Where a plaintiff fails to make out a prima facie case, defendants to professional negligence actions and their insurers may be in a position at the end of the plaintiff’s evidence to make an application for non-suit.  A recent decision of the Supreme Court has reinforced the need for a trial court to consider a plaintiff’s evidence at its best before concluding that there is no case for a defendant to answer in evidence. 

Murphy v Callaghan was a professional negligence action against a firm of solicitors.  The High Court dismissed the plaintiff’s case at the close of her evidence, holding that in a non-suit application there must be credible and reliable evidence raising a case for defendants to answer but that, in this case, the plaintiff’s evidence was confused, unreliable and, in part not credible. It found that expert evidence fell away under cross-examination and held that there was no prima facie negligence. 

On appeal, the Supreme Court held that it was for the High Court to assess whether there was any evidence from which negligence could be inferred or any evidence upon which a court could conclude that a defendant was liable - regardless of its relative cogency or strength. 

In allowing the appeal, it referred to numerous examples of the plaintiff’s case not having been taken at its highest by the High Court. With regard to the ‘falling away’ of the expert’s evidence, this was based on assertions by counsel for the solicitors about contradicting evidence that would be given but which was not called. It also found that, while the plaintiff’s credibility could be a factor, it could not effectively be a reason to dismiss the appeal where a court is required to take the appellant’s case at its highest. It concluded that the High Court erred in failing to have due regard to the evidence adduced and remitted the matter back to the High Court.