Liability to Visitors
Occupiers’ Liability Act, 1995
Interpretation.
1.—(1) In this Act, unless the context otherwise requires—
“damage” includes loss of property and injury to an animal;
“danger”, in relation to any premises, means a danger due to the state of the premises;
“entrant”, in relation to a danger existing on premises, means a person who enters on the premises and is not the sole occupier;
“injury” includes loss of life, any disease and any impairment of physical or mental condition;
“occupier”, in relation to any premises, means a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and the particular danger thereon and whether, as respects each of them, the entrant concerned is a visitor, recreational user or trespasser;
“premises” includes land, water and any fixed or moveable structures thereon and also includes vessels, vehicles, trains, aircraft and other means of transport;
“property”, in relation to an entrant, includes the property of another in the possession or under the control of the entrant while the entrant is on the premises of the occupier;
“recreational activity” means any recreational activity conducted, whether alone or with others, in the open air (including any sporting activity), scientific research and nature study so conducted, exploring caves and visiting sites and buildings of historical, architectural, traditional, artistic, archaeological or scientific importance;
“recreational user” means an entrant who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to section 16 (1) of the National Monuments Act, 1930 , but not including an entrant who is so present and is—
(a) a member of the occupier’s family who is ordinarily resident on the premises,
(b) an entrant who is present at the express invitation of the occupier or such a member, or
(c) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member;
“trespasser” means an entrant other than a recreational user or visitor;
“visitor” means—
(a) an entrant, other than a recreational user, who is present on premises at the invitation, or with the permission, of the occupier or any other entrant specified in paragraph (a), (b) or (c) of the definition of “recreational user”,
(b) an entrant, other than a recreational user, who is present on premises by virtue of an express or implied term in a contract, and
(c) an entrant as of right,
while he or she is so present, as the case may be, for the purpose for which he or she is invited or permitted to be there, for the purpose of the performance of the contract or for the purpose of the exercise of the right, and includes any such entrant whose presence on premises has become unlawful after entry thereon and who is taking reasonable steps to leave.
(2) In this Act—
(a) a reference to a section is to a section of this Act, unless it is indicated that reference to some other enactment is intended,
(b) a reference to a subsection is to the subsection of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and
(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act.
Replacement of common law rules.
2.—(1) Subject to section 8 , the duties, liabilities and rights provided for by this Act shall have effect in place of the duties, liabilities and rights which heretofore attached by the common law to occupiers of premises as such in respect of dangers existing on their premises to entrants thereon.
(2) This Act does not apply to a cause of action which accrued before the commencement of this Act.
Duty owed to visitors.
3.—(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5 .
(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.
Duty owed to recreational users or trespassers.
4.—(1) In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (“the person”) a duty—
(a) not to injure the person or damage the property of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person,
except in so far as the occupier extends the duty in accordance with section 5 .
(2) In determining whether or not an occupier has so acted with reckless disregard, regard shall be had to all the circumstances of the case, including—
(a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
(b) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;
(c) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;
(d) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;
(e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing;
(f) the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity;
(g) the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;
(h) the nature of any warning given by the occupier or another person of the danger; and
(i) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other’s activities.
(3) (a) Where a person enters onto premises for the purpose of committing an offence or, while present thereon, commits an offence, the occupier shall not be liable for a breach of the duty imposed by subsection (1) (b) unless a court determines otherwise in the interests of justice.
(b) In paragraph (a) “offence” includes an attempted offence.
(4) Notwithstanding subsection (1), where a structure on premises is or has been provided for use primarily by recreational users, the occupier shall owe a duty towards such users in respect of such a structure to take reasonable care to maintain the structure in a safe condition:
Provided that, where a stile, gate, footbridge or other similar structure on premises is or has been provided not for use primarily by recreational users, the occupier’s duty towards a recreational user thereof in respect of such structure shall not be extended by virtue of this subsection.
Modification of occupiers’ duty to entrants.
5.—(1) An occupier may by express agreement or notice extend his or her duty towards entrants under sections 3 and 4 .
(2) (a) Subject to this section and to section 8 , an occupier may by express agreement or notice restrict, modify or exclude his or her duty towards visitors under section 3 .
(b) Such a restriction, modification or exclusion shall not bind a visitor unless—
(i) it is reasonable in all the circumstances, and
(ii) in case the occupier purports by notice to so restrict, modify or exclude that duty, the occupier has taken reasonable steps to bring the notice to the attention of the visitor.
(c) For the purposes of paragraph (b) (ii) an occupier shall be presumed, unless the contrary is shown, to have taken reasonable steps to bring a notice to the attention of a visitor if it is prominently displayed at the normal means of access to the premises.
(3) In respect of a danger existing on premises, a restriction, modification or exclusion referred to in subsection (2) shall not be taken as allowing an occupier to injure a visitor or damage the property of a visitor intentionally or to act with reckless disregard for a visitor or the property of a visitor.
(4) In determining for the purposes of subsection (3) whether or not an occupier has acted with reckless disregard, regard shall be had to all the circumstances of the case including, where appropriate, the matters specified in subsection (2) of section 4 .
(5) Where injury or damage is caused to a visitor or property of a visitor by a danger of which the visitor had been warned by the occupier or another person, the warning is not, without more, to be treated as absolving the occupier from liability unless, in all the circumstances, it was enough to enable the visitor, by having regard to the warning, to avoid the injury or damage so caused.
Duty of occupiers towards strangers to contracts.
6.—(1) The duty which an occupier of premises owes to an entrant under this Act shall not be capable of being modified or excluded by a contract to which the entrant is a stranger, whether the occupier is bound by the contract to permit the entrant to enter or use the premises or not.
(2) For the purposes of this section, an entrant shall be deemed to be a stranger to a contract if the entrant is not for the time being entitled to the benefit of the contract as a party to it or as the successor by assignment or otherwise of a party to it, and, accordingly, a party to the contract who has ceased to be so entitled shall be deemed to be a stranger to the contract.
(3) This section applies to contracts entered into before the commencement of this Act, as well as to those entered into after such commencement.
Liability of occupiers for negligence of independent contractors.
7.—An occupier of premises shall not be liable to an entrant for injury or damage caused to the entrant or property of the entrant by reason of a danger existing on the premises due to the negligence of an independent contractor employed by the occupier if the occupier has taken all reasonable care in the circumstances (including such steps as the occupier ought reasonably to have taken to satisfy himself or herself that the independent contractor was competent to do the work concerned) unless the occupier has or ought to have had knowledge of the fact that the work was not properly done.
Saver.
8.—Nothing in this Act shall be construed as affecting any enactment or any rule of law relating to—
(a) self-defence, the defence of others or the defence of property,
(b) any liability imposed on an occupier as a member of a particular class of persons including the following classes of persons:
(i) persons by virtue of a contract for the hire of, or for the carriage for reward of persons or property in, any vessel, vehicle, train, aircraft or other means of transport;
(ii) persons by virtue of a contract of bailment; and
(iii) employers in respect of their duties towards their employees, or
(c) any liability imposed on an occupier for a tort committed by another person in circumstances where the duty imposed on the occupier is of such a nature that its performance may not be delegated to another person.
Short title and commencement.
9.—(1) This Act may be cited as the Occupiers’ Liability Act, 1995.
(2) This Act shall come into operation one month after the date of its passing.
Cases
Christina Curran v Simon Lapedus
Child entrant Pre-1995 Act
High Court
23 February 1939
[1939] 73 I.L.T.R 89
O’Byrne J.
O’Byrne, J.: I have come to the conclusion that the plaintiff in this case has not established his cause of action. The plaintiff’s claim was based partly on negligence and partly on nuisance. In so far as it was based on nuisance, no cause of action has been shown. In so far as it was based on negligence, the plaintiff has succeeded to the extent of showing that she has suffered damage, but she has not been able to attribute that damage to any breach of duty on the part of the defendant.
The structure which the defendant maintained around the area of his house at No. 30 Queen Street was doubtless not very elegant or artistic, but in deciding this case. I must have regard to the nature of the property, and to its situation and environment. This was a tenement house in a district where there are many such houses. It is, in my opinion, no part of the duty of the owner of such a house to provide for the fencing of the area by means of expensively constructed railings, which might involve a cost out of all proportion to the value of the house itself. The actual structure used to fence the area of No. 30 Queen Street was, in my opinion, reasonably fit for the purpose for which it was intended, that is, as a reasonable protection to persons using the highway and the approach to the house. One of the plaintiff’s own witnesses stated that the railings were strong enough to prevent any person, who might accidentally stumble against them, from falling into the area. Therefore it only remains for me to consider whether or not the defendant was negligent in the care and maintenance of this structure.
I assume that it was the defendant’s duty to take reasonable care to maintain the railings in good order, so that they should remain fit for their purpose, and to prevent them, if damaged or rendered defective, from continuing so, and constituting a source of danger to the public. The question then is, did the defendant discharge this duty? I think he did. A number of witness called by the plaintiff gave evidence that they had seen a hole in that part of the railings where the accident occurred, some weeks or even months previous to the accident, and they said that the hole had remained there continuously up to the time of the accident without ever having been mended. I do not think that this evidence was deliberately intended to mislead, but I think it was mistaken; and it does not, in my view of the evidence, represent the true facts. The witness whose evidence. I accept as really accurate is the old lady who lived in the front parlour of the house facing No. 30. She had the railings in question under her eyes practically all the time, and according *91 to her evidence, the railings had in fact been broken about fourteen days before the accident, and had been mended again, and had then remained in good order and without being further damaged until the morning of the day of the accident. She described what she saw happening that morning two boys, apparently on their way to school, engaged in a scuffle in the immediate vicinity of the railings. One of the boys was dragging at the other, and the latter, in order to hold his ground, caught hold of one of the laths or slats of the area rail, and between them they pulled it out. When they saw what they had one, they threw the broken pieces down into the area, and went on their way. I am satisfied that this is what actually occurred. It happened only a few hours before the accident, which occurred at about three o’clock that afternoon; and assuming that defendant was exercising all reasonable care and diligence in the maintenance of his property, on these facts an excessive interval of time had not elapsed between the breaking of the railings and the accident. A reasonable interval must be allowed, in which an owner of property, using reasonable care to maintain it in a safe condition, may become aware of defects which render it unsafe, and put it into proper order again; he is not to be expected to keep his property under constant surveillance.
In the present case, the defendant did use reasonable care to keep his property safe. He visited it in person at least once a week, if not oftener, and he employed a man whose duty it was to inspect it at regular intervals and repair it when necessary, and the latter appears in fact to have made his visits of inspection about twice every week, and to have carried out all necessary repairs in a satisfactory manner. It seems to me that the defendant has taken reasonable steps to maintain the railings in a proper condition of safety, and did so maintain them to the best of his ability, and I am not satisfied that the plaintiff has established that the injuries of which she complains were due to any negligence or other default on the part of the defendant.
[The appeal was allowed and the action dismissed, the defendant, however, waived his claim to costs, and, by consent, an order was made for a dismiss with no rule as to costs.]
Morley v. Eye, Ear and Throat Hospital Incorporated.
[1967] I.R. 143
Liability to Invitee
O’Dalaigh C.J.; Haugh J.; Walsh J. 144
Supreme Court
O’DALAIGH C.J. :
I have read the judgment about to be delivered by Mr. Justice Walsh and I agree with it.
HAUGH J. :
I have also read that judgment and agree with it.
WALSH J. :
The plaintiff, who is 50 years old, is an employee of a cleaning firm in Cork which has cleaning contracts for several large buildings in Cork including the hospital building of the defendants. On the 4th January, 1965, the plaintiff was, in the course of her said employment, engaged in cleaning work, namely, washing and polishing a staircase which was covered with linoleum. On one of the steps of the stairs the linoleum, which was laid on the stairs in the form of a separate piece tacked on to each step, was loose, and while the plaintiff was working upon the stairs she turned around in the course of her dusting and caught her foot in the loose piece of linoleum and fell and sustained the injuries for which she has claimed damages. Some few weeks before the accident she had noticed that this piece of linoleum was loose as were other pieces on the same staircase, according to her, and she made a complaint to a member of the hospital staff about it, as she considered it was dangerous. She also stated in evidence that she had reminded the hospital employee on a number of occasions that the linoleum was still loose. The employee in question was the hall porter of the hospital. She added that, on the particular day when she had the accident while working on the staircase, she had forgotten about the linoleum being still loose, meaning, presumably, that at the moment she turned upon the step she forgot about it because she said she had noticed it when she had actually been washing the stairs.
At the conclusion of the evidence in the case the learned trial judge acceded to the application of counsel for the defendants to withdraw the case from the jury on the grounds that the jury could not reasonably hold that the defendants were negligent because of the plaintiff’s admission of her knowledge of the condition of the linoleum. Both the application and the ruling appear to have been based upon the assumption that the duty of the defendants to the plaintiff was discharged once she had knowledge of the danger.
For the reasons given by this Court in O’Donoghue v.Greene (1) knowledge on the part of the plaintiff, whether imparted to her by the defendants or independently possessed by her, would not excuse the defendants unless she could by virtue of such knowledge efficiently carry out her work of cleaning the stairs without exposing herself to the risk of injury. It would also appear from the transcript that there was some impression that the question of whether a danger is an unusual danger or not is to be determined by the particular invitee’s knowledge of it. It is unnecessary to go into this matter at length as it is fully dealt with in O’Donoghuev. Greene (1) and it is sufficient to say that the question of the particular invitee’s knowledge of the danger is not the factor which determines whether it is or is not an unusual danger. The question of the particular invitee’s knowledge goes to determine whether the danger may have ceased to be a danger once the knowledge of it has been acquired or whether it may continue to be a danger even with the knowledge of it. On the hearing of this appeal counsel for the defendants rightly conceded that knowledge on the part of the plaintiff was not of itself sufficient to exonerate the defendants.
The presence of loose linoleum on the stairway of a hospital could only be regarded as a danger which is unusual. There was therefore a duty cast upon the defendants to use reasonable care to prevent damage to the plaintiff. Ordinarily the question of whether or not such reasonable care was taken and whether or not there was contributory negligence on the part of the plaintiff must be determined by a jury as a matter of fact. If the evidence in this case was such that by reason of the very fact of knowledge of the danger on the part of the plaintiff the danger ceased to be a danger and that no jury could reasonably hold otherwise, the case would properly have been withdrawn from the jury on the grounds that there could not be a finding of negligence against the defendants. When one considers, however, that the plaintiff was a person who was engaged in working upon the stairs and therefore was one whose attention was occupied, partly at least, by the work upon which she was engaged, the question to be examined is whether, even with knowledge of the state of the staircase, it continued to be a danger by reason of the fact that the plaintiff was engaged in cleaning it and could not therefore be expected to give her whole attention to the condition of the stairs; and whether, therefore, she could efficiently carry out her task of cleaning the stairs without exposing herself to risk of injury. If she could not, then the defendants had not taken all reasonable care and it is clear in such circumstances that knowledge in itself, even if brought to the notice of the plaintiff by the defendants, would not be sufficient. On the state of the evidence in this case the question is one which can be determined only by a jury whose function it would be to determine whether or not knowledge in this case was sufficient to remove the danger or whether the defendants failed to take such further reasonable care as the circumstances required and, if the defendants were guilty of a failure of that duty, to decide whether the plaintiff was also guilty of negligence. In my view the evidence in this case was such that a jury, if it answered the first question in the affirmative, might reasonably answer the second question in the affirmative or in the negative. For that reason I am of the view that matters should have been left to the jury and that this appeal should be allowed and a new trial directed.
BUDD J. :
I agree.
FITZGERALD J. :
I agree.
James Doyle v Dermott B. Magill
High Court
11 March 1999
[1999] 2 I.L.R.M. 66
(McCracken J)
McCRACKEN J
delivered his judgment on 11 March 1999 saying: This is an action for damages for personal injuries suffered by the plaintiff when he fell into a basement area forming part of the defendants premises. The circumstances surrounding the accident are reasonably simple. The plaintiff is a substantial farmer and lives about a mile from the house where the accident took place. The defendants premises, which are known as Churchtown House, Beaufort, County Kerry, were not at the time actually occupied by the defendant, but were occupied by a farm manager employed by him, namely a Mr Timothy Thompson.
To understand what occurred, it is necessary to describe the defendants premises. It is an old Georgian house standing three storeys over basement with a farmyard at the rear of the house. There is a driveway from the road which leads on to a large gravelled area stretching across the entire front of the house. The house itself is double fronted with a hall door in the middle. Between the gravelled area and the house itself there is a flower bed with roses in it on each side of the hall door, which at the relevant point was about three feet two inches in width. The flower bed on the gravelled side is edged with stones up to three inches in height and on the far side of the flower bed there is a row of bricks laid flat. Beyond this there is a sunken area, described by some witnesses as a moat, approximately three feet in width with a drop of five feet seven inches. This area is clearly there to allow light to penetrate through the windows of the basement. The entrance to the house consists of two steps up from the gravelled area onto what is in effect a bridge over the basement area leading to the front door. There are two large windows on the ground floor on each side of the entrance.
On the evening of 2 January 1992 Mr Thompson gave a New Years party for some of the neighbours, and the plaintiff and his wife were invited. They arrived at the defendants house at about 8.00 p.m. and parked the car on the gravel facing in towards the house in front of one of the ground floor windows. The front of the car was up against the rose-bed. It was, of course, dark when they arrived, and there were no lights on in the basement, although there were lights in the ground floor rooms. There was also a light immediately above the front door. The plaintiff and his wife left the party at about 11.00 p.m. The plaintiff walked over to his car, leaving his wife talking to a neighbour at the front door. He opened the passenger door of the car, which was on the side nearest to the front door, and then started to walk across the front of the car to get to the drivers door. This, of course, entailed him walking on to the rose-bed and, while what happened then is not altogether clear, he either tripped or slipped on a loose stone and fell into the area in front of the basement. He *69 suffered a painful injury to his right ankle, which fortunately has cleared up, and he also suffered injuries to his back which it is claimed have seriously restricted his farming activities since. It should be noted that this accident took place prior to the coming into force of the Occupiers Liability Act 1995, which Act does not apply to a cause of action which accrued before its commencement. Accordingly, the liability of the defendant falls to be determined under the pre-existing common law rules.
It is agreed that the common law position in relation to an invitee is that set out in the judgment of Willes J in Indermaur v. Dames (1866) LR 1 CP 274 at p. 288 where he said:
with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact.
The law since Indermaur v. Dames was considered by the Supreme Court in some detail in ODonoghue v. Greene [1967] IR 40, where the plaintiff had fallen down stairs leading to the basement portion of a public house in circumstances where there was no handrail on the stairs. In the High Court, the learned trial judge had withdrawn the case from the jury, and accordingly, the decision in the Supreme Court only related to whether the case ought to have been left to the jury to decide whether, in the particular circumstances, there was an unusual danger. However, in the course of his judgment Walsh J quoted with approval from the judgment of Kingsmill Moore J in Long v. Saorstat and Continental Steamship Co. Ltd (1959) 93 ILTR 137 where he set out the position as follows at p. 145:
To sum up, an occupier of premises is liable for injury caused to his invitee by a danger on his premises which he knows or ought to know, if the is unusual in the sense above explained, unless he has taken reasonable precautions to safeguard the invitee, or unless the invitee has knowledge of the dangers. The duty to take reasonable precautions may be discharged by taking measures which should give the invitee knowledge of the danger. But even knowledge on the part of the invitee, whether imparted to him by the occupier or independently possessed by the invitee, will not excuse the occupier unless the invitee by virtue of such knowledge can efficiently carry out the task for which he has come without exposing himself to such danger.
In ODonoghue v. Greene, Walsh J then considered at p. 48 the nature of an unusual danger and said: *70
As was laid down in Longs case, the question of unusualness must be decided with reference not to the knowledge and experience of the particular invitee but to the knowledge and experience which may reasonably be expected to be possessed by the class to which the invitee belongs it is what has been called the apparent experience of the invitee.
Thus, the test as to whether the danger was unusual is not a subjective test, but is an objective test taking into account the class of persons to whom the plaintiff belongs. In the present case the plaintiff is a substantial farmer living in the locality. What is alleged to be the unusual danger is that there was an open and unfenced area in front of the basement windows which was not specifically lighted. This is a very old large house of the type which is not uncommon in rural Ireland, and a feature of which is a basement and basement area of this nature. In my view the class of persons to whom the plaintiff belongs ought to have known this, and in my view the existence of an area of this nature is not an unusual danger to such a class of persons.
If I am wrong in this, I would still consider that the plaintiff is not entitled to succeed in these proceedings. The passage from Indermaur v. Dames which I have quoted above, and which has been accepted by the Supreme Court as a correct statement of the law, is prefaced by the words that he, using reasonable care on his part for his own safety . This seems to me to imply that if an injured party does not take reasonable care for his own safety, then he is not entitled to expect that the occupier will take reasonable care to prevent damage from unusual dangers. If the basement was inherently an unusual danger, nevertheless it was bordered by a three foot wide flower bed, which clearly was a place where persons invited onto the premises were not expected or invited to walk. By walking on to the flower bed in circumstances in which, according to his own evidence, he could not see where he was going, the plaintiff was not using reasonable care for his own safety, and having chosen to take the risk of walking on the flower bed, I do not think he can complain that there was something that was an unusual danger beyond the flower bed.
Indeed, it might well be argued that the invitation to the plaintiff which allowed him to be on the premises was not an invitation to walk on the flower beds, and that in doing so he had in fact gone beyond the limits of the invitation and had become a trespasser on that part of the property, on the same basis that the plaintiff in OKeeffe v. Irish Motor Inns [1978] IR 85 was considered to have become a trespasser even though he had originally been on the premises as an invitee. However, in my view it is not necessary to go that far, as I consider that this was not an unusual danger, and that even if it was, the plaintiff did not take reasonable steps for his own safety. Accordingly, I would dismiss this action.
Representation
Keegan v Sligo County Council
Tenant against Landlord
[2019] IECA 245
JUDGMENT of Mr. Justice McGovern delivered on the 10th day of October 20191. This is an appeal from a decision of Barr J. delivered on the 30th November, 2017 in a personal injury action where liability and quantum were both in issue.2. The claim arose from a slip and fall accident that occurred on the 18th November, 2013while the respondent was returning to his home at Cranmore, Sligo. He was a tenant of the house which was let by the appellant, the housing authority for the relevant area. The respondent had resided at the premises for approximately nine years prior to theaccident.3. The accident occurred at around 5 p.m. as the respondent was about to enter his hall door. He had been at a funeral during the afternoon and between 1 p.m. – 5 p.m. admits to having consumed approximately four or five pints of Guinness having visited three different pubs in that period. As he went to open the hall door, he claims that his left foot slipped on the tiles which were wet as a result of the weather conditions on that day. The porch faced in a south-westerly direction and was therefore open to the prevailing wind in the area. The respondent gave evidence that the tiled surface of the porch would frequently get wet.4. In the High Court the trial judge heard evidence from consulting engineers that the tiles provided good slip resistance when dry but presented a moderate risk when wet. It appears from the evidence in the High Court that the tiles were of a standard type that was provided in such locations at the time when they were laid.5. The plaintiff suffered a Pilon fracture to his left ankle which required surgical fixation. He was unemployed at the time of the accident and the special damages were agreed in a sum of €650.6. Having heard the evidence, the trial judge determined the liability issue in favour of the respondent and awarded general damages of €50,000 to date and €55,000 into the future and the agreed special damages making in all a total of €105,650. He declined to make any finding of contributory negligence. Page 2 ⇓7. Although the appeal in this case was in respect of liability and quantum, the issue of quantum was not pursued with any great vigour. The thrust of the oral submissions made at the hearing of the appeal by both parties concerned the issue of liability. Liability and related issues8. The appellant sets out its principal grounds of appeal in the following terms:-(i) Whether the respondent’s house is unfit for human habitation so as to trigger liability under Siney v. Dublin Corporation [1980] I.R. 400 and Burke v. Dublin Corporation [1991] 1 IR 341?(ii) Whether the trial judge took the correct approach in deciding to impose liability under the Occupiers Liability Act 1996?(iii) Whether the trial judge erred in law in his approach to the evidence of the mechanism of the accident as described by the respondent and erred in fact in his finding as to that evidence?(iv) Whether the trial judge erred in law in declining to make a finding as to prior complaints?(v) Whether the trial judge erred in law in his treatment of the effect of alcohol on the ability of the respondent to take reasonable care for his own safety?(vi) Whether the trial judge erred in law and in fact in not finding the respondent guilty of contributory negligence?Unfit for human habitation9. The trial judge held that the use of the particular ceramic tiles in the porch of the respondent’s house rendered that house “unfit for human habitation”. In respect of this finding the appellant has concerns on a number of grounds. In the first place, it claims that this point was not pleaded as part of the respondent’s claim. Secondly, it says that such a finding has significant and serious implications for the appellant in a way which transcends this particular case. The respondent argues that when the case came on for hearing the point was raised in submissions and was not objected to by the appellant.10. It seems to me that this is an issue which gives rise to a number of legal questions of some complexity, including the legal relationship between the respondent and appellant For example, is the respondent to be considered a “visitor” in the usual sense or is this case one where there is more than one “occupier” of the premises as understood under the Occupiers Liability Act 1995 having regard to the fact that the respondent had resided in the house for approximately nine years prior to the accident? What is the meaning of “unfit for human habitation” within the meaning of the Housing Act 1966?11. In my view, it is not at all satisfactory that a finding of the trial judge on an issue of such importance should be made where it has not been pleaded by the respondent and arose in circumstances which required the appellant to deal with it on an ad hoc basis in the course of the trial. I do not think it matters whether or not the appellant engaged with the Page 3 ⇓issue at the trial. While the particulars of negligence in the personal injuries summons included a plea of “failing to comply with the provisions of the Occupiers Liability Act 1995and the Housing Acts 1966” the respondent did not furnish further particulars of same although asked to do so in a notice for particulars dated the 26th August, 2016. Both the Sidney and Burke cases involve claims regarding the interior condition of dwellings. This appeal however concerns an external surface on the porch where one enters the dwelling. Under the Housing Act 1966 a housing authority has a duty to inspect houses in their functional area and ascertain the extent to which they are in any respect unfit or unsuitable for human habitation. The second schedule of the Act sets out matters to which a housing authority ought to have regard in considering whether a house is unfit for human habitation and the list of matters is stated to include “safety of stair cases and common passages including the state of paving in any yard or open space pertinent to the house”. That schedule has, below its heading, a reference to “Section 66”. That section deals with the power of a housing authority to serve a notice on the owner of the house or any other person having an interest in the house whether as mortgagee, tenant or otherwise a notice under the act requiring certain works to be done where the authorities of the opinion that the house is unfit for human habitation. While it may well be that this also applies to the housing authority itself this is not something that was canvassed in either Siney or Burke or in this case when the matter was before the High Court. Though it is not for this court to express any view on these issues, I have concluded that it was unsatisfactory for the trial judge to make a finding that the house was unfit for human habitation having regard to the fact that the matter was not specifically pleaded and therefore had to be dealt with in an ad hoc way at the trial and in circumstances where the legal issue could be properly argued and considered. The Occupiers Liability Act 199612. Section 3(2) of the Act of 1996 states:-“In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to extend over the visitors activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”13. In Allen v. Tarbagan Holiday Centre Limited [2010] IEHC 129, Charleston J. stated:-“As to that duty, it is clear that merely establishing that an accident occurred on premises is not enough. The plaintiff must show that a danger existed by reason of the static condition of the premises; that in consequence of it he/she suffered injury or danger; that the occupier did not take such care as is reasonable in the circumstances to avoid the occurrence. “Page 4 ⇓14. In this case, the trial judge held that the mosaic ceramic tiles in the porch of the premises held by the respondent as a local authority tenant were “inappropriate” and “unsuitable”. The appellant argues that the test was whether or not they constitute a “danger”.15. I think it is fair to say that the judgment of the trial judge makes it clear that he regarded the tiles as being a danger on account of the fact that, when they were wet, they presented a moderate risk of slipping. It seems to me the question which has to be considered is whether or not on the facts of this case the respondent took reasonable care for his own safety. This may also include a consideration of the question as to whether he was a “visitor” or “occupier”. The evidence established that the respondent was aware that in wet conditions the porch tiles could become somewhat sloppy and to prevent that danger he placed a rubber backed mat on the tiles. He gave evidence that on the morning of the accident the mat was extremely wet so he lifted it out and hung it over his side gate before proceeding into town to attend a funeral. On his return, he said the mat was gone and on entering the porch he slipped and met with his accident. He described how he proceeded down the garden path and came to the tiled porch area in front of the hall door and that the tiles were wet as it had been raining all day. It is clear therefore that the respondent, in those circumstances, must have anticipated that the tiles would be somewhat slippy as (a) he could see they were wet, and (b) the mat which he normally used to prevent anyone slipping on the tiles was not available to put down on the tiles.16. The trial judge does not appear to have considered that evidence and whether or not, in those circumstances, the respondent had exercised reasonable care for his own safety. Nor does he appear to have given any consideration as to whether he was a “visitor” in the normal sense or whether, having regard to his occupancy of the house for approximately nine years, he should in some way be considered differently, and indeed whether he could be considered an “occupier”. Some of these matters are relevant to the issue of contributory negligence. It seems to me that the trial judge did not sufficiently engage with these issues before concluding that there was no contributory negligence.17. Another issue which falls to be considered under the question of whether the respondent took reasonable care for his own safety concerns the amount of alcohol he consumed between approximately 1 p.m. and 5 p.m. on the day of the accident. This will be considered in more detail later. Mechanism of the accident18. The issue which attracted the greatest deal of attention during the appeal was the manner in which the judge addressed the way in which the accident occurred and in particular what the appellant described as conflicting and improbable accounts of what happened. The transcript shows that the respondent gave a number of accounts of his accident not all of which were consistent. At one point he stated that, as the door opened, he fell forward and inserted the key into the lock before he started to slip. At another point he stated that he was slipping before the key went into the lock. Then he said “As I approached, I stood in with my right foot, then my left foot, key in. As I got the key in Input the handle down at the same time, it happened together at the same time”. On that version of events he had the key in the door and his hand on the handle yet he managed Page 5 ⇓to slip and fall forward into the hall. But then the following question and answer emerged from the transcript:-“Q. And it is applying pressure to the handle to open the door. It is only then that you started to slip. Isn’t that right? A: No, I had already slipped. “Then a few moments later he said that he slipped as he entered the porch and he put the key in and opened the door and that is when he went forward. He agreed that this meant that he managed to get the key into the lock while he was slipping. He agreed that this account sounded “a bit strange”. At an earlier point in his evidence he accepted that an account he had given did not make sense and at another point he admitted that he could not explain how he had fallen while getting the key into the keyhole and his hand on thehandle.19. In the course of his judgment the trial judge described the accident in the following terms;-“When he arrived at his house, he noted that the mat had been removed from his side gate. He did not know who had removed it, or to where it had been taken. He proceeded down the garden path and came to the tiled porch area in front of his hall door. He stated that it had been raining that day and the tiles were wet. Replaced the key into the lock of the front door with his left hand and depressed the handle with his right hand. While moving forward his left foot slipped on the tiles and he fell forward, through the partially opened hall door landing in his hall…”(para. 10 judgment).20. While the trial judge noted that the respondent was questioned at length in relation to the exact mechanisms of the slip and fall and that it would not have been possible for him to have been moving at the time when he inserted the key into the keyhole with the lefthand while depressing the handle with his right hand, he remarked that the respondent said that it had happened in that way.21. Later at para. 62, the trial judge referred to the submission of the appellant that the respondent’s account as to how the accident occurred was totally implausible and that it was not possible to put the key into the lock, turn the key and depress the handle and slip and fall through the door.22. When it came to the trial judge’s conclusions on causation at para. 71 he stated:-“…I do not think that it is possible to break down the mechanics of a slip and fall into neat sequences which lawyers, or others, may think convenient, at a considerable remove from the time of the accident. It would have been different if there had been medical evidence to the effect that such an injury could not have happened from the circumstances of the accident as described by the plaintiff. However, there was no such evidence. “Page 6 ⇓23. There was no serious attempt by the trial judge to analyse the various and somewhat conflicting accounts of the accident given by the respondent. Furthermore, it was not for the appellant to call medical evidence to show that such an injury could not have happened in the manner as described by the respondent. The burden of proof at all times remained on the respondent. In my view the trial judge was in error in failing to properly apply the burden of proof and in neglecting to analyse in any meaningful way the discrepancies in the evidence given by the respondent. This is especially in light of the fact that the respondent admitted in cross-examination that it was “extraordinary” and “strange” but “a fair summary” that he commenced slipping, managed to insert his key into the lock of the hall door, turn the key, open the door with his other hand, push the door open and then fall inside, see transcript, day 1, pp. 49-51.24. Furthermore, the engineer called on behalf of the respondent gave evidence that the account of the accident given by the respondent to him was that he had slipped and fallen on his porch and outside his door and not that he had slipped, opened the door and fellinside.25. Effectively, the outcome of the case turned on the account giving by the respondent as to how the accident occurred. If the account had been deemed implausible or unreliable by the trial judge than it is likely that the action would have been dismissed. In those circumstances the trial judge ought to have conducted an analysis of the evidence and stated why he accepted a particular version of the accident as given by the respondent and rejected the thesis postulated by the appellant that the account was entirelyimplausible.26. To reach such a conclusion is not to call into question the law as well established in Hay O’Grady [1992] I.R. 210. While an appellate court cannot substitute its view of the evidence for that of the trial judge this does not absolve the trial judge from carrying outa proper analysis of the evidence where there are issues in controversy so that it is possible to see why he preferred or accepted one account or one piece of evidence over the other. Evidence of prior complaints27. There was conflicting evidence as to whether the respondent had made complaints about the tiles prior to the accident. It is important to note that this was not pleaded in the personal injuries summons. The respondent gave evidence that he had complained to the appellant’s regeneration office on several occasions and asked that the tiles be taken up and the area replaced with concrete. He also stated that he regularly complained to staff on the street and he referred to a conversation with Mr. Noel MEIGaN, the estate manager, about replacing the tiles and enclosing the porch when works were done on the house. A reading of the transcript shows that any such discussion of that nature with Mr. Mehigan involving an alteration to the porch was not a complaint, as such, about the condition of the tiles but rather a request for an enclosed porch. It was explained to the respondent that this could not be done because of the existence of a services meter outside the hall door which had to be available for inspection. The appellant had records of extensive complaints made by the respondent in respect of various matters but none in Page 7 ⇓respect of the porch tiles. The trial judge decided that it was not necessary to resolve this issue but referred to the evidence called by the appellant as “reasonably strong” and suggested that the appellant did not submit records in evidence to establish that there were no complaints.28. At para. 70 of his judgment, the trial judge incorrectly characterised the evidence concerning the records as given by Ms. Marissa Moran. She was not challenged in her evidence as to what was in the records and what (if anything) was missing.29. The appellant submits that the evidence which was described by the trial judge as “reasonably strong” raised credibility issues for the respondent and that the trial judge did not give any reason for declining to take that into account. It seems to me that the appellant is entitled to feel that a credibility issue which might have had an impact on the determination of liability was ignored by the trial judge in circumstances where he had accepted the evidence of the appellant on this issue was “reasonably strong”. In doing so he fell into error. While the issue of prior complaint had not been pleaded the trial judge allowed the issue to be canvassed in evidence and, having done so, ought to have explained why he decided to ignore evidence from the appellant which he described as “reasonably strong” when it could have had a bearing on the respondent’s credibility. The issue of alcohol30. The respondent admitted that he had attended a funeral on the afternoon of the accident and that between 1 p.m. and 5 p.m. he had consumed four or five pints of Guinness. The trial judge dismissed this as a factor to be considered either in terms of the issue of negligence or contributory negligence. On the first day of the trial, the judge remarked“[b]UT also five pints for a man who has done physical work all his life, unless you are going to allege that he in fact had considerably more, I wouldn’t take five pints as being a particularly large amount over a number of hours”. At para. 73 of his judgment hesitated:-“…Having regard to the fact that this is a man who has worked in manual labouring jobs all his life, I decline to make any adverse finding against him having regard to the level of alcohol consumed by him that day.”31. It has to be said that there was no specific plea in the personal injury defence that the respondent’s actions on the day of the accident were impaired by alcohol. However, the issue was clearly canvassed in the exchange of particulars before trial and therefore the respondent was aware that it might become a feature in the case. It seems that an objection was taken to the matter being raised in cross-examination and the issue was not pursued. But the pleadings did encompass an allegation that the respondent failed to take reasonable care for his own safety. Since the matter had been canvassed in the exchange of particulars prior to trial and since the issue was raised before the judge in the course of the trial, it seems to me that it was a factor which he ought to have taken into consideration having regard to the duty of the respondent to take reasonable care for his own safety and given the conflicting accounts given as to how the accident that occurred. Furthermore, the judge’s remarks as to how alcohol would affect “a man who Page 8 ⇓has worked in manual labouring jobs all his life” was unsupported by any evidence given at the trial and was no more than the expression of his opinion. Such an opinion should not play a part in the trial judge’s decision to rule out alcohol as relevant. Contributory negligence32. The issue of alcohol was a relevant matter for the judge to take into account in determining whether there was any contributory negligence on the part of the respondent. But he declined to make any adverse finding having regard to the level of alcohol consumed by him that day. There was no evidence as to what effect four or five pints of Guinness might have on the respondent in the period between 1 p.m. and 5 p.m. In O’Flynn v. Cherry Hill Inns Limited [2017] IECA 211 Irvine J. stated “adult members of society are obliged to take care for their own safety and cannot divest themselves of responsibilities for their actions”. That was in the context of a claim made under the Occupiers Liability Act 1996. In Lavin v. DAA [2016] IECA 268 Peart J. referred to s. 3 of the 1996 Act and stated at 56:-“…Under s. 3 that question is part and parcel of the consideration of whether the occupier complied with its statutory duty or common duty of care imposed upon it by s. 3. The occupier must take such care as is reasonable in all the circumstances to protect the visitor, but having regard also to the duty of care upon the visitorherself.”33. The respondent met with his accident after consuming four or five pints of Guinness that afternoon in circumstances where he knew the tiles were wet and that a mat which he had used to prevent slipping had been removed by him earlier in the day. He had hung that mat over a gate and it had been removed by some person unknown. In my view the trial judge did not give proper consideration to the issue of contributory negligence. Discounted alcohol as a factor purely on the basis of his own opinion and not on the basis of evidence and did not consider the question of the respondent’s own knowledge of the tiles on his porch in premises where he had lived for nine years and which he knew could be slippy when wet.34. Furthermore, the trial judge did not properly apply the provisions of s.3 of the Occupiers Liability Act 1996 by considering whether he had taken reasonable steps for his ownsafety.Quantum35. The trial judge pointed out that the appellant did not call any medical evidence although it had retained the services of Mr. Brendan Healy, orthopaedic surgeon, who had examined the respondent. The judge accepted the evidence of Mr. William Gained, the orthopaedic surgeon called on behalf of the respondent, that he has developed mild to moderate osteoarthritis in the ankle joint with evidence of osteopenia (a weakening of the bones).The medical evidence was to the effect that the respondent would only be capable of lightwork. He was forty-nine years of age when the judgment was delivered and the trial judge held that should be taken into account. He had also been unemployed for sometime prior to the accident and the trial judge had regard to that fact. The trial judge also Page 9 ⇓took into account the fact that he had a limited capacity for work in the future and took the view that this could be taken into account in the assessment of general damages. In a brief submission on quantum counsel for the appellant pointed out that the Book of Quantum provides a range of damages of €79,900 to €89,300 in respect of a moderately severe ankle injury being one which involves ongoing pain and stiffness which impacts on movement of the ankle. Although the trial judge was obliged to have regard to the Book of Quantum he did not make any reference to it in his judgment. In neglecting to do so he was in error. While he was entitled to take into account the factors that are referred to in his judgment, it is not clear to me how he related the figure of €105,000 for general damages to the ranges provided for in the Book of Quantum.36. The Book of Quantum puts an upper limit of €89,300 for a moderately severe ankle injury. The judge built into his award for general damages the respondent’s limited capacity for work in the future. In all the circumstances it seems to me that the difference between the higher figure provided in the Book of Quantum and the damages determined by the trial judge (being just over €15,000) is not so significant as to warrant this Court interfering with it.Conclusions37. This court is not entitled to substitute its view on the facts for that of the trial judge and Hay v. O’Grady still remains the law. But in my view there are a number of matters which have been referred to in this judgment which make the trial unsatisfactory and which can only be put right by a re-trial on the liability issue. In particular, the failure of the trial judge to engage in a meaningful way with the conflicting accounts of the accident given by the respondent before reaching his conclusions on liability fell short of what was required. There was no proper analysis of the conflicting evidence which would point to the reason why he was satisfied, on the balance of probability, that the incident happened in the manner as described in para. 10 of the judgment.38. The trial judge was also in error in failing to properly examine and analyse the evidence before ruling out contributory negligence by failing to address the question as to whether the respondent had taken reasonable care for his own safety as required under the Occupiers Liability Act 1996. He also erred in law in holding, at para. 71 of his judgment, that the onus was on the appellant to call medical evidence to show that the accident could not have occurred in the manner claimed by the respondent.39. The trial judge’s finding that the respondent’s house was not reasonably fit for habitation is one which could have far reaching consequences for the appellant. The trial judge erred in making such a finding in circumstances where it had not been pleaded thereby giving rise to a situation where the appellant had to deal with the matter on an ad hoc basis during the course of the trial. This gave rise to an entirely unsatisfactory situation. It is not for this court to express its view on the issue in circumstances where it should not have been dealt with by the trial judge.40. The trial of the liability issue was unsatisfactory and I would allow the appeal. I would direct that the issue of liability be remitted back to the High Court for a re-hearing.
