

plaintiff’s mother that he had paid the sum of €2,000 in two instalments to a witness to

secure his attendance to give evidence on behalf of the plaintiff at the trial of the

action. The defence pleaded that this witness appeared as a witness of fact on the

plaintiff's schedule of witnesses. It was pleaded that a case file had been prepared by

An Garda Síochána and had been forwarded to the Director of Public Prosecutions in

relation to the possible commission of criminal offences in relation to the matters that

had been disclosed in these telephone conversations. The defence went on to plead that

the payment of the sums of money to the witness to secure his attendance at the trial of 5

the action was evidence of collusion between the plaintiff's father and mother and the

witness.

11. Finally, a further amendment was made to the defence which pleaded that the

plaintiff had not suffered the skull fracture in the manner alleged by him in his

pleadings, but had done so by reason of his interaction with a horse or pony at a time

and place unknown to the defendant.

12. It is necessary to go into the detail of the injuries that are pleaded as having been

suffered by the plaintiff in some detail. At the outset, the case was pleaded on the basis

that the plaintiff had suffered a significant skull fracture, together with an injury leading

to loss of hearing in the right ear. It was also pleaded that subsequent to the accident,

his pre-existing documented behavioural issues, had been severely exacerbated by the

injuries sustained in the accident.

13. The injuries pleaded by the plaintiff took a fairly dramatic turn after 24

September 2023. That was the date on which Dr. Declan O'Rourke, Consultant

Paediatric Neurologist, had provided a report to the plaintiff's solicitor in relation to the

injuries sustained by the plaintiff in the accident. This report provided expert evidence

to the effect that the plaintiff had suffered a severe traumatic brain injury following the

fall from a significant height. Dr. O'Rourke was of the opinion that the brain injury was

severe in its manifestation. He stated that the plaintiff would require care or support

both during the day and at night for the remainder of his life, for his own safety and for

the safety of others. Dr. O'Rourke was further of the view that the plaintiff's degree of

behavioural difficulties, inattention and overall cognitive functioning, would mean that

he will not attain the ability to live independently.

14. Dr O'Rourke was also of opinion that the plaintiff would never achieve

meaningful employment. He noted that the plaintiff had profound hearing loss in his 6

right ear. He was of opinion that that was directly due to his severe traumatic head

injury. He also noted that the plaintiff’s severe ADHD features were significantly

impacting on his overall daily functioning.

15. On 10 January 2026, a report was furnished by Dr Mankad, who is a paediatric

neurologist practising at Great Ormond Street Hospital for Children, London. He has

been a consultant in that hospital since 2011. He has headed the neuroradiology services

at that hospital since 2018. He was appointed to the post of Director of Radiology in

2025. He holds an honorary associate professorship with University College London

and University College Dublin. The essence of his opinion as contained in that report

is that having reviewed the CT scans that were taken on the night of the accident, he is

satisfied that there was evidence thereon of brain injury.

16. The defendant’s position is diametrically opposed to that of the plaintiff. As

noted from the pleadings, the defendant disputes all aspects of the accident. It denies

that the accident occurred in the manner alleged by the plaintiff or at all. In particular,

it denies that the plaintiff fell from the wall in question in the manner alleged by him. It

alleges that the skull fracture that was disclosed on the CT scan was suffered by him

due to his interaction with a horse or pony, presumably by either falling off the animal

or by being kicked in the head by it.

17. As has been set out in the replying affidavit sworn by the defendant’s solicitor,

Mr. David Andrews on 28 November 2025, all aspects of the claim in relation to

quantum is in dispute between the parties. In particular, the defendant's medical experts

dispute the assertion that the plaintiff suffered any brain injury as a result of the fracture

to his skull. In addition, it is alleged that any behavioural or cognitive difficulties

suffered by the plaintiff since the time of the accident are due to his pre-existing ADHD

condition, which was documented prior to the date of the accident, and are due to the 7

somewhat chaotic living circumstances in which the plaintiff has been brought

up. These are set out in very considerable detail by Mr. Andrews at para. 21 et seq of

his affidavit. It is further alleged by the defendant that the medical records that have

been made available concerning the plaintiff show a persistent lack of engagement by

the plaintiff and his parents with various modalities of treatment that had been made

available to him and in particular a failure to engage with the CAMHS supports that

had been made available.