Result: Appeal allowed
Ryan (Minor) -v- Golden Vale Co Operative Mart Ltd
Allurement to Children
[2007] IEHC 159 (04 May 2007)
Judgment of Mr Justice Michael Peart delivered on the 4th day of May 2007:
On the evening of 30th December 2001, when this young plaintiff was ten years old, he was in the company of three of his friends of similar age. His evidence is that on this date at around dusk, which I take to mean in the late afternoon, as the four boys were making their way, by way of a short-cut, through the premises of the defendants in Rathkeale, Co. Limerick intending to get to the library which is located on the opposite side of the street to the defendant’s premises, their intention was to exit onto that street by means of a large metal gate onto the road.
This gate is a metal farm-type gate made of tubular steel and consists of two halves which join at the centre. At the centre point there is a hasp and slide bolt mechanism, which the defendants say was always, and on this occasion was, secured by a padlock or a chain and padlock. When not locked together they can be opened both inwards and outwards.
The top of the gate in question is about 42” above ground level, and the combined width of both halves of the gate spans about 24 feet. Each leaf of the gate would be very heavy.
The plaintiff says that on this occasion the gate was unlocked. The defendants deny that this was the case. Nevertheless that is what the plaintiff says the situation was, and he recalls that as they approached this gate with the intention of exiting through it, the other three boys were walking ahead of him. He described how one of these boys swung the gate inwards in his direction in such a way that it struck him heavily on the front of his body, causing him to fall to the ground and sustain the injuries for which he seeks to be compensated.
The basis of the allegation of negligence made against the defendant is that the defendants ought to have known that this gate was an allurement for boys such as these and should have ensured that the gate was locked so that this type of incident could not happen.
By way of summary of the injury, it appears that in the aftermath of the injury the other boys or at least one of them helped the plaintiff walk back to his house which was not too far away. The evidence has been that when he arrived at the house he told his mother what had happened, and that he vomited and was seen to be weak and unwell. His mother who gave evidence stated that she and another woman who was in the house at the time decided that he should be brought to the Limerick Regional Hospital and a friend of the family who was present brought him by car where he was admitted to the Accident and Emergency Department at 6.15pm. He was admitted later and underwent an operation for the removal of his spleen which had been severely damaged. This removal has left the plaintiff vulnerable to infection in the future and to address this he is obliged to take antibiotics for the remainder of his life. Apart from the loss of his spleen, and his predisposition to infection and the scar which he is left with on his abdomen, there are no other sequelae reported.
As I have stated the defendants have given evidence through the yard manager, Mr Kett that he at all times had responsibility for ensuring that all the numerous gates into the defendants were at all times closed and locked, and he states that at the date of this accident the premises was closed up for the Christmas period and he is certain that on this occasion the gate in question was locked. There is a clear conflict of evidence in this regard, and the defendants plead that injury, however it was sustained by the plaintiff on this date, was not caused in the manner alleged.
At the outset of the case, Michael McMahon SC requested an adjournment of this case as it had not been possible to secure the attendance of the three boys who were with the plaintiff on this occasion. In view of the conflict of evidence in relation to whether the gate was locked or unlocked, he submitted that their attendance, or at least one or more of them, would reasonably be expected to assist the plaintiff, and he had not become aware that they would not be attending to give evidence until the morning of the hearing. It appears, according to what the Court was told, that they were working on the continent laying tarmacadam.
I refused this adjournment having considered the potential significance of the evidence any of these boys was likely to give. I came to the conclusion that in all probability each would agree with the account given by the plaintiff, and that I could proceed to hear the case on the basis of what the plaintiff might say happened. The fact that the three other boys or any one of them might say the same thing, and were not present to do so, did not in my view cause any real prejudice to the plaintiff.
In spite of the conflict in the evidence given by the plaintiff and by Mr Kett I am prepared to proceed to my conclusions on the basis of accepting as a matter of probability that the gate was capable of being opened on this occasion. That is not because I do not believe that Mr Kett is an honest witness. I believe he is and I accept that he honestly and genuinely believes that this gate was locked. But I have had regard to the notes made by the medical personnel who attended the plaintiff on his admission at the Limerick Regional Hospital. Those notes taken in the immediate aftermath of the accident record that the plaintiff stated that he received an injury from a gate. That account of how the injury was sustained has been consistent from the start. I confess to being very puzzled how this could be so given the integrity of Mr Kett as a witness, but I must decide the matter on the basis of likelihood and not mathematical certainty. I have some doubts about the matter but on balance I am prepared to accept the plaintiff’s evidence.
But that does not conclude the issue of liability in my view. The plaintiff must establish that the defendants owed a duty of care to the plaintiff, that there was a breach of that duty towards him, and that as a result of that breach injury was suffered. The ultimate question will be did the duty of care owed to the plaintiff extend to ensuring that the gate was locked. The questions of the extent of the duty of care owed and of the foreseeability of injury to the plaintiff must be considered.
In his judgment in the Supreme Court in Breslin v. Corcoran, unreported, 23rd March 2003, Mr Justice Fennelly states as follows, having first considered the well-known English authorities in the area of foreseeability of damage arising from an intervening event in Dorset Yacht Co. Ltd. V. Home Office [1970] AC 104 and Smith v. Littlewoods Organisation Ltd [1987] AC 241:
“From all these cases I draw the following conclusion. A person is not normally liable if he has committed an act of carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously liable. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.”
I should follow the same reasoning in the present case in relation to the foreseeability of injury to this plaintiff.
I am satisfied that the plaintiff is within the category of person to whom a duty of care was owed, albeit that he was on the defendant’s premises without permission. He was a trespasser. In those circumstances, the defendants are under a duty to ensure that while on the premises he was not exposed to a danger which it could be reasonably foreseen might cause him an injury. If for example there was something on the defendant’s premises which was inherently dangerous and it was reasonably foreseeable that a child might be allured to it, then if injury results to such a child the defendants could be held liable. In such circumstances it would be incumbent on the defendants to ensure that access to their premises or at least to the dangerous object upon it was not possible.
In the present case this injury to the plaintiff did not result from contact with an object which was a trap in the usual sense. It is not a case where, for example, a dangerous and unprotected slurry pit was present and into which the plaintiff fell. It is not a case in which the plaintiff climb up onto some inherently dangerous structure or piece of machinery, and which the defendants ought to have prevented by suitable protection of same.
In this case there was a gate which provides access into and out of the defendant’s premises. In my view there is nothing intrinsically alluring about such a gate. There is no evidence that it was in any way defective and that such a defect caused injury to the plaintiff. It did not for example fall upon him causing him this injury. It was simply a gate. I cannot regard that gate as an allurement to the plaintiff in the sense that it obliged the defendant to ensure that it was fastened with a lock at all times. As I have said, I am assuming for the purpose of this case that it was unlocked, and I am giving the plaintiff the benefit of the doubt which I have about that fact.
To find that it was foreseeable that a child would be injured in circumstances where another child or children either opened this unlocked gate or found it open and then proceeded to swing it back in the direction of the plaintiff would be to cast an unfair and unreasonable burden of foreseeability on the defendants and would mean that it was a requirement that at all times all gates into premises throughout the country would have to be locked at all times to ensure that no child could open it, in order to ensure that nobody was injured by this sort of action by another child.
In my view it would be unfair and unreasonable for a duty of care to be extended so wide. It was not reasonably foreseeable by the defendants that this gate, even if left closed but unlocked or even left slightly ajar, was a trap or potential danger to someone such as the plaintiff, or an allurement as alleged. It was an inherently safe gate without defect, and was there to enable access and egress to and from the premises in the normal way.
The injury which the plaintiff sustained was serious and has left him with a permanent physical deficit. But the plaintiff must realise that simply because he receives an injury in this way does not mean that the defendants are to be blamed for it. In my view even if the gate was unlocked it did not present any inherent danger to the plaintiff which the defendant was under a duty to prevent. Things may have been different if, while on the premises having entered through an unlocked gate, he had been injured by something inherently dangerous and a trap for the plaintiff, but that is not the case here.
With regret I must dismiss the plaintiff’s claim.
Hackett v. Calla Associates Ltd. & Ors
[2004] IEHC 336 (21 October 2004)
Who is Occupier?
Judgment of Mr Justice Michael Peart delivered the 21st day of October 2004:
Introduction:
This case arises out of an incident outside a nightclub known as Marleys Night Club, on the night of the 12th January 1996 or the very early hours of the 13th January 1996, when the plaintiff alleges that he sustained a very serious injury to his right eye and the area surrounding it as a result of a blow received from a blunt instrument wielded by what is commonly known as a ‘bouncer’ employed at the premises on the night in question. The circumstances giving rise to the injury are in dispute, as is the allegation that the injury was caused by any such bouncer on that night. The defendants deny that any baton or blunt instrument was used at all when a group of bouncers came out of the premises into the car-park to break up a crowd which was causing trouble outside the nightclub, and they maintain that no more than reasonable force was used, and that if the plaintiff suffered any injury it was entirely his own fault, or at least that he was guilty of contributory negligence.
The first named defendant is a limited liability company which owned the licensed premises of which Marleys forms a part. The second named defendant is the person in whose name the licence itself was held following an ad interim transfer application to the District Court on the 23rd September 1992. There is some dispute arising in these proceedings as to whether the bouncers on duty that night were employees of the first defendant or whether they were the employees of the second named defendant, and that is an issue which I will have to address later. Counsel appearing for both defendants stated that it was accepted by both of his clients that the bouncers in question were the employees of the first named defendant. The plaintiff does not accept that, and has attached some significance to the issue.
The claim is in effect only against the first and second named defendants at this stage, it being accepted that the employees in question were not the employees of the fifth named defendants, and that ground of defence has been withdrawn by the first and second named defendants.
One matter which is immediately obvious is that this injury occurred over eight years ago. The simple explanation for this is that the plaintiff has spent about six of these years in prison in relation to a matter entirely unrelated to this particular incident and I do not have to elaborate further in that regard. But it is undoubtedly a feature of this case that this passage of time has made it more difficult for witnesses called to give evidence to remember exactly what happened outside the nightclub on that night.
The injury:
As far as the actual injury itself is concerned, there is no dispute. The medical reports describe it as a very severe injury to the right eye, including a full thickness laceration of the right upper eyelid and a severe blunt trauma to the globe of the right eye which caused a dislocation of the lens and displacement of the vitreous gel from the posterior part of the eye into the ante chamber, when it was struck by a blunt object. The most recent report when describing the plaintiff’s visual acuity in the right eye states “Perception of light only (totally blind)”. This condition is now regarded as permanent, and his level of vision is described in a report dated 13th May 2004 as:
“The condition of his right eye is now permanent and leaves the patient with no stereoscopic vision, diminished side of his visual field, an overall reduction in his visual acuity and an uncompensated blind spot in his left eye.”
There also remains a full thickness scar in the centre of his right eyelid, although the latest report notes that the cosmetic appearance has greatly improved.
The author of these reports, Mr Hugh Cassidy, Consultant Eye Surgeon, gave evidence. He said that the plaintiff had travelled to St. Vincent’s Hospital immediately after the injury was sustained and that on arrival there was extensive bruising to the right cheek and a laceration to the right eyelid. A blow over the right eye had caused the injury to the eye which is described in his reports. He described it as “a blunt trauma” which would have to be caused by a blow from a heavy solid object, and that it would require very severe force to cause a full thickness laceration of the eyelid. He said that in his practice he had seen similar type of injury caused by a blow from a hurley, and described it as a very severe injury, and one which was consistent with the account of the injury which was given. He described the right eye as being a write-off.
Summary of the evidence:
The plaintiff was born on the 9th March 1970 and was therefore almost 26 years of age on the date of this incident. He was unemployed at the time, and apart from the six or so years spent in prison between 1998 and March 2004, his employment record has been sporadic and uncertain.
On the 12th January 1996 the plaintiff had attended the funeral of a friend in the morning. Later in the day he and a couple of his friends “the Merediths”) went to a pub called the “Furry Bog” in the Whitechurch area of Rathfarnham. They were later joined by others, including a lady who gave evidence, namely Colette McGouran. Having spent a couple of hours there they all decided that they would go up to Marleys Night Club, which is operated in a premises which was known as Taylors Grange Hotel. They went by taxi. He and his companions had been in that premises on a number of occasions previously and were known there. In fact the plaintiff was someone who had previously been barred from that premises, but on this occasion he seems to have been able to gain entry to the premises without coming to the attention of the staff controlling entry on the night. He and his friends arrived at about midnight and paid an entry fee to the Night Club. Their jackets/coats were handed into a cloakroom from which they were collected on departure – a matter to which I will again refer.
I am satisfied that the plaintiff was someone who was barred from these premises for some time prior to this night, even though I have no evidence as to the precise reason for that and whether there was a particular incident which gave rise to it, or whether it was on account of the proprietors having formed a view generally about the plaintiff on account of what I might loosely call his “local reputation”. Counsel for the defendants certainly attempted by a certain line of questioning, to suggest that the plaintiff was someone who had a reputation in the area for violent behaviour, but I was not prepared to have that aspect of his character explored in detail since its relevance to what happened on the night in question is very limited indeed. Under cross-examination, the plaintiff accepted that he was ‘no angel’.
The plaintiff stated that after getting to the nightclub he and his friends stayed in a group together and that there was no trouble of any kind. He said that at about 2am on the 13th January 1996 they began to leave the nightclub. It appears that when they arrived the plaintiff had left the coats into the cloakroom but had given the tickets to Keith Meredith, and that the latter joined a queue to collect the coats. This queue was just inside the door of the night club which leads to the car-park outside. In other words, it is between the night club space itself, and the exit door. At any rate it appears that the plaintiff felt that this queue was not moving fast enough for his liking, and he also stated that there were others coming into the queue from his left, and that it was not what he called “a proper queue”. He took the tickets from Keith Meredith and made his way to the top of the queue, thereby giving rise to some difficulty with patrons at the head of the queue. The plaintiff stated in his evidence that when he went to the top of the queue he asked those at the head of the queue if they mind if he stepped in to get the coats, and that they agreed. It is relevant to say at this point that a man named James Clarke, and who was an off-duty security man on this night and who was situated at the head of the queue had some sort of altercation with the plaintiff in relation to his skipping the queue, and the plaintiff accepts that they exchanged words about it and that he “tipped” Mr Clarke in the face. What that means is that he appears to have slapped Mr Clarke’s face with an open hand, not a fist. One way or another I am satisfied that the plaintiff had an aggressive altercation with Mr Clarke at the head of the queue. In cross-examination the plaintiff also accepted that he suggested to this Mr Clarke that if he had any problem with the plaintiff they could settle the matter outside, meaning by way of a fight as far as I am concerned.
Neil Meredith was at the queue at this time also and while he heard some verbal exchanges between the plaintiff and Mr Clarke, he did not see the slap to Mr Clarke’s face or hear exactly what was being said. Similarly, Colette McGouran also was aware that there was something going on at the cloakroom queue but saw nothing and did not know who was involved.
Ms. Sharon Lawless, the Manager of the premises and who says she was employed since 1995 by Calla Associates to manage the night club, states that she heard raised voices at the cash desk and saw James Clarke a man, having an argument about the queue. She was told that the man was the plaintiff in these proceedings. She says that the plaintiff was being belligerent and aggressive and more than was necessary even making allowances.
The plaintiff states that he went to exit the premises into the car-park, but that at this point four or five other security men arrived and he was pushed from behind as he put on his jacket. He says that there was what he called “give and take” on both sides in the altercation, and he was eventually pushed out the door which was then closed behind him. This door is a double door which opens outwards, there being a crush bar in position on the inside of the doors. The fact that the doors do not open inwards is of some relevance because the evidence of the security men is that after the plaintiff was forcibly ejected from the premises, the plaintiff was attempting to push the door inwards from the outside and with such force that the plasterwork around the door frame was beginning to become loose and damaged.
The plaintiff states that after he was ejected there were about 20 or 30 other people in the car-park outside the premises. It was also raining and he says that a number of people were standing under a veranda immediately outside the doors. He says that some of these people, whom he did not know, started to kick at the door but that he ignored them and was intent on putting on his jacket. It was just at this point he says that a small door to the left (as one looks out of the premises) of the double doors was opened and that a number of bouncers emerged. With this, he says, all the others under the veranda disappeared and he was left there as he was still at that stage putting on his jacket. It is immediately after this moment that he says that he received a blow to his head which has caused the injury to his eye, but I want to deal with the other evidence which I heard in relation to this particular point of the evidence, because there are differences between what the plaintiff and his witnesses say happened and what the defendants’ witnesses say happened.
Neil Meredith:
Neil Meredith stated in relation to the kicking of the door that there were a lot of people gathered outside the double doors and that there was a lot of commotion, with some people trying to get back in to get their coats and the bouncers trying to get people out as quickly as they could. He says that after he went out and down the ramp he saw the plaintiff and a bouncer having an altercation. This man was not Mr Clarke. He says that three or four bouncers emerged then from the small side door and ran towards the plaintiff. He says that one of these men was carrying a baton about 12 inches in length and that he caught hold of the plaintiff. He says that two of the other bouncers were carrying larger batons which were maybe about three feet in length. He says that these bouncers ran generally at everybody who was gathered outside the premises and that there was an element of panic in the situation. He says that he saw the plaintiff stumble forward. Under cross examination he was asked whether he saw people outside throwing glasses and stones at the windows of the premises, but he said he did not see that happening. He said also that he did not see the plaintiff doing anything outside the door in the way of kicking the door and so on. It was asked, if that was so, then why did the bouncers come running out the small door and head straight for the plaintiff. Mr Meredith reiterated that they just came out and that one of them hit the plaintiff in the face with a baton and that it was something that he would never forget. He thinks that there were four or five bouncers and that they generally laid into the crowd, but he does not know if any other persons besides the plaintiff were hit.
Under cross examination he was asked to explain how certain aspects of the statement which he made to the Gardai after the incident differed from what he was now stating in his evidence – for example that in his statement he had described the weapons used by the bouncers as “iron bars” rather than batons. Mr Meredith sought to minimise the distinction by saying that a baton is a long object made of either wood or iron, or words to that effect. He could not remember using the term “iron bars” but that it was about eight years ago at this stage. There was also a reference in his statement to the bouncers “swinging digs”, but he could not remember saying that either. It was also put to him that in his statement he had referred to some of the people throwing stones and breaking windows, but that now he says in his evidence that he did not see that happening. He accepted that the statement contained what it contained, but that nothing could take away from the fact that he saw the plaintiff being hit with a bar, and that things would have been fresher in his mind eight years ago.
Colette McGauran:
Ms. Mc Gauran says in relation to this part of the incident that she had heard people banging on the double doors and also that a group of bouncers came running out of the small door, and that one of them charged at the plaintiff and hit him over the head with a baton, and that the plaintiff staggered and went towards the road beyond the car park . In cross examination it was put to her that what she had said in her statement to the Gardai after this incident was somewhat different to what she was now saying in court. She could not remember exactly how she had described matters in her statement and agreed that what was in her statement was likely to be correct given the length of time which has now passed since the incident. However her statement was not put into evidence, but it is suggested on behalf of the defendants that her evidence should not be relied upon given the differences. It is a factor which I will bear in mind as going to the weight of her evidence, but it is necessary for me to reach any conclusions on the evidence heard before me, and the statement is not in evidence. The same applies to the criticism made of the evidence of Mr Meredith in so far as his evidence differs in some respects to what is contained in his statement.
Mrs. Sandra Hackett:
Mrs Hackett is a sister in law of the plaintiff and she was at the nightclub on this night. She had not gone there with the plaintiff but saw him there. As she was leaving the premises at the end of the night she remembers seeing the plaintiff and saying goodnight to him. She did not have to collect any coat from the cloakroom. She said it was slow to get out of the premises because of the amount of people at the entrance lobby. She remembers being just outside the main doors a few feet from a pole which is identified in the photographs produced to the court. She had moved onto a grass area and was just moving through the crowds when she heard a bang. She said there was what she described as total confusion and a lot of people burst out of a door. These were the bouncers, and she said it felt as if there might have been about ten of them, but that it was probably about five and that they had batons in their hands. She described these as being like American baseball bats. She did not see the plaintiff being struck. She described seeing what she called “a scrum” but does not know exactly was involved in that, but she said that some bouncers were involved in it and they would have had batons. She thinks about fifteen minutes might have passed between her exiting the premises and the trouble starting. She thinks that she became aware that the plaintiff had been hit when somebody shouted that he had been hit. She saw blood on his face when he was coming towards her in the car park. She said there was blood everywhere and that the plaintiff was holding his eye. There was also blood on a white car that she was standing at. She says that at this stage the bouncers were looking out of the door down towards the car park where she and the plaintiff were. They did not have anything in their hands at that time.
Under cross examination it was put to her that in her statement to the Gardai after this incident she had stated that she had seen a bouncer hit the plaintiff. She said that it was eight years ago at this stage and that what she has stated in her evidence to this court is what she now can remember. It was suggested to her by Counsel that at this stage possibly she can remember nothing well.
Sharon Lawless:
For the defendants, Ms Lawless stated that after the bouncers had removed the plaintiff from the premises, he was standing outside the double doors shouting back at the bouncers who were inside, and that there was a lot of people outside at that time, presumably waiting for taxis. She says that she telephoned the Gardai as a result of the commotion and what was happening in relation to the kicking of the door. She says that she rang the Gardai because she did not want what she described as “a situation to arise”, because the plaintiff had been barred from the premises and she feared that something might arise outside on account of that fact. She thinks she called the Gardai at about 2.30am. While she did not see exactly what was happening outside because she was inside behind the doors, she says that the doors were being kicked with such force that the hinges at the top of the doors came loose and she was afraid that they would give way under the force of the kicks. She also heard a group of people chanting “One, two, three” and that was followed by more kicking of the door. She says that it was at this point that the bouncers went out into the crowd by means of the small door to the left (as one looks out). She said that she heard glass breaking, and she stated also that a glass bottle came into the premises just past her face and landed beside the cash desk. She went upstairs to call the Gardai and at that point she says that she saw some windows of the premises broken. The bouncers returned to inside the premises and she says that one of the bouncers, a Mr Leydon, had a cut on his head as far as she recalls. She described the incident as being “a riot” and as being “under siege” and that it was very frightening. She was cross-examined of course and she was asked why the bouncers had been sent out to deal with the crowd. She said that when people become aggressive with drink, sometimes the situation can be diffused quickly and this was the reason they went out – in order to “show a presence”. She stated in fact that they were successful in this since the incident died down after a few minutes. The kicking of the doors ceased during this time and the crowd dispersed. She agreed that she did not see exactly what took place outside the doors as she was inside.
She also gave evidence relevant to the issue as to whom the bouncers were employed by, and her own employment at the premises. She stated that she was employed by calla Associates Ltd to manage the night club. She stated in cross examination that she had never worked at any other premises owned by Calla, or even in any other premises owned by Mr Philip Smyth or any other company of his. On taking up her position there was already in place what is referred to as a “suits policy”. All security personnel were obliged to wear suit and bow tie, so that they would be recognised a part of the security team. According to her, Mr O’Reilly was simply the licencee of the bar and had charge of that area, but that she was responsible for the premises as a whole as manageress. She said that it was part of policy that no batons would be used by security personnel and that they were never used at any time and that there were no batons on the premises at any time. She also stated that the person to whom she reported within the company was Brenda Flood and that she was not aware of who the other directors of Calla were. It was put to her that the reason why the bouncers emerged into the crowd through the small side door and not out the main double doors was so that they could fetch their batons from a room behind that small door on their way out. She denied this completely saying that they never used any weapons on that night and that they never have weapons. She said that the reason they did not go out the double doors was that the crowd was outside those doors trying to kick them in.
She also stated that the plaintiff had been barred from the premises for as long as she had been employed as a manager of the premises, and that he must have gained entry through a fire-door entrance as the doormen would surely have recognised him coming through the main door. In any event the plaintiff was known to be in the premises on the night and was not ejected or asked to leave because a decision was made that it would probably cause more trouble to do so, and that in fact there had been no trouble that night before the incident after he had left the premises. She felt that it was better simply to keep an eye on him during the course of the evening.
Clive Leydon:
Evidence for the defendants was also given by Mr Clive Leydon, who was a barman and who also had some responsibility for the bedrooms and function room within the hotel itself as opposed to the night club area. He was responsible for the cash receipts in the bars and as part of his duty he would remove the cash to an office upstairs. He was employed by the company named as the fifth named defendants, Crooked Staff Limited. He said that in all his time in these premises he had never seen any security men with batons or other weaponry, and that most of the doormen were older men with families. He said that on this night he had gone to the night club area to do the cash, and he became aware that an incident had occurred which had resulted in some windows being broken on the bedroom corridor of the hotel. He was concerned that the residents in some of those bedrooms were alright. He said that the incident itself had been a very frightening and traumatic experience. As he looked down a corridor he was hit on the head by a bottle which had come through a window. He retreated to the night club area, and also stated that there was quite a crowd outside and that he briefly saw a bouncer whom he named as John Murphy, in confrontation with somebody. He felt that this crowd was very agitated and ready to use force. Under cross examination he conformed that he worked for Calla Associates Ltd, and that all the bouncers worked for Calla. He also said that in fact it was Mr Christopher O’Reilly, who was involved in the bar area, who paid the bouncers and himself their wages, and that his P60 refers to Crooked Staff Limited as his employer. He also confirmed that Mr O’Reilly was there most days from about 10am, and he would enquire about whether there were any problems with staff or functions, and that in relation to annual leave, it was Mr O’Reilly he would go to. He was asked whether the bouncers would report to him (Mr Leydon), but he said they did not and that he had no responsibility in relation to security matters.
Liam Connolly:
Liam Connolly gave evidence that he had been a part-time doorman for about 8 years, and that at the time of this incident he would have been about 40 years of age. He has never had any trouble as a doorman, and has never either used or even carried a baton as part of his duty as a bouncer. He also said that he had never worked with any other bouncer who used a baton. He has never brought a baton to work, and that this night club was not a dangerous place, and that if it was he would go and work elsewhere.
He remembered that on this night there had been a bit of trouble at the cloakroom queue and that a man had received a blow with an open hand, and that it was not a punch as such. He and another bouncer walked the man to the front door of the night and that there was no resistance. This man was of course the plaintiff, and while Mr Connolly remembers a bit of shouting he took no particular notice of it. He says that at this time the plaintiff asked for what he referred to as ” a straightener”. I gather this is a somewhat euphemistic reference to an opportunity to settle differences outside. He remembers a crowd gathered outside the doors, and that when the doors were closed, some people started to kick the doors. He says that the plaintiff and others were kicking the doors, and that the doorframe was beginning to give because the door itself was plated with steel. He says that he and some other bouncers went out by the side door in order to try and calm things down. He says that when they went out they were jumped upon by the crowd and that there was a lot of glasses and bottles being thrown. He says that he saw the plaintiff on the back of the bouncer named John Murphy and that he pulled him away from Mr Murphy. He goes on to state that he was knocked into the corner at the double doors, and saw what he described as “sticks, stones, bottles and ashtrays” thrown at the double doors. It would appear that at this point those still inside the doors pulled Mr Connolly back inside the premises. He said that he had never seen anything like this before. There were windows broken in the hotel corridor and he says that people in the crowd were pulling stones up from the grass verge and throwing them at the premises.
Mr Connolly was cross examined and was asked about whether the plaintiff was wearing a jacket when he saw him outside. He could not remember. It was put to him that one of the bouncers must have struck the plaintiff but he denied that this had happened and stated that he had simply seen some wrestling going on with John Murphy, and that he had pulled the plaintiff off Mr Murphy’s back. He does not know how the plaintiff sustained his injury. He says that he certainly used no baton but said he could not speak for the others. He also suggested that perhaps the injury was caused by a glass being thrown. In relation to how he was paid his wages he stated that he would be paid in cash at the end of an evening by Sharon Lawless, and he has no knowledge as to who she works for.
John Murphy:
He was employed as a doorman at these premises since about 1987 and he says that his wages were paid to him by Ms. Lawless. He stated that the doormen were not permitted to have batons or iron bars. On this night he was on duty at the night club from about midnight. He walked around and saw some people who he knew to be barred from the premises, but that it was decided to leave them alone as there had been trouble with them before. Nothing in fact happened that night until the incident giving rise to this case. Mr Murphy gave evidence about the incident at the cloakroom queue, and he said that after the plaintiff was put out there were a lot of people coming and going at the entrance lobby. Eventually, he say that they got the doors closed, but that people outside then started kicking at the doors. He says that he looked out through a spy hole in the door and saw maybe seven or eight men, some of whom he recognised, including the plaintiff, and who were all engaged upon kicking the door and shouting abuse at those inside. He described how the force of the kicks was beginning to disturb the plaster around the door frame, some of which was falling to the ground. He stated that at that point they were in some trouble with the crowd. He stated that they decided to use the small side door and when it was opened he states that sticks, bottles, glasses, stones etc came raining down on them. He described being grabbed and that it was “complete mayhem”.He also stated that some windows had been broken prior to this. He says that he was grabbed by the plaintiff, and that the plaintiff had pulled Mr Murphy’s coat over his head and that at this point someone pulled Mr Murphy off him and was pulled back into the premises. He says that the plaintiff was on his back, but that there were no blows, and that he was very frightened as was everybody else. He understood that the Gardai had been called on two occasions and were on their way at this time. He says that when the Gardai arrived they were shown the broken windows and the damage to the doors. He says that about one month later the Gardai returned to the hotel in the company of the plaintiff who identified him (Mr Murphy) as the man who had assaulted him that night.
When cross examined he stated that he was the head doorman on the night. He also said that he could not be certain if he had pulled the plaintiff’s jacket off. It was put to him that security had broken down on this night, but he replied to the effect that it depended how you looked at the situation, and that people were there who ought not to have been there. It was possible, he said, that some of the doormen may not have known who these people were when they arrived. He also confirmed that some of the people who had been outside the doors kicking the door and shouting were some of those who were barred from the premises.
In relation to putting the plaintiff outside the door he stated that it was not a major problem. Mr Murphy stated that because of the scale of the melee outside the premises it was necessary to go out all together rather than one person going out on his own. He says that he may have been the first man to exit, possibly the second, and certainly was not the last. He says that he did not head straight for the plaintiff. He described again the hail of stones, bottles, rocks etc that came down upon them when they went out. He said also that what happened in relation to pulling the plaintiff’s jacket in fact occurred during the earlier encounter when he was putting the plaintiff out of the premises, and not after the bouncers went out of the small door. He says that on this latter occasion he did not go anywhere near the plaintiff, and that he never carries a baton and did not have one. He presumes also that none of his colleagues had batons as it was not permitted by the Management. He also stated that he was not aware that the plaintiff had received any injury until the occasion when the Gardai called to the premises about a month later.
Evidence was also given by Ms Ann Groome who had a franchise for the kitchen on the premises. She says that at about 1.45am she set up her stand near the exit in order to serve hot food to patrons leaving the premises. She saw a good deal of what took place, but her evidence adds nothing further to what has already been set out by way of summary of the evidence given.
Garda Pat Hession from Rathfarnham Garda Station also gave evidence of having been called to an incident at the Grange Hotel on this night. When he arrived he saw a man standing beside a telegraph pole with blood on his face. He spoke to the man and enquired if he wanted any medical attention and whether he had any complaint to make. The man said he did not. This was a short distance from the hotel premises and the Gardai then proceeded to the premises where he saw a lot of broken glass in the car-park and there may have been stones also. He also saw two broken windows near the entrance to the disco area. By this time the crowd had disappeared from the car-park.
Mr Sean Moylan SC on behalf of the defendants submitted at the close of the evidence that there was no evidence whatsoever that any of the bouncers was employed by the second named defendant, Christopher O’Reilly. It will be recalled that at the commencement of the case, he had accepted that these men were the employees of the first named defendant. He submitted that the evidence showed that the bouncers were all paid by Calla. This is a reference to the evidence that they received their wages at the end of the night in cash from Ms. Lawless, the Manager employed by Calla. He urged that there was one body in control of these premises and that was calla, and not Mr O’Reilly who was the holder of the licence and who had charge of the bar facility.
Mr Richard McDonnell SC on behalf of the plaintiff urged on the other hand that under the provisions of the Occupiers Liability Act, 1995 an occupier is a person exercising control , and that where there is more than one such person, the critical factor is the degree of control exercised by each. Mr McDonnell stated that the plaintiff was led to believe that the 2nd named defendant was a mere licencee, but that the reality was that he was certainly in control of the bar areas, including the entrance fee paid by patrons to the night club, and that there was no evidence as to who benefited from that fee. He also stated that the evidence had shown that in fact Mr O’Reilly was very active on a day to day basis in relation to the management of the premises. Therefore Mr McDonnell submitted that since the plaintiff was a visitor to the premises on this night, Mr O’Reilly cannot abrogate his responsibility on the basis that he does not pay the wages of the bouncers. He submitted that Mr O’Reilly was not a mere licencee but was to be regarded as a joint occupier with a joint responsibility for what happened on this night.
In response Mr Moylan highlighted the need to look at the degree of control; exercised by a person in relation to a premises when deciding whether they came within the definition of an occupier under the said Act.
Before stating my conclusions, I want to refer to a document which was handed to the Court, namely a copy of an Agreement dated 22nd September 1992 made between Calla Associates Limited and Christopher O’Reilly. By this document, Calla lets the premises in question to Mr O’Reilly, including all contents and fixtures and equipment on a week to week basis until terminated, and it is stated that “This letting is made for the temporary convenience of the Lessor until such time as it may require the premises for its own use for trading purposes, or for the use of any person nominated by the Lessor…”
Paragraph 4 thereof states that the Lessee shall carry on the business of a licensed hotel and public bar business “and with the right to hold public dances in the premises in accordance with the licences in force from time to time………and shall do all things necessary to ensure that the premises are conducted as an hotel in accordance with the standards and requirements of Bord Failte………”
Paragraph 5 provides that the “lessee shall fully comply with all the requirements of the Intoxicating Liquor Acts in relation to the conduct and management of the premises and in particular in relation to the non-admission of persons under a legal age, the hours of opening and closing the premises whether the statutory provisions in force, or by virtue of special exemptions or otherwise granted in respect of the premises and he shall co-operate with the Garda authorities in relation to such matters as required from time to time.”
The Agreement contains many more covenants on the part of Mr O’Reilly which one would expect to find in a document of this kind, including one which states that a weekly rent of an unspecified amount but one which shall be agreed from time to time, shall be paid to Calla by Banker’s Order; another which obliges Mr O’Reilly to keep the premises in good order; another by which the Lessee shall be responsible for all claims which may be brought by members of staff under the heading of Employers Liability; and another by which Mr O’Reilly covenants to conduct business in the hotel “in a manner consistent with the grading and status of the hotel, as a licensed hotel having a Public Dance Licence.
The Lessor on the other hand covenants with the Lessee, Mr O’Reilly in a number of matters of relevance, including the following:
“B. To keep the premises hereby let insured against all risks which the Lessor shall decide, such risks including fore insurance on the premises and contents thereof, and all public liability insurance, but excluding Employers Liability which shall be the responsibility of the Lessee and the Lessor covenants to indemnify the Lessee against all public liability claims that arise from incidents or occurrences during the term of the letting, save and except such claims that may be repudiated by the Lessors Insurers or Underwriters by reason of breach on the Lessee’s part of conditions contained in the relevant insurance policies in force………The Lessor shall have the interest of the Lessee as occupier noted on all relevant policies and the Lessee covenants to cooperate with the Lessor in relation to the making of all claims under the various Insurance Policies in force ……..” (my emphasis)
Neither Mr O’Reilly nor Mr Philip Smyth gave evidence to this Court, so I am entitled to assume that this agreement was still in force at the time of this incident. The precise nature of the arrangement between the two parties is somewhat unclear, given the fact that under the terms of the agreement it is the Lessee and not Calla who are to be responsible for staffing, whereas the evidence has been that Ms Lawless paid the security staff who say that they were employed by Calla as was she also. I have no idea of the precise nature of the arrangements as far as who received the proceeds of the night club’s takings are concerned, such evidence being quite easily provided by the defendants if they had chosen to lead it. Mr Moylan was obviously instructed to indicate to the Court that it was accepted by the first named defendant that the bouncers were in the employment of Calla, but in view of the fact that the only evidence which I received in relation to that matter was from Ms. Lawless and not from either of the principals, I am entitled to look behind that concession or admission in the particular circumstances of this case. I prefer to look at the matter from the point of view of the documents, and in particular the said Agreement, which must have formed the basis of the Ad Interim Transfer of the licence to Mr O’Reilly, and as I understand the position to remain that Mr O’Reilly was on the date of this incident still the holder of the licence.
It is clearly recognised in this Agreement that Mr O’Reilly’s interest as occupier is to be noted on the insurance policies which the Lessor Calla has covenanted to put in place. It is also clearly stated as one would expect that Calla will indemnify Mr O’Reilly against all Public Liability Claims arising from incidents at the premises. That implies that Mr O’Reilly is intended to be the first target of any such claim, and that Calla will simply indemnify him in respect of same. I do not believe that the fact that the bouncers are stated to have been paid in cash at the end of the night by an employee of Calla can render nugatory the terms of a legally binding agreement which has formed the basis of a licence transfer in the District Court and under which Mr O’Reilly holds the licence to run the premises. I am not privy to what precise arrangements have or have not been made outside the terms of that agreement, and they ought not to interfere with what appears to be the legal position arising from the document itself.
It is also relevant that under the Agreement, as set forth above, Mr O’Reilly has responsibility for Employee Liability insurance claims, as well as ensuring that the premises are run properly.
In my view there is such a mingling of functions between both Calla and Mr O’Reilly, according to the evidence, and such a relationship created by the Agreement, that it can reasonably and properly be said that both the defendants are occupiers of the premises and that each owe a duty to the visiting public, including the plaintiff. Since the Agreement actually refers to Mr O’Reilly as an occupier for the purposes of insurance, he cannot now say that he is not an occupier, particularly as he is the holder of the licence by virtue of the Transfer of the licence to him by virtue of this agreement. Equally, Calla has accepted that as a matter of fact the bouncers were their employees. I am satisfied therefore that the liability to the plaintiff is one which is joint and several. The plaintiff ought to be entitled to recover from either defendant, and the paying defendant will be entitled on the basis of joint ands several liability to recover appropriately from the non-paying defendant.
As far as the facts giving rise to the injury to the plaintiff is concerned, I make the following findings of fact. The plaintiff and some of his friends were lawfully upon the premises on the occasion having been admitted, even though the plaintiff and possibly some of his friends were barred. I have no doubt that the disturbance at the cloakroom was orchestrated by the plaintiff and that the security staff at the entrance were entitled to remove the plaintiff in the manner they did prior to closing the double doors. I am satisfied that the plaintiff then orchestrated further disturbance from outside which commenced with the kicking of the doors and the shouting of abuse, and I am also satisfied that this initial disturbance led inevitably to the wider disturbance which resulted in the hurling of missiles of various kinds at the premises and which resulted in some damage to windows. In my view up to this point, it is on the balance of probabilities reasonable to attach full blame to the plaintiff, who I am satisfied was the ringleader of what occurred, although I am not fully aware of what grievance he had that night having been allowed remain in the premises, or why so many people outside the premises would have seen fit to join him in his violent exploits outside. It was not simply the few friends he was with. I am satisfied that up to 25-30 persons may have been involved.
The evidence of what happened after the bouncers emerged from the small side door is less clear. There is conflicting evidence which has been given by each side. In addition some of the evidence given in court by the plaintiff and his eye witnesses is inconsistent in at least some respects with what they may have stated to the Gardai when they made their statements. Indeed if it were not for the undoubted fact that the plaintiff attended immediately at St. Vincent’s Hospital that night and for the evidence of Mr Cassidy as to the serious nature of the injury and that it must have been inflicted by a heavy blow from a blunt instrument, this Court may not have been able to be satisfied to the degree necessary that the injury was sustained in the scuffles that took place outside these premises. But it is the independent evidence of the injury itself, the manner in which it must have been inflicted and the fact that the plaintiff was immediately brought to the hospital which satisfies me on the balance of probabilities that he was injured by a heavy blow to the face outside the premises. The remaining question is who may have inflicted the blow given the sworn evidence of some of the men who formed part of the security team on this night that none of the men used weapons of any kind. It is not possible to reconcile that evidence with the objective evidence of injury. I accept the evidence that it was not management policy that weapons of any kind should be available for use or used at the premises. But I am not satisfied that the suggestion that the plaintiff may have sustained his injury from a flying glass or other missile, rather than from a blow delivered by one of the security staff, given the very clear and convincing evidence from Mr Cassidy that this injury must have resulted from a heavy or severe blow from a blunt instrument. While I cannot go so far as to accept everything that was said in evidence by each of the witnesses called by the plaintiff, I am sufficiently satisfied on the balance of probabilities that at least one of the bouncers must have had a weapon even if he ought not to have under the management guidelines. There is no other plausible or reasonable explanation for the injury to the plaintiff which I am satisfied was inflicted outside these premises.
Another matter to be addressed is whether in the circumstances which have been described the actions of the bouncers were justified in the sense that if the plaintiff was injured in the way he was, whether those actions constitute more than reasonable force, and therefore amounted to negligence, and whether the claims of negligence as made out in the Statement of Claim are properly made out. In my view the owners/occupiers of a premises such as that in this case are reasonably entitled to employ suitably trained staff in order to ensure as reasonably and lawfully possible the business of the premises is conducted in a proper fashion, and that the safety of those who patronise the premises, as well as those who work in the premises, and the premises themselves are properly safeguarded against violent or other improper conduct by other persons. The owners and occupiers of the premises are also obliged to ensure to a reasonable extent that the said staff members are supervised in the sense that there is some management control and guidance as to how they carry out their duties. It is alleged in this case that the first and second named defendants failed to employ competent security staff. I do not find that plea made out. The only evidence which I have heard satisfies me that the staff concerned were experienced and that the manager provided appropriate guidelines.
It is also pleaded that that they failed to adequately or at all supervise the conduct of the security staff on this occasion. Again, there appears to have been a management presence at the entrance area on the night in question.
It is pleaded also that the defendants:
“caused allowed or permitted the said servants or agents acting for and on behalf of the defendants on the occasion to act in a violent, aggressive, bellicose, threatening and intimidating manner on the occasion and to assault and beat the plaintiff as occurred on the dates in question.”
The relevant plea contained in the Defence delivered is that contained at paragraph 9 in which it is pleaded that:
“the staff present used no more force than was reasonably necessary in the circumstances to defend themselves, their colleagues, the premises and other patrons.”
The defendants have also pleaded contributory negligence on the part of the plaintiff on the basis that he was violently attacking the premises and was violently attacking members of the staff and was “engaging in behaviour whereby it became essential for the members of the staff present at Marley’s Club to protect themselves and others from assault.”
I should perhaps at the outset deal with the plaintiff’s plea in the Statement of Claim that the defendants are in breach of statutory liability to him by virtue of failing to comply with Section 3 of the Occupiers Liability Act, 1995. Section 3, subsection (1) of that Act provides that an occupier of premises owes a duty of care towards a visitor, except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5. Section 3(2) provides that this duty is to take such care as is reasonable in all the circumstances to ensure that a visitor to the premises “does not suffer injury or damage by reason of any danger existing thereon.” It is important to note that the word “danger” is defined in Section 1 as meaning “in relation to any premises, means a danger due to the state of the premises.” It must follow from this that the plaintiff’s claim is not one coming within the duty of care imposed by Section 3 as the allegations of negligence are not related in any way to the state of the premises but rather the behaviour of the bouncers on the night in question. It is necessary to consider this claim by reference to the more usual non-statutory criteria in relation to the possible breach of the common law duty of care owed to the plaintiff by the owners/occupier of the premises, diluted possibly by the contribution which the plaintiff’s own behaviour made to what befell him at the hands of their employees, servants or agents.
As I have stated the defendants are perfectly entitled, indeed it could be argued that they would be obliged, to employ suitably trained and supervised security staff, bearing in mind the nature of the premises to which they admit their patrons, namely a night club where the sale of intoxicating liquor is sold, and a large number of persons are in all likelihood going to congregate, in order to ensure that the safety of the patrons, staff and the premises is safeguarded. In this case there is no doubt in my mind that since the plaintiff gained admission and his presence there was at least permitted throughout the evening, the necessary relationship of proximity exists for the purpose of establishing the duty of care. The fact that he had been barred previously and ought not to have gained entry is irrelevant since he was known to be there and was observed throughout the evening. A decision was apparently taken that he would not be removed.
It is trite law that these security staff members are not entitled to use more force than is reasonably necessary in any particular circumstances which might present during the evening. Each case will have to be considered on its own facts, since the variety of situations giving rise to intervention by security staff in this type of premises is infinite. But the requirement to use only reasonable force never disappears. It is beyond doubt that it is reasonably foreseeable that an excessive use of force by staff of this nature has the potential to cause injury to others. The next hurdle to be overcome under the test for liability as pronounced by Keane CJ in Glencar Exploration Limited v. Mayo County Council [2002] 1 ILRM 481 is to exclude any public policy consideration which ought to exclude liability arising. In my view there could be no public policy consideration which should result in no duty of care being owed by employers of security staff to members of the public in the circumstances of facts such as have occurred in this case. In fact the opposite would be the case, since a situation would then exist in which security could go about their tasks with complete impunity regarding the level of force they might use, and in effect a situation would exist where it was permissible for the owners of licensed premises and other such premises to hire their own private army in order to enforce their version of law and order. That could never be acceptable. The final hurdle to be overcome by a plaintiff under the Glencar principles is that the Court must be satisfied that it would be fair, just and reasonable that the law should impose a duty of care on the defendants for the benefit of the plaintiff in this case. That consideration is for the purpose of this case quite closely linked to the public policy consideration, and there is also some blurring between consideration of that concept of fairness and reasonableness and the concept of any contributory negligence on the part of the plaintiff. One could consider the concept of fairness, justice and reasonableness also from the point of view of the ‘ex turpi causa’ principle. In other words, the actions of the plaintiff as proven in this case are so egregious that he ought not to be allowed to recover damages for an injury sustained which results from that behaviour.
The latter methodology must in my view be reserved for the very worst type of behaviour in order to serve the punitive purpose of denying an injured plaintiff any remedy for otherwise culpable behaviour on the part of a defendant. I believe that in the present case it is fair, just and reasonable that the defendants remain under the duty of care towards the plaintiff and other patrons even in the unpleasant and potentially dangerous circumstances which arose outside the premises on this night. The whole purpose of the job of being security staff member is to deal with situations which arise in premises of this kind and which cannot be reasonably dealt with by what I might conveniently describe as ‘ordinary staff’. It is part of the normal working life of such security men to encounter patrons in various states of intoxication, and who even when not intoxicated, are nevertheless aggressive and sometimes violent. Such staff ought to be, and in most cases, are trained to deal efficiently with such situations. It is perfectly fair, just and reasonable that such persons should carry out their duties in a way which is consistent with a reasonable use of force and restraint, and I can see no reason why any special dispensation should be extended to them in the manner in which they carry out their tasks.
I am satisfied therefore that a duty of care was and ought to be owed by the defendants and their servants and agents towards the plaintiff, and that this duty extended to avoiding causing injury to the plaintiff through an unreasonable or unnecessary use of force or violence in dealing with the situation which existed outside the premises in the car park. In this case, a decision was taken at some stage that the appropriate action to take was to allow the bouncers to run out of the side door and get in amongst the crowd outside and disperse them. In my view the appropriate course of action was to contact the Gardai and to wait for them to arrive in order to deal with the situation. In the present case that was done according to the evidence, but the management did not wait for the Gardai to arrive. This was not a disturbance within the premises themselves. It was a disturbance outside. The staff of the premises were inside the premises, and even though there may have been some shouting and kicking of the doors, and even a couple of windows broken, it does not seem to me that it was appropriate for the management to send out their own troops, so to speak, in order to break up the disturbance. That action led to direct confrontation between the troublemakers outside and the security staff and it was inevitable that somebody would be injured.
In the case of the plaintiff, as I have said, I am satisfied on the balance of probabilities that he was the ringleader of the trouble which happened. As such he would have been the object of the Garda attention following any complaint by the defendants when the Gardai arrived. The fact that he may have been the instigator of much of the disturbance does not mean that the security staff can single him out in any way or treat him with more than reasonable force. There is no doubt in my mind that it was an unreasonable use of force to hit him so severely in the face with some sort of heavy blunt instrument that he has effectively been rendered blind in his right eye. I am satisfied that this is how the injury was sustained. Even if a security man did not intend to cause an injury of that magnitude, it matters not. It was a reckless, negligent and dangerous act committed after the security staff had taken the inappropriate step of going out to themselves deal with the trouble outside, rather than allowing the members of An Garda Siochana to arrive and intervene. What happened amounts to negligent behaviour giving rise to a right of recovery on the part of the plaintiff.
However, the plaintiff has to share in the responsibility for what happened to him that night. His involvement, as found by me, amounts to contributory negligence. The question as always is to what degree. One is more accustomed to assessing contributory negligence in the context of a car accident or an accident at work. In such cases it would be unusual to make a large deduction on account of contributory negligence, because in most cases the element of contributory negligence arises due to perhaps not wearing a seat-belt, exceeding a speed limit, failing to observe an on-coming car and so forth. What I am trying to convey is that in such cases the plaintiff is guilty of relatively minor negligence not worthy of being severely marked by a large reduction in damages. In the present case the plaintiff’s behaviour is of a different character. It was criminal behaviour such as should not be implicitly condoned by a sympathetic approach to contributory negligence. It cannot be equated to the type of contributory negligence more commonly found in road accidents or workplace accidents. It is culpable behaviour for which the plaintiff must retain responsibility. In my view, even though the defendants are liable to him for an unreasonable use of force, and even though the Court feels great sympathy for the fact that the plaintiff has now only the use of one eye, he has himself to blame to a significant extent, and to an extent far in excess of the more normal type of case to which I have referred. In my view it is right to attribute to the plaintiff a finding of contributory negligence to the extent of 50%.
As far as damages are concerned, I assess general damages for the loss of sight in the right eye, and the scarring due to the blow received in the sum of €100,000. I take into account the fact that the plaintiff is a young man and that given the normal expectation of life, he could have to live with this disadvantage for about 50 years. His employment prospects have not in my view been affected adversely given his employment history to date, and it has not been urged upon the Court that such ought to be taken into account in any specific way.
Allowing for the finding of contributory negligence, I therefore give against the first and second defendants for the sum of €50,000, and the usual order for costs, to include all reserved costs, to be taxed in default of agreement.
Approved Peart J.
Meagher v. Shamrock Public Houses Ltd
t/a The Ambassador Hotel [2005] IEHC 35 (16 February 2005)
Static v Activity
[2005] IEHC 35
JUDGMENT of Mr. Justice Herbert delivered the 16th day of February, 2005.
On 28th November, 1999 Mr. David Meagher, the plaintiff in this action, his wife Cara, (then his fiancée), and his sister Brenda attended a discotheque at the Ambassador Hotel, Kill, Co. Kildare, which hotel is owned and occupied by the Defendant. They had travelled to the hotel from Celbridge in his sister’s motor car. They paid an entrance charge to be admitted to the discotheque and while there they had some drinks. I am satisfied on the evidence of Mr and Mrs Meagher that at about 2.30 a.m. to 3 a.m. on the morning of 29th November, 1999 they left the discotheque. I accept their evidence that the music had stopped sometime previously and that they had to wait in a queue to retrieve their coats. Prudently, as they had consumed alcohol they decided to leave the car in the car park of the hotel and travel home by taxi.
I accept the evidence of Mr. Meagher and of his wife that about half an hour passed during which they failed to find a taxi. I accept their evidence that Mr. David Meagher was standing at the side of the car park exit immediately opposite the large glass entrance doors of the hotel and around the corner of the building from and entirely out of sight of the entrance doors to the discotheque. It is clear from the photographs admitted into evidence that there was a light standard, – one of a row of similar lights lining the parking area in front of the hotel, – immediately behind where he was standing. I am satisfied on the evidence of Mr and Mrs Meagher that while he was standing at this location, his sister Brenda Meagher was re-parking her car in front of the hotel and Cara Meagher had walked back to the side of the Naas bound carriageway of the public road to endeavour to obtain a taxi. I accept their evidence that at this time, approximately 3.30 a.m. in the morning there were still a lot of persons moving around in the car park in front of the hotel. Sergeant Michael Murphy of Kill Garda Station and Mr. Edward Boland a Security Consultant both told the court that they believed that the discotheque at the Ambassador Hotel had a permitted maximum capacity of 850 persons. Mr. Niall Duff, then the Manager of the hotel, considered that the attendance on the particular night was approximately 600 persons as he said that business tended to be somewhat slack before the start of the Christmas Season.
I accept the evidence of Mr. David Meagher that while standing at the indicated location, he was approached by two men who were strangers to him. I accept his evidence that one of these men said to him, “do you want to start a fight, – or possibly, do you want to have a fight with a Garda.” I accept his evidence that he realised that he was being threatened and replied, “if you touch me you will lose your job”. I accept his evidence that the other man then responded, “he won’t, I’m his Solicitor”. I accept the evidence of Mr. Meagher that he was afraid to turn his back and walk away from these men and that he hoped that he could talk his way out of the situation or that someone might come to his rescue. I accept his evidence that without any further discussion or warning he was struck by one or other of these men and knocked unconscious to the ground.
I accept the evidence of David Meagher that prior to his being struck he did not recall seeing any security staff wearing, as was put to him in cross examination, yellow or orange jackets or over-jackets in any part of the car park in front of the hotel. Mr. Meagher very frankly accepted that until approached by these men he was not particularly looking to see who might be in the particular car park. He accepted that the entire incident took no more than about one minute and that prior to the assault the men had been doing nothing which would attract attention to themselves. Mr. Meagher impressed me as a scrupulously careful and truthful witness. I accept his evidence that once it became clear to him that these men wear intent on provoking a fight with him he was hoping that someone might come to his assistance and thereafter was looking anxiously round for help and that if he had seen anyone in the vicinity who looked like a member of security staff he would have shouted for help and so avoided being struck.
It had been put to Mr. Meagher that security men wearing bright yellow or orange jackets or over-jackets were on duty in all the hotel car parks at 3.30 a.m. on the morning of the 29th of November, 1999. It was also put to him that before he was struck nothing whatever had occurred which would have alerted even the most vigilant security man to the fact of something being amiss. It was also put to him that even if many security personnel were about he would still probably have been assaulted by these men who seemed determined upon that course and given the totally sudden nature of the attack on him there was nothing which any security man could have done to prevent it.
Mr. Edward Boland, Managing Director of Temple Bar Security Limited, gave evidence. He said that he had been a member of An Garda Síochána for 30 years before establishing his security consultancy business in September 2004. He told the court that his company specialised in advising on security and providing training for staff involved in security in connection with the Licensed Trade. He told the court that he had completed a conflict management course while a member of An Garda Síochána, had qualified as an addiction counsellor and, had extensive experience in dealing with juvenile crime. After leaving An Garda Síochána he had undergone specialist training courses in security in London and in Birmingham. He accepted that he had been instructed in relation to this assault on David Meagher in October 2004, almost five years after the event. His status as an expert witness was not challenged by the defendant.
Mr. Boland accepted that even with 50 members of An Garda Síochána present an assault could still have occurred. However, he was satisfied from his own experience and from the state of knowledge in the Security Industry that the presence of easily identified trained security personnel, – not merely car park attendants, – does stop assaults, passively by their mere presence and actively by their being trained to notice potential confrontations and to take immediate preventive measures. Mr. Boland told the court, and I accept his evidence as according with reason and common sense, that an obvious and prime location for a security man to have been stationed was in front of the main doors of the hotel, in almost the exact area where Mr. Meagher was standing when he was assaulted. Mr. Boland told the court that because of the layout of the various car parks around the hotel and because security personnel at the door of the discotheque could not see the front of the hotel, other clearly identifiable security staff should have constantly patrolled the front car park of the hotel until the last of the discotheque patrons had left the hotel grounds. Neither Mr. Patrick Gormley, who had been head of security at the hotel complex on the relevant occasion, nor Sergeant Michael Murphy, Sergeant in charge of Kill Garda Station since 1990, gave evidence which would in anyway cast doubt on this evidence of Mr. Boland.
Sergeant Murphy told the court that the Ambassador Hotel and its “Matrix” discotheque were in his Precinct Area. He said that a huge amount of young people travelled to this discotheque at weekends, on foot from the village of Kill, and in private cars and in large numbers of taxis and coaches from Naas and other towns and villages in the area and from the Dublin suburbs of Tallaght and Clondalkin. He gave evidence that assaults and public order offences occurred every two or three weeks in connection with this discotheque but these generally occurred inside the premises. In his opinion the defendant had provided sufficient security personnel inside and at the entrance door to the discotheque. He said that he would however liked to have seen more security people in the car parks and in particular in the parking area at the front of the hotel where people tended to congregate after emerging from the discotheque. He also considered that these members of the security staff should remain in the area until all the patrons had left the hotel grounds. He said he had discussed this matter with the hotel management but had not suggested actual numbers of security staff. He said that he had stressed that the security staff in the car parks should be very visible and that this was most important from a preventive point of view. Under cross examination he said that he visited the hotel complex on a regular basis and that the hotel management had improved security over the years and had generally complied with all his suggestions. He said that he seen security personnel wearing yellow jackets patrolling the car parks after a function but could not say how many persons were involved. It was put to him that there were four security men, – which was the number which Mr. Edward Boland would later tell the court should have been present in addition to the security staff on the door of the hotel and the entrance to the discotheque, – but Sergeant Murphy could not recall how many men he had seen.
Mr. Edward Boland told the court that in his opinion, given the relatively inaccessible location of this discotheque catering for such large numbers of young persons, the high profile presence of well trained security staff patrolling the car parks after the discotheque had ended was an essential requirement to secure the safety of patrons, especially given the known history of rowdiness and assaults. In his opinion what occurred to Mr. David Meagher was entirely foreseeable. He told the Court that research by the University of Leeds conducted over a two year period using numbers of Night Clubs in that city and, similar research in New York had demonstrated that the visible presence of well trained security staff could reduce public order offences to zero. In his opinion, in November 1999, this problem was well known to those involved in the licensing trade and was frequently coming to the attention of the Licensing Courts, especially in the Dublin area. He considered that in November 1999 it would have been sufficient for the defendant to have had four security staff in the front car park of the hotel where patrons tended to congregate while seeking transport home, these four to be in addition to those at the door of the hotel and at the entrance to the discotheque. He said that all such personnel should be wearing brightly coloured jackets or other highly visible and distinguishable dress. He told the court that in his opinion it would not be acceptable at all for this duty to be left in the hands of car park attendants.
Patrick Gormley told the court that he only heard about the incident to David Meagher a few weeks after the event from either Mr. Clinton, the Discotheque Manager or Mr. Niall Duff, the General Manager of the hotel. He had asked the men on duty that night had they seen anything because he was obliged to make a report to Mr. Duff as part of his duties as head of security. He gave the Court the names of six men, – none of whom was called in evidence, – some or all of whom he felt would have been on security duty at the Hotel on the night of 28th and the morning of 29th November, 1999. Mr. Gormley told the court that he had not been in the employment of the defendant group for the past five years and without seeing the books he could not be certain who was on security duty that night. Mr. Niall Duff told the court that the relevant records would have been, a security incident book, a management
pass-over book, a file with any letters making a complaint or a claim, staff statements, (if taken), and closed circuit television tapes. Mr. Duff said that he had ceased to work at the hotel in March 2000 and was no longer employed by the Quinn Group. He said that he was astonished that none of these records were available but accepted that the hotel had been sold since the 29th November, 1999.
Mr. Gormely recalled that patrons usually started to leave the discotheque from 2 a.m. onwards and that the barrier across the entrance to the hotel was usually lowered and locked and all patrons of the discotheque departed home by 3.30 a.m. Any late arriving guest staying at the hotel would be observed on the closed circuit television system by the night porter on duty in the hotel foyer who would then go out, unlock and raise the barrier. Mr. Duff told the court that the Hotel Receptionist went off duty between 11.30 p.m. and midnight. The hotel doors were locked he said, about 1.30 a.m. or 1.45 a.m. Thereafter the doors were under the control of the hall porter who had authority to admit into the foyer patrons of the discotheque who wished to telephone for a taxi.
Mr. Duff told the court that the security staff normally on duty consisted of eight to ten staff inside the discotheque and four staff on external duty. He said that the four outside security staff wore fluorescent type jackets. These would remain at the front of the hotel when the crowd started to exit the discotheque and four of the inside security staff would usually join the security staff at the exit to the discotheque. In November 1999 the four outside security staff were provided, equipped, (other than with radios which the Hotel provided), controlled and, paid by an independent company called City Guard Limited which then had the outside security contract for all the hotels in the Quinn Group. No witness was called from or documents produced by City Guard Limited. Mr. Gormley told the court that at least four security men would usually be on duty at the front of the Hotel normally up to 3 a.m.
Mr. Gormley, who impressed me as a very fair, open and accurate witness, said that it was his view as head of security at the hotel that it was very desirable to have a high profile security presence at the front of the Hotel when the crowds were leaving the discotheque. It was his recollection that the youngest person patrolling the car parks was Mr. Paul Walsh who he believed was about 30 years of age. He said that he himself never took part in car park duties. He remained in the discotheque but was in radio contact with all security personnel on the outside who shared a two way radio between every two men. He agreed that there were lots of disturbances at the functions but he described most of it as, “handbag stuff”. He agreed that whenever one got large numbers of young persons with drink taken and lots of opportunities for sociosexual jealousies one was going to get rowdiness and assault. They accepted that the security staff were not allocated specific stations but were told to follow the crowds and to go where the crowds were and to be on the lookout for incidents. He accepted that the car park area in front of the hotel was reasonably well lighted and free from obstructions and that the security men should have been clearly visible to all. He was not responsible for locking or opening the hotel doors and this was the duty of the hall porter. He accepted that if Mr. David Meagher and his wife Cara did not see any security men at the front of the hotel and no one came to assist a bleeding man and a screaming woman there must be have been some breakdown in the security system.
Mr. Niall Duff recalled that no security incident had been logged for the night of 28th or the morning of 29th November, 1999 even though the records which he identified as existing were no longer available. He accepted however, that a day or so later Garda Cahill had contacted Mr. Clinton the Discotheque Manager about this incident which had been notified to the Garda on the morning of 29th November, 1999. Mr. Duff said that Mrs. Cara Meagher could not be correct in her recollection that a receptionist had telephoned a taxi for her at about 3.30 a.m. and said that she also must be mistaken in her recollection that the hotel door was open at that hour. I accept the evidence of Mr. Duff on these matters. However, I find on the balance of probabilities that the door porter, probably seen Mr. Meagher collapsed bleeding on the steps leading up to the hotel doors and probably also hearing his sister screaming and seeing Mrs. Cara Meagher running up the steps had opened the door to admit her. In her evidence she recalled that a man was standing behind the door which, as is demonstrated by the photographs admitted into evidence, is almost entirely clear glass. While she is, I believe, mistaken that the lady behind the reception area was a receptionist, I am quite satisfied that some female member of the hotel staff who was sitting in the reception area had telephoned for a taxi for her. I find that these errors in recollection on the part of Mrs. Meagher are entirely explicable and do not in anyway impugn her credibility as a witness.
Mr. Duff said that City Guard Limited had a proven record for reliability and he and Mr. Gormley would not in any event just leave security matters up to them. He said that he could not be certain that he was on duty on the relevant occasion but was 99% confident that he was. It was his recollection that patrons of the discotheque would start leaving the premises after 1.30 a.m. when the bar closed and would not wait until the dancing ended at 2.30 a.m. because of known difficulties in obtaining transport home from the hotel. He accepted that the closed circuit television would have covered the location where Mr. Meagher stated he was assaulted. He accepted that the car park area at the front of the hotel was a matter of concern to him and the security staff when the crowds were milling about after the discotheque and trying to organise or find transport home.