18. Mr. Andrews has forcefully argued that the plaintiff and his next friend and his

father have deliberately avoided utilising the treatment and supports that have been

offered to him and have misled their own medical experts with a view to exaggerating

the plaintiff’s claim to damages in these proceedings. This has been pleaded in the

following way at para. 64 of his affidavit:

“I say that there is and has been a deliberate attempt by the plaintiff's parents

to exaggerate the nature and extent of the plaintiff's personal injuries and

alleged resulting sequalae. I believe that they have been acting intentionally in

attempting to mislead the plaintiff's experts and the courts.”

19. The foregoing is but a very brief summary of the extent of the matters that are

in issue in the proceedings. It is fair to say that in this action absolutely everything is in

issue between the parties. There is an allegation that the accident did not occur at all as

described by the plaintiff; there is an allegation that the plaintiff's parents have colluded

with a third party, presumably with the intention of providing false evidence at the trial

of the action; there is a denial of any negligence or breach of duty on the part of the

defendant its servants or agents; there is an allegation that the accident was caused or

contributed to by the negligence of the plaintiff’s parents in failing to supervise him

adequately or at all on the day of the accident; with the exception of the skull fracture 8

almost every other aspect of the injuries pleaded by the plaintiff are strenuously

disputed by the defendant both in relation to their severity and in relation to their being

caused by the accident the subject matter of the proceedings.

20. Given the level of injury and disability pleaded by the plaintiff, in particular that

he has suffered a serious brain injury as a result of the accident which has left him in

need of care on a 24-hour basis; which has rendered him incapable of independent

living; and which has rendered him incapable of gainful employment; the capital value

of this claim at full value is very considerable. On one view of the figures, it could reach

an award of damages greater than €25m. It is against that background that the current

application for a modular trial has to be considered.

Submissions on behalf of the Plaintiff.

21. On behalf of the plaintiff, Mr. Tracey SC submitted that having regard to the

very extensive liability issues that arise on the pleadings, whereby literally all matters

are in issue, ranging from the allegation that the accident did not occur at all, in that the

plaintiff did not fall from a wall, but was kicked or fell from a horse or pony, to the

denial that the defendant was guilty of the alleged or any negligence or breach of duty,

coupled with the plea that the accident was caused or contributed to by the negligence

of the plaintiff's parents, will mean that the liability aspect of the case will be of

significant duration.

22. Counsel stated that as of the plaintiff's most recent schedule of witnesses who

would be necessary to give evidence at the trial of the action, there were no less than

sixteen expert witnesses and five witnesses as to fact listed thereon. It was submitted

that the vast majority of the witnesses set out in the schedule were medical experts,

rehabilitation experts and financial experts, who would be necessary to give evidence 9

in relation to the quantum aspects of the case. It was submitted that the only witnesses

that would be necessary on the liability aspects were the five witnesses as to fact, being

the plaintiff, his mother, his father, Mr. McC, who had found the plaintiff on the ground

at the foot of the wall and who had helped him up and brought him home, and Mr. O

(the court was not informed what evidence he might give); together with the plaintiff's

engineer as an expert witness.

23. It was submitted that having regard to the very extensive liability issues in the

case, it was entirely reasonable that the liability aspects should be determined first by

the trial judge. If he or she were to find that the plaintiff did not fall from the wall at the

halting site as alleged, but suffered his injury either by interaction with a horse or in

some other manner, that would be the end of the case. The plaintiff's action against the

defendant would be dismissed. There would be no need to embark upon the complex

issues that arose in relation to the existence of any brain injury, whether it was caused

by the fall from the wall, and whether the resulting behavioural and cognitive

difficulties suffered by the plaintiff were due to the brain injury or were in fact just a

manifestation of his pre-existing ADHD difficulties, which were not exacerbated by the

accident.

24. Counsel further submitted that the court should have regard to the fact that these

were very substantial proceedings that were being brought on behalf of an infant

plaintiff who had severe learning and behavioural difficulties, whether or not they were

caused by the accident. The court was urged to have regard to the fact that he was a

person who came from a severely deprived background. He was a member of the

travelling community. Both his parents had spent time in prison as a result of criminal

convictions. These difficulties had been set out in some detail by the defendant’s

solicitor in his replying affidavit. It was submitted that in these circumstances the court 10

should have regard to the fact that the plaintiff would experience enormous difficulty

in obtaining the services of the expert witnesses from whom reports had been

commissioned, at the trial of the action. It was submitted that if the issue of liability

was determined as a stand-alone issue first and if that was found in favour of the

plaintiff, that would enable him to obtain funds on the basis of the award that he would

ultimately get with which he could secure the attendance of the expert witnesses

identified on the updated schedule of witnesses dated 14 January 2026.