Mrs. Cara Meagher, (then McCabe), said that she left her then boyfriend standing waiting for his sister to finish parking the car at the front of the hotel and had herself walked back down to the side of the Naas Road to try to get a taxi. She said that shortly after she had arrived a man approached her, – not a security man, – and told her that, “the fellow she was with was lying on the ground back up there”. She immediately ran back up to where she had left her boyfriend. When she arrived she said David Meagher was staggering about with blood all over his face and did not even seem to recognise her. His sister Brenda then arrived and started screaming and shouting at people had they seen what happened. Mrs. Meagher who is a hospital theatre nurse ran up the steps to the hotel door while David Meagher sat down at the bottom of those steps. She said she had no difficulty entering the hotel lobby. She had asked a lady behind the reception area whom she had assumed was a receptionist to call a taxi for her. The lady suggested that she should call an ambulance but Mrs. Meagher insisted on a taxi. The taxi came quite quickly. She and Brenda Meagher assisted David Meagher into the taxi. In the taxi he told her what had occurred. She had wished to take him to the Casualty Department of Blanchardstown Hospital but he insisted on going home and lying down. She decided on her own initiative to telephone An Garda Síochána and Garda Cahill had come very quickly. Later in the morning she insisted that David should go with her to Blanchardstown Hospital where they arrived at about 7 a.m.
In cross examination Mrs. Meagher accepted that she had no idea that her husband, (then her boyfriend), had been attacked. She had heard no commotion or raised voices or any disturbance. She said that all she heard was the traffic noise on the Naas road. She said that while David Meagher was staggering about with blood all over his face, while Brenda Meagher was screaming and trying to find out what had occurred, while David Meagher was slumped on the steps leading to the door of the hotel and, while they were getting him into the taxi she saw no security man of any sort and no security man came to offer assistance or to discover what was going on. Mrs. Meagher accepted that she was quite distraught but that in the circumstances would have certainly seen any security staff if any had been about.
Section 3(2) of the Occupiers Liability Act, 1995, merely restated without altering the position at common law of an occupier with regard to a contractual invitee. In the case of Hall v. Kennedy (Unreported, High Court, 20th December, 1993), Morris, J., (as he then was), in setting out the position at common law held that the owner of a licensed premises owed a duty to a customer, “to take all reasonable care for the safety of the [customer] while on the premises [and] this would include in this case ensuring that a customer in the premises did not assault him.”
It was not pleaded by the defendant in its defence that the plaintiff was guilty of negligence or of contributory negligence. It was however pleaded that if the plaintiff did suffer the alleged severe personal injuries, loss, damage, inconvenience and expense (all of which were denied), the same were caused or occasioned by reason of the acts and/or omissions of other persons for whose acts and/or omissions the defendant was not responsible.
It was put in cross examination to the plaintiff and to witnesses called on his behalf that his assailants might not have been customers of the defendant but persons who had travelled to the spot from a neighbouring town or even from the city suburbs for the sole purpose of assaulting some patron of the discotheque. Given the relative inaccessible location of this hotel, the time and the location of the assault the immediate presence of large numbers of persons who had recently emerged from the discotheque and, the known incidents of previous assaults at this location and on these occasions, in the absence of any evidence whatsoever suggesting the contrary, I am satisfied on the balance of probabilities that the person or persons who assaulted the plaintiff were fellow customers of the discotheque.
I find, on the evidence, that the defendant was aware of the danger or rowdyism and of assaults by visitors on each other on its premises during and after the functions in the discotheque. I find that it was therefore clearly foreseeable by the defendant that unless reasonable care was taken by it to prevent such behaviour, visitors such as the plaintiff, while on its premises might be assaulted and as a direct result suffer personal injuries. I find that it therefore had a duty to take reasonable care to keep the plaintiff safe from such known danger, I accept that the defendant was not in the position of an insurer and its duty only extended to taking reasonable care to protect patrons such as the plaintiff from such known danger. I find on the evidence that the defendant did have a security system organised which was generally sufficient for this purpose. However, I also find on the evidence that the system was not in operation at 3.30 a.m. on 29th November, 1999 when this plaintiff was assaulted and injured. In find on the evidence that on the balance of probabilities there were no security men, – or even car park attendants, – on duty at the front of the Ambassador Hotel at 3.30 a.m. on the morning of 29th November, 1999.
I find that the defendant was well aware and had been advised that for a security system to provide sufficient protection to patrons at least four security men must remain on duty at the front of the hotel until all patrons of the discotheque had left the hotel grounds. I find on the evidence that considerable numbers of patrons were still in the car park area in front of the hotel when the plaintiff was assaulted and that the barrier closing off access to the hotel grounds had not been lowered when the assault took place. I find on the balance of probabilities that if four security men dressed so as to be clearly identifiable as such were maintaining a high profile presence in the car park area in front of the hotel, especially if one of them was located covering the entrance to the hotel grounds and the main door to the hotel, this assault on the plaintiff would probably not have occurred. In the circumstances I find that the defendant was in breach of its duty to take reasonable care for the safety of the plaintiff while on its premises.
I accept the evidence of the plaintiff and his wife that he was rendered unconscious and suffered a deeply traumatising experience. Fortunately the plaintiff suffered no serious head injury. In my judgment Mr. Meagher tried to make as little of this shocking event as possible. Fortunately none of his teeth were broken in the attack. His jaw was observed at Blanchardstown Hospital to be bruised but for some reason an x-ray taken at that time did not reveal a fracture of the jaw. The plaintiff went to work as usual on the Monday following these events. He could not speak but he told me that this was not to great an embarrassment nor was it an impediment to his work as an engineering surveyor. He states and I accept his evidence that he had a headache all day at work. He could not close his teeth properly and found eating very difficult. As his condition was not improving he returned to Blanchardstown Hospital and was referred to the National Maxillofacial Unit at St. James’s Hospital where he came under the care of Mr. Cliff Beirne, Consultant Maxillofacial Surgeon, on 22nd December, 1999.
A bilateral fracture of the mandible was diagnosed. This was reduced under general anaesthesia using plates, screws, wires and elastic traction. The plaintiff told me and I accept his evidence, that he had severe pain after surgery for which he was prescribed Solpadol. He continued to have difficulty with his bite. He was readmitted to St. James’s Hospital where the plates were removed and he was placed in intra maxillary fixation using wires. This treatment lasted for some six weeks during which he was unable to eat and he told me he lost five stones in weight. He and Cara had to postpone their engagement which they intended to announce on 14th February 2000 and to celebrate with a holiday in Paris. This announcement had to be postponed until April 2000. The plaintiff continued to work. He had severe hunger pains at all times and his jaw was uncomfortable. He also suffered numbness of the lower lip and of the chin area. On 6th March, 2000 Mr. Beirne felt that the prognosis was guarded for a full recovery.
When seen on 29th November, 2004 the fracture of the lower jaw had healed. The plaintiff had a full range of functional jaw movements but with clicking of both temporal mandibular joints. Mr. Beirne found that there was no damage to facial nerves. In his opinion the clicking would not predispose the plaintiff to the development of future arthritic changes in the jaw joint. The numbness of his lower lip and chin area had resolved. Mr. Beirne considered that in periods of stress the plaintiff’s temporal mandibular joint symptoms would become worse. Mr. Meagher told me that he felt that his bite was fine. He considered that some of his teeth were displaced by the wire fixation. He had consulted an orthodontist about this but did not consider it worth spending one and a half years in a brace which he was advised would be necessary to correct this displacement. As of the date of trial the plaintiff said that his jaw continued to feel delicate and the clicking was still present and unpleasant. He said and I accept his evidence that he has suffered a loss of confidence in public as a result of this incident and has been turned off visiting public houses and nightclubs.
I have had regard to the Personal Injuries Assessment Board Book of Quantum as required by s. 22 of the Civil Liability and Courts Act, 2004. Under the heading, “Jaw Fracture”, the book provides as follows:-
“After the nose the jaw (mandible) is the most commonly fractured facial bone. Some jaw fractures may be very simple and require only observation and soft diet or with just bandaged immobilisation but the majority of fractures require internal fixation with the use of wires”.
In my judgment Mr. David Meagher has a significant ongoing injury and therefore the range of damages is given as lying between €25,000 and €58,000.
To compensate the plaintiff, so far as money can, for the pain suffering and inconvenience which he has had to endure in the past five years and three months, while at the same time being fair to the defendant, the Court will award the plaintiff the sum of €32,000. Mr. Cliff Beirne did not opine that the clicking in the plaintiff’s temporal mandibular joints would resolve in the foreseeable future but instead indicated as I have already observed that in times of stress or strain the plaintiff’s temporal mandibular joint symptoms would get worse. In these circumstances and applying the same principles of compensation, the court will award the plaintiff the sum of €16,000 for future pain suffering and inconvenience. Special damage has been agreed between the parties in the sum of €379.51. The court therefore directs that judgment be entered for the plaintiff in the sum of €48,379.81.
Approved: Herbert J.
Callaghan v. Killarney Race Co. Ltd.
Patron at Racecourse
[1958] IR 366
Supreme Court
Maguire C.J. 366
On the 22nd July, 1954, the plaintiff went to the races at Killarney. While watching the first race which was a hurdle race he met with injuries. He has sued the Killarney Race Company for damages, alleging that his injuries were caused by their negligence. At the gate he paid two shillings and was entitled to go to the unreserved part of the course, which appears to be the whole area surrounded by the race-track. There were no terms of contract between him and the defendant Company and the contract between them is to be implied from the circumstances of the case. He took up his position to watch the first race close to the rail beside the track at a point where the hurdle which had to be jumped first was situated. This hurdle was of the ordinary type with which those who attend races are familiar. It consisted of five frames four feet high with birch twigs rammed into them. As it sloped away from the direction which the horses approached its height was three feet six inches. At each end of the hurdle there was a wing of similar type to the frames forming the hurdle. They were of the same height as the frames mentioned but rose slightly higher as they were not tilted. They made an angle with the straight face of the hurdle opening out towards the direction from which the horses were to come. The wing on the left went right over to the rail guarding the course.
This rail, which is referred to as the public guard rail, was a light wooden rail resting on standards three feet two inches in height. It was of the same type all round the course. Near the finishing-post, however, it was much stronger and was supplemented by a rail nine feet away consisting of concrete posts and a double rail. The purpose of the rail save at the finishing-post is merely to define the track and according to the evidence was not devised as a protection either for horses or spectators. Neither were the side wings of the hurdle devised as a protection to either the horses or the spectators. Their purpose was obviously to indicate clearly to the jockeys the hurdle which was to be jumped. The construction of this hurdle was similar to that of all the other hurdles on the course and was similar to hurdles on other courses.
There were seven runners in the first race. The start was two hundred and twenty yards from the hurdle. The plaintiff, standing close to the rail and behind the wing of the hurdle, was watching the horses approach. The evidence was that he followed with his eyes the leading horses. One of those behind diverged from the course, jumped the wing of the hurdle and knocked the plaintiff and some other spectators down. Although no similar accident had happened on this course previously it is obvious that there is a possibility that a rider would lose control of a horse and that the horse might get in amongst the spectators and that if he is trained to jumping either hurdles or other obstacles he might do as this horse did. These risks are incidental to and inseparable from the sport of racing. The races were run under both the Rules of Racing and the rules of the Irish National Hunt Steeplechase Committee. It is not proven that the lay-out of the course is any different from that of other courses throughout the country where similar events take place.
At the end of the plaintiff’s case it was submitted that there was no evidence on which it could be held that the accident happened through any breach of duty on the part of the defendants. Mr. Liston’s submission was that it was not negligence to have failed to anticipate an accident of a kind which had never happened before on this course and, secondly and alternatively, that the defendants were not liable because one of the implied terms of the contract was that the plaintiff accepted the risks incidental to horse-racing. Mr. Liston cited several cases including Hall v. Brooklands Auto Racing Club (1) and Coleman v. Kelly and Others (2).In reply it was contended that there was evidence from which a jury might find that the premises were not reasonably safe. It was submitted that the evidence was that the position where the plaintiff was standing was a popular vantage-point to which numbers went to see the horses take what was as it happened both the first and the last hurdle to be jumped. These circumstances, it was urged, made it likely if an accident of this kind were to happen that the consequences would be very serious and this in the minds of the jury might call for special precautions to be taken. The only precaution suggested was the erection of another guard rail some ten or twelve feet away from the existing one. Mr. McMahon, however, agreed that it must be accepted as an inherent risk in racing that a horse might suddenly swerve and dash through the rails. He, however, submitted that it is different at a hurdle where a horse is asked to take a jump. This, he submits, is something that a horse is reluctant to do and it should be anticipated that he might swerve sideways at this point which was one where people were very likely to be injured.
The learned Judge held that the risk of what happened was an unforeseeable risk, something which had never happened before and something which the Company could not be bound to guard against.
The law in regard to injuries to spectators who pay to see an entertainment to which obvious risks are incidental has been considered in a number of cases. This Court considered it in the case of Coleman v. Kelly and Others (1). The leading English case is Hall v. Brooklands Auto Racing Club (2).The decision in that case was accepted by this Court in the case above mentioned. It was a case in which the plaintiff who paid to view motor races and was standing by a railing beside the track when one of the competing cars left the track, shot through the air over the kerb and the grass margin, killing two spectators and injuring the plaintiff. The principle it lays down is succinctly stated in the head note: “Held, that it was the duty of the appellants to see that the course was as free from danger as reasonable care and skill could make it, but that they were not insurers against accidents which no reasonable diligence could foresee or against dangers inherent in a sport which any reasonable spectator can foresee and of which he takes the risk . . .”Scrutton L.J. asks, at p. 214: “What then is the term to be implied on payment to see a spectacle, the nature of which is known to all people of ordinary intelligence who go to see it?” He answers this by citing a passage from Lord Wensleydale’s judgment in Parnaby v. Lancaster Canal Co. (3)which lays down the duty resting upon proprietors of a canal open to the public for use on payment of certain rates. They must take reasonable care that those who navigate it might do so without danger to their lives or property. Applying this to the case before him he goes on: “This is not an absolute warranty of safety, but a promise to use reasonable care to ensure safety. What is reasonable care would depend on the perils which might be reasonably expected to occur, and the extent to which the ordinary spectator might be expected to appreciate and take the risk of such perils. Illustrations are the risk of being hit by a cricket ball at Lord’s . . . where any ordinary spectator . . . takes the risk of a ball being hit with considerable force amongst the spectators, . . .” Further illustrations he gives are spectators who stand along the line at a football or hockey match. Lord Justice Greer’s judgment is to the same effect. He adds the illustration of a man taking a ticket to see the Derby who would know quite well that there would be no provision to prevent a horse which got out of hand from getting amongst the spectators and would take the risk of such a possible but improbable accident happening to himself.
Applying these principles the Court set aside a verdict which the plaintiff had obtained and entered judgment for the defendants. As already stated, the principle laid down in the Brooklands Case (1) has been accepted by this Court in Coleman v. Kelly and Others (2). This latter was a case of an accident at a show ground. The Court distinguished it from the Brooklands Case (1) because of its special facts. Although in my judgment in that case I held that the jury on the evidence were entitled to hold that the accident which occurred was reasonably foreseeable and could have been guarded against, I said at p. 51: “It was not the duty of the defendants to provide against improbable or unlikely happenings such as the dashing of a horse through the railings in amongst spectators.” That is what happened here. In my opinion, the plaintiff took the risk of a horse swerving off the course as this horse did and injuring him. That a horse might do so was an obvious possibility. If precautions were to be taken to prevent this happening there would need to be a substantial fence all the way round the track which would have to be so high that nobody standing behind it could see the horses. Mr. McMahon of course does not suggest anything quite so absurd. It would prevent the spectators seeing what they paid to see. He does suggest a guard rail similar to that at the finishing-post. The double rail at that point is not for the purpose of protecting the spectators but for the purpose of preventing excited or over-eager spectators from invading the course. It is, in effect, to protect the horses and their riders from spectators and not vice versa.
In my opinion, the learned Judge was correct in withdrawing the Case from the jury. The ground upon which
this should have been done may, however, be stated somewhat more precisely than it was stated by him. The risk of what happened occurring is inherent in racing and particularly in the type of race which was taking place. That it would happen in precisely the way it did may, as the trial Judge held, be unforeseeable, but that a horse might jump off the course was a possibility of which all intelligent spectators are aware. The plaintiff must be held to have accepted this risk, and accordingly there is no evidence of any breach of duty on the part of the defendants which would render them liable.
In my opinion the appeal should be dismissed.
LAVERY J. :
I agree with the judgment of the Chief Justice and I do not wish to add anything to it.
KINGSMILL MOORE J. :
Killarney race-course is a rounded oblong, with a perimeter of about a mile. The inside of the oblong is the public enclosure, and therein is also contained the totalisator building, and pitches for bookmakers. The public enclosure is separated from the track by a fence consisting of posts, two and a half by three inches in cross section, fixed at intervals of twelve feet, on top of which is a single rail two or two and a half inches thick, and about three feet two inches from the ground. This fence was described by a witness for the plaintiff as being a most flimsy construction which would afford no protection to persons standing behind it. In his view the object of the fence was not to protect onlookers but to define the track. A photograph put in evidence for the plaintiff confirms this description. The fence can be easily jumped by a horse or easily broken by impact and it appears clearly to be erected for the purpose of marking off the track for the benefit of jockeys and spectators alike. I find it impossible to believe that anyone could imagine that this fence would afford protection against a horse which had run away or was otherwise out of control.
For one stretch of eighty yards on each side of the finishing line there is a double fence of stronger construction. No reason was assigned in evidence for this stronger fence, but it may, I think, be assumed that it was to prevent a crowd pressing in on the course at the finish.
On the 22nd July, 1954, the course was prepared for a hurdle race, the hurdles being made of timber frames packed with brushwood, and sloped forward so that the height of the obstacle was three feet six inches. The width of the jumping face was thirty-one feet, and projecting from the ends of the jumping face were wings, each twelve feet long, and also made of hurdles. These wings were not quite at right angles to the face but opened slightly outwards so that the distance between the extreme points of the wings was thirty-eight feet. The hurdles forming the wings were not sloped but upright, making the height of the wings a full four feet. The edge of the wing nearest the boundary fence was three feet from the boundary fence at the end joining the jumping face, and was in contact with the boundary fence at its other end. It was admitted that there was nothing unusual or wrong in the construction or placing of the hurdles or the jump as a whole.
One of these hurdle obstacles was situated two hundred and twenty yards from the starting-gate and three hundred yards from the finishing-post, and in the course of the race it had to be jumped three times. For these reasons its vicinity was a favourite place for spectators in the public enclosure to congregate, and when the horses started for the hurdle race there were some forty or fifty people gathered along the boundary rail and close to this hurdle fence. Among them was the plaintiff, a boatman, who was a regular frequenter of the Killarney races, standing some nine feet back from the boundary rail and about opposite the hurdles. The horses came up to the hurdles in two groups. The first group of three cleared the obstacle without mishap, but the inside horse of the second group of four, for some unexplained reason, swerved to the left, jumped over the left-hand wing and the boundary fence, landed among the spectators, and very seriously injured the plaintiff.
The plaintiff thereupon sued the Company, which is the owner and manager of the race-course, alleging in his summons negligence and breach of duty by the Company and amplifying this in the statement of claim by adding a claim for breach of a warranty that the race-course and enclosure would be as safe for the use and occupation of the plaintiff as it could be made by reasonable skill and care. Lengthy particulars were given of the alleged negligence and breach of warranty, but, at the trial and on the appeal, the case was fought on the ground that the Company should have provided a double railing so as to keep spectators away from the edge of the course at points where they were likely to congregate and particularly at a favourite position such as that opposite this particular hurdle-fence.
At the conclusion of the evidence for the plaintiff the trial Judge withdrew the case from the jury on the ground that there was no evidence to justify a verdict in favour of the plaintiff.
From the oral evidence, scanty as it is, from the photograph, and from the knowledge as to the behaviour of horses which any ordinary racegoer may be assumed to possess, certain conclusions seem to me inescapable. First, that horses in a race normally remain under the control of their jockeys and do not run outside the limits of the course: second, that despite the efforts of their riders, horses, especially spirited animals such as bloodstock, do very exceptionally get out of control and behave in a panicstricken way: third, that the boundary fence would be quite inadequate to stop a horse which had so got out of control and which could easily either jump or break it. I consider further that the plaintiff must be deemed to have known and appreciated these facts when he chose to take up a position close to the boundary fence.
The plaintiff had paid for the right to enter the public enclosure. In such cases the liability is founded in contract: Hall v. Brooklands Auto Racing Club (1), accepted as correct by this Court in Hall v. Meath Hospital (unreported) and in Coleman v. Kelly and Others (2). The contractual liability is to take reasonable care that the premises are safe: see Hall v. Meath Hospital (unreported) per Sullivan C.J., Coleman v. Kelly and Others (2) per Maguire C.J. at p. 51, and Lavery J. at p. 55. But the owner of the premises is not an insurer, and, where the lack of reasonable care is alleged to consist in an omission, I think a guide as to what is or is not such lack is to be found in the words of Lord Dunedin in Morton v. William Dixon, Ltd. (3) at p. 809.”. . . proof of that fault of omission should be one of two kinds, either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.” In Paris v. Stepney Borough Council (4), at p. 382, Lord Normand quoted this passage with approval, and continued: “The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.” This test was applied by the Lords in Morris v. West Hartlepool Steam Navigation Co. Ltd (1). Morton v. William Dixon Ltd. (2) Paris v. Stepney Borough Council (3) and Morris v. West Hartlepool Steam Navigation Co. Ltd. (1) were all concerned with the duty of an employer towards his workman, but the words I have quoted seem to me applicable to the duty which an owner of premises owes to a person who has paid to come on to them. There is no evidence that the owners of race-courses are accustomed to protect spectators by a double fence or by a fence which a horse cannot negotiate, nor, having regard to the rarity of a horse running wild among the spectators, could it be regarded as folly to fail to take such precautions. The spectators at Killarney have a right to view the race from any part of the interior margin of the course and, if there is an obligation to fence one part there is an obligation to fence every part. No evidence was adduced to show that a horse was more likely to leap the fence at one part than another.
In judging what a reasonable and prudent man would think necessary more than one element has to be considered. The rarity of the occurrence must be balanced against the gravity of the injury which is likely to ensue if the occurrence comes about, and some consideration must be paid to the practicability of the precautions suggested. If there was an obligation to double fence the whole perimeter, or to surround it with an unbreakable fence, the expense might well put an end to many of the smaller race-courses, or involve a higher price for admission. Having regard to the unlikelihood of the occurrence and the difficulty and expense of taking adequate steps to make such an occurrence impossible, and the practice prevailing at other similar race-courses, I do not consider that a jury could properly find that the defendant Company were guilty of a lack of reasonable care.
It must be remembered that there was no obligation on the plaintiff to post himself so near the rails, and if he chose to do so it seems to me that the defendant Company can rely on the further limitation of liability which Scrutton L.J. and Greer L.J. laid down in Hall v. Brooklands Auto Racing Club (4) and which was approved by the English Court of Appeal in Murray and Another v. Harringay Arena Ltd. (5),namely, that a person paying for his licence to see a cricket match or a race or other sport takes upon himself the risk of unlikely and improbable accidents provided that there has not been on the part of the occupier a failure to take the usual precautions. A person placed near to the playing-ground takes the risk of being hit by a cricket ball or a hockey ball, or, as in Murray’s Case (1), by an ice hockey puck. Lord Justice Greer in Hall’s Case (2) at p. 224 says that”a man taking a ticket to see the Derby would know quite well that there would be no provision to prevent a horse which got out of hand from getting amongst the spectators, and would quite understand that he was himself bearing the risk of any such possible but improbable accident happening to himself”; and, in Coleman v. Kelly and Others (3), Maguire C.J. at p. 51 said: “It was not the duty of the defendants to provide against improbable or unlikely happenings such as the dashing of a horse through the railings in amongst spectators.”
Accordingly, I consider that this appeal must be dismissed.
O’DALY J. :
I am also of opinion that this appeal should be dismissed.
It is, it seems to me, enough to say, I think, the plaintiff’s case fails in limine because it was not established in evidence by the plaintiff that the danger which he complains was not guarded against, viz., that of a horse jumping both the wing of the hurdle and the rail and injuring a member of the public beyond the rail, was one which might reasonably have been anticipated by the defendants.
The plaintiff is a person who has some experience of race-meetings both as a race-goer and as a former employee of the defendant race Company. His evidence was that he had never seen a horse jump over a wing of a hurdle and a rail before and it was not a normal thing you would expect to happen. It did not occur to him that there was any danger, because, as he said, he never expected a horse instead of jumping the hurdle would have jumped sideways and have got over the wing of the hurdle.
The only other person who gave evidence on this topic, Jeremiah Kelleher, is also a person of some experience of race-meetings. What happened at the hurdle was something outside his experience too. He was not expecting a horse to leap out. He thought it enough to move back as little as a couple of feet from the rail as the horses approached the hurdle.
This evidence is all one way: it is, that that which happened was most unusual and quite unexpected. “It was not the duty of the defendants to provide against improbable and unlikely happenings”: per Maguire C.J. in Coleman v.Kelly and Others (1).
The learned trial Judge was in my opinion right in withdrawing the case from the jury.
MAGUIRE J. :
I agree with the judgments which have just been delivered.
Boylan v. Dublin Corporations
Reasonable Care (Pre1995 Act)
[1949] I.R. 63
Supreme Court
MAGUIRE: C.J. :
15. June
This appeal arises out of an action for damages for negligence. Mr. John Kenny hired from the respondents the use of two rooms in the Mansion House, Dublin, for the purpose of running a whist drive to raise funds for a charitable object. The appellant took part in the whist drive. While he was on his way from the Mansion House to the public street along a passage which was not included in the letting and was in the possession of the respondents, a flag-pole fell from the roof of the Mansion House. In falling, it struck and seriously injured him. He brought this action claiming damages for negligence. The action was tried by Haugh J. with a jury. Holding that the appellant was an invitee of the respondents, the trial Judge refused an application for a direction made at the close of the appellant’s case. At the close of the evidence for the defence the application for a direction was renewed on the grounds that, even if the appellant was an invitee, the respondents-were not liable because they had entrusted the painting of the flag-pole to a competent contractor. The learned trial Judge, holding that there was no evidence upon which the jury could find for the appellant, gave judgment for the respondents. The appellant moves this Court that the judgment so entered be set aside and a new trial ordered.
Once the relationship between the appellant and the respondents in respect of which he can sue is determined, no difficulty arises about the principles applicable to the case. It is clear that the appellant was the invitee of Mr. Kenny, who had organised the whist drive and hired the rooms. The main question to be determined is:Was he also an invitee of the respondents or only their licensee? It has nowhere been very clearly laid down how one is to distinguish between a licensee and an invitee. A passage in Indermaur v.Dames (1) affords guidance. At p. 287, Willes J. uses the case of a customer who enters a shop or business premises to illustrate the difference between the duty owing to such a person and that owing to a visitor or guest who is a bare licensee. He cites a passage from Erle J., as he then was, in Chapmanv. Rothwell (2) where Southcote v. Stanley (3) was cited:”The distinction is between the case of a visitor (as the plaintiff was in Southcote v. Stanley (3), who must take care of himself, and a customer, who, as one of the public, is invited for the purposes of business carried on by the defendant,”Again, at p. 288, Willes J. says:”The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied.”Lord Sumner in Mersey Docks and Harbour v. Procter (4)put the matter this way (p. 272):”The leading distinction between an invitee and a licensee is that, in the case of the former, invitor and invitee have a common interest, while, in the latter, licensor and licensee have none.”
Help also is given in Latham v. R. Johnson & Nephew Ltd. (5)where the liability of an owner of premises to those who use them is carefully discussed. The statement of the Law (at p. 410) by Hamilton L.J., as he then was, is described by Lord Buckmaster in Fairman v. The Perpetual Investment Building Society (6) as a concise and accurate expression of well-known principles. It is as follows:
“The duty which one person owes to another to take reasonable care not to cause him hurt by act or omission is relative both to the person injured and the person charged with neglect and the circumstances attending the injury. Among other such circumstances is that of place. Where a question arises, not between parties who are both present in the exercise of equal rights inter se, but between parties of whom one is the owner or occupier of the place and the other, the party injured, is not there as of right, but must justify his presence there if he can, the law has long recognised three categories of obligation. In these the duty of the owner or occupier to use care, if it exists at all, is graduated distinctly, though never very definitely measured. The cases down to 1864 are collected in Sullivan v. Waters (1). Contractual obligations of course stand apart. The lowest is the duty towards a trespasser. More care, though not much, is owed to a licenseemore again to an invitee. The latter term is reserved for those who are invited into the premises by the owner or occupier for some purpose of business or of material interest. Those who are invited as guests, whether from benevolence or for social reasons, are not in law invitees but licensees. The law does not take account of the worldly advantage which the host may remotely have in view.”
In Fairman’s Case (2) a majority of the House of Lords held that the plaintiff, who was a lodger with a tenant and who suffered an injury while using a staircase which remained in the control and possession of the landlord, was only a licensee of the landlord. In a recent case in England, Haseldine v. C. A. Daw & Son, Ltd. (3), Fairman’s Case (2)was much discussed. Goddard L.J., as he then was, and Clauson L.J., holding that it was binding upon them, reluctantly followed it. Scott L.J., on the other hand, took the view that the opinion of the majority of the Lords that the plaintiff was a licensee was obiter. He complained that the Lords who formed the majority, with one exception, gave no reason for their opinion. Fairman’s Case (2) would appear to be binding on this Court. I find no difficulty in accepting it, nor do I see any difficulty in understanding the ground upon which the majority of the Court held that the plaintiff was a bare licensee. They clearly took the view that in order to make a person who uses premises an invitee by implication it must be shown that he went upon the premises upon some business which concerned the landlord. It is not easy to see how the defendant could be said to have an interest in the user by the plaintiff of the common staircase. In the present case I cannot see how it can be held that the respondents invited the appellant to their premises. It is true they let the rooms to Mr. Kenny for a purpose of which they were aware and, by implication, gave permission to him and his guests to use the passage on which the appellant was at the time of the accident. They had, however, no material interest in the appellant or any other guest coming there. The amount of rent they were to receive was pre-determined and the subject of a written agreement and was not affected by the numbers of the guests. It is suggested that it was to the interest of the respondents that the whist drive should be a success as failure might affect the future lettings of the rooms. I am of opinion that the law does not take account of such a remote interest. Accordingly I am unable to accept the contention that the respondents had a sufficient interest in the coming of the appellant upon their premises to make him their invitee.
The case of Kelly v. Woolworth (1), so much pressed, is a difficult case to apply because of the different grounds upon which the two Judges reached the same conclusion. I fail to see in this case evidence to justify its being held that the respondents authorised the tenant as their agent to invite the appellant to the premises. If it were so, the reasoning of Ronan L.J. might apply. Neither do I see any evidence to justify its being held, as O’Connor L.J. held on the facts in that case, that the whist drive was a joint venture of the respondents and the hirer of the rooms. Once the letting, if such it may be called, was made, the respondents were only concerned to see that the rooms which they agreed to let and the services which they agreed to give were available for the hirer. The appellant being lawfully and with the permission of the respondents upon the passage where he was injured, was their licensee, but no more. There is no evidence that the respondents knew of the dangerous condition of the pole. Accordingly, the appellant cannot succeed. The learned trial Judge, in my opinion, was right in withdrawing the case from the jury. I would dismiss the appeal.
MURNAGHAN J. :
In this appeal I am in agreement with the judgment prepared by Mr. Justice O’Byrne.
GEOGHEGAN J. :
I, too, am in agreement with the judgment prepared by Mr. Justice O’Byrne.
O’BYRNE J. :
By an agreement in writing, dated the 4th September, 1946, Mr. John P. Kenny, Secretary of a Conference of the St. Vincent de Paul Society, agreed to take from the defendants the use of the Round Room and the Supper Room in the Mansion House from 3 o’clock p.m. until 6 o’clock p.m. on the 1st December, 1946, for the purpose of a whist drive, and agreed to pay, for such use, the sum of £12 16s. The appellant attended the whist drive, having purchased a ticket from the organisers of the entertainment. When the appellant was leaving the Mansion House at the conclusion of the whist drive, a flag-pole, which had been standing on the roof of the Mansion House, fell and struck the appellant and inflicted personal injuries. At the time of the accident, the appellant had left the Round Room, where the whist drive had been held, and was proceeding through the appropriate means of access to, and egress from, the Round Room. He was still on portion of the Mansion House premises. The appellant, thereupon, brought proceedings against the respondents, claiming damages in respect of such injuries. In his statement of claim, he alleges that he was on the premises on the invitation, express or implied, of the respondents, that the respondents failed to take reasonable precautions to ensure that the premises were safe, and that he was injured in consequence. In their defence, the respondents deny the invitation and deny that they or their servants were guilty of the alleged or any want of care. They further deny that they were guilty of any act or omission which amounted to maintaining or which constituted a hidden trap to persons using the Mansion House, and they deny that they knew, or ought to have known, of the existence of any such hidden trap.
The action was tried before Haugh J. and a jury. At the conclusion of the appellant’s case, and, again at the conclusion of all the evidence, the respondents applied for a direction and the learned Judge acceded to this application and directed the jury to find for the respondents. Judgment was accordingly, entered for the respondents with costs and the appellant has brought this appeal against the judgment so entered.
The occurrence took place while the appellant was lawfully on premises of which the respondents are owners and occupiers. It is not contested that the respondents owed a duty to the appellant; but the nature and extent of that duty is directly in issue. The extent of the duty depends upon the capacity in which the appellant went upon the respondents’ property. It is established that when one person goes on the property of another, he does so in one or other of three capacities; viz., as an invitee, a licensee, or a trespasser. The owner of the property owes a duty to each, but the extent of that duty varies considerably.
There is no suggestion that the appellant was a trespasser. The appellant alleges that he went on the property as an invitee: the respondents on the other hand, contend that he was a mere licensee. This is the first matter which arises for determination and most of the argument before us turned upon this question.
The agreement of the 4th September, 1946, does not seem to me to contemplate, or involve, a demise of the premises. It merely confers a right to use the two rooms, during the specified period, for the purpose mentioned therein; viz., for the purpose of holding a whist drive. It must also be held to contemplate and confer a right on persons attending the whist drive to gain access to, and egress from, the two rooms mentioned in the agreement through other premises in the occupation of the defendants.
That the foregoing is the effect of the agreement does not seem to me to be in dispute. In his statement of claim, the appellant alleges, and the respondents by not denying, admit, that the respondents were at all material times, the owners and occupiers of the Mansion House, including the two rooms mentioned in the agreement. I therefore deal with the case on the admitted basis that there was no demise of the rooms in question; that the respondents were owners and occupiers of the entire premises, including the said rooms, and that the respondents merely gave permission for the use of the two rooms, with the right of access thereto and egress therefrom, for the purpose specified in the agreement.
We were referred to several cases, including Fairman v.Perpetual Investment Building Society (1), in which questions arose with reference to the liability of a landlord in respect of accidents occurring on a common staircase (giving access to various demised premises) of which the landlord had retained possession and control. In my opinion these cases have no strict application to the facts and circumstances of this case.
Though a person, who goes on to the property of another, must fall into one of the three categories to which I have referred, it is sometimes extremely difficult to determine into which class a particular plaintiff falls. The question has arisen in numerous cases and each case is decided on its own particular facts. No comprehensive definition of the term, “invitee,” has been attempted; but useful tests have been laid down from time to time for determining who may be held to come within the class.