25. It was submitted that the interests of justice and the saving of court time were

in favour of directing a modular trial, due to the fact that once the complex issues on

liability were determined, then the court could proceed to deal with the quantum issue

either on a whole life basis or on an interim basis, as it thought fit.

26. It was submitted that there was no prejudice to the defendant in hiving off the

issue of liability, which would include the question of whether or not the accident

happened by falling off a wall at all, from the complex issues of causation in relation to

the injuries, which would centre on three key aspects being (a) whether the plaintiff

suffered a brain injury on 15 June 2015, and, if so, (b) whether his ongoing behavioural

and cognitive difficulties were due to that brain injury, or were merely a manifestation

of his pre-existing ADHD, and, if so, (c) to what extent that condition had been

exacerbated by the injuries sustained in the accident.

27. It was submitted that the determination of the court on those issues of causation

of the physical injuries and the extent thereof, would dictate what amount of special

damages would be properly recoverable at the end of the day. 11

Submissions on behalf of the Defendant.

28. On behalf of the defendant, Mr. McCarthy SC submitted that the present case

raised questions of fraud, collusion and exaggeration which permeated both the issues

of liability and quantum. It was submitted that the credibility of the plaintiff's mother

and next friend and of his father and of the alleged independent witness, Mr. McC,

would be central to the determination of liability, and if necessary, to the issue of

quantum.

29. It was submitted that when the credibility of the infant’s parents was in issue, it

was essential that the defendant be allowed to cross-examine freely and fully across the

entire range of credibility issues in the case. This would involve a detailed examination

of what the plaintiff's mother and father had told various medical and other experts,

both for the plaintiff and for the defendant, who had been retained to provide reports in

the case.

30. Counsel submitted that there were a number of serious credibility issues that

arose in connection with the quantum aspects of the case. By way of example, he stated

that in September 2017, when the plaintiff was then aged seven years, he was brought

to a GP, Dr Donal McCarthy, for the purpose of that doctor examining him and

providing a certificate that he was in a fit condition to participate in the sport of

boxing. To that end, Dr McCarthy's clinical note reported that the plaintiff was "well

apart from ADHD". The doctor signed a certificate for the Irish Amateur Boxing

Association on 15 September 2017, in which it essentially recorded that the plaintiff

had no ongoing health issues other than the pre-existing condition of ADHD. In

particular, under the heading any history of fracture(s), it was recorded as "nil". This

certificate was dated and signed by the GP. 12

31. Counsel stated that the defendant had been furnished with a copy of the medical

notes made by the GP and with a copy of the certificate that he had signed on that

occasion. The defendant was currently carrying out investigations to see if, having

obtained that certificate, the plaintiff participated in the sport of boxing; and if so, to

what extent he participated in it in the years between 2017 and 2023, when he was

examined by Dr Declan O’Rourke.

32. Counsel pointed out that at section 3 of his medical report dated 24 September

2023, Dr O'Rourke had set out an extensive account of the plaintiff's premorbid

personality and difficulties and had given an equally extensive history of the plaintiff's

difficulties between the date of the accident and the date of that examination in

September 2023. At para. 3.18 the doctor had noted as follows: "He is unable to cycle

his bicycle. He has interest in boxing but is not allowed to box given his head injury.”

Thus, it would appear that Dr O'Rourke was told that the plaintiff was interested in

boxing, but was not able to participate in that sport due to his head injury. It does not

appear that Dr O'Rourke was told that in 2017, the plaintiff had actually attended with

a GP and had obtained a certificate that would have entitled him to participate in the

sport of boxing. Whether he did so, remains to be determined.

33. Counsel stated that the medical records disclosed that in January 2018, the

plaintiff's mother had told a consultant psychiatrist in Crumlin Children's Hospital that

the plaintiff had been in a coma for six days after the accident in June 2015. That would

not appear to be the case, as there is no mention of the plaintiff ever being in a coma in

the medical records that have been disclosed to date.

34. Counsel submitted that there was the evidence of Garda Cullinane in relation to

the two phone calls that had taken place while the plaintiff's mother and next friend was

in the women's prison in Mountjoy, in which the plaintiff's father was recorded as 13

having told the plaintiff's mother that he had made two substantial payments to a

witness, to ensure his attendance at the trial of the action.

35. Counsel stated that the defendant had two reports from a nursing care

consultant, Ms Perryman, wherein she had noted that the plaintiff had exhibited certain

behaviour when she met him in the company of his father; but that these behavioural

traits were entirely absent when she had met the plaintiff subsequently in the company

of his mother; suggesting that the plaintiff might have been following instructions as to

what behaviour to exhibit at the time of the first examination.

36. Counsel submitted that the claim for special damages made by the plaintiff in

these proceedings, had risen from a modest initial claim for travelling expenses of €900,

to a claim for €1500 when the action had been set down for hearing by the plaintiff;

which had risen further to an ultimate claim for slightly over €25m as set out in the

actuary’s report furnished on behalf of the plaintiff. It was submitted that the defendant

should be entitled to cross-examine on the legitimacy of that enormous special damages

claim before the trial judge reached a conclusion on the credibility of the plaintiff's

claim in relation to the liability aspects.

37. Counsel stated that it was also relevant by way of background that each of the

plaintiff's parents had been convicted and sentenced to terms of imprisonment for

crimes of dishonesty; namely offences connected to money laundering. It was

submitted that the defendant was entitled to explore the criminal history of the plaintiff's

parents as part of its cross examination of them.

38. It was submitted that if the defendant was to properly test the credit of the

plaintiff and his witnesses on liability, the defendant would have to call several of its

own medical witnesses to establish what statements were made by the plaintiff’s parents

to them when giving a history of his behavioural issues both pre and post-accident. It 14

was submitted that it would be entirely wasteful to have to call these witnesses twice;

once to give evidence as to what they were told by the plaintiff's parents at various

medical examinations and again in a subsequent module on quantum in relation to his

injuries and prognosis for the future.

39. In addition, it was submitted that it would be essential for the defendant to be

able to question Dr O'Rourke as to whether he was informed of (a) the examination

carried out by the GP in 2017 for the purpose of providing the certificate for the

Amateur Boxing Association; and (b) that he had been told by the plaintiff's next friend

that while the plaintiff had an interest in boxing, he had not been able to participate in

that sport due to a previous head injury. While it was accepted that the defendant did

not have any evidence that the plaintiff had engaged in boxing, its investigations in this

regard were continuing.

40. It was submitted that if it turned out to be the case that Dr O'Rourke had been

told that the plaintiff had not engaged in boxing, and if he had in fact engaged in that

sport, that would be highly relevant both as to what information was given to the doctor

and its effect on his subsequent opinion as to the causation of the sequelae of the brain

injury as given in his report. It was submitted that it was essential that the defendant be

given the opportunity to fully examine this aspect of the case by way of cross-

examination at the trial of the action.

41. Counsel pointed out that a claim for accommodation had been put forward in

the sum of approximately €1.4 million, but the reality was that the plaintiff’s parents

were on the housing list maintained by the defendant. When requested to provide details

of what enquiries or actions they had taken to secure housing from the defendant, they

had refused to state what steps they had taken in this regard. 15

42. In summary, counsel stated that the defendant resisted this application for a

modular trial on the basis that if that was done, its forensic examination of the credibility

of the plaintiff and his witnesses would be severely prejudiced.

43. Even if the defendant was allowed to roam far and wide in its cross examination

of the plaintiff's parents and other witnesses, it would have to call a number of its own

witnesses to prove what the plaintiff’s mother or father had told them in the course of

various medical examinations. It was submitted that this would lead to enormous waste

of both court time and costs if it were necessary for these witnesses to be called twice,

once on the credibility issue as part of the liability module and a second time in the

course of the quantum module.

44. It was submitted that in all the circumstances of this case, the court should direct

that the trial of the action should proceed in the usual way as a unitary trial.

The Law.

45. The test which should be applied when a court is asked to consider directing a

modular trial has been set down in a number of well-known cases: see Cork Plastics

(Manufacturing) v Ineos Compound UK Limited [2008] IEHC 93; McCann v Desmond

[2010] 4 IR 554; Weavering Macro Fixed Income Fund Limited (In Liquidation) v PNC

Global and Ors. [2012] IESC 60; and IT (A Minor) v HSE [2025] IECA 291.