In Latham v. R. Johnson & Nephew, Ltd. (2), Hamilton L.J. says, at p. 410:
“The latter term” [invitee] “is reserved for those who are invited into the premises by the owner or occupier for some purpose of business or of material interest. Those who are invited as guests, whether from benevolence or for social reasons, are not in law invitees but licensees. The law does not take account of the worldly advantage which the host may remotely have in view. Apart from express ‘licence’ or express ‘invitation,’ conduct may prove either by implication.”
In Robert Addie & Sons (Collieries) v. Dumbreck (1)Viscount Dunedin says, at p. 371:
“The best test of who is an invitee is, I think, given by Lord Kinnear in Devlin’s Case (2). He must be on the land, for some purpose in which he and the proprietor have a joint interest.”
In the present case the respondents, while retaining possession and control of the entire premises, permitted two rooms to be used for the purpose of holding a whist drive. In consideration for this permission, they received the sum of £12 16s. It was not an isolated transaction. It is obvious from the evidence of Mr. McManus, the official in charge of such lettings, that it was the practice of the respondents to let out rooms for this or similar purposes and to make profit thereby. So much was it the practice of the respondents to let rooms in this way that they had a stereotyped form of agreement for such lettings, and the agreement in this case was in that form. In the circumstances I consider that I am entitled to deal with the case upon the basis that the letting of rooms in the Mansion House was part of the business activities of the respondents.
The actual letting (using the word, “letting,” as a compendious term to denote the grant of permission to use the premises) was made to Mr. Kenny; but the letting was expressly made for the purpose of a whist drive. It was obviously contemplated by both parties to the agreement that various persons would go on the premises for the purpose of this whist drive. The persons who would be entitled so to go upon the premises were not ascertained at the time of the letting and the respondents must, in my view, be deemed to have authorised Mr. Kenny, or the persons on whose behalf he was acting, to ascertain and fix this class by the issue of tickets or otherwise.
In Kelly v. Woolworth (3), where the circumstances were somewhat similar, the Court held that the plaintiff was an invitee. In the course of his judgment, Ronan L.J. says, at p. 10:”They” [the defendants] “expressly authorised Mrs. Cotter to invite whom she pleased and issue tickets which would admit. Qui facit per alium facit per se. Surely it cannot be contended (sic) that Mrs. Cotter was the defendants’ agent duly authorised to invite and give tickets of admission to their premises, and none the less so because she paid £4 for this authority. . . .” In the foregoing passage, I assume that the word, “contended,” is a printing error and should read, “contested.” I accept the principle so stated by Ronan L.J. and consider that it applies equally in this case.
It was pressed upon us in argument that once the agreement was entered into, the respondents had no further interest in the matter as they were entitled to be paid whether people attended the whist drive or not. When it is remembered that the letting of rooms was the regular practice and, as I view it, part of the business of the respondents, this argument loses all weight. If the letting were an isolated transaction, it might be different; but when it was a common practice, I consider that it was a matter of substantial material interest to the respondents that people should attend these functions.
To consider it from another point of view, suppose the class entitled to attend the whist drive had been ascertained before the letting and the letting had been made to that class, either nominative or as members of a particular club or otherwise, and a member of the class, to whom the letting was so made, was injured on the respondents’ property when at, or going to or coming from, the whist drive, could it be contended that he was not there as an invitee? It seems to me that that question admits of only one answer, and yet I can see no distinction in principle between that case and the present.
For these reasons I am of opinion that the appellant, at the time of the injury, was on the respondents’ property as an invitee.
As to the duty which the owner of property owes to an invitee, I need only cite the following well-known passage from the judgment of Willes J., at p. 288, in Indermaur v.Dames (1):
“And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know. . . .”
The occupier of the property is not an insurer; but, quoad an invitee, he is, in my opinion, bound to have the premises reasonably safe and to take reasonable precautions for this purpose.
That the danger in this case, which resulted in the injury to the plaintiff was an “unusual danger” within the meaning of the foregoing passage from the judgment of Willes J. is quite clear. There was very little, if any, evidence that the respondents were actually aware of the danger. Ought they to have been aware of it? In my opinion, knowledge of the danger must be attributed to them if the existence of the danger was discoverable by reasonable skill and care. Accepting at its face value all the evidence offered on the part of the respondents, and having regard to the evidence of Professor Bayley Butler, I am of opinion that there was ample evidence to justify the jury in holding that the danger arising from the clearly defective flag-pole was discoverable by the exercise of reasonable skill and care and that the respondents failed to take reasonable precautions for the safety of the appellant.
For these reasons I am of opinion that the direction was wrongly given and that the question of liability should have been submitted to the jury. I am, accordingly, of opinion that the appeal should be allowed, the judgment set aside, and a new trial directed.
BLACK J. :
The crucial facts of this case can be epitomised in a few words. The use of two rooms in the Mansion House was hired from the Corporation for three hours, by a Mr. Kenny to hold a whist drive for charity. The appellant bought a ticket. On his leaving after the function, and while in a passage outside the Mansion House, but forming the proper exit therefrom, he was struck by a flag-pole which fell upon him. For this injury he brought this action against the Corporation. The learned trial Judge directed a verdict for the defendants.
The appellant was on the spot where he was injured either as the Corporation’s invitee or as their licensee. If he was the latter, the Judge’s direction was right; for then the Corporation’s duty was merely to warn the plaintiff against any hidden danger of which they were actually aware, and I see no evidence that the Corporation was aware that this pole was dangerous. If, on the other hand, the appellant was their invitee, then their duty was to take reasonable care to see that the pole was not dangerous, or, at least, to warn the appellant if it was not safe. I find six modern cases in which the duty to an invitee has been judicially said to be a duty to use reasonable care to make safe. I find six other modern cases in which that duty has been judicially said to be either to take care to make reasonably safe or else to warn the invitee of the danger. The latter form of the duty was declared by Scrutton L.J., at p. 466, to be “the generally accepted view” in Hillen and Anotherv. I.C.I. (Alkali) Ltd. (1). Whether the duty to an invitee can be discharged by mere warning does not matter in this case; for the appellant got no warning. That being so, if he was an invitee, the Corporation was bound to take reasonable care to see that the pole was safe, and in my opinion there was sufficient evidence, if the jury accepted it, that reasonable care was not taken to see that the pole was safe. What was this evidence? Professor Bayley Butler said that the pole should have been painted every three years, both to protect it and to give an opportunity for its examination. Apart from this, he said it should have been examined every year. In fact it had been neither painted nor examined for three and a half years before the accident.
Then it was urged that the respondents did take reasonable care to see that the pole was safe by employing an independent contractor. That would be a good defence in law to a claim based solely on the duty to an invitee, and it enabled the defendants to succeed in Haseldine v. C. A Daw & Son, Ltd. (2). But in that case the defendant employed engineering experts to examine, adjust, and report every month upon a lift by the defective state of which the plaintiff was injured. Nothing of the kind took place in the present case. The only independent contractor employed by the Corporation was a painting firm, and their contract did not require them to do anything to this pole, nor is there any evidence that anything was done to provide for its safety, vicariously or otherwise, for three and a half years before it fell upon the appellant.
Before stating my own ratio decidendi in this case I wish to comment on the proposition that the contract between the Corporation and Mr. Kenny, who hired the rooms, gave Mr. Kenny a mere license to use the rooms, but did not constitute a tenancy. That proposition derives much support from the judgment of Ronan L.J. in Kelly v. Woolworth (3)which was so much stressed in argument. I am afraid the relevancy of the proposition and of the judgment to anything we have to decide here eludes me. It would have been very relevant to establish that Mr. Kenny got a mere license and not a tenancy, if the appellant had been injured inside the rooms hired for the whist drive; because if a tenancy, as distinct from a mere license, had been created in the rooms, and the accident had happened there, the decision of the House of Lords in Cavalier v. Pope (1) would oblige us to hold that the Corporation was under no liability, either to the tenant or to his invitee, for any accident in those rooms due to their dangerous condition, and the Corporation could not be treated as invitors of people coming upon the premises let to the Corporation’s tenant. But Cavalier v. Pope (1),and the cases which have followed it have no application where a plaintiff is injured, not in or upon the premises let, but in a place retained in the landlord’s possession and control. That is the present case. The appellant was injured in the passage-way which admittedly was not let, but was retained in the Corporation’s possession and control. As their own counsel, Mr. FitzGerald, put it to the trial Judge: “We let two rooms. . . . The accident did not happen in those rooms, but in the right of way.” Hence, it seems to me quite immaterial here whether Mr. Kenny got a mere license to use the rooms or whether he got a tenancy. Further, even if the accident had taken place inside the rooms, could the respondents be heard even to argue that Mr. Kenny was in occupation of them as their tenant? If the strict rule of pleading is to be applied, I think they could not. Mr. Pringle took this very point before the trial Judge, pointing out that the statement of claim alleged that the respondents were, at all material times, the occupiers of the Mansion House and, therefore, of the rooms in question, and that this averment was not challenged in the defence.
I am glad that my opinion of the irrelevance of this point about whether the hiring of the rooms was a tenancy or a mere license, dispenses me from having to decide it. Like O’Connor L.J. in Kelly v. Woolworth (2), when confronted with a like problem I feel as he did when he said it involves”the consideration of questions of far-reaching importance upon which I desire to reserve my opinion.” First, I doubt whether the shortness of the hiring matters. Weekly tenancies are common. Can there not be a tenancy for three days, and, if so, why not for three hours? When we come to the authorities, we find indications both ways. In Selby v. Greaves (3) Willes and Montague Smith JJ. held a defined portion of a room in a factory to be held under a demise, and that in spite of the fact that the. contract provided that the owner was to supply the person who took the portion of the room with steam power to work machines in it. The supply of power was held to be merely ancillary to the letting, and the test was said to be that the person who took the part of the room got exclusive possession of it. In the present case the Corporation did not provide the hirer of the room with any service comparable in importance with the supply of steam power, and as to the test of exclusive possession, I can hardly doubt that the hirer of the rooms got the right to exclude everybody from the whist drive whom he did not invite by selling him a ticket. The only exceptions were the Lord Mayor, his household, and a single specified official. The contract provided that these latter persons should have free access to the rooms during the functiona special stipulation which serves to show that but for, and apart from, this concession, nobody had a right to be present save on the invitation of the hirer of the rooms. The same point was stressed in a modern case Humphreys v. Dreamland (Margate) Ltd. (1)where a unanimous House of Lords, affirming a unanimous Court of Appeal, held that the injured plaintiff was an invitee of the hirer of the place where he was injured. Owners of a recreation park hired a site therein to a concessionaire, who set up swingboats upon it. The plaintiff was injured by a defect in this apparatus. He sued both the owners of the park and the hirer of the site. He was held to be an invitee of the hirer of the site and not of the owners of the park, though the latter got a fixed percentage of the earnings of the swingboats. Lord Warrington held that, even if the relation of landlord and tenant was not created, as the whole Court thought it was, between the owners of the park and the hirer of the site, yet the plaintiff was not an invitee of the owners, because the concessionaire of the site impliedly got the right to exclude from his swingboats, all who came there otherwise than on his invitation. Again, in Frank Warr & Co., Ltd. v. London County Council (2)lessees of a theatre gave the plaintiffs the exclusive right for a term to supply refreshments in the theatre and for that purpose agreed that they should have the use of certain rooms. Naturally, it was held that the contract conferred no interest in the premises on the plaintiffs. The real purpose was that the plaintiffs should act as the theatre owners’ caterers, and they only got the use of certain rooms to enable them to carry out that purpose. The use of the rooms was, as Mathew L.J. said, “ancillary to the general purposes of the agreement.” But, apart from that vital factor, the judges agreed, I think, that provisions which, as Collins M.R. expressed it, “might seem to involve an exclusive use of parts of the premises and prima facie to point to a demise of those parts,” must be read in connection with the context.
In Glenwood Lumber Co. v. Phillips (1), Lord Davey said, at p. 408:”It is not, however, a question of words, but of substance. If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself.” Was not the effect of the contract in this case to give Mr. Kenny an exclusive right to occupy the rooms for his whist drive, and to exclude everybody therefrom save his own invitees, subject to the reservation of a special right of access of the Lord Mayor, his household, and a specified official? On the other hand, the speeches of the Lords in Coman v. Governors of the Rotunda Hospital, Dublin (2), which so influenced Ronan L.J. in Kelly v. Woolworth (3)suggest that the provision by the Corporation of seating and certain minor services might indicate that the contract was a licence and not a tenancy. On the whole I am happy in my belief that I have no need to venture any opinion on this point for the purposes of this appeal as I see it.
In my judgment the Corporation may have invited the appellant, in the legal sense of the term, to come into the passage-way where he was injured, whether Mr. Kenny, who ran the whist drive, was their tenant of the rooms or was merely their licensee. I do not think I am concerned with whether the appellant was their invitee to the rooms hired or only the invitee of Mr. Kenny to those rooms. In my view the sole point is whether he was their invitee to the passageway of which, admittedly, they retained possession and control. By what criterion, then, is this to be determined? In various cases it has been laid down in effect that if a person is injured on premises while there on business in which he and the owners have a common interest, he has the rights of an invitee. I am disposed to agree with Scott L.J. in Haseldine v. C. A. Daw & Son, Ltd. (4) where he said, at p. 352:”I cannot see that the separate interest of the visitor necessarily affects the duty of the occupier.” But, at any rate, it is settled that the visitor must come on business in which the occupier has an interest, and the interest must be “a material interest.” I think this means that the visitor’s business must be of a kind which would normally be calculated to be of some material interest to the person alleged to be the invitor.
At this point the cruxif such it bearises in the present case. Must the necessary material interest arise out of some direct dealing between the alleged invitor or his agent and the alleged invitee, or, in other words, must there be actual privity between the two parties? If there must, then the appellant here was not the invitee of the Corporation, for there was no privity between them. The Corporation had nothing to do with the whist drive beyond hiring their premises to its promoter. At the same time I deem it obvious that when a person sponsors a function of this kind and hires premises in which to hold it, those who buy tickets and attend it are doing something which is normally calculated to be of material advantage to those who own the premises and receive payment for their use; for if satisfactory numbers did not attend such functions, the premises would soon cease to be hired for them, and the owners would lose a source of revenue. Can it be that this real material interest, which the owners have in the presence of paying participants in the function, does not suffice to make the latter invitees of the former, just because there is no actual privity between them? I doubt whether I should have regarded such a point as arguable had it not been for certain pronouncements of three members of the House of Lords in Fairman v. Perpetual Investment Building Society (1). There the plaintiff was injured through a defect in the common staircase of a building which the defendants let in flats. The plaintiff was a lodger of one of the tenants and was also her sister. The staircase was in the possession and control of the defendants and owners, with whom of course she, the plaintiff, had no privity. Lords Buckmaster and Carson held that she was their invitee to the staircase, though the rooms where she had business were in the occupation of a tenant. But Lords Atkinson, Sumner, and Wrenbury held that she was merely their licensee. Lord Atkinson said that the plaintiff in using the staircase was not doing so to do any business with or for the owners or to discharge any duty she owed them by contract or otherwise. Lord Sumner said the same. Lord Wrenbury said that there was no contractual relation between the plaintiff and the owners. I think it is plain that the three Lords meant that since there was no privity, actual or contemplated, between the two parties, neither could be said to have any interest in the presence of the other, or at any rate, if the owner had any interest in the presence of the plaintiff on his premises, it could only be indirect and too remote to make the plaintiff his invitee.
In view of the date of this decisionNovember, 1922 I regard myself as bound by whatever it decided and by every logical corollary thereof. But I do not think it binds me to hold that this plaintiff was only a licensee of the Corporation, and for two reasons. First, the keeping of lodgers by a tenantapart from the fact that this particular lodger was the tenant’s sister and might. have been kept otherwise than for profitmay frequently not be any material advantage to the tenant’s landlord. Some landlords even discourage it. Much may depend on the locality, the type of the premises, and the economic conditions of the time. In Fairman’s Case (1), Lord Atkinson remarked that there was not even any evidence that the tenant, by taking the plaintiff as a lodger, was thereby helped to pay the landlord his rent. By contrast, I think it manifest that the attendance at functions of people who pay for admittance is normally calculated to be for the material advantage of those who make a practice of letting premises to the sponsors of such functions and getting paid therefor. Hence, I should consider myself quite free to hold that the present plaintiff was the Corporation’s invitee, even if Fairman’s Case (1) bound me to hold that a lodger, like the plaintiff in that case, was not an invitee of the owner of the premises.
In the second place I do not believe that the pronouncements in Fairman’s Case (1) bind me to hold anything of the kind. No doubt, in Haseldine v. C. A. Daw & Son, Ltd. (2), Goddard L.J. reluctantly thought that these pronouncements bound him and were not merely obiter.He gave no reason for so thinking. Scott L.J., on the other hand, thought they were purely obiter and did give his reasons for so thinking. I anticipated his reasons myself before reading his judgment; but I take no credit for that, because I consider those reasons manifest and quite unanswerable. Indeed, Lord Sumner himself declared in Fairman’s Case (1)that it made no difference whether the plaintiff was a licensee or an invitee, for whichever she was, the defendants were not liable, inasmuch as there was no trap and the danger was obvious. This last consideration was the soleratio decidendi of the case. The plaintiff’s statuswhether that of licensee or that of inviteewas not in issue, and I am at a loss to understand how a pronouncement on a matter that is not in issue can be part of the ratio decidendi,or anything else but an obiter dictum. It seems to me manifest that these pronouncements of the three Lords were only obiter, as Scott L.J. said they were, and that by no stretch of imagination could either the decision or these pronouncements in Fairman v. Perpetual Investment Building Society (1) bind this Court to hold that the present plaintiff was not the Corporation’s invitee, even if his position had been comparable to that of the lodger in Fairman’s Case (1)which I have sought to show it most certainly was not.
How, then, does this “privity” theory stand on the authorities? Smith v. London & St. Katherine Docks Co. (2)and Heaven v. Pender (3) are still classic authorities. In neither was there any privity between the plaintiff and the defendants, whose invitee he was held to be. Yet, in both cases this very absence of privity was the sheet anchor of the argument for the defence. It was unavailing. In Mersey Docks and Harbour Board v. Procter (4) the plaintiff sued under Lord Campbell’s Act. Her husband was killed while repairing a ship lying in the defendants’ dock. A majority in the House of Lords held against the plaintiff, but solely because they thought the deceased was killed on a part of the ship to which his invitation to the ship did not extend, and because there was no trap and a reasonable man would have known of the danger. But the point is that all the Lords agreed that the deceased was an invitee to the ship and an invitee of the defendants who owned the dock and with whom the deceased had no privity. He was actually separated from them by two degrees. He was not only not working for them, but he was not even working for the ship-owner, but for an independent contractor. Viscount Cave L.C., though in the majority against the claim, said that the deceased “was engaged on business which concerned both the dock company and himself.” Lord Sumner, also of the majority, said the deceased was an invitee of the Docks Board as a person “whom the ship-owners or their contractors engage to work upon ships” and that it was the common interest of the dock-owners “that ships in the docks should, when necessary, be able to employ boilermakers on board of them.”
Again, in The Grit (5) the element of privity between invitor and invitee was even more conspicuously absent. The defendants were a railway company which owned a wharf. They allowed a ship-owner to load at this wharf without charge. The plaintiff was loading for the ship-owner. He was held to be the invitee of the railway company who owned the wharf. Yet, the only material interest that company had in the work the plaintiff was doing was derived, not from the plaintiff, or even from the ship-owners who employed him, but from an outside fourth party, namely, the owner of the cargo, who paid freight for its carriage. None the less this material interest, doubly indirect as it was, was not too remote to make the railway company the invitor of the plaintiff.
All the foregoing authorities show that privity between two individuals is in no way essential to their relationship being that of invitor and invitee. Any theory of remoteness based on such lack of privity must, therefore, go by the board. The interest which the Corporation here have in the presence of those who pay to attend functions for which they hire their premises for reward is no more remote than the interest which the dock-owners had in all the above cases in the presence of the injured parties on their docks, the business which brought those parties there not being done for the dock-owners, but for third parties, and there being no privity between such injured persons and the dock-owners.
If further authority were wanted, and surely it is not, there is Haseldine v. C. A. Daw & Son, Ltd. (1). The defendants let a building in flats. The plaintiff was a visitor to one of the tenants. He was injured through a defect in the lift which the owners (the defendants) retained in their possession and control. The defendants, however, having taken reasonable care to keep the lift safe by employing independent contractors, the Court of Appeal held that they were not liable for the negligence of the contractors, and the latter alone were liable to the plaintiff. It was, therefore, unnecessary to decide whether the plaintiff was a licensee or an invitee of the owner of the building and the lift. But two of the three judges volunteered an opinion. Both Scott and Goddard L.J.J. were of opinion that the plaintiff was an invitee, but Goddard L.J. thought that he was not at liberty to act upon his opinion, because he supposed as I suggest, erroneouslythat he was fettered by the pronouncements I have already quoted from Fairman’s Case (2). Yet, his own opinion was the same as that of Scott L.J., namely, that the tenant’s visitor was the landlord’s invitee. Scott L.J. said, at p. 352:”If the occupier has any interest of a business kind in the presence on his premises of the other person such as would naturally lead him to invite the visitor if he gave his mind to the question, it is, in my opinion, sufficient to cast on him that measure of care which the common law exacts towards an invitee. . . . In my humble opinion . . . the landlord of a block of flats must inevitably be interested in making his staircases and lifts available to persons desiring to visit his tenants, for if he did not provide those facilities of access he could not let his flats.” This last sentence seems to me the essence of common sense; and, adapting the words of Scott L.J. here, I would suggest that the Corporation must inevitably be interested in making the necessary approach to the rooms they hire for functions available with reasonable safety to persons attending those functions, for if they did not provide those facilities of access, they could not hire their rooms. Even if the authorities I have quoted did not exist, I could see no shadow of remoteness in the interest which the Corporation have in the presence of people like the appellant at functions for which they hire their rooms. Their presence helps to bring about continued profitable hirings as a natural, probable, and intended result, and therefore the owners’ interest in it is the very reverse of remote.
It was said that the Corporation in fact gained nothing from the appellant’s presence at the whist drive, since their charge for the rooms would have been paid even if nobody attended. That may or may not be the fact; but I deem it immaterial. One is not to judge by the financial result of the visit of an invitee on a particular occasion. Often the visit of an undoubted invitee may itself bring no advantage to the invitor, as in the case of one who wastes a shopkeeper’s time inspecting goods, and comes out without making any purchase. What is to be looked at is the nature of the purpose for which the visitor comes, and whether the party in occupation would normally have a material interest in visits made for that purpose.
In sum, I can feel no doubt that the appellant was in law an invitee of the Corporationthat is to say, was invited by them in the legal sense to come and be upon the passage-way where he met with the injury. That being so, it was the duty of the Corporation to take reasonable care to see that their flag-pole was safe and secure, or at least to warn the appellant that it was not. They did not warn him, and there was ample evidence to be submitted to the jury which, if they accepted it, would support a finding that the duty of taking the reasonable care mentioned was not discharged. I am therefore of opinion that the direction of the learned trial Judge ought not to have been given, and that the appeal should be allowed, the judgment and order set aside, and a new trial of the action directed.
Mullen v. Quinnsworth Limited trading as Crazy Prices
[1990] IR 59
Supermarket Spill – Almost Strict Liability
Finlay C.J.
28th February 1990
I agree with the judgments about to be delivered by Griffin and McCarthy JJ.
Griffin J.
The defendant is the proprietor of the well-known chain of supermarkets trading under the name Quinnsworth throughout the country. They own and occupy one such premises at Stapleton Place, Dundalk, County Louth. That premises is described as a “super store”, which I interpret as meaning that it is bigger than the average supermarket. The premises is 24,500 square feet in area, with eighteen main aisles, each approximately fifty-six feet long and eight and a half feet wide, and transverse communicating aisles in addition. Approximately half of the floor area is occupied by the grocery section of the premises. The floor was described by the consulting engineer who gave evidence in this case as being of “square concrete terracotta tile finish – a hard surface”, and was described by the assistant manager as being a terrazzo floor. In the month of June, 1986, there was what was called an “end display” of cooking oil at the end of one of the aisles and that was in a location specifically reserved for cooking oil.
On the 6th June, 1986, the plaintiff, who was then aged 74, was a customer in the premises. Having purchased a few items, she wished to buy a cake and asked one of the assistants where the cake shelf was. He directed her to the cake shelves which meant continuing down the main aisle and turning left into one of the communicating aisles. She had walked only a short distance when she slipped and fell, falling heavily backwards. The cause of her fall was a pool of cooking oil over a reasonably wide area on the floor. The oil was of the same colour as the floor and therefore no person, even keeping a proper lookout, would have an opportunity of seeing it.
In evidence she stated that before she was lifted up one of the assistants in the shop appeared in the distance and came running up, and had what seemed to her to be a “brush in his hand or possibly a mop”. According to her he said: “isn’t that terrible – you have an accident just when we were going to clean it up”.The plaintiff was assisted to her feet by some customers and a member of the staff and was taken to a chair nearby and was there attended to. A short time later she was taken upstairs for a cup of tea by some members of the staff and she asked that her husband, who was waiting in the car in the carpark, should be notified.
A short time after the accident happened, Mr. Peter McMahon, a local solicitor, entered the supermarket. The plaintiff, whom he had not previously known, was then sitting on the chair being attended to, and he learned that she had fallen. He went to where the accident happened, and on the floor he saw oil covering an area of 4 to 5 square feet – “one would not see it unless it was more or less pointed out”. No member of the staff was doing anything about the oil at that stage. He then went to the portion of the premises in which he intended transacting his business, and having made his purchases was leaving the premises when he met the plaintiff’s husband, whom he knew. It was only while he was talking to the latter that he saw a member of the staff coming “with sawdust or something”to attend to the spillage. This must have been an appreciable time after the accident.
In respect of the injuries sustained by her, the plaintiff instituted proceedings against the defendant alleging that her fall and consequent injuries were due to the negligence, breach of duty and nuisance on the part of the defendant, its servants or agents. The action came for trial before Barrington J. and a jury and, at the close of the defendant’s case, the learned trial judge, on the application of counsel for the defendant, withdrew the case from the jury on the ground that the plaintiff had failed to establish the kind of case in negligence that could safely be let go to a jury. From that decision the plaintiff has appealed to this Court.
The plaintiff was an invitee of the defendant on the occasion of the accident. As such, the defendant was not an insurer of her safety, but it owed her a duty to take reasonable care, in all the circumstances, to see that the premises were reasonably safe for her. Whilst this is the general principle which applies in cases of invitees, each case must necessarily depend on its own particular facts.
It is not in dispute that the plaintiff slipped and fell on a patch of cooking oil on the floor. It is indisputable that if there is a spillage of oil (or of any other slippery substance) on such a floor as there was in this premises, this would constitute a high risk of danger to customers on the premises who would be liable to slip on it and therefore fall to the floor. A customer in a supermarket cannot reasonably be expected to look down at his or her feet while walking along an aisle in a supermarket – the customer cannot be selecting goods from the shelves as he or she walks along, and watch the floor at the same time – see Foley v. Musgrave Cash and Carry Ltd. (Unreported, Supreme Court, 20th December, 1985). In my opinion, if there is such a slippery substance on the floor, as in the present case, and a customer steps on it and falls, the maxim res ipsa loquiturapplies – the circumstances of the accident raise a sufficient presumption of negligence on the part of the occupier of the premises. This principle was stated as long ago as 1865 by Erle C.J. in Scott v. London and St. Katherine’s Docks Co. (1865) 3 H. & C. 596. There the Chief Justice said at p. 601:
“There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and theaccident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
In the instant case, the floor was under the management of the defendant, or its servants, and the accident was such as, in the ordinary course of things, would not happen if the floors were kept free from spillages of this nature. The onus is therefore on the defendant to show that the accident was not due to any want of care on its part. On the hearing of the appeal, the defendant objected to the plaintiff relying on this maxim because it was not pleaded. In my opinion, this doctrine does not have to be pleaded before a plaintiff may rely on it. If the facts pleaded and the facts proved show that the doctrine is applicable to the case, that is sufficient – see Bennett v. Chemical Construction (G.B.) Ltd. [1971] 1 W.L.R. 1572.
The onus is therefore on the defendant of establishing that, in all the circumstances, it took reasonable care to see that the premises were reasonably safe for the plaintiff. To put all the circumstances in context, it appears to me that it would be of advantage to make a comparison between the position in relation to supermarkets and traditional grocer shops, a great number of which have now fallen by the wayside. In the grocer shops, customers rarely handled the goods. They were served by the assistants from behind the counter, and where the goods required wrapping they were wrapped by the assistants who put them into the customer’s shopping basket or handed them to the customer to put in the shopping basket. Where the order was substantial, and therefore difficult to carry, the goods were delivered either to the home of the customer or to the vehicle in which the customer came if that was nearby. The floor of the shop was invariably made of timber, which necessitated scrubbing at the end of the day, and the risk of a customer falling on the floor of such a shop was minimal. With the advent of supermarkets, which appear to be growing bigger and bigger with the passage of time, the goods are stacked on shelves and the customers serve themselves. The customer is expected to select the goods from the shelves and put them in the basket or trolley. It is reasonable to expect that many customers would handle goods, examine them, and replace them on the shelf, preferring a different brand. It could safely be assumed that the customer will not take the same care replacing the goods on the shelf as had been taken by the members of the staff when stacking the goods originally. The timber floor has been replaced by modern flooring such as p.v.c., terrazzo, or the like. These floors are very much easier to clean and are probably more hygienic than the timber floors, but it must be at least doubtful if they are as safe as timber floors. Supermarkets advertise extensively in the press, on radio, and on television, extolling the quality of the goods sold by them and the value available in their supermarket as compared to other supermarkets. Loudspeaker systems or public address systems are installed in all supermarkets over which customers are informed of special offers of which they are invited to avail, and most of them have a very substantial number of customers, particularly at the end of the week. Having regard to the numbers who attend
supermarkets and handle the goods, it is inevitable that there would be a substantial number of spillages in all such premises.
In the present case, in seeking to show that reasonable care had been taken by the defendant, evidence was given by the manager and the assistant manager of the premises. The manager stated that the supermarket stocked 7,500 individual lines and that over 60 per cent are classified as breakable. If his percentage is accurate, this means that some 4,500 of the lines stocked on the premises are breakable. At the time of the accident, for the purpose of clearing any debris that might be on the floor of the shop, four cleaning staff were engaged, each with brush in hand. They were described by the manager as summer staff, by which I presume he meant being on leave from school. Three of these were in what he regarded as high risk areas such as the vegetable area and the check out area, and one was a “floater” who was responsible for approximately one half of the entire floor area. The floater’s duty was continuously to sweep the main floor, starting at one end and sweeping right through the shop until he reached the other end. The manager estimated that he would sweep his entire area each ten to fifteen minutes. In the course of sweeping he would deal with any spillages which he saw on the floor.
In evidence, the assistant manager said that there are a number of spillages and breakages everyday, that customers knock bottles off the shelves – “it is just a fact of life”. The cooking oil is contained in plastic bottles and he said that in 99 per cent of cases in which a plastic bottle of cooking oil falls from a shelf, the plastic will crack and the oil will spill out on the floor, and that is what happened in this case. When a spillage is drawn to his attention, his normal procedure is to stand over it and instruct someone to clear it up. In the present case, a customer told him that she had knocked a bottle of oil off the shelf and it had spilled. There was no evidence as to how long prior to the accident the oil had remained on the floor. On being informed of the spillage, he was in a nearby aisle and he went around the corner and saw the plaintiff in the act of falling to the floor. Although this spillage was in fact reported to the assistant manager, the manager estimated that in the case of nine spillages out of ten the incident is not reported.
In my judgment, the case was one in which the jury could reasonably have found for the plaintiff and it should not have been withdrawn from them. It was for the jury to determine whether, in all the circumstances of the case, the steps taken by the defendant amounted to taking reasonable care for the safety of the plaintiff, so as to discharge the onus thrown on the defendant of showing that they were not negligent. Those circumstances would include the following: the fact that spillages and breakages were of such a regular occurrence that they had become to the management, though not perhaps to the unsuspecting customer, “a fact of life”; the knowledge of the defendant and its servants that on almost every occasion on which a plastic bottle of cooking oil falls from a shelf, or is dropped by a customer, a pool of oil is spilled on the floor; whether the use of a floating sweeper, as described in evidence, whilst it may be adequate for spillages of dry goods, is adequate for such a high risk substance as cooking oil, or whether the area in which such goods are displayed should long since have been upgraded to a high risk area warranting the presence of a cleaner in that area at all times as is the case in the vegetable and check out areas; and whether, having regard to the evidence of Mr. McMahon, the system employed for the clearing of spillages, of which evidence was given by the assistant manager and the manager, is in fact carried out.
As the question of absolute liability was not raised in the pleadings, nor argued in the High Court or in this Court, I would express no view on that question and would reserve my opinion on it until it arises and is fully argued in an appropriate case.
I would allow the appeal and direct a re-trial.
McCarthy J.
A major development in the second half of the 20th century has been that of the supermarket. As in the present case, these supermarkets are generally very large, here nearly 25,000 square feet in area, and housed in modern purpose built premises. They are so designed as to encourage customers, young and old, equipped with hand basket, trolley, or otherwise, to take pre-packaged goods as well as perishable products for packaging in such quantity as the customer may wish, then to be identified, priced, and charged for at the checkout. Apart from service departments such as those providing meat, fish, confectionery and delicatessen products, the essential feature is that of self-service from convenient display areas. This has included, up to now, self-service of mineral waters, wines, etc. The pre-packaged goods are displayed, so far as here relevant, on lines of shelving running along aisles fifty-six feet long and some eight feet wide. The flooring is terrazzo. In addition goods may be displayed in “end-displays” at the end of an aisle, as well as in the area next to each checkout.
In Foley v. Musgrave Cash and carry Ltd. (Unreported, Supreme Court, 20th December, 1985) Griffin J. said:
“A customer in a supermarket could not reasonably be expected to look down at his or her feet while walking along an aisle or a bay. Indeed the display of goods in such establishments is so designed and arranged that the customer will be encouraged and expected to look at shelves at or about eye level and the signs indicating the different departments are all well above eye level.”
There the customer was tripped by a loading trolley but the observations are of general application. They identify, in part at least, the most probable area of danger to the customer, something on the floor.
The plaintiff was a customer although not a frequent one, of the defendant’s supermarket in Dundalk. On entering, she took a supermarket basket and wanted, among other things, to buy a cake. She came down an aisle going towards the checkout and asked a shop assistant who directed her to where the cake shelves were. As she was walking she slipped and fell on to the floor which, at that point, had a big pool of cooking oil, which was colourless. Where she fell was one and a half to two yards from where the assistant was standing. Some of the shoppers came over to assist her, but, before she was lifted up, one of the assistants”appeared in the distance – he came running up and he had what seemed to be a brush in his hand; it could have been a mop.” (Q.8.)