46. It is not necessary to review these cases in extenso. The statement of principles

that was given by Charleton J in the McCann case has been referred to with approval in

a number of subsequent cases. The court is satisfied that this represents a correct

statement of the principles that have to be applied by this Court when determining this

application. 16

47. In the McCann case Charleton J set out these principles at para.7 of his judgment

as follows:

“Therefore, given that the default position is a full hearing, I believe that the

questions which would naturally address themselves to the mind of a court in

considering an application such as this for a modular hearing, would include:-

(1) Are the issues to be tried by way of a preliminary module, readily

capable of determination in isolation from the other issues in dispute

between the parties? A modular order should not be made if the case

could be characterised as an organic whole, the taking out from which

of a series of issues would tear the fabric of what the parties need to

litigate, so that the case of either of the plaintiff or the defendant would

be damaged through being seen in the isolated context of a hearing on

a number of limited issues.

(2) Has a clear saving in the time of the court and the costs that the

parties might have to bear been identified? The court should not readily

embark on a modular hearing simply because of a contention that a

saving in time and costs has been identified, but rather it should view

that factor in the context of the need to administer justice in the entire

circumstances of the case.

(3) Would a modular order result in any prejudice to the parties? If, for

instance, the issue as to what damage was occasioned by reason of the

wrong alleged by the plaintiff was so intricately woven in to the proofs

that were necessary to the proof of liability for the wrong, so that the 17

removal of the issue of damages would undermine the strength of the

plaintiff's case, or the response which a defendant might make to it, then

the order should not be made.(4) Is a motion a device to suit the moving

party or does it genuinely assist the litigation by being of help to the

resolution of the issues? I return to the idea that a judge should always

be aware that tactical decisions are made, often out of an abundance of

enthusiasm, by parties to litigation, who may seek to put the other party

at a disadvantage through the obtaining of an order under the Rules of

the Superior Courts 1986, or one capable of being made within the

inherent jurisdiction of the court. Obvious examples of pre-trial motions

that may merely be tactical are motions to strike out proceedings as

being vexatious or frivolous or to seek an order for security for costs

under s. 390 of the Companies Act 1963. Other instances include the

lengthy arguments that can sometimes ensue in relation to discovery. If

the removal of issues to a modular hearing is likely to disadvantage the

proper process of pre-trial preparation that discovery orders, notices

for particulars and notices to admit facts involve, then such a motion

should be refused as resulting not from a genuine process that will assist

the trial but for tactical reasons related to wrong footing the other

party.” 18

Discussion and Conclusions.

48. This case has a number of complexities. There are allegations of fraud, collusion

and exaggeration. Leaving aside the hotly contested issue of liability, almost every

aspect of the claim for damages is in issue.

49. With the exception of the existence of a skull fracture, almost every other aspect

of the injuries alleged to have been suffered by the plaintiff, is contested. It is denied

that the plaintiff suffered any brain injury; the extent of that injury is contested. It is

denied that the plaintiff's hearing loss is referable to the accident. It is denied that the

plaintiff's behavioural and cognitive difficulties are due to the accident. It is alleged that

these difficulties stem from his pre-existing ADHD diagnosis and/or are due to his

social and family circumstances.

50. There is an allegation that the plaintiff and his parents have engaged in

deliberate exaggeration of his symptoms both in the accounts given to their own doctors

and in the accounts given to the medical experts retained on behalf of the defendant. It

is alleged that this was done with a view to wrongly obtaining a very large award of

damages on behalf of the plaintiff.

51. It is alleged that the consequential claim for special damages is also tainted by

fraud and exaggeration.

52. It is fair to say that every conceivable aspect of the plaintiff's claim is

contested. The only matters that do not appear to be contested are (a) that the plaintiff

resided at the halting site; (b) that he was five years of age in June 2015; and (c) that he

suffered a skull fracture as demonstrated on the CT scan taken on the evening of 15

June 2015.