The plaintiff sustained injury in respect of which she claims damages on grounds of alleged negligence, breach of duty and nuisance on the part of the defendant, the same being detailed in a reply to a notice for particulars as follows:
“(i) failing to keep the floor of the defendant’s said premises free from substances which were likely to cause the plaintiff to slip and fall;
(ii) failing to warn the plaintiff of the presence of cooking oil or a substance similar thereto which was spilled on the floor of the defendant’s said premises;
(iii) failing to employ a sufficient number of competent persons to ensure that the floor of the defendant’s premises was at all material times kept clean and free from spilled substances;
(iv) failing to properly supervise the defendant’s said premises;
(v) failing to properly maintain the defendant’s said premises;
(vi) leaving or storing bottles of cooking liquid in a position where same were likely to be upset and spilled;
(vii) failing to have available for immediate use suitable barriers capable of cordoning off sections of the customers’ thoroughfare rendered dangerous through spillages pending the clearance of same;
(viii) neglecting and failing to secure that large containers of oil were equipped with properly tightened leak proof caps as to preclude leakage onto the thoroughfare portion of the defendant’s premises;
(ix) failing to secure that the seepage from any container which leaked (it being denied that any leakage was permissible) would percolate on to a safe absorbent floor surface and in any event could not percolate on to the customer thoroughfare;
(x) failing to display containers of liquid substances being offered for sale in suitable compartmentalised and protected areas of the store that in the event of spillages (which it is denied should have happened) customers would not be put at risk or endangered;
(xi) being aware of the presence of cooking oil on the floor, failed to immediately put a person on guard over same for the purpose of ensuring that shop customers did not walk in that area pending the cleaning up of same;
(xii) being aware of the presence of the cooking oil on the floor, failed to take precautions forthwith for the purpose of ensuring that all customers in the shop were made aware of the presence ofcooking oil on the floor at the accident site, pending the cleaning up of same;
(xiii) being aware of the presence of oil on the floor, failed to warn shop customers of its existence and of the danger it represented by making an announcement over the public address system in the shop, pending the cleaning up of same;
(xiv) being aware of the presence of cooking oil on the floor failed to immediately send a person to the spot to stand guard over same and to warn shop customers of the danger and/or to place warning signs around the scene, pending the cleaning up of the oil;
(xv) failed to have any, or any adequate system in operation to protect shop customers including the plaintiff from dangers such as the one which caused the accident, pending the elimination of same;
(xvi) being aware of the existence of the cooking oil on the floor of the accident scene, gave the plaintiff directions to walk towards same;
(xvii) being aware of the presence of cooking oil on the floor of the shop, failed to immediately warn all members of the staff of its presence, whether by announcement over the public address system or otherwise, for the purpose of ensuring that staff members did not give directions which would cause customers to walk into same; and
(xviii) failed to have any, or any adequate, system whatever to ensure that a spillage such as the one that occurred did not cause injury to customers.”
I have cited these particulars in extenso to identify clearly the issues upon which the action was tried, the essential issue at the trial being related to the defendant’s system. It is clear that there was no plea of res ipsa loquitur, assuming for this purpose, that it should be expressly made.
It was common case, as stated by the assistant manager, that spillages and breakages are a daily occurrence:
“We get a lot [of spillages] during the day, and breakages, and our normal procedure is to stand over it, and I instruct someone to clean it up (Q. 178). There are a number [of spillages] every day; customers knock bottles off shelves – it is just a fact of life.”
Clearly, any spillage constitutes a risk but some, for example, of cooking oil, both because of its inherent slippery nature and it being colourless, constitute a greater risk. The absence of colour is not significantly material to the conduct of the customer since the customer is encouraged not to look at the floor – her attention is attracted by the goods displayed at a much higher level; the absence of colour may, however, be material to the extent of the duty owed to the customer. The defendant did, of course, have a system to deal with breakages and spillages – for clearing up. This was described by the manager (Q. 277):”We have a weekly routine. On the day in question, a Friday, we have four individuals involved in the shop – the store is sub-divided into sections because it is large. Area No. 1 – the checkout – there is a guy constantly on duty with a brush in hand most of the time cleaning behind the checkouts and removing rubbish. Area No. 2 – the vegetable area, and Area No. 3 – the main floor. (Q. 178). The checkouts and the vegetable counters are the high risk areas . . . (Q. 279). In relation to the rest of the floor areas . . . we have a floater – one guy starting at one end of the shop and continuously cleaning (Q. 307). It would take the floater to get around his beat . . . in the area involved between 10/15 minutes.”
A number of matters were canvassed so as to establish a breakdown in the system or a failure to enforce it; in my view, however, the essential criticism is the length of time that would elapse at a point of particular danger, such as the area where cooking oil is displayed, between one patrol of the “floater” and the next. I do not overlook the fact that there are other members of the staff at various points from time to time and that there would be other customers passing by; such persons, however, are not there for the purpose of spotting dangers; indeed, that may not be the role of the floater whose primary job is to clean up. Barrington J., was persuaded that the system:
“would appear to be a very sensible down to earth system, and that there is no expert evidence to suggest other supermarkets do things differently or do things better or that there is anything defective in the way the defendant operates this system.”
In my view, such a conclusion overlooks the essential issue which it appears to me to be one that, at the time of the trial, was for a jury to determine – the adequacy of the system, with particular reference to the time scale. In my judgment, the learned trial judge erred in withdrawing the case from the jury and the same should be sent for new trial.
In the debate between counsel and the learned trial judge Mr. Nugent S.C., for the defendant, said:
“If this case were allowed to go to the jury I would submit there would be absolute liability . . .”
Neither the pleadings nor the replies to notices for particular or the notices of further particulars make any such allegation and the observations that follow must be taken as made without argument on the hearing of this appeal. The matter is of such importance to the public at large and to the owners and occupiers of supermarkets that it is but fair that I should express a tentative view on the subject of absolute liability.
The supermarket is a modern phenomenon derived from a combination of events such as cash and cash only purchasing, efficient and attractive packaging, competition itself, convenience of customers, the increase in the number of gainfully employed housewives, the growth of family shopping, the availability of”fast foods”, the purchasing power of store chains or other groups of traders, the efficiency and speed of transport, both traders and private customers, and, no doubt, a variety of other circumstances. The supermarket has supplanted the family grocer in whose shop the risk of an accident such as befell the plaintiff was virtually non-existent. If a customer on taking a package from the grocer were to let it fall she would know it; it would not arise that another customer would come so near as to be endangered. The customer in the supermarket has sacrificed the personal touch of the family grocer for the sake of lower prices and possibly other advantages but she has taken on a very much greater risk of personal injury.
What is called the rule in Rylands v. Fletcher (1868) L.R. 3 H.L. 330 states that:
“The person who for his own purposes brings on his lands and collects and keeps therein anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
Such liability, it is said, will not be imposed unless there has been an “escape from a place which the defendant has occupation of, or control over land, to a place which is outside his occupation or control” – Read v. Lyons (J.) & Co. Ltd. [1947] A.C. 156, at p. 168. The rule is the subject of a chapter in McMahon & Binchy, Irish Law of Torts, 1st edn., chapter 26, where the authors state at p. 505:
“Whether an Irish court would look with sympathy on the American refinement of the rule, so as to impose strict liability for ultra-hazardous activities irrespective of any question of escape is difficult to predict. It would have the advantage of rationalising the policy basis of the rule, but would possibly involve too radical a departure from established principles to encourage the court here to take this step. In the light of recent experience with the not unrelated subject of occupier’s liability, however, it would be unwise to exclude this possibility.”
(See also McMahon, ” Herrington and trespassers in Ireland”, (1975) 91 L.Q.R. 323; McMahon, “The Injured Trespasser: Adieu to Addie “, (1971) 6 Ir. Jur. (N.S.) 331; and comments on McNamara v. Electricity Supply Board [1975] I.R. 1 in McMahon & Binchy, Irish Law of Torts, 2nd edn., at p. 226 et seq.)
It remains for another day to consider whether or not, by way of application of the rule in Rylands v. Fletcher or otherwise, balancing the rights of people and the rights of property, a principle of absolute liability may be appropriate to claims arising out of certain forms of accidents occurring in large supermarkets.
I would allow this appeal and direct a new trial on all issues.
Vera Mullen v Quinnsworth Ltd t/a Crazy Prices (No. 2)
Supreme Court
25 February 1991
[1991] I.L.R.M. 439
(Griffin, Hederman and McCarthy JJ)
GRIFFIN J
(Hederman J concurring) delivered his judgment on 25 February 1991 saying: The defendants are the proprietors of a large supermarket at Stapleton Place, Dundalk, Co. Louth. What may be called the grocery section of the premises is 70 yards long and 30 yards wide. The main aisles run lengthwise, and there are 13 transverse aisles which are open at both ends. At the beginning of June 1986 there was what was called a big ‘end display’ of cooking oil in one of the aisles. The plaintiff wished to purchase a cake and asked a member of the staff where the cake stand was. He directed her to it telling her to go down the main aisle on which she was and turn left in to the relevant transverse aisle. She did so, and having taken only a few steps in the transverse aisle she slipped and fell heavily suffering in consequence reasonably serious injuries for a person of her age. The cause of her fall was a quantity of cooking oil which was not visible on the floor as it was the same colour as the floor. When she was lying on the floor, as she put it covered with oil, she saw a bottle lying by the shelves and it is accepted that the oil on the floor had escaped from that bottle. She was assisted to her feet by a member of the staff and some customers and brought to a chair which was nearby and there attended to. She asked that her husband, who was waiting in the car in the car park, and who suffered from a heart condition, should be notified diplomatically. She estimated that approximately 20 minutes elapsed between the time of the accident and the *441 arrival of her husband. She said (Q. 39) that nothing was done to the floor during the time she was awaiting her husband. She was not challenged on this matter nor was any evidence to the contrary called on behalf of the defendants. When her husband arrived she was taken upstairs and looked after by the management and staff of the supermarket.
Mr Peter MacMahon, a local solicitor, arrived in the premises after the accident had occurred. He learned from a member of the staff that the plaintiff, whom he saw sitting on a chair, had fallen some time previously. He saw the place where he was informed the accident had happened. There was a pool of oil on the floor, the oil being the same colour as the floor. At that time no person, either of the staff or otherwise, was in attendance at the oil. He made the purchases he had required, and as he was leaving the check-out he met the plaintiff’s husband, whom he knew, coming into the premises. He himself was in the premises some three to four minutes. When he was leaving he saw ‘some lad’ with a mop approaching the place where the oil was. Prior to that there was no one in attendance at the oil to prevent other persons from stepping on it.
These proceedings were instituted by the plaintiff and came for hearing at Dundalk before Barrington J and a jury. At the close of the defendants’ case the learned trial judge, on the application of counsel for the defendants, withdrew the case from the jury as the plaintiff had, he found, failed to establish negligence that could safely be let go to a jury. From that decision the plaintiff appealed to this Court and this Court, on 23 February 1990, allowed the appeal and directed a re-trial (see [1990] 1 IR 59). It is not necessary to repeat what was said in the judgments in that case — it is sufficient for the purpose of this appeal to state that the court held that the maxim res ipsa loquitur applied, ie that the circumstances of the accident raises sufficient presumption of negligence on the part of the occupier of the premises and that the onus is, therefore, on the defendants of establishing that, in all the circumstances, they took reasonable care to see that the premises were reasonably safe for the plaintiff.
The action was retried by Lynch J. On the issue of liability, evidence was given by the plaintiff and Mr MacMahon along the lines already set out in this judgment. In addition, Mr Joseph Osborne, a consulting engineer, who had inspected the premises and the relevant goods in October 1986, and who had given evidence in the first trial, also gave evidence at this trial. In his opinion, oil spilled on this floor would make the floor extremely dangerous for customers. He had three main criticisms of the defendants in relation to (1) the quality of plastic bottles; (2) the manner in which the bottles were stacked; and (3) the system of keeping the floor clean on the premises.
As to (1), he said the plastic bottles in which the oil was supplied were unsuitable for their purpose. The plastic was extremely thin, was not strong enough for normal handling, and can burst (not break like a glass bottle) if a *442 bottle falls to the ground. He was aware from the evidence in the first trial that 99% of all these plastic bottles of oil which fall burst in the same way as did the bottle on this occasion. He produced a plastic bottle readily available on the market in respect of which he had carried out some tests. He had let this bottle fall from a height of ten feet on to a concrete path, and it did not burst or break or let any oil escape.
As to (2), the bottles were not displayed on a shelf as is ordinarily to be expected in a supermarket. Instead, they were stacked in a form of pyramid in partly open cartons with the bottom of the bottle facing towards the customer. This, he said, increases the instability of the whole system — if a customer takes a bottle lower than the one at the apex of the pyramid, pressure is carried from the top right down to the bottom and the stability of the whole system is undermined.
In relation to (3), the system in operation for cleaning the floor in this area was that which was called a ‘floater’; a boy with a brush cleaning the entire area (70 yards × 30 yards), would take between ten and 15 minutes to traverse the area in question and would walk approximately 500 yards in the course of each of his travels around the aisles. In his opinion, with the knowledge of the defendants that regular spillages of oil occur and that the plastic bottles will burst 99% of the times on which they fall, a floater in this area would be wholly inadequate.
The only witness called on behalf of the defendants was Mr Redmond Galvin who was assistant manager of the premises in Dundalk in June of 1986. He had four months’ experience on the premises prior to the accident and he left this premises and went elsewhere a short time afterwards. He witnessed the accident and he also described the system in operation for cleaning the premises during the day. In direct evidence he was asked a total of 25 questions, 14 being in reference to the facts of the accident and 11 in relation to the defendants’ practice of keeping the premises clean and free from debris. On the day of the accident he was in an aisle close to where the accident happened. A customer approached him and spoke to him. Counsel for the plaintiff objected to his stating what was said to him by the customer (Qs. 568–570) and in consequence he said that as a result of what was said to him he walked around to the end display of oil. Questions 571 and 572 are as follows:
571. Q. Why did you walk around to the end display of oil?
A. Well she told me ….
572. Q. Well you cannot tell us what she said to you. But what was your purpose for going round?
A. There was oil spilt on the floor; she told me there was oil spilled on the floor.
*443
As he turned around the corner of the display he saw the plaintiff falling, with her feet going from under her, and he saw her fall on her back.
With regard to the cleaning system in operation in June of 1986 he said there is constant maintenance in the day time supplied by three persons. One looks after the check-out area, one is in the ‘Fruit and Veg’ (described as the ‘high risk’ areas in the first trial) ‘and one going around the store and the whole front, continuously.’ In addition, if there are some problems on the floor, a staff member stands over the problem until another staff member arrives and somebody else gets certain equipment for cleaning it up and they remain and are not allowed leave until it is cleaned up. On the day in question, if the accident had not taken place he himself was going to stand over it to make sure nobody else stepped into the oil. He said this bottle splits on the bottom.
In cross-examination it was put to him that on the previous hearing his evidence was that 99% of these plastic containers crack on falling and the oil spills out on the floor. He did not demur and he accepted that they can normally crack. Asked about the quality of the plastic bottles and the method of display, he said that ‘the people in head office’ decide on the quality of the bottles, and the bottles are displayed to a pattern decided by head office. He did not know where these bottles of oil came from, or if Quinnsworth bottled the oil themselves; ‘the marketing department’ makes these decisions. He described his function as being to control most of the staff on the floor, that he would be on the floor all day, and he would make sure that people were checked in and also supervise the sweeping of the floors ‘and, generally, that sort of duty’. Asked about the big end display, he said that generally the defendants display and put what is on display down at the end to attract more attention, their idea being to increase the number of people handling the bottles. In re-examination he said that from the time he got the report of the spillage of the oil until the accident occurred would have been somewhat less than ten seconds.
When the re-examination of Mr Galvin was complete, the learned trial judge asked him some questions, the relevant ones for the purpose of this case being questions 696 to 698. These are:
696. Q. Judge : How often would one of these oil bottles fall and crack?
A. You could definitely say three a week I would say.
697. Q. Judge : Three a week?
A. Yes, three a week I would think.
698. Q. Judge : Now, there is one other question which I want to ask, gentlemen, and the answer could be in favour of you, Mr Callan, or you, Mr Nugent, but I must ask — and if you are dissatisfied, there is another place you can all go off to: it has become relevant, so far as the evidence is concerned, to ask, what, in *444 fact, the lady has said to you. I want you to tell me: I want to know if this lady who told you there was oil there, whether she said — ‘I have just dropped a bottle of oil’ or else if she said — ‘I have just noticed there is oil spillage still on the floor’?
A. No. She said ‘I have just dropped a bottle of oil’. She did not mention about spillage but ‘I have just dropped a bottle of oil’.
At Q. 705 (the last question on the transcript) he accepted that there could possibly be more spillages in an end display.
In his judgment, the learned trial judge having briefly stated the primary facts held that no blame could be attached to the plaintiff, and that, if the defendants are to escape liability for damage to the plaintiff, the onus rests on them to show that they were not to blame, and that they must show that they maintained a reasonable system for keeeping their premises clean and also that on the occasion in question that system did not fall down.
In respect of the system adopted for keeping the premises clean, he was satisfied that the likelihood of a dangerous spillage or breakage remaining unprotected for as long as 10 or 15 minutes is remote. He did not think that there is much difference between a spillage of oil, mineral water, or washing-up liquid, or things in glass bottles, so far as creating a danger is concerned; nor did he think that there is any greater need for the oil bottle to be stored in a place of high risk, anymore than the many items which would be liable to spill if bottles fell from the shelves. He held that in all the circumstances the system adopted by the defendants for keeping the premises clean was a reasonable one, and a standard of reasonable care, in general, for the safety of the customer.
As to whether the system fell down on this particular day, he was satisfied that when Mr Galvin was in the same aisle some nine or ten minutes before the accident everything was in order. It seemed to him, on the probabilities, and he so found, that the spillage could not have been there longer than three or four minutes at the outside, because if it had been there that long, the packer who was in the aisle, or some member of the staff, would probably have spotted it and attended to it. He came to the conclusion that this spillage of oil happened a very short time indeed before the accident, at most one minute and perhaps less and that there was no great delay or undue delay in the cleaning system on this particular day.
In relation to the quality of the bottles and the manner in which they were stacked, he said:
On the evidence of Mrs Mullen and Mr Osborne I have come to the conclusion, on the probabilities, that these were ordinary plastic bottles such as supplied by many, many manufacturers and that, accordingly, it was not negligence on the part of the defendant to stock those bottles of oil as one of the products which *445 they sell in their supermarket. Moreover it seems to me that the manner in which they were stacked on this occasion, for the end display, with a little carton retained to try and prevent bottles falling, was a reasonable one. I cannot see any negligence either in the stocking or stacking of the bottles on this occasion. That being so I find that no negligence arises, in so far as the defendants are concerned.
The action must fail and be dismissed.
From that judgment and decision of the learned trial judge the plaintiff has appealed to this Court. In the notice of appeal the plaintiff challenged all the findings of the learned trial judge. In the main, the grounds argued were that the learned trial judge was wrong in holding: that the defendants had discharged the onus of proof on them that they were not negligent; that the system of cleaning was reasonable and adequate having regard to the defendants’ knowledge of frequent oil spillages of the type established in evidence; that the spillage could not have been on the floor longer than three to four minutes for the reasons stated by him, and that the spillage occurred at most a minute or less before the accident; that plastic bottles of the type used were, on the evidence, ordinary plastic bottles supplied by many supermarkets for sale in supermarkets and the defendants were not negligent in using them; that the method used for stacking the bottles in an improvised end display designed to attract customers was not negligent notwithstanding the knowledge on the part of the defendants of the frequent spillages of oil and the almost inevitable fracture of the bottles on falling or being dropped; and in admitting and relying on hearsay evidence from Mr Galvin of what was stated by an unidentified third party to him.
Although a number of subsidiary questions arise, the essential question for decision on this appeal is whether, in all the circumstances of the case, the defendants took reasonable care to see that the premises were reasonably safe for the plaintiff, the onus of proof being on them to establish that they did. With the exception of one matter which was resolved by the learned trial judge in favour of Mr Galvin, the credibility of the witnesses is not in issue. Where no question arises as to truthfulness, and where the decisive finding is a conclusion or inference drawn from such facts, this Court, as the appellate tribunal, is in as good a position as the trial judge appealed from to draw its own conclusions or inferences from the facts proved or admitted and to decide accordingly — see perO’Higgins CJ and Henchy J in Northern Bank Finance Corporation Ltd v Charlton [1979] IR 149; Benmax v Austin Motor Co. Ltd [1955] AC 370; Aberdeen Glen Line Steamship Co. v Macken: The SS Gairloch [1899] 2 IR 1.
At the time of the accident there was a ‘big’ display of cooking oil in the aisle in which the accident happened. What the defendants mean by ‘big’ is not stated, but I take it to be something akin to what is often referred to as a ‘promotion’ in supermarkets. It was undoubtedly designed to attract a much larger number *446 of customers than would normally be expected to purchase cooking oil and that was the reason the oil was displayed in cartons and not on the shelves. It seems to me to stand to reason that the larger the number of customers handling the bottles of oil the greater the risk of bottles falling or being dropped by customers on the floor.
The defendants were aware that spillages of oil occurred on a regular basis and that if a bottle of oil fell or was dropped on the floor the plastic bottle burst and a spillage took place on 99% of such occasions. According to the uncontested evidence of the expert witness called on behalf of the plaintiff, this was due to the unsuitability of the bottles, as they were not strong enough for normal handling, the plastic being too thin. Mr Osborne stated that oil spilled on this floor would be extremely dangerous. This would seem to be incontrovertible but an effort was made through cross-examination on behalf of the defendants to establish, by reference to an unproved scientific report made by an employee of EOLAS, that oil on this floor would be no more dangerous than water or other named substances. Mr Osborne rejected that suggestion and stood by his evidence that oil was extremely dangerous on this surface. No evidence to the contrary was tendered on behalf of the defendants.
As appears earlier in this judgment, at Q. 572, although Mr Galvin was told he could not say what the lady said to him he stated that she told him there was oil spilled on the floor. That answer was clearly inadmissible in evidence under the rule against hearsay but it was at least neutral. At the end of the evidence at Q. 698 the learned trial judge asked the question already recited. The answer to that question would also be clearly inadmissible in evidence, but even if admitted, the truth of the answer would not be established and should not be acted upon.
In the course of his judgment the learned trial judge said that Mr Galvin was in the aisle in which the accident happened some nine or ten minutes before the accident and he was satisfied that when Mr Galvin was there everything was in order and no bottle was on the floor. This is an inference he was entitled to draw. He continued however ‘a young packer was in the aisle at this time though a little bit away from the spillage and he is the man who directed the plaintiff to the cake stand. But it seems to me, on the probabilities, and I so find that the spillage could not have been there longer than three or four minutes at the outside because if it had been that long there the packer, or some member of the staff, would probably have spotted it and attended to it.’ There is in my view no evidence from which this inference could have been drawn. The packer was not in the aisle in which the accident happened but in the main aisle and it was he who directed the plaintiff to go down to the transverse aisle and turn left and go into the aisle in which the accident happened. Later in the judgment he said he came to the conclusion that the spillage happened a very short time before the accident, at most one minute and perhaps less and that there was no undue delay *447 in the cleaning system in operation. Counsel for the plaintiff submitted that there is no evidence from which this inference could be drawn and that the learned trial judge must not only have relied on the answer to Q. 698, but must also have accepted the truth of what was stated by the lady to Mr Galvin. I agree with counsel for the plaintiff that that question should not have been asked or answered, and that, even if answered, it was not evidence of the truth of the statement. There was therefore in my view no admissible evidence from which the conclusion or inference referred to could have been drawn.
In regard to the system operated by the defendants for keeping the premises clean, two of the cleaners were assigned to high risk areas and the floater was required to carry out the function already described. The provision of one floater for the large area to be covered by him seems to have been an immutable practice. Whilst it may be satisfactory in certain circumstances, and it is not necessary for the purpose of this appeal to decide that matter, it seems to me that having regard to the inherent danger from oil spillages on the floor, and to the increased risk of spillages due to bursting of the bottles by reason of the very much larger number of customers handling them during the time of the big end display, the area in which this display took place should have been upgraded to a high risk area at least for the length of time during which the display would continue.
With regard to the suitability of plastic bottles, the learned trial judge concluded on the probabilities and on the evidence of Mrs Mullen and Mr Osborne that these were ordinary plastic bottles such as were supplied by many manufacturers and that accordingly it was not negligence on the part of the defendant to stock them. It must be borne in mind that the judgment of the learned trial judge was an ex tempore judgment and that he did not have the benefit of a transcript of the evidence as this Court now has. I have read and re-read the evidence of Mrs Mullen and Mr Osborne and it does not appear that there was any evidence from either witness to ground this finding. On the contrary, Mr Osborne at all times maintained that the bottles in which the oil was contained were unsuitable for the purpose for the reasons already stated. No evidence was called on behalf of the defendants either from the manager who was, according to the transcript, manager at the time of the accident and is still manager there, or from anyone in head office to whom Mr Galvin referred, or from any of the marketing department who made the various decisions. The learned trial judge also held that the manner in which the bottles were stacked was a reasonable one. The expert witness called on behalf of the plaintiff condemned the practice of stacking the bottles in a pyramid in the partly open cartons for the reasons I have already set out in this judgment. There was no contrary evidence on the part of the defendants, and in my view the only reasonable conclusion to be drawn from the evidence given on the hearing is that stacking in that manner was unsuitable and unstable.
*448
In my opinion, therefore, the defendants failed to discharge the onus on them of showing that the accident was not due to want of care on their part, and I would allow this appeal. The only order the court can make is one directing a re-trial on the damages. As the plaintiff is now approaching her 79th birthday, the interests of justice would seem to require that the damages should be agreed or that an application for a very early trial should be made to the President of the High Court.
McCARTHY J:
I have read the judgment of Griffin J and I agree with his conclusion and the reasons therefor.
In my judgment delivered in the first appeal in this case on 28 February 1990 I said that ‘it remains for another day to consider whether or not, by way of application of the rule in Rylands v Fletcher (1868) LR 3 HL 330 or otherwise, balancing the rights of people and the rights of property, a principle of absolute liability may be appropriate to claims arising out of certain forms of accidents occurring in large supermarkets’. Subsequent to the decision in that appeal the plaintiff gave notice of 12 additional particulars of negligence and breach of duty including at (xxix) ‘causing or permitting the said cooking oil to escape from a place (albeit an insecure place) where the defendants had the said oil under their purported control to a place, namely a public aisle in the said supermarket, which was outside the occupation or control or the exclusive occupation or control of the defendants which was a place where injury was likely to result’. Whilst in the course of the submissions made in the High Court there was a passing reference to the part of my earlier judgment which I have quoted, the only argument in respect of absolute liability was to pose the question as I had already done. No further argument was advanced and the only reference made by the learned trial judge in his judgment was where he said, ‘and, of course, the obligation for a defendant is not an absolute liability for accidents but an obligation to exercise all such reasonable care as might reasonably be expected for the safety of their customers’. The notice of appeal contained a detailed contention as to absolute duty and, therefore, to absolute liability but, on the hearing of the appeal, at the court’s invitation, the argument was confined to the issue dealt with in detail in the judgment of Griffin J. The question must therefore remain for another day.
Francis Duffy v Carnabane Holdings Ltd trading as The Glencarn Hotel
1993 No. 185
Supreme Court
25 March 1996
[1996] 2 I.L.R.M. 86
(Nem. Diss.) (ex tempore) (O’Flaherty, Blayney and Barrington JJ)
O’FLAHERTY J
(Blayney and Barrington JJ concurring) delivered his judgment on 25 March 1996 saying: This is an appeal brought by the defendant from the judgment and order of the High Court (O’Hanlon J) of 19 May 1993 on a hearing of a personal injuries case at Dundalk when he held in favour of the plaintiff. He assessed damages in the sum of £6,000 for general damages, with a sum of £500 for special damages, and having apportioned liability as to 80% against the defendant and 20% against the plaintiff this meant that the plaintiff ended up with a judgment in his favour for £5,200.
Needless to say, this is a case that could have been brought much more appropriately in the local Circuit Court rather than to have taken up the time of the High Court.
What happened to the plaintiff was that in the course of a disco dance that was held on St Patrick’s night, 1990, at the Glencarn Hotel, Castleblayney, Co. Monaghan, he slipped on the dance floor and sprained his ankle. He was out of work for about three weeks, so the injuries were not serious by any manner or means.
The appeal is brought because as Mr Hanratty SC submits, small though the case may be, there are involved questions of principle as to what is the duty of care owed by those who hold disco dances in their premises. We have been told that almost invariably in places where discos are held they are accompanied by an entitlement of people to drink alcoholic beverages which can be got at bar areas adjacent to the dancing area in the disco. Many people will almost invariably have drinks with them, certainly in the vicinity of the dance floor, such as was the case here.
The plaintiff’s case was that he and his fiancée, Ms Finnegan, had been on the dance floor twice and on each occasion the dance floor was bestrewn with spillages and with broken glass. If that presentation had stood on its own, in my opinion — for what it is worth at this stage — the plaintiff had no case at all because the danger would be one that was so obvious as not to constitute an *88 unusual danger. In going back to the old test as laid down in Indermaur v. Dames (1866) LR 1 CP 274 the obligation of the defendant was to provide that the plaintiff, using reasonable care on his part for his own safety, was not exposed to unusual danger which the defendant had known or of which it ought to have known. If you have a dance floor strewn with breakages and spillages, it seems to me that it is not an ‘unusual danger’. The case of excessive breakages etc. did not stand up in any event and this point about whether the danger was ‘unusual’ was not the subject of any debate in the course of the trial nor before us. What the judge found was that the plaintiff had given an exaggerated version of events and he found that the truth lay somewhere in between what was put forward by the plaintiff initially and the defendant’s case.
The defendant’s case was that it had a good system in operation; it had given warnings about bringing glasses onto the floor etc. and that it had sufficient people on duty; as well there were mops and buckets placed at strategic places to clear up any spillages and that it had done the best it could under the circumstances.
The judge, as judges have done from the dawn of time, steered a middle course between those two positions. Having rejected the notion that the place was bestrewn with broken glass and spillages, he then went on to say: ‘I accept the evidence of the plaintiff and his fiancée, that there were signs of drink having been spilled on the floor and glass having been broken before the accident happened.’
We have considered the transcript of evidence in the case and there is support for that finding. It was open to the judge to find that for an appreciable length of time there were both spillages and broken glass on the floor. The plaintiff with his fiancée had gone out to dance initially and then had given up thinking that there was too much in the way of these breakages there but they had gone back a second time onto the dance floor. On each occasion there were spillages and breakages on the floor. So there was evidence which the judge was entitled to accept that for some appreciable length of time there were these spillages.
The duty of care that is owed by the defendant to the plaintiff in circumstances such as this was laid down in the decision of this Court in Mullen v. Quinnsworth [1990] 1 IR 59 where Griffin J, describing the duty of care that is owed to an invitee, at p. 62 said:
The plaintiff was an invitee of the defendant on the occasion of the accident. As such, the defendant was not an insurer of her safety, but it owed her a duty to take reasonable care, in all the circumstances, to see that the premises were reasonably safe for her. Whilst this is the general principle which applies in cases of invitees, each case must necessarily depend on its own particular facts.
Both sides, Mr Hanratty SC for the defendant and Mr Kearns SC for the *89 plaintiff, accept that as a correct statement of the law. Now the complaint is made on behalf of the defendant that in his summing up the learned trial judge pitched the duty of care too high when he drew an analogy with the duty of care that is owed by those who own factories towards those that they employ in them. He said this:
I think it is one of those situations where the law recognises that the demand on people carrying on this is very difficult and at the same time it is a fact that the law compels the factory owner to insure that his machinery is guarded in such a manner that it is virtually impossible for an accident to happen. That involves a certain expense in running a factory and these rules have to implemented by the factory owner. Similarly with the disco scene when there is a level or pattern of drink being brought onto the dance floor and glasses being broken, it creates something very close to an absolute liability on the part of the proprietor for accidents which may occur.
The complaint made is that that is really putting the standard of care higher than the standard of care that is formulated in the Mullen v. Quinnsworth case. That is true. I would accept that and would affirm that the proper statement of the law is the one that I have quoted from Mullen. But I feel that it is inconceivable that a judge with the experience of O’Hanlon J, having spent most of his career at the bar doing these type of cases, and after a long time on the bench, that coming towards the close of his judicial career he would not have been au fait with what the standard of care was in a situation such as this. So I take what he was saying as being largely discursive and it is important to note that he did stop short of saying that there was an absolute duty of care. He said it was something approaching that but stopping short of it.
I think the important point in the case is that the evidence was there to make the finding that he did and while I would reject his formulation as regards the standard of care as having been pitched too high, in fact when he came to deal with the matter he dealt with it in an impeccable way. The defendant’s point is that it had done the best it could. They had a good system in operation. Mr Kearns has countered that by saying it is all fine and well to have a system — and the plaintiff would not disagree that it was a good system — but he says that if it breaks down it breaks down. It must have broken down on this occasion if it was the fact that there were breakages and spillages on the floor for some appreciable length of time.
I would uphold the learned trial judge’s finding of negligence in the case.
The final matter is the question of apportionment of liability. He found 80% against the defendant and 20% against the plaintiff. Mr Hanratty complains that that is too high against the defendant, and so it would be if the plaintiff’s account had been accepted in total. I do not doubt that there would have to be a much higher apportionment of fault laid against the plaintiff in those circumstances if *90 he were to succeed at all. However, having found as he did, and while if I had been the trial judge I might possibly have done a slightly different calculation — it is not our job at this stage to tinker to a small degree with findings of contributory negligence — I do not see anything so wrong with the apportionment as would call for interference by this Court and therefore I would affirm that finding as well.
In all the circumstances, the appeal should be dismissed.
O’Flynn -v- Cherry Hill Inns Ltd Trading As The Oliver Plunkett Bar
Caught Finger
[2017] IECA 211
Court of Appeal
Composition of Court:
Irvine J., Whelan J., Reynolds J.
Judgment by:
Irvine J.
Status:
Approved
Result:
Allow and set aside
JUDGMENT of Ms. Justice Irvine delivered on the 21st day of July 2017
1. This is an appeal against the decision of the High Court of the 14th January, 2016, whereby the trial judge awarded the plaintiff/respondent, Ms. Saundra O’Flynn, (“Ms. O’Flynn) €75,000 by way of general damages in respect of injuries received by her on the premises of the defendant/appellant Cherryhill Inns Limited (“the Oliver Plunkett bar”) on the 17th February. 2012. In so doing the High Court judge concluded that in setting the closing speed for an automatic door at other than the slowest possible speed the defendant had failed in its duty to protect customers such as Ms. O’Flynn from foreseeable injury, which in her case occurred when the ring finger of her left hand became trapped in the hinged recess of that door.
Summary of the liability evidence
2. On the evening of the 17th February, 2012, Ms. O’Flynn, who was then 64 years of age, and two of her friends, Ms. Eileen Cronin and Ms. Laura O’Mahony went to enjoy a few drinks in the Oliver Plunkett bar. After a while, and at a time when Ms. O’Flynn had consumed approximately three glasses of wine, Ms. Cronin and Ms. O’Mahony went to an outdoor smoking area. Ms. O’Flynn followed them a few minutes later. There was a door separating the bar from the smoking area and this had a hydraulically operated self-closing device. She told the Court that she pulled the door towards her to go through it and having done so put her left hand behind her in a type of impulse reaction to restrain the door she felt would be closing behind her. In doing so the tip of the ring finger of her left hand entered the rebate of the doorframe on the hinged side where it was crushed and then severed by the closing door. Ms. O’Flynn was unable to explain how her finger had become caught in the rebate. She nonetheless offered her opinion that because she had lost the top of her finger that the door must have swung quite hard.
3. Ms. Cronin was sitting just inside the automatic door in the smoking area. She told the Court that everything happened “really really quickly”. The door hadn’t, she said, closed like a normal door and it certainly had not closed like a “slower door”. Ms. O’Mahony was also seated where she had a view of the door. She said the accident happened “in an instant” and that “[i]t was just so fast.”