53. In these circumstances, it would appear that the following are the issues that

will have to be determined at the trial of the action: on the liability aspect of the case 19

the court will have to determine (i) did the plaintiff sustain his skull fracture by falling

off a wall as he alleges, or did it happen from some other cause, perhaps because he fell

off a horse, or was kicked by it?; (ii) have the plaintiff's parents colluded with a third

party with a view to having him give false evidence on behalf of the plaintiff?; (iii) if

the plaintiff’s skull fracture is found to have been caused by a fall from the wall, was

that caused or contributed to by the negligence and breach of duty of the defendant, its

servants or agents?; (iv) was there any contributory negligence on the part of the

plaintiff's parents for failing to properly supervise him on the day of the accident?

54. If some finding of liability is made against the defendant, the following issues

arise for determination in relation to quantum: (v) what injuries did the plaintiff suffer

as a result of the fall from the wall? In particular, did he suffer a brain injury; and if so,

what effects has that brain injury given rise to to date and what effects will there be for

the plaintiff into the future?; (vi) did the plaintiff return to or commence boxing in 2017;

and, if so, what effect did that have on his brain injury?; (vii) was the plaintiff’s hearing

loss caused or contributed to by the injuries sustained in the accident?; (viii) were the

plaintiff's pre-existing behavioural difficulties and/or ADHD exacerbated by the

injuries sustained in the accident? If they were, what was the extent of that

exacerbation?; (ix) what are the plaintiff's current behavioural and cognitive

difficulties? To what extent, if any, are these difficulties referable to the injuries

sustained in the accident?; (x) what is the future prognosis for the plaintiff in terms of

his symptoms and disability?; (xi) has the plaintiff and/or his parents attempted to

mislead their own medical experts and/or the defendant’s medical experts and/or the

court, with a view to exaggerating the plaintiff’s symptoms and disability?; (xii) what

financial losses and expenses has the plaintiff suffered to date and what losses and

expenses will he suffer into the future, either on an interim or whole life basis? 20

55. It is against that background that the court must decide whether it is appropriate

to direct that there should be a modular trial as sought by the plaintiff.

56. The default position in Irish law is that there should be a unitary trial. In ruling

on this issue the test laid down in the authorities essentially boils down to the following

questions: (1) Are the issues to be tried by way of separate modules readily capable of

determination in isolation from the other issues in dispute between the parties?; (2) Has

a clear saving in terms of court time and costs that the parties might have to bear been

identified as resulting from a modular trial?; (3) Would a modular trial result in any

prejudice to any of the parties?; (4) Is the application seeking a modular trial a device

to suit the moving party, or does it genuinely assist the litigation by being of help to the

resolution of the issues therein?

57. Having considered the circumstances in this case and the arguments of counsel,

I am satisfied that it is not in the interests of justice to direct that there be a modular

trial of this action.

58. I have reached this conclusion for the following reasons: First, I accept the

submission of counsel for the defendant that where there are serious issues in relation

to the credibility of the plaintiff and his witnesses, and in particular of his parents, it is

essential in the interests of fairness that the defendant should have the opportunity at

the trial to test the credibility of the plaintiff and his witnesses to the fullest possible

extent.

59. I am satisfied that were I to direct that the issues concerning liability were to be

tried first, that would put the defendant at a forensic disadvantage, if it were not able to

cross-examine effectively on alleged untruths told by the plaintiff’s parents as part of

the claim to damages. 21

60. Alternatively, if counsel was given the opportunity to cross-examine on all

issues in the course of the liability module, that would entail the defendant calling a

number of its medical and other witnesses twice. They would have to give evidence in

the liability module on what the plaintiff’s parents told them at various examinations.

They would have to return to give evidence in the quantum module as to their opinion

on his past, present and future health difficulties. That would be wasteful of court time

and would add greatly to the length and cost of the action.

61. If the liability module were to be tried first, the plaintiff’s counsel has indicated

that he would only propose calling the five witnesses as to fact and the plaintiff’s

engineer as identified on their witness schedule. That would deprive the defendant of

examining in a proper manner what information, if any, was given to Dr O’Rourke in

2023, about the plaintiff’s boxing activities since 2017, if it is established that such

activities took place.

62. If it transpires that the plaintiff commenced boxing in 2017 and pursued that

sport during the period 2017-2023, but that Dr O’Rourke had been informed that the

plaintiff had not participated in that sport, that would have two serious consequences:

it would show that the plaintiff’s parents were holding back important information from

Dr O’Rourke; and secondly, it would call into question the conclusions expressed by

Dr O’Rourke in his report as to the existence, severity and causation of the brain injury.