4. Mr. Philip O’Doherty, consulting engineer on behalf of Ms. O’Flynn, explained that the door was intended to close to 30 degrees with a fair degree of speed and thereafter very slowly. The mechanism was designed to give the person going through the door the chance to ensure that their fingers did not become caught as the door closed. Mr. O’Doherty explained that if the door was closing too quickly, a person might not get the chance to pull their fingers out. From the fact that Ms. O’Flynn had not managed to extract her fingers in time to avoid injury, he proposed that the probable cause of her injury was that the closing mechanism had malfunctioned. Mr. O’Doherty also stated, in what I can only describe as a burst of enthusiastic speculation unsupported by the evidence of any witness that “The reason her hand was behind her was to stop the door from slamming on her, on her legs or her feet. You know that’s the reason you would do that.” In turn the High Court judge suggested to Mr. O’Doherty that it was likely that Ms. O’Flynn had put her hand behind her because she was taken by surprise at the speed of the door’s closure and that she had probably done so because there was something “odd” about the door.
5. In the course of a further exchange between the High Court judge and Mr. O’Doherty the witness confirmed that if the door had been working properly Ms. O’Flynn would likely have felt some pressure on her finger and would have had sufficient time to remove it before it got crushed. In response to questioning on the same issue by Ms Hyland S.C, for the defendants, Mr O’Doherty stated that it was to be inferred from the fact that she hadn’t been able to retract her finger that the timing mechanism on the door must not have been working properly on the day in question.
6. Because of the findings ultimately made by the trial judge concerning liability and causation, it is also important to observe what evidence was not given by Mr. O’Doherty, he being Ms. O’Flynn’s sole expert evidence. He did not assert that it was his professional opinion that it was unreasonable or unsafe for the occupier to have set the timing mechanism for the closure of this particular door at 5.5 seconds. Neither did he contend that because of the configuration of the premises that the defendant was under an obligation to set the timer on the door to the maximum closure time of 7 seconds. Indeed, it was his evidence that if set at 5.5 seconds a person who had their finger in the hinged recess of the door would get sufficient warning as the door was closing to allow them extract their finger so as to avoid injury. However, Mr. O’Doherty speculated that an occupier of a public house premises might be tempted to tension the door so that it would close more swiftly in order to avoid smoke travelling from the smoking area into the bar.
7. Having carefully considered the transcript of the evidence, it is fair to state that it was Mr. O’Doherty’s expert opinion that it was highly probable that the automatic door had malfunctioned on the night of Ms. O’Flynn’s injury such that it had closed behind her without restraint or alternatively that it had been set with a significantly faster closing speed than the 5.5 seconds recorded at the time of inspection to minimise smoke entering the non-smoking areas of the premises.
8. Mr. Pat O’Connell, consulting engineer on behalf of the defendant, gave evidence that the automatic door was one which complied with the prevailing British Standard. He explained that automatic doors of this nature were to be found in every type of public building and all operate on the same principle. A closing time of 3 to 7 seconds was within the acceptable range and this door when examined was set to close over a period of 5.5 seconds. Even though closure decelerates over the last part of the closing cycle it was his opinion that once the door started bearing in on a finger within the rebate of the doorframe on the hinged side, as opposed to a finger resting on the leading-edge of the closing door, the individual concerned would have little chance of extracting their finger. In the former scenario the grip of the door would be instantaneous and then, of course, there was the issue of reaction time.
9. In the course of his evidence, Mr. O’Connell stated that while contributory negligence was a matter for the Court, it was his opinion that anybody using a door such as this, if they put their hand behind them in an effort to restrain the closing door, ought to have looked behind them to ensure that they were placing their hand against the door proper rather than into the rebate of the doorframe.
10. Mr. Creed S.C., on behalf of the plaintiff, put two propositions to Mr. O’Connell, neither of which had been advanced by his own engineer, as the basis upon which liability might be found against the occupier. The first of these was a query as to whether in setting the closing time for the door the occupier should have taken into account factors such as the location of the door. The second was that given that patrons in a public house would be consuming alcohol the closing mechanism should be set to the slowest closing time. Mr. O’Connell disagreed with both propositions stating that 5.5 seconds was “absolutely satisfactory” in this scenario.
11. In addition to the evidence of Mr. O’Connell, evidence was given by a Mr. Heffernan who was first to arrive on the scene after the accident, Mr. Weldon, the bar manager, and a Mr. Murray who had provided first aid, all of whom stated that they had noted nothing untoward about the door that night. Mr. Fergus Byrne, maintenance manager, also gave evidence that he inspected the door at nine the following morning and that it was operating normally. He gave evidence that he maintains approximately 40/50 of these doors for the defendant. There were 12 in the Oliver Plunkett bar and 24 across the road in another pub called Reardon’s. His uncontested evidence was that the tensioning on these doors never slips and that the closure timing settings on the door concerned had not been altered since the accident. According to Mr. Byrne, the only thing that ever went wrong with an automatic door was that it might stay open as a result of a shortage of oil due to a leak. He also stated that in his opinion a hand would not become caught on the leading edge of an automatic door as it closed but that on the hinge side, it would be a “different story”.
12. In the course of cross examination it was put to Mr. Byrne that in a pub situation that the timing of the closing device “should be at the further end” (presumably of the 3 to 7 second spectrum) to which he replied, “[i]t would be an idea to have it at the longer closing, yes”.
Judgment of the trial Judge
13. At the commencement of his judgment the High Court judge records that no one had observed the exact moment when the accident happened. All the plaintiff had been able to say was that she travelled through the door. Her friends could do no more than say that she had put her hand up as she came through the door. It was for this reason that the High Court judge said it was difficult to determine how the accident had happened. He then concluded that she had instinctively put up her hand behind her as this was what people do when walking through a door and she could not be faulted for that instinctive act.
14. When it came to the facts upon which he decided the liability issue in the case the trial judge reached somewhat different conclusions. He expressed himself satisfied that when Ms. O’Flynn had arrived where she wanted to be, namely immediately beyond the automatic door in the smoking area, that the door was still coming towards her and that she needed to protect herself from it. This was why she had put out her hand. He then proceeded to find as a fact that the calibration on the door had been insufficient to protect her in circumstances where she was going to be stopping immediately beyond the door.
15. The basis upon which the trial judge found the defendant liable for Ms. O’Flynn’s injuries was that he concluded that there had to be a difference in the calibration for spring-loaded doors, depending upon where a particular door was situated and what was immediately beyond it. Because the area immediately beyond the door in question was a place where people tended to gather and might stop rather than proceed onwards, he concluded that the door should have been calibrated to afford more time to the person passing through to get “free” of the door. Given that the calibration of the door had proved insufficient to protect Ms. O’Flynn, the trial judge found liability against the defendant and that Ms. O’Flynn had not been guilty of any contributory negligence.
Submissions of appellant
16. Mr. John Lucey S.C., on behalf of the defendant, submits that the trial judge made no real finding of negligence against the defendant that would have entitled him to award compensation to the plaintiff. He submits that there was no evidential basis for the liability finding and that no consideration was given to the evidence of the defendant’s witnesses. Counsel submits that in circumstances where Ms. O’Flynn had admitted putting her hand behind her to restrain a closing door that a finding of substantial contributory negligence was warranted.
17. Insofar as the award of damages made by the trial judge in the sum of €75,000 was concerned the award was simply not proportionate having regard to her injuries and was also not in keeping with the compensation advised in the Book of Quantum for partial amputations of a finger in the plaintiff’s personal circumstances.
Submissions of respondent
18. Mr. Tom Creed S.C. submits that the fact that the door in question may have operated in accordance with the British Standard on the day of inspection was not dispositive of the liability issue. There was evidence to support the trial judge’s finding of liability on the basis that the defendant, in setting the closing time for the door, had failed to consider the fact that patrons would not necessarily be proceeding straight through the door and might be compromised if intending to move left to join activities immediately beyond the door. He relied upon the evidence of Mr. O’Doherty to the effect that a person coming through the door moving immediately to their left would be compromised as they would be moving towards the hinged side of the door. He also relied upon evidence of the defendant’s maintenance manager, Mr. Byrne, to support his submission that the trial judge was entitled to conclude that the door should have had a longer closing time having regard to the fact that it was in a public house.
19. Mr. Creed submits that the trial judge’s finding was also supported by the evidence of Mr. O’Connell, the defendant’s engineer, concerning the desirability of having a longer closing cycle in circumstances where a person travelling through the door might want to immediately stop thereafter because of the location and set up of tables inside the door.
20. Mr. Creed also submits that it was open to the trial judge on the evidence to make no finding of contributory negligence against the plaintiff. Finally, he submits that the award of damages was within the permissible range. The damages were not excessive to the extent required i.e. 25% or 30% as would warrant the Court treating the award as an error in principle.
Role of the appellate court
21. Where an appellate court does not enjoy the benefit of hearing and seeing witnesses the circumstances in which it may interfere with the findings of a High Court judge are indeed limited. Those circumstances are identified in the often cited decision of McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 where he described the role of the appellate court in the following terms at page 217:-
“1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v. Macken [1899] 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference — in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.”
22. It is with the aforementioned restrictions in mind that I will briefly address the liability issue in this case. It goes without saying that the burden of proof in every personal injuries claim rests upon the plaintiff. They must prove their claim on the balance of probabilities and proof of that claim will depend upon the facts found by the trial judge and whether on those facts liability is established.
23. It is for the trial judge to adjudicate upon the claim pleaded and advanced at trial. Insofar as a claim is to be advanced based on expert evidence S.I. No. 391 of 1998 requires the plaintiff to deliver to the defendant in advance of trial, any report to be relied upon and that must contain the substance of the evidence to be adduced by that witness. This is so the defendant may properly understand the case to be made against them.
24. It does not perhaps need to be stated that it is not any function of the court to propose an alternative set of facts to those which the plaintiff has sought to establish in evidence or to canvass an alternative liability case to that which was advanced on their behalf in their pleadings, expert reports and evidence.
Nature of the claim
25. In the present claim it is important to record that the liability of the defendant to Ms. O’Flynn is claimed to arise in negligence and also pursuant to the Occupiers Liability Act 1995 (“the 1995 Act”). It is common case that the duty of care owed by the occupier under the 1995 Act to a visitor such as Ms. O’Flynn is akin to the standard of care in ordinary negligence. The statutory duty of the occupier is provided for in s. 3 of the 1995 Act which provides as follows:-
“3(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.
(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
26. While it may appear pedantic to so state, an occupier is not the insurer of the welfare of a visitor and their duty of care does not extend to taking all steps as might be necessary to ensure (my emphasis) that the visitor will not be injured whilst on their premises.
27. Having considered the evidence adduced in the High Court and all that has been submitted to this Court on the appeal, I am satisfied that there was no evidential basis upon which the trial judge was entitled to make a finding of liability as against the defendant. I am also satisfied that, even on the facts found by the trial judge, the same would have warranted a very substantial finding of contributory negligence on the part of Ms. O’Flynn.
Findings of fact
28. The High Court judge found as a fact that Ms. O’Flynn, because she was meeting her friends immediately inside the automatic door, required greater time to get beyond the door than if she had been walking straight on. However, Ms. O’Flynn gave no evidence that she had any difficulty getting through the door or that she was held up in any respect in clearing the door. There was no evidence that she was obstructed by people standing or communing beyond the door in the smoking area such that she might have found it difficult to complete her passage through the doorway. Neither did she or any other witness suggest that she sustained her injury due to insufficient time afforded to her to get beyond the door. Even if there had been insufficient time, no expert evidence was called to establish that the defendant had failed in its obligation to Ms. O’Flynn by failing to provide her with more than 5.5 seconds to pass through the door and its hinge having regard to the circumstances which pertained.
29. It is to be inferred from the evidence of Ms. O’Flynn and that of her friends who were present on the night in question and from the expert evidence of Mr. O’Doherty, consulting engineer, as flagged in his expert report, that the claim she intended to pursue was to be based on the probability that the closing mechanism on the door was not working such that it “swung quite hard”, “didn’t close like a normal” door close and “didn’t close like a slower door”. Further, Mr. O’Doherty had given evidence to the effect that the fact that Ms. O’Flynn had not been able to withdraw her hand was proof that the door was not operating at the closing speed of 5.5 seconds as was contended for by the defendant but was either not working at all or had been tightened to an excessively fast closing time to keep smoke out of the common areas. That however was not the case that the High Court judge adjudicated upon. He found liability against the defendant for an act of negligence that was not pleaded, not referred to in the expert report of the plaintiff’s consulting engineer, was not referred to by him in his oral evidence and was unsupported by any other evidence in the course of the trial.
Discussion and decision re liability issue
30. It is clear from the judgment of the trial judge that he accepted as a matter of fact that the door in question was not malfunctioning on the night in question. It is implicit from his judgment, where he expressed himself satisfied that in calibrating the closing time for the door that “more than the medium” amount of time should be given to protect a person in Ms. O’Flynn’s situation from the closing door, that he accepted the evidence of the defendant that the timing mechanism had been set to 5.5 seconds. Accordingly, it is clear that the trial judge rejected the claim, which Ms. O’Flynn had sought to advance through her witnesses, which was to the effect that the closing mechanism of the door was either not working or had been set to the lowest possible calibration such that the defendant should be found liable.
31. Core to the liability finding made by the trial judge was his conclusion that the defendant was in breach of its duty of care to Ms. O’Flynn in its failure to calibrate the closing mechanism on the door having regard to its location and the setup of the area immediately beyond it. However, the evidential basis for that finding is simply not present on any review of the evidence. Mr. O’Doherty, the plaintiff’s engineer, did not make that case. His evidence in response to extensive questioning by the trial judge was that if the door was working property, as was contended for by the defendant at a closing setting of 5.5 seconds, Ms. O’Flynn would have felt some pressure on her fingers as the door started to close on them but would nonetheless have been able to extract them before they got crushed. Thus it was his opinion that her injury was caused as a result of the malfunctioning of the timing mechanism. The only other possibility, in his opinion, was that the defendant might have set the timer to a shorter timeframe so that the door would close more quickly to keep smoke out of the non-smoking area.
32. Not only was Mr. O’Doherty’s evidence insufficient to support the liability finding made by the trial judge but the finding is unsupported by any other evidence. I reject Mr. Creed’s submission that the finding can be supported either by the evidence of Mr. Byrne or that of Mr. O’Connell. Mr. Byrne did no more than make a modest concession that when fixing a timer for a door in a pub situation that it would be “an idea” to have it at the “longer closing”. Mr. O’Connell went no further than to agree that it would “be more desirable” to give a long time rather than a short time if adjusting the closing mechanism of a door in circumstances where the occupier was aware that there would be tables inside that door. To support the finding made by the trial judge the plaintiff would have to have proved that it was common practice in a situation such as that which pertained in the defendant’s premises that automatic doors would be set to a 7 second closing time and that it was recognised that to set such a door to any lesser closing speed would foreseeably cause injury to the customer. In this case the trial judge had no such evidence. To the contrary, he had positive evidence from Mr. O’Connell that 5.5 seconds was considered satisfactory for automatic doors in circumstances such as presented in this case and he also had evidence from Mr. Byrne that this was the standard setting for all automatic doors in the public house premises owned by the defendant.
33. In the aforementioned circumstances there was no evidence entitling the High Court judge to find that the defendant had failed to use reasonable care when it set the timing mechanism on the door in question at 5.5 seconds.
34. Apart from what I have already stated, the judgment of the High Court judge does not make clear how he resolved the issue of causation. It follows from what he stated in relation to liability that he was clearly satisfied that had the mechanism been set to close over a period of 7 seconds that Ms. O’Flynn would have had sufficient time to extract her fingers without injury. It follows that given that he accepted that the mechanism was working on the night in question and was operating on a 5.5 second closing time that he must have concluded that so operated the door was unsafe and did not provide sufficient time for a customer to extract their fingers once aware the door was closing. However, the High Court judge did not state how it was that he reached that conclusion. After all, it was Ms. O’Flynn’s own engineer, Mr. O’Doherty, who stated that if the door was set to 5.5 seconds closing time that, in his view, she would have been able to extract her fingers safely. It follows that the only basis upon which the High Court judge could have awarded damages to the plaintiff is if he had accepted the defendant’s evidence, i.e. that of Mr. O’Connell, that at 5.5 seconds the door at that point in time when it would be felt by the customer would instantaneously grip the finger such that it could not be withdrawn. However, if that was the basis upon which the High Court judge proceeded there was simply no evidence to suggest that at 7 seconds the plaintiff would have avoided injury and would have been in a position to extract her fingers.
35. For all of the aforementioned reasons the finding of liability must be set aside.
Contributory negligence
36. In light of the conclusions which I have just expressed, it is perhaps superfluous to engage with the trial judge’s finding that on the facts as found by him there could be no finding of contributory negligence. Nonetheless I consider it important, in the context of cases of this nature, to state that I could not disagree more with his conclusion that a patron such as Ms. O’Flynn was not to be faulted in any respect for an injury which he concluded she sustained when the tip of her finger was amputated due to the fact that she had blindly put her hand behind her into the hinged recess of an automatic door with a 5.5 second closure speed.
37. Adult members of society are obliged to take care for the own safety and cannot divest themselves of responsibility for their actions. The duty of care of the publican is to take reasonable care for the safety of those who come to socialise on their premises. Their statutory obligations are those provided for in the Occupiers Liability Act 1995 which imposes upon the occupier equivalent duties to those required at common law. They must take reasonable care to protect the visitor from dangers on their premises.
38. From infancy we are warned of the risk of injury from closing doors. The education of toddlers concerning this particular type of danger probably starts when they first encounter the safety latch on the kitchen press. The concerned parent attaches such a device not only to keep children away from dangerous substances that may be in those presses but because they well understand the risk to little fingers that may be inserted unwittingly between the leading edge of the door and its frame or into the recess on the hinge side of the door. It is not long before that risk is absorbed by even relatively young children such that they can be left to move around their own homes where similar risks present with the opening and closing of larger and heavier doors.
39. Beyond the home, doors are part of every day life and automatic doors are no exception. They are commonplace in buildings of every nature. Automatic doors are encountered in every type of public building including hospitals, schools, courts and offices. As adults we know we must avoid leaving our fingers between the leading edge of the door and the door frame as it closes. Likewise, we are only too aware of the consequences of placing our fingers near or within the recess of the hinged side of a door. To propose that an adult should be considered blameless, and I use the word blameless in the legal sense in which that word is understood, for an injury sustained when, having proceeded through an automatic door, they blindly placed their hand behind them in a manner such that their fingers were placed in the hinged recess of the door is in my view untenable.
40. We are all guilty from time to time of doing things without paying sufficient attention to the consequences of those actions in terms of potential risk. When we do so and sustain injury as a result we are to blame and we must absorb the consequences of our conduct unless we can demonstrate that some other party was in some respect culpable. On the facts of this case, as already explained, there was no basis for any finding of negligence or breach of duty on the part of the Oliver Plunkett bar. That being so, Ms. O’Flynn must be considered to be the author of her own misfortune.
41. It is indeed regrettable that Ms. O’Flynn sustained what was undoubtedly a significant and disfiguring injury to her left hand. However, judges must be careful not to allow the significance of an injury influence their judgment when it comes to deciding as a matter of law who is to be considered responsible for that injury. On the evidence before him there was no basis upon which the High Court judge was lawfully entitled to conclude that the defendant had any responsibility for this plaintiff’s unfortunate injury.
42. For all of the reasons set out earlier in this judgment, I would allow the appeal.
Moore v Westwood Club Ltd
Occupier’s System Safety
[2014] IEHC 44JUDGMENT of Mr. Justice Herbert delivered the 5TH day of February, 2014
1. In this case the evidence established, or it was admitted, that some time after 22.30 hours on the 26th/27th December 2007, the plaintiff and two female friends, having paid an admission charge of €20 were enjoying, – in the company of 900 other persons, – a convivial night out at Barcode, a nightclub located at the Westwood Club in Fairview, Dublin. Later that night the plaintiff was returning from the rest-rooms intending to rejoin a group of other young persons with whom she and her two friends were socialising. She was crossing the floor of a restaurant area and was carrying a glass in her right hand. The glass contained a ready-mixed soft drink containing alcohol known as a “WKD” alco-pop. Her right hand is her dominant hand.
2. During this journey she fell on the floor, landing on the front of her body. Her right hand containing the glass struck the ground. The glass, which was a specially designed “nonics” safety-glass designed to fragment into small pieces, like the shatter-proof windscreen of a mechanically propelled vehicle, broke on impact with the tiled floor. Unfortunately, the plaintiff’s right middle finger was cut, most probably by the base which does not fragment like the remainder of the glass. There were also minor cuts to her right thumb and ring finger. The plaintiff asked a security-man who was in the restaurant area for a dressing for the wound. He considered that she required medical attention. He brought her to the security room where the wounds were cleaned and a temporary dressing applied. Despite her anxiety to return to socialising in the club, an ambulance was called by a member of the security staff. Her two female friends were contacted and they accompanied her in the ambulance to the accident and emergency department of the Mater Misericordiae University Hospital. There her wounds were cleaned and dressed. She was given the option, – it was then approximately 02.30 hours on the morning of the 27th December, 2007, – of remaining in the accident and emergency department or of travelling home and returning later that morning at 08.30 hours. She chose the latter. On returning to the hospital she came under the care of Mr. Cronin, a Consultant Plastic, Reconstructive and Hand Surgeon.
3. I am satisfied on the evidence and I find, despite the entry in the background history of the event recorded by Dr. Fergus Cummins in his medical notes, that the plaintiff was pushed to the ground, that the plaintiff in fact fell and was not pushed. Mr. Christopher O’Reilly, at the time general manager of the Restaurant and bar, produced in evidence a most impressive incident book. This book contained a sequential list of time related incidents entered as they were seen by or, were reported to him by the member of the security staff monitoring the security cameras. Mr. O’Reilly told the court that Mr. Colm Carney was the person on duty on the night of the 26th/27th December, 2007. Against the time 01.10 hours, there is an entry as follows:-
“Jessica Moore (address and telephone recorded) finger cut. Fell to the ground with glass in her hand. Claims it was an accident.”
4. Ms. Niamh O’Leary-Merriman, who lived at the time very close to the plaintiff, told the court that she was with a group of her own friends in the club in the restaurant area. She saw the plaintiff going past and she tipped her on the shoulder and said “Hi”. The plaintiff, she said turned and then fell forwards on her face on the floor. More importantly however, was the evidence of Mr. O’Reilly that the staffing roster showed that eighteen security-men, – in addition to sixteen bar staff, ten floor staff and seven cleaners, – were on duty in the club on the night of the 26th/27th December, 2007. Perusal of the entries in the incidents book and the evidence of Mr. O’Reilly satisfies me that the security staff were well trained, carefully positioned and vigilant and, any persons, male or female acting in an aggressive or insulting manner were immediately escorted from the premises. The evidence, particularly the evidence of the plaintiff herself, established that there was a security man in the restaurant area very close to where she fell. I am satisfied that had the plaintiff been, “pushed to the ground”, cutting her hand and losing her drink as a consequence there would have been a noisy disturbance which could not but have attracted the attention of the nearby security man. I am satisfied that this would have been logged in the incident book and, perhaps other action taken.
5. I am satisfied on the evidence and I find, that the plaintiff did not fall or trip by reason of intoxication. If there had been any concern as to the concentration of alcohol in the plaintiff’s blood on the occasion, I am confident that this would have been noted and, probably tested, by the staff of the Accident and Emergency Department of the Mater Misericordiae University Hospital. If the plaintiff had been intoxicated at the time when she fell I have no doubt but this would have been noted by the security man whom she first approached and by the other security staff in the security room where she was seated awaiting the arrival of the ambulance and would have been recorded in the incident book. In addition, the plaintiff’s evidence and that of her friend Ms. Louise Lynch was that the plaintiff had taken no drink at home or at the house of Ms. Suzanne O’Neill on the 26th December, 2007. The plaintiff gave evidence that her mother was at work on the 26th December, 2007, and she had to look after her sister until her mother returned from work at 18.00 hours. I have no reason to doubt the plaintiff’s evidence that prior to the incident she had drunk no more than four alco-pops, (4% alcohol content: 1.1 alcohol units). Ms. Louise Lynch gave evidence that she was drinking her fourth drink when the incident to the plaintiff occurred.
6. I am satisfied on the evidence and I find that the footwear worn by the plaintiff on the occasion did not cause her to fall or contribute in any manner to the fall. Her evidence was not challenged and I accept that she was wearing on the occasion suede ankle boots with a sole of some man-made compound, like black rubber and with a separate 2½inch block heel. The plaintiff and Ms. Niamh O’Leary-Merriman both gave evidence that at the time of the fall the plaintiff was walking, – not running, dancing, or moving excitedly or erratically in any way, – and this evidence was not challenged or discredited.
7. I find on the evidence that the floor of the restaurant area where the plaintiff fell was made up of ceramic or similar floor tiles of good slip resistant value, – R.10, rating. Ms. Flood, managing director of Templeville Limited, the owner of the Club told the court that these tiles were laid in 2000. She told the court that she had chosen these tiles for the particular location on the advice of Mr. Kevin Kelly, managing director of Tubs and Tiles and of Ms. Helen Broderick, an interior designer. These were flat rather than profiled tiles. Ms. Flood told the court that these tiles felt coarse when rubbed with the fingers. In 2004, she became concerned about the effect of wear on the tiles and a possible consequential impairment of the slip resistant value of the tiles. She contacted two companies specialising in assessing and reducing the risk of slippage on floor surfaces, – Safestride Limited and Slipstop (Ireland) Limited. In January 2005, the floor area where the plaintiff had fallen and other adjoining floor areas were treated with a product called “Slip-Stop” by the latter company. A letter dated the 19th January, 2005, from Slipstop (Ireland) Limited to Ms. Flood was produced in evidence by her which confirms this and describes the treatment as follows:-
“The SLIPSTOP anti-slip treatment has caused a chemical reaction with the floor, creating millions of microscopic “U” shaped pores, each sealed internally. The action of the foot on a treated surface displaces water/grease and the pores act like tiny suction cups preventing the foot from slipping.”
This letter then continues as follows:-
“To maintain the full effect of the treatment, it is important that you do not allow a build-up of deposits in the pores. Usual sources for such deposits are: grease that has been allowed to dry on the surface, calcium from water, liquid cleaning products that leave a film on the floor, or powdered detergents, which leave a calcite film on the floor.
To avoid any build-up in the pores, simply follow the Cleaning Guidelines (enclosed) this will ensure that your floor will remain slip-resistant for a time in excess of our five year guarantee period.”
8. Ms. Flood told the court that despite this five year guarantee period the relevant floor was in fact treated four times with “Slipstop” anti-slip treatment by that company between 2002 and 2010. Ms. Flood and Mr. O’Reilly gave evidence that the floor was cleaned regularly with special electric scrubbing and buffing machines using a special high quality floor cleansing liquid supplied by Shearwater Distribution Limited. Ms. Flood and Mr. O’Reilly told the court that Mr. Kevin Polly, managing director of that company and Mr. O’Reilly, had conducted a cleaning training programme for the Club staff. Mr. O’Reilly gave evidence that the floor had been cleaned in this manner on Sunday, 23rd December, 2007. He gave evidence that the Club was not open on the 24th or the 25th December, 2007. Friction tests carried out by Slipstop (Ireland) Limited after it had been treated by “Slipstop” anti-slip treatment showed that the floor rated as “good”. I am satisfied that the floor in the restaurant area where the plaintiff fell, as maintained by the first defendant, provided a safe standing and walking surface for users, including the plaintiff, when dry.
9. Mr. Barry Tennyson, B.E., C.Eng. (etc.), chartered engineer, who gave expert evidence in the case for the plaintiff, told the court that under wet conditions, this floor would suffer a significant decrease in slip resistance. During the course of his evidence, Mr. Tennyson referred to a 2006 Article from the Construction Industry Research and Information Association (“C.I.R.I.A.”), authors, Carpenter, Lazarus and Perkins, entitled, “Safer Surfaces to Walk On; reducing the risk of slipping”, dealing with slip resistance of flat and profiled ceramic tiles in a shopping mall context. Mr. Tennyson did not have an opportunity of inspecting the particular floor on which the plaintiff fell or of carrying out roughness, friction, pendulum or other tests on that floor. His evidence was based on the fact that he had seen this particular floor on the 5th October, 2009, when he had advised the defendants in an action relating to an alleged fall on broken glass on an adjoining dance floor, and on his stated familiarity with the characteristics of micro-rough floor surfaces of this type. It was his evidence that the continued safe level of slip resistance of such a floor depended on ensuring that deposits did not build up in the pores/surface roughness valleys which hold and thereby neutralise the impact of any wetness on the floor. This is the conclusion of the authors of the 2006 C.I.R.I.A. article and is the advice given in the passages which I have cited from the letter dated the 19th January, 2007, from Slipstop (Ireland) Limited to Ms. Flood.
10. I am satisfied on the evidence of Ms. Flood and Mr. O’Reilly that there were seven cleaners on duty in the Club on the night of the 26th/27th December, 2007. The evidence established that six of these cleaners were stationed at pre-designated locations each intended to cover a particular area of the Club. The seventh cleaner moved continuously through the restaurant, bar and dance floor areas and was in radio communication with the eighteen security men. These were also tasked to look out for breakages and spillages. I am satisfied on the evidence of Mr. O’Reilly that on the night of 26th/27th December, 2007, one cleaner was stationed in the restaurant area where the plaintiff fell and two security men were assigned to patrol that area and the immediately adjoining dance floor area. The evidence established that each cleaner had ready access to a nearby cleaning station. Each cleaner was equipped with a floor mop which had a detachable and replaceable head. The cleaning stations were equipped with “wet-floor” signs, stacks of dry mop heads, drying cloths and other cleaning equipment.
11. Mr. O’Reilly gave evidence that each member of the cleaning staff received training from him and also from Mr. Kevin Polly of Shearwater Distribution Limited in cleaning and maintaining the floor and in dealing with breakages and spillages on the floor. The evidence established that the duty of the ten floor staff was to clear tables of empty bottles and glasses and return these to a cleaning station behind the bar area. They were also instructed to report any breakages or spillages in the area to a roving cleaner or to a security man. Mr. O’Reilly told the court that he had instructed the floor staff and the security staff that if they observed a breakage or spillage they should remain at the scene until the area or the roving cleaner arrived. The cleaners were instructed to sweep up any broken glass, mop up any spillage, clean the immediate and adjoining floor area and leave a bright yellow triangular hazard sign at the location until satisfied that the floor was dry. I find that this floor together with this system of care and maintenance, provided of course, that the system was in operation on the occasion, – constituted a full and effective discharge by the defendants of the duty of care owed by them to the plaintiff.
12. The plaintiff gave evidence that the floor in the restaurant area generally on the particular night was wet and slippery. She described it as being, “real messy”. After she had fallen she noticed that the floor area on which she fell was wet, like water was on it, but she assumed that it was spilled drink. She also noted that there was brown colour on the floor, which she said resembled muddy water carried on shoes. In cross examination, the plaintiff said that when she felt the tip on her shoulder, she turned to her left and then immediately fell flat out and slid along the floor for a bit on her stomach. She did not notice what became of the glass she had been holding in her right hand.
13. Ms. Niamh O’Leary-Merriman told the court that a good bit of the floor in the restaurant area, but not all of it, was wet. She said that she had slipped, but not fallen on the same floor some time earlier, near enough to where the plaintiff had subsequently fallen. She saw persons spilling drink on the floor and said that one of her own friends had done so. She saw no attempt made to clean up the spillage or to dry the floor. She had tipped the plaintiff with her finger on the shoulder as the plaintiff was walking past. She said that she had employed no force at all. She recalled that a number of persons had gone to the assistance of the plaintiff after she had fallen but the plaintiff got up quickly and walked away.
14. Neither Ms. Flood nor Mr. O’Reilly were in a position to give any evidence at all to the court of the actual performance by the cleaners or other staff members of their duties on the night of the 26th/27th December, 2007. No other witnesses were called to supply this information. The plaintiff’s own evidence established that at least one of the security men was present in the designated restaurant area on the occasion and, this was the person to whom she went after her fall, seeking a bandage. Mr. O’Reilly identified this security man as Mr. Pablo Sergio. He did not give evidence, nor, did the other security man who Mr. O’Reilly told the court was also on duty in the restaurant area on that night. No cleaner or member of the floor staff gave evidence. Mr. O’Reilly gave evidence that he had come on duty at 20.00 hours that night and remained present and in overall control of the club for the whole of that night. He told the court that he saw and spoke to the plaintiff after she was brought by Mr. Sergio to the security room. He had heard Mr. Sergio reporting over the radio that there was a lady in the back of the restaurant whose fingers had been cut.
15. I accept Mr. O’Reilly’s evidence that the plaintiff was brought to the security room at 01.10 hours on the morning of the 27th December, 2007, and was removed to hospital by ambulance at 01.30 hours. I am satisfied that the plaintiff, Ms. Niamh O’Leary-Merriman and Ms. Louise Lynch were all mistaken in their recollections as to the time at which the plaintiff had fallen. I find however, that this does not cast a doubt on the remainder of their evidence. Mr. O’Reilly told the court that at about 01.45 hours, he inspected the location near the back of the restaurant area where he believed the plaintiff had fallen. He could not say that anyone had marked the actual place where this had occurred. He found the area clean, dry and glass free. He assumed that the area had been cleaned and any glass removed by the cleaners. He did not recall if he had made any inquiry as to who had carried out the work. He produced in evidence a statement which he had personally written and signed at the time.
16. I find on the balance of probabilities that the cleaning and maintenance system so carefully set up by the defendants failed to operate effectively on the night of the 26th/27th December, 2007. Ms. Flood told the court that the maximum number of persons permitted on the premises was 1,300. Mr. O’Reilly gave evidence that, as counted by a “clicker” machine, there were 900 persons on the premises on the night of the 26th/27th December, 2007. I believe that the description given by the plaintiff furnishes an accurate picture of the pressure on staff and services on that night. She said, “the place was crowded all over with people. There was a long queue to get in, a long queue at the bar and a long queue at the ladies toilet”. Whether the cleaning and maintenance system failed under this pressure or for some other reason, I cannot ascertain. However, there was no evidence at all as to how or how well it operated on the relevant night and no evidence to gainsay the evidence of the plaintiff and Ms. Niamh O’Leary-Merriman as to the condition of the floor in the restaurant area at and before the time the plaintiff fell. I find that the valleys in the micro-rough surface of the floor tiles that held liquid and, therefore, controlled slipping, in the area where the plaintiff fell, had become filled and blocked by a build-up of particles of matter or precipitates from fluids or contaminated water permitted to lie and be trodden about on and into the surface of the floor. This, I am satisfied, had the effect of compromising the slip resistance of the floor in this area. I find the plaintiff’s reference in her evidence to noting a brown colour on the floor where she fell to be most significant in this regard. Perhaps indeed, this was muddy water as she surmised. The fact that the plaintiff had turned to her left, – the movement she mimed in the witness box was pivoting her upper body to the left at hip level, – most probably meant that both her feet were no longer planted evenly on the ground, with probably greater weight being transferred to her left foot may well, in combination with the impairment of the slip resistance of the floor in that area have contributed to her fall. This could not amount to contributory negligence on her part or to a failure, under the statute, to take reasonable care for her own safety. I find therefore that the defendants, in the circumstances, were guilty of a breach of the duty of care owed by them to the plaintiff.