The defendant would be prejudiced at the hearing of the action if it could not explore

this credibility issue as part of the liability issue.

63. I hold that where issues of credibility permeate across the entire spectrum of the

issues that arise for determination in a trial, as they do in this case, it is not appropriate

to direct a modular trial. 22

64. I hold that the defendant would be severely prejudiced in the conduct of its

defence at the trial of the action, if the liability issues were to be determined in the

absence of a full examination of the credibility issues which arise in the quantum

module.

65. I hold that even if the defendant could cross-examine on all credibility issues,

both on liability and quantum as part of the liability module, that would involve the

defendant calling some of its witnesses twice, which would do the opposite of leading

to a saving of court time and costs.

66. I am satisfied that in directing a unitary trial the plaintiff will not be prejudiced

in the conduct of his action at the trial thereof. While I accept the submission that the

infant plaintiff is a person of limited financial means and that obliging him to call all

his witnesses as part of a unitary trial, may present considerable difficulty for him; I am

satisfied that were I to direct a modular trial, which would be in ease of the plaintiff

from a financial point of view, it would present a very significant prejudice to the

defendant and may even deprive it of obtaining a fair hearing at the trial of the action.

67. For these reasons, I refuse the reliefs sought at para. 1 of the plaintiff’s notice

of motion dated 22 May 2025.

Should the Assessment of Damages be on a Whole Life or Interim Basis?

68. The second relief sought by the plaintiff in his notice of motion is an order

directing that the assessment of damages in this case should take place on an interim

basis. This means that the assessment of damages at the trial would only consider the

past personal injuries, loss and damage suffered by the plaintiff from the date of the 23

accident to the date of the hearing and in addition, would consider his future pain and

disability and losses and other expenses for a period of five years into the future.

69. The plaintiff asserts that it is reasonable to proceed on this basis as the plaintiff

is currently 15 years of age. It is asserted that the full extent of his disability and

consequential care needs and the costs thereof will not be known until the plaintiff has

attained full age. It was submitted that at that time, the court should be in a position to

fairly assess the level of damages that would be appropriate to deal with his care needs

and other requirements on a whole life basis.

70. In resisting that application, it was submitted on behalf of the defendant that

where the plaintiff has already obtained extensive medical reports and where an

actuary’s report has been obtained which details his anticipated losses and expenses on

a whole life basis, it is appropriate that the plaintiff should proceed with his action as

part of a unitary action and claim damages on a whole life basis. It was further submitted

that the plaintiff should be obliged to furnish full particulars of his claim for special

damages on a whole life basis at this stage, so that the defendant can be aware of the

claim that is being made and can investigate it fully.

71. Whether it is appropriate to direct that damages should be assessed on a whole

life basis or on an interim basis, essentially turns on whether it is possible at the time

that the action comes on for hearing for the plaintiff to be aware of his likely future

level of disability and consequential care requirements. If it is the case that these cannot

be properly ascertained until some date in the future because an accurate prognosis

cannot be given until that time, then it is not appropriate to expect the plaintiff to have

to plead and prove his case on a whole life basis. In those circumstances, it is

appropriate that the court should make an interim assessment of damages and should

revisit the matter when the medical experts are in a position to give an accurate 24

prognosis as to the plaintiff’s future level of disability and in relation to his

consequential care requirements. It is only when that is ascertained, that the actual

financial cost of providing that care and assistance can be properly assessed.

72. In cases involving serious injuries to infants, it is often appropriate for the court

to engage in an interim assessment at the initial stage and defer the final assessment of

damages for some years. This is usually done when the infant plaintiff is reasonably

young, and it is not known at that time whether he or she will reach certain

developmental and educational milestones. It is only when these milestones have been

reached and it is known whether or not the particular plaintiff has achieved the usual

milestones for their age, that an accurate prognosis can be given by the medical experts

as to the level of disability likely to be suffered by the plaintiff for the remainder of his

or her life.

73. In this case the accident happened over ten years ago on 15 June 2015. The

infant plaintiff is now almost 16 years of age. I have reviewed the medical report

furnished by Dr Declan O’Rourke dated 24 September 2023. It sets out the plaintiff’s

current level of disability. It also gives a firm opinion as to the level of disability that

will be suffered by the plaintiff into the future. There is no question in that report of

there being a necessity of waiting until the plaintiff either reaches his age of majority,

or until some further date beyond that, before a definitive prognosis can be given as to

his likely level of disability into the future.

74. In the absence of any such caveat, I hold that the level of the plaintiff’s injury

and ongoing disability, whatever about the issue in relation to its causation, has been

determined to such an extent that it is appropriate that the assessment of damages should

take place on a whole life basis. Accordingly, I refuse to direct that the assessment of 25

damages should be carried out on an interim basis as sought at para. 2 of the plaintiff’s

notice of motion dated 22 May 2025.

75. Having said that, I am not the judge who will have seisin of the trial of the

action. I am merely dealing with an interlocutory application which has to be

determined some months prior to the likely date of the hearing of the action. The trial

judge has an overriding jurisdiction to ensure that the trial is fair. If he/she comes to the

conclusion that it is not possible to properly assess damages on a whole life basis, he or

she in their capacity as trial judge, is always free to revisit this issue.

The Defendant’s Motion Seeking Particulars of Special Damage.

76. Finally, the court must deal with the defendant’s motion seeking an order

directing the plaintiff to provide full and detailed particulars of the plaintiff’s claim for

special damages. This relief is sought pursuant to the defendant’s notice of motion dated

25 November 2024.

77. Having regard to the conclusions reached by the court above in relation to the

refusal to direct that the assessment of damages should take place on an interim basis,

I am satisfied that as damages will be assessed on a whole life basis, the defendant is

entitled to be formally put on notice of what level of damages is claimed by the plaintiff

in this regard.

78. While the defendant has been furnished with a copy of the plaintiff’s actuary’s

report, which sets out the opinion of the actuary as to the capital value of the losses and

care costs that will be incurred by the plaintiff for the remainer of his life, that does not

constitute a formal pleading of the level of special damages that are claimed in this

regard. Accordingly, I will accede to the defendant’s request for an order as per para. 1 26

of its notice of motion dated 25 November 2024. I direct that the plaintiff is to furnish

full particulars of his claim to special damages both to date and into the future within

eight weeks of perfection of the court’s order.

79. The second relief sought by the defendant in its notice of motion is an order

directing the plaintiff to reply to the letter sent by the defendant’s solicitor to the

plaintiff’s solicitor on 24 October 2024. In that letter, the plaintiff was asked to provide

information as to whether the plaintiff’s mother and next friend and father had engaged

with the defendant in relation to the provision of housing to them. The relevant parts of

the letter are in the following terms:

“It appears from the housing needs reports furnished by the plaintiffs that it is

the wish of the plaintiff’s family to reside in the Kildare area. We understand

from our clients that the McInerney family remain on the active social housing

list in Kildare but that the family have not engaged with the council in any way

since 2023. You might please advise whether your clients propose to engage

with Kildare County Council with a view to seeking social housing support in

the Kildare area.”

80. I am satisfied that having regard to the level of damages that are sought in

respect of accommodation needs which vary between €1.3m/€1.4m, it is reasonable that

the plaintiff’s next friend should respond to this query.

81. Accordingly, I direct that the plaintiff through his next friend is to respond to

the defendant’s solicitor’s letter dated 24 October 2024 within eight weeks of perfection

of the court’s order. 27

Proposed Final Orders.

82. Having regard to the findings contained in this judgment, it would appear that

the final orders should provide as follows: (a) Refuse the relief sought by the plaintiff

at paragraph 1 of his notice of motion dated 22 May 2025; (b) Refuse the relief sought

by the plaintiff at paragraph 2 of his notice of motion dated 22 May 2025; (c) In relation

to the defendant’s motion further to its notice of motion dated 25 November 2024, direct

that the plaintiff is to provide full particulars of his claim for special damages on a

whole life basis within eight weeks of perfection of the court’s order; (d) Direct that the

plaintiff is to reply to the letter from the defendant’s solicitor dated 24 October 2024

within eight weeks of perfection of the court’s order.

83. As this judgment is being delivered electronically, the parties shall have two

weeks within which to furnish brief written submissions of not more than 1,000 words

on the terms of the final orders and on costs and on any other matters that may arise.

84. The matter will be listed for mention on 4 March 2026 at 10.30 hours for the

purpose of making final orders.