17. Three medical reports were admitted into evidence, – Mr. John McInerney, 22nd April, 2008; Mr. Kevin Cronin, 19th December, 2008, and the 17th February, 2012.
18. Mr. McInerney and Mr. Cronin were agreed that the plaintiff suffered a division of the flexor digitorum profoundis tendon and of a digital nerve of the middle finger of her dominant right hand and an injury to the nail of that finger. She also suffered a laceration of her right thumb and right ring finger, but without deep damage. An x-ray of the hand was normal. The damage to her tight middle finger was repaired under general anaesthesia. She was hospitalised for two days and then discharged home with a splint to the right hand which she wore for six weeks. She had several sessions of hand physiotherapy.
19. On the 22nd April, 2008, (four months post incident), Mr. McInerney noted on clinical examination that the plaintiff had a 2cm pink scar running from the right middle distal interphalangeal joint into the distal pulp with paraesthesia around the scar and hypersensitivity with a thickenings of the flexor sheath. He noted a loss of five degrees extension and flexion of the distal interphalangeal joint and also a reduction in grip strength as compared with the left hand. The plaintiff had a 1cm pink scar on the pulp of her right thumb and a scar of similar size and colour in the distal interphalangeal joint area of her right middle finger with a ridged proximal nail with 3 holes. Mr. McInerney considered that the scars would fade to pale scars over a period of eighteen months. He considered that the plaintiff would have permanent flexor sheath thickening and some restriction of movement. He advised that there was no risk of osteoarthritis.
20. On the 19th December, 2008, (one year post incident), Mr. Kevin Cronin, who examined the plaintiff at the request of her solicitors, noted on clinical examination that she had a well healed scar at the tip of her right middle finger and a minor scar on her ring finger. He found that she lacked ten degrees of full extension at the distal interphalangeal joint of her right middle finger. Mr. Cronin stated that this was of no clinical significance. He found that the plaintiff had good sensation in the distribution of the radial nerve, but abnormal sensation in the distribution of the ulnar digital nerve. He considered that the plaintiff had made an excellent recovery and had an excellent range of motion and a very good recovery of sensation in the right middle finger. He considered that she was likely to have ongoing difficulty with shooting pain due to neuroma formation at the nerve repair site. He considered that the cold intolerance which she was experiencing in the tip of the finger would improve slowly over time as would the subjective feeling of numbness in the finger tip.
21. The plaintiff was most recently reviewed by Mr. Cronin on the 17th February, 2012, (four years and two months post incident). He noted on clinical examination that she now had objectively regained a full range of movement in her right middle finger and an excellent recovery of sensation in that finger. Though the right middle finger sat more flexed than the others, he was satisfied that the plaintiff could correct this actively at will. Subjectively the plaintiff remained troubled by cold intolerance which she stated was her principal problem. She complained of shooting pain when she tapped the top of her right middle finger on some hard object and experienced numbness and dysaesthesia in the same finger tip. She also complained of a diminished range of motion in her right middle finger due to an abnormal flexion of that finger which she claimed would not straighten like the other fingers. Mr. Cronin considered that the altered sensation in the tip of her right middle finger was likely to be permanent.
22. The plaintiff in evidence claimed that she could not straighten her right middle finger fully and that it looked curved compared to the other fingers of that hand. I am satisfied on the evidence that she can in fact straighten the finger fully, but keeps it in a slightly inwardly curved position. There is no objective basis for this. She gave evidence that she could not quite touch the palm of her right hand with the tip of her right middle finger. It is unnecessary to determine whether or not there is some objective reason for this. The gap is so infinitesimal that it could cause no possible functional or cosmetic impairment. This slightly curved profile of the right middle finger and the fact that the tip of the finger cannot touch the palm of her right hand are not observable, and certainly not a conversation distance, unless attention is specifically drawn to them. I am satisfied that they represent no cosmetic blemish. There are very faint white linear marks on her right middle finger and the nail of that finger, though entirely intact and undeformed, is slightly discoloured in places and the surface of the nail is not as smooth and even as the nails on the other fingers of her right hand. These are not cosmetic blemishes at conversation distance, but I accept that the nail damage, however minor, could well be something of which a young woman might be somewhat self conscious. There is undoubtedly some thickening of the right middle finger. This is very minor and is scarcely noticeable at conversation distance unless one focused very much on her right hand. Despite this minor thickening, I observed that the plaintiff had no difficulty in wearing a ring on her right middle finger.
23. The plaintiff gave evidence that in cold weather the tip of her right middle finger becomes, “sort of dead or numb and is painful”. She accepted in cross examination that wearing a glove helped, but did not eliminate the pain. She told the court that if she strikes the tip of her right middle finger on some hard object it causes pain. This she said caused her difficulty when typing. Mr. Cronin in his report of the 17th February, 2012, states that while objectively the plaintiff has made an excellent recovery of sensation in the right middle finger, this is not normal and will probably never fully return to normal. In his report of the 19th December, 2008, he considered that her problem with cold intolerance in the tip of the finger would probably improve slowly over time as would hopefully the subjective feeling of numbness in the tip of the finger.
24. The plaintiff is 29 years of age. Prior to the incident on the 26th/27th December, 2007, she was employed at a ladies hairdressing salon where she cut and coloured hair. She gave evidence that she returned to her employment six weeks after the incident because she needed money, but worked only as a receptionist. She told the court that she experienced some pain when typing if she struck a key too hard with the tip of the middle finger of her dominant right hand. She had a concern that if she returned to cutting and colouring hair, she might experience difficulty in cutting due to numbness in the tip of her right middle finger, or that the finger might be damaged by the bleaching and developing agents used in hair colouring. This was a personal concern only and she was not so medically advised. In August or September 2008, she became a sales person in a well known fashion house in Dublin. She told the court that she had no difficulty in carrying out her work and she remained employed in this business at the date of the hearing of this action. She told the court that she had given birth to a child three years prior to the hearing. She said that her right middle finger had not caused her any difficulty in managing her infant.
25. For pain, suffering and embarrassment to date the Court awards the plaintiff €36,000. For pain, suffering and embarrassment into the future the Court awards the plaintiff a further sum of €20,000.
Vega v Cullen
[2005] I.E.H.C. 363
Judgment of Mr Justice Peart delivered on the 9th day of November 2005:
I will not set out in detail all the evidence which I have heard, since my conclusions are easily reached and understood.
I am satisfied that the plaintiff was present on the defendant’s property as a social guest. As such he owed him what is sometimes described as a common duty of care. That duty is to take reasonable care to ensure that the plaintiff did not suffer injury on his premises.
In addition he was under a statutory duty to take such care as is reasonable in all the circumstances to ensure that the visitor to his premises does not suffer injury or damage by reason of any danger thereon.
There is no meaningful distinction to be drawn between the common law duty of care and the statutory duty of care under the Occupiers’ Liability Act, 1995.
The defendant was carrying out some repairs to a roof on his house and for that purpose had, for access purposes to the roof, left a ladder leaning against the wall of the building in question, but at an angle of 45 degrees, which an expert has opined was an excessive angle from a safety point of view.
In addition this ladder was standing unevenly on the ground, in as much as one foot of the ladder was on a concrete surface at the side of the house and the other leg was on a gravel and earth surface which was slightly lower than the concrete surface. This created some instability, and Mr Baynes, the plaintiff’s engineer has stated that this ladder was unstable as a result of these two features.
Without going into the evidence in any further detail I am satisfied that this ladder as it stood against the wall of the house in question was dangerous if any person was to climb it. As it happens the plaintiff, an adult man of about 55 years of age at the time, ascended the ladder in order to have a conversation with the defendant who was on his roof. As he began to descend the ladder he says that the ladder moved to the right causing the plaintiff to fall to the ground. Mr Baynes said he was satisfied that the angle at which the ladder was leaning against the wall and the unstable way in which the feet of the ladder were on the ground could lead to the ladder moving to the right or to the left. I am satisfied therefore that the plaintiff’s fall was caused by him losing his balance due to the movement of the ladder to the right as described by the plaintiff, and that he injured himself as a result of this fall to the ground. This resulted from the negligence of the defendant in leaving the ladder so positioned and in the particular circumstances of this case, by failing to warn the plaintiff not to ascend the ladder.
I am satisfied also however that the plaintiff failed in his duty to take care for his own safety. This is not the case of a child, or other person under some disability, who could not be expected to anticipate that the ladder might not be safe to ascend and descend. This is a middle aged man who must be expected to conduct himself as a reasonably careful adult man would. The forty five degree angle at which the ladder was leaning was something clearly visible to the plaintiff, and it is also the case in my view that it ought to have been obvious to the plaintiff that the left foot of the ladder was on a gravel and earth surface which was somewhat lower than the right leg on the concrete surface. He ought to have foreseen some instability and risk attaching to his ascent and descent of the ladder. He must therefore be found guilty of some element of contributory negligence. I measure the extent of that contributory negligence to be 30%.
The injuries suffered by the plaintiff are principally a fracture to the right elbow at the head of the radius. This fracture was slightly displaced. His right shoulder was also injured in the fall but no fracture occurred. A plaster cast was applied to the fracture of the elbow, and he received some medication for his shoulder pain. There is also some low back pain noted in the aftermath of the accident but this seems to have cleared up. The plaintiff also suffered shock. His shoulder and neck were stiff for some period after the accident also. He suffered some difficulties with sleep.
I have been told that he is from Cuba where he has a tobacco farm. The injury to his arm has impacted negatively on his ability to carry out some of his farming activities, as well as some cooking duties in the home. Curiously and unusually he has suffered a further consequence, namely an inability to now roll a cigar! He used to roll a certain number of cigars from a small portion of the tobacco harvest that he was not obliged to sell to the State, and he would sell those. He now sells that small portion of his tobacco crop instead of rolling cigars from it. There is no calculation of this loss. Neither has any financial loss occasioned by his reduced ability to carry out farming tasks been quantified. I have on the other hand been invited to make some allowance for these matters when assessing general damages. I will do so.
I have had regard to the Book of Quantum.
In respect of past pain and suffering I assess general damages in the sum of €40,000 taking account of the fracture to his elbow, the shoulder injury, and the consequential pain and stiffness to his neck and shoulder area, and some back pain generally. I am satisfied that he will continue to experience some adverse symptoms into the future and I assess future pain and suffering in the sum of €10,000. To these sums I add a sum of €5000 in respect of the inability to perform some farming functions and any losses resulting from not being able to roll his own cigars and sell them. This results in a total sum for general damages in the sum of €55,000. To this I add the agreed sum of €400 for special damages, making a sum of €55,400. Having made the necessary deduction of 30% for contributory negligence, I give judgment in favour of the plaintiff in the sum of €38,780.
Power v Governor of Cork Prison [2005] I.E.H.C. 253, Herbert J. JUDGMENT of Mr. Justice Herbert delivered the 20th day of July, 2005
By virtue of the provisions of s. 3(2) of the Occupiers Liability Act, 1995, the defendants owed a duty to the plaintiff to take reasonable care in the circumstances to ensure that he did not suffer injury or damage by reason of a danger existing on the property occupied by them, he taking reasonable care for his own safety.
I accept the expert evidence of Mr. Vincent O’Hara, of the firm of Tony O’Keeffe and Partners, Consulting Engineers, Kanturk, who was called in evidence on behalf of the plaintiff, that the floor of the toilet on the second floor of B Wing of Cork Prison though safe when dry, is extremely dangerous when wet. I find that the defendants were fully aware of this danger and I accept the evidence of prison officer Hennessy that a sign in words and symbols warning that the surface was slippery was fixed on a wall in a prominent and highly visible location at the entrance to the toilet.
I accept the evidence of prison officers Murphy, Hennessy and, Abbott, that the toilet was constantly checked by prison officers throughout the day and that a prisoner was designated to clean this toilet each day, after breakfast, after lunch, after tea and at 20.00hrs. and, on any other occasion an officer considered that it required cleaning. I accept the evidence of the plaintiff, which was not in anyway challenged by the prison officers, that the wash-hand basins in this toilet were in constant and daily use by prisoners on this floor to wash their drinking and eating utensils. I accept the evidence of the plaintiff, which was not challenged by the prison officers, that no towels, paper rolls, napkins or electronic dryers were provided in this toilet. I accept the evidence of prison officer Murphy, which was not contested by the plaintiff, that all prisoners are issued weekly with a tea towel and hand towel in their cell.
It was accepted by prison officers Murphy and Abbott that occasionally water would get on the floor of this toilet and the cleaner would be ordered to dry the floor. In cross-examination prison officer Abbott accepted that this occurred quite frequently. This is scarcely surprising when one considers the evidence that there are 16 or more cells on this landing of B Wing. On the evidence, the only other place where prisoners could wash their eating and drinking utensils is the, “slop-out” area where chamber-pots are emptied and cleaned as this prison has no in-cell sanitation.
I accept the evidence of Mr. O’Hara, which was not contradicted or challenged, that without replacing the existing square 12 inch ceramic floor tiles with more appropriate non-slip tiles, the hazard created by the presence of even an almost imperceptible film of water on the floor of this toilet cannot be entirely eliminated. Mr. O’Hara gave the floor dimensions as 9ft x 13½ft and, I accept his evidence that the replacement of this floor could be accomplished easily and at relatively little cost. I accept the evidence of Mr. O’Hara that the absence of any form of drying equipment in this toilet must inevitably and foreseeably result in the floor becoming wet and therefore dangerous to persons using the toilet. I accept the evidence of Mr. O’Hara that while not very hygienic, the laying of non-slip mats on the floor of this toilet would go considerably towards preventing prisoners from slipping, even though such mats could themselves present a possible tripping hazard if not very carefully maintained.
I find on the evidence that a sufficient and effective cleaning routine was operated by the defendants with respect to this toilet. I am satisfied that a breakdown of this housekeeping system did not occur on 5th February, 2001. I find that in accessing the W.C. cubicle the plaintiff traversed without difficulty the same area of the toilet floor where he claims he subsequently slipped. He stated that he was in the W.C. cubicle with the door closed for a couple of minutes: in cross-examination he was prepared to accept about 2 minutes. He stated in evidence that he heard a number of other prisoners enter and leave the toilet in this time. He stated that he heard the taps running in the two wash-hand basins which are directly opposite the door of the W.C. cubicle and just over 4ft away. He told the court that when he emerged from the W.C. cubicle he was alone in the toilet. He said that he did not cross to the wash-hand basins but turned immediately to his left in the direction of the entrance to the toilet.
The plaintiff told the court that before he had completed this turn both his legs suddenly and without warning slipped from under him and he fell helplessly forward and in falling struck the left side of his forehead at the hairline above his left eye against a radiator panel which was affixed to the wall next to the wash-hand basins. This was the side of his forehead which would have been most remote from the radiator. The plaintiff told the court that as he was picking himself up he noticed that an area of the floor, which he described as being almost 3 tiles square and lying, between the door of the W.C. cubicle and the wash-hand basins, was covered with a layer of water. He did not say, as is alleged in the Replies to Particulars that the, “floor was waterlogged”. He described the patch of water as the equivalent of the contents of a glass which had fallen on the floor and spread. He told the court that after this fall his clothes were, “ok”, but that he was bleeding heavily and was afraid that blood would stain his clothes, of which he did not have many. He said that blood from his forehead was dripping onto the floor so that he re-entered the W.C. cubicle which he had just left and there made a wad of toilet tissue and pressed it to his forehead to try to staunch the bleeding. He told the court that during this time he saw no other prisoner inside or outside the toilet but that when he got to the entrance door to the toilet, – which is really only a swinging panel, – prison officer Abbott arrived on the landing side of the door coming from the plaintiff’s left.
B. Wing, second floor of Cork Prison, consists of a rectangular open well surrounded by landings with individual cells opening unto the long axes, only, approximately eight cells on each side. On the right of the entrance to the toilet as the plaintiff emerged onto the landing, and about three feet distant, was a steel grill closing off the entire of the Wing. There are two doors in this grill, one facing each landing. Outside this grill is an area containing a Medical Station and stairs leading down to the first floor of B. Wing. There is a similar system of grill and gates on the opposite side of this area closing off access to A. Wing. Prison officer Murphy recalled that on 5th February, 2001 at about 16.20hrs. She was stationed between these grills supervising the access gates. Prison officer Hennessy told the court that all the prisoners whose cells were on the landing on the opposite side of the central well to this toilet were secured in their cells and having their tea and she was carrying out a head count. Prison officer Abbott told the court that he was securing prisoners in the cells on the landing on the same side as this toilet. The evidence of the prison officers and of the plaintiff was that it was tea time and prisoners in B. wing second floor, having obtained their food and tea on a lower floor and carried it upstairs to their cells, were being secured in their cells while they partook of the meal. Prison officer Abbott told the court that the landing outside this toilet was about twice the length of the court, or approximately seventy feet, while prison officer Murphy considered it to be three times the length of the court or approximately 105ft.
Prison officer Abbott told the court that he had secured about one half of the cells on his landing and was about 35ft from the entrance to the toilet, moving in that direction, when he noticed three prisoners in the area of the toilet door whom he considered to be acting suspiciously. Pressed on the matter in cross-examination, he said that his suspicions had been aroused by the fact that these men appeared to be taking an unnecessary and undue interest in his whereabouts. These men were between him and the security gate in the steel grill behind which prison officer Murphy was standing. Prison officer Abbott said he did not see them entering or leaving the toilet. He could not recall their names and he agreed that they could have been returning to their cells from a lower floor, from classrooms or work assignments. In any event, he decided to investigate. He told the Court that as he walked towards the entrance to the toilet prison officer Murphy called to him and said, “someone is bleeding in the toilet”. His evidence in this regard is supported by that of prison officer Murphy. She told the court that at about 16.30hrs. a prisoner had come out of the toilet, approached the security grill and said to her, “Miss. there is a fellow bleeding in the toilet”. In cross-examination she corrected this account to say that she had not in fact seen this prisoner actually coming out of the toilet but as she had first noticed him standing at the door of the toilet she had assumed that he had come from there. She told the court that it was a very busy time with lots of prisoners moving about and she was fully absorbed in opening and closing the four security gates and had not noticed the prisoner before this. She accepted, as did prison officer Abbott that the interior of the toilet is clearly visible, viewed from above and below the swinging panel entrance door. Prison officer Murphy told the court that she asked this prisoner, whose name she could not recall, what had occurred. She said he just shrugged and walked away in the direction of the cells. Prison officer Abbott told the court that when he arrived at the entrance door to the toilet the three or four men who had attracted his attention had passed by. He said that when he met the plaintiff at the entrance door to the toilet the plaintiff was holding a bloodied wad of toilet paper to his forehead. He asked the plaintiff, “did you get a belt or something?”. The plaintiff replied that he had fallen. Prison officer Abbott in cross-examination admitted that he had not heard any noise coming from the toilet as he approached. He believed, he said, that if there had been any commotion in the toilet, prison officer Murphy would have heard it as she was standing only two or three feet away from the toilet door. Prison officer Abbott said that he again asked the plaintiff had he, “got a belt” and, the plaintiff replied that he had not but had fallen. Prison officer Abbott said that he decided to take the plaintiff to the medical station which was immediately outside the steel grill.
Prison officer Murphy said that she had also asked the plaintiff what had happened and he replied that he had fallen in the toilet. She said that she did not question him further and allowed the plaintiff, accompanied by prison officer Abbott, to exit through the security gate and enter the medical station. She said that she then called to prison officer Hennessy and informed her that, “Joe Power said he fell in there”, pointing to the toilet. Prison officer Hennessy was the ranking officer on this occasion. Prison officer Murphy accepted that there could have been two or three prisoners between her and prison officer Abbott as he approached the entrance door to the toilet. Prison officers Murphy and Abbott agreed that the toilet was not a suitable place for washing eating and drinking utensils but said that there was no other facility available for that purpose except the slopping out area at the other end of the landing which they considered far less suitable. Prison officer Murphy agreed in cross-examination that there was no Prison Regulation requiring prisoners to bring their issued tea towels or hand towels to the toilet and she felt that such a regulation would in any event be unworkable, – a sentiment with which I entirely agree.
Prison officer Hennessy told the court that on 5th February, 2001, she had twelve years experience in the Prison Service. She said that when prison officer Murphy had told her that the plaintiff had injured himself in the toilet she immediately entered the toilet and visually examined the entire area conscious of the fact that she would have to complete an Incident Report Form and also report on the matter to her Supervising Officer. She said that she saw no evidence of any liquid, including droplets of blood on any part of the toilet floor. In her opinion every part of the toilet floor was completely dry. It was put to her in cross-examination that as the floor tiles were an off-white colour with multiple random dark specs it would be very difficult to see water on the floor, especially a thin film of water. Prison officer Hennessy disagreed. She accepted that she did not know where on the floor the plaintiff claimed he had fallen. The plaintiff said that he had seen the water only because he had fallen and while on the floor had looked to see why he had slipped. The plaintiff did state in evidence that he believed that anybody looking very carefully would see the water. However, there was no evidence before the court that the plaintiff had told either prison officer Murphy or prison officer Abbott exactly where or why he had fallen. Prison officer Murphy had said no more to prison officer Hennessy than, “Joe Power said he fell in there”.
I find on the evidence, that unless she knew exactly what area of the toilet floor to examine and had then squatted or bent down very close to the surface of the tiles even an observer of prison officer Hennessey’s experience could have been deceived by a visual examination into believing that the surface of the floor was dry, especially in the absence of directional light. I am satisfied that the general off-white colour and dark speckled surface of the tiles could without difficulty conceal blood spots unless one was very carefully looking for them. On the evidence, no one had advised prison officer Hennessy that the plaintiff was bleeding and she did not see him herself. In the circumstances, while fully satisfied that prison officer Hennessy did in fact carry out a careful visual examination of the toilet area including the floor, I am not satisfied in the circumstances above mentioned that the court could unquestioningly accept her conclusion that the floor was completely dry and free from blood spots so that the plaintiff’s account of what he claimed had occurred to him must be rejected as false.
This plaintiff has never deviated from his account of having fallen on this toilet floor and struck his forehead on the radiator. He said that this was what he told Mr. Stack in the prison medical station and this was not challenged or contradicted by the defendants. Mr. Stephen Cusack, Consultant in Accident and Emergency Medicine in his report of 30th October, 2001, admitted into evidence, records that the patient on 5th February, 2001, at the accident and emergency department of Cork University Hospital gave a history of having fallen on a toilet floor and struck his head resulting in a wound on the left side of his forehead. Mr. Cusack recorded that the plaintiff had confirmed this history at review on 26th October, 2001. Mr. Cusack was of the opinion that the injury and scalp wound suffered by the plaintiff were consistent with this history. The plaintiff related evidence that when he gave this history he was in the immediate close presence of two prison officers.
The plaintiff accepted that he had made no complaint to the Prison Authorities at the time of this alleged accident. He explained that he had not done so as he was uncertain how such a complaint might be received and he was concerned that it might in some way delay his release from prison. However, on 15th May, 2001, he wrote from Cork Prison to Mr. Michael Buggy, Solicitor, of Michael Buggy and Company Solicitors, Kilkenny, asking him to:-
“deal with a claim that I wish to make here in Cork Prison. I had an accident here in February. I slipped in the toilet on the landing and hit my forehead on a radiator…”
Acting on this letter Michael Buggy and Company wrote to the first named defendant making a claim on behalf of the plaintiff on 4th September, 2001.
In cross-examination it was put unequivocally to the plaintiff that he had in fact been assaulted in the toilet area by the men prison officer Abbott considered to have been acting suspiciously and, that he was falsely claiming to have sustained the injuries complained of as a result of slipping on the floor. The plaintiff accepted that he had three convictions for assault and that on 4th April, 2001, just four weeks prior to the alleged accident, he had been summoned before the first named defendant for fighting with a fellow prisoner. The plaintiff told the court that each of the assaults of which he had been convicted had occurred when he was under the influence of drink. He said, and it was not contradicted by the defendants, that the incident on 4th April, 2001 was a verbal altercation only relating to the delivery of mail to his cell and, that he and the other prisoner involved had shaken hands before the Governor of the prison. The plaintiff told the court that if he had been attacked by other prisoners in the toilet he would have vigorously defended himself and that it would have been impossible for prison officer Murphy, who was standing only a few feet away, not to have heard that something unusual was going on in the toilet.
While I accept that it is not unknown for prisoners to attack and inflict injuries on each other while in prison, I find that it is altogether improbable that this plaintiff was assaulted on this occasion in this toilet. The alleged assailants would have had to have carried out a very vicious assault, with almost certain serious consequences for themselves, at a time when they were completely surrounded by three prison officers and with scarcely any chance of escaping detection and recognition. Prison officer Murphy was just a few feet away from the toilet in one direction, which, in addition, was closed off by a steel grill. Prison officer Abbott was rapidly approaching along the landing from the other direction and prison officer Hennessy was on the opposite side of the open central well with totally unimpeded visibility. In addition, on the evidence of prison officer Hennessy, all the prisoners on the landing on her side of the open central well were secured in their cells. Prison officer Abbott stated that he had secured more than half of the cells on the landing on his side. I find it improbable, in the absence of some compelling evidence, that even the most strongly motivated assailant would choose to carry out a vicious assault in such circumstances. I think it also meaningful that no assault investigation was conducted by the Prison Authorities following this event.
The plaintiff in cross-examination asserted that he was 100% sure that the notice in black and yellow warning, “danger slippery surface”, shown on photograph No. 8 taken by Mr. O’Hara and proved in evidence by him, was not there on 5th February, 2001, or even when he left the prison on 3rd October, 2001. Photographs produced on behalf of the defendants, admitted into evidence and accepted to have been taken on 7th September, 2001, show the same or an identical notice in place in what appears to be the same position on the wall at the entrance to the toilet. On the balance of probability, given this evidence and the evidence of prison officer Hennessy that a notice of this type had been in place for at least two years prior to 5th February, 2001, I find that this warning notice was in place on the afternoon of 5th February, 2001. The plaintiff in cross-examination admitted that he knew that the toilet floor became wet when prisoners washed their eating and drinking utensils in the wash-hand basins. He admitted that he had heard other prisoners washing their eating and drinking utensils in these wash-hand basins while he was occupying the W.C. cubicle.
I find on the evidence to which I have adverted, on the balance of probabilities, that the plaintiff did in fact slip and fall as he alleges and in falling somehow struck the more remote side of his upper forehead against the radiator affixed to the wall next to the wash-hand basins. No expert or technical evidence was offered to show that this was impossible and, I am satisfied, given the very confined area in which this fall occurred, that it would require a very minor rotation of the plaintiff’s upper body as he fell to bring his left forehead into contact with the edge of the radiator.
I find that it was reasonably foreseeable by these defendants that if they did not discharge the duty of care, which I find they owed to all prisoners including this plaintiff obliged to use this toilet, to take reasonable care to ensure that the floor was either kept dry or was covered with non-slip mats, that an injury of the type of which the plaintiff complains could occur. I find that the plaintiff was a person whom the defendants should have had in their contemplation as someone likely to be injured if they did not properly discharge this duty of care. I find that the plaintiff suffered the injury of which he complains as a direct consequence of having slipped and fallen as a result of the defendant’s breach of their duty to take care. I find that there is no overriding requirement of social utility that these defendants ought to be exempt or excused from the consequences of their breach of duty. In the circumstances I find that the defendants were guilty of negligence as alleged.
I find that there was no contributory negligence on the part of the plaintiff. Even if he was or ought to have been aware of the warning notice that the floor was slippery: even if he knew that as a result of the activities taking place at the wash-hand basins which he admitted hearing while in the W.C. cubicle, the floor outside that cubicle was likely to be wet, there is no evidence that there was something which the plaintiff did or failed to do which amounted to recklessness for his own safety in the particular circumstances. It was not suggested that his footwear was unsuitable or unsafe. It is obvious from the photographs taken and proved in evidence by Mr. O’Hara and, which it was accepted showed the toilet as it had been four years previously, that there were no handrails and no alternative route which the plaintiff could have held, or taken to avoid the area of the floor on which he slipped. It was not suggested that the plaintiff was running or hurrying unduly or otherwise behaving inappropriately in anyway. I find that there was no duty on the plaintiff to scrutinise the floor with particular care before deciding where to place his feet. I accept the evidence of the plaintiff that when he exited the W.C. cubicle he immediately started to turn to his left and did not cross the floor in the direction of the wash-hand basins. I find that in the circumstances as previously outlined the plaintiff had taken all reasonable precautions for his own safety.
The plaintiff stated that he had slipped without any warning and had fallen heavily and helplessly forward striking the area of his left forehead above his left eye near the hairline on a radiator affixed to the wall. He said that he was dazed but was not rendered unconscious. The wound was dressed by Mr. Stack in the prison medical station only a few feet from where the accident occurred and the plaintiff was then sent by Mr. Stack to the accident and emergency department of Cork University Hospital for further investigation. The plaintiff told the court that he was slightly disorientated and had a fierce pain in his head. At the hospital a diagnosis was made of a mild head injury with a two centimetre wound on the left side of the plaintiff’s forehead around the level of his hairline. The plaintiff was found to be alert and all his vital signs were stable. The wound was dressed and closed with a combination of tissue, glue and steri-strips and the plaintiff was then discharged.
The plaintiff told the court that for several months, up to about October, 2001, he suffered from headaches which gradually decreased in number, duration and pain intensity. He was reviewed by Mr. Stephen Cusack, Consultant in Accident and Emergency Medicine on 26th October, 2001. Mr. Cusack recorded that the plaintiff told him on that occasion that the headaches were then occasional, could occur up to three times per week and last up to three hours. He took paracetemol to relieve the pain and discomfort. Mr. Cusack formed the opinion that these headaches were consistent with post-concussional type headaches and he expected that they would improve and resolve over the coming months.
Mr. Cusack found that the scalp wound had healed uneventfully but that the plaintiff was left with a two centimetre livid scar and there was slight tenderness in the region of that scar. In his opinion on 26th October, 2001, this scar constituted no great cosmetic blemish. I examined this scar on 11th July, 2005. I find that this scar is at most a mild cosmetic blemish at conversation distance and is almost entirely concealed by the plaintiff’s hair which he has deliberately styled to achieve this purpose. The plaintiff told the court that the scar becomes more noticeable in hot weather and was still somewhat touch sensitive.
In accordance with the provisions of s. 22 of the Civil Liability and Courts Act, 2004, I had regard in assessing damages to the provisions of the Personal Injuries Assessment Board, Book of Quantum, but found there no indicated parameters of compensation for this type of injury. I find that the plaintiff had substantially recovered from the headaches within twelve months from the accident and that while unpleasant, these headaches were not at any time seriously disabling. Undoubtedly the plaintiff will have a permanent two centimetre scar on his left forehead at the hairline above his left eye which may well become more noticeable in very hot weather. I consider that this scar constitutes at most a mild cosmetic blemish which really could not, and, on the evidence does not, cause any real social embarrassment to the plaintiff.
For pain, discomfort and inconvenience to date I award this plaintiff the sum of €10,000. I award him an additional sum of €6,500 in respect of the scar. The court was advised that there is no claim for special damage in this case. There will therefore be a decree in favour of the plaintiff for the sum of €16,500.
Doyle v Matassa
Discovery Slip & Fall
[2004] I.E.H.C. 388
DECISION OF THE MASTER dated 9th December, 2004
Even before the amendment (per S.I. 233 of 1999) of Rule 31 in relation to the procedures for applying for discovery of documents, the yardstick of “necessary for disposing fairly of the cause” was stipulated as the test to be employed by the Court.
The object of the amendment appears to have been to introduce a degree of rigour in the approach of practitioners to discovery applications by
(a) requiring that they formulate a request for categories of documents, (to eliminate the uncertainty inherent in the use of the catch all concept of “relevance to the issues”) specifying “reasons” for such request, and
(b) requiring that the “necessity” above referred to be verified in the grounding affidavit (though the Rule continues to provide that, ultimately, necessity is a matter of opinion, specifically, the Court’s opinion).
It requires but a little thought to realise that the verification requirement is qualitatively different to the specification of reasons because “necessity” must be, in part, based on the requesting litigant’s particular difficulties in sourcing evidence, while the “reasons” include, alongside such difficulties, an analysis of what the pleadings throw up as issues (the disputed material facts) which is to be found by reading the pleadings and is not at all a matter of evidence. It is the added feature of evidential deficit and/or litigious disadvantage which, when cross referenced to the issues on material fact, creates the “necessity” to which the applicant must depose.
Why, then, is it still the standard pattern in such affidavits that the deponent makes no reference whatsoever to evidential difficulties, but refers only to what is in issue, what is relevant, counsel’s advices he has received etc., etc., as the basis for an assertion that discovery is “necessary”?
Can this ever be enough of a verification? The Supreme Court has said it can be, but said so in a case where discovery was patently appropriate. Necessity was, in effect, self-evident to the Court. Indeed, practitioners generally have a good instinct for what discovery is “necessary for disposing fairly, which is why most discovery requests, properly drawn, are complied with.
But what if the necessity is not self-evident? Is there justice in the Court hearing the application based on an assertion of “necessity” without supporting facts? How can the respondent dispute the assertion: he is shadow boxing. In fact, everybody is just guessing at what might or might not be the applicant’s evidential problem. Occasionally I will suggest that the opinion of counsel referred to in the affidavit of the applicant be exhibited. It rarely is. In one case I was shown advices in which counsel had advised that discovery be sought of categories which did not correspond to those requested!
This case is similar to many. The plaintiff alleges (in a statement of claim delivered two years and three months after the summons and almost five years after the accident!) that he suffered injury while in the defendant’s chip shop in January, 1996. The plaintiff “fell to the floor” and twisted his ankle. The floor is alleged to have been “dangerous, slippery and wet”. X-rays showed a fracture at the lower end of the tibia and treatment involved internal fixation with one screw and washer. He was then in his final year of schooling (1996). He is now (2000) a barman and his injured ankle continues to feel weak and “gives”.
In the particulars, he lists eight witnesses in addition to himself and the defendant. He was in such pain after the accident that he did not report it to the defendant.
It takes until July, 2003, for the plaintiff’s solicitor to get around to requesting voluntary discovery. He asks for:-
(a) video or other recordings of the incident,
(b) the cleaning schedule etc. for the chip shop for the day in question, and any changes since then, and
(c) All slip/fall claims for five years to January 1996.
The “reasons” specified for the categories is the same for each, namely, because the defendant denies material facts. In addition, as to (c) that “all similar incidents are relevant” to the allegation that the cleaning system was inadequate.
Turning to the affidavit grounding the application (that sworn on 17th June, 2004), the above material is reproduced but, in addition, the deponent avers that “I say and believe that the discovery is necessary for disposing of the issues between the parties”.
The law surely requires some rigour, some attempt at an analysis, some basis for an opinion. What facts does the applicant specify as the ones for the proof of which he seeks discovery? They are:-
(a) that the plaintiff was an invitee,
(b) that the accident occurred,
(c) that the plaintiff was injured,
(d) that the floor was slippery and wet (“dangerous” is non-specific).
(e) That the cleaning system etc was not “proper” (another non-specific word)
These facts are denied.
The Supreme Court suggests that in the case of a patently or self-evidently “discoverable” category of documents, I should not restrict myself to considering only the facts specified by the applicant but should instead supplement such a list with other material facts which the applicant had overlooked. This “advice on proofs” approach is not needed in this particular case.
In the absence of any evidence (in the grounding affidavit) that the plaintiff himself cannot give evidence as to (a), (b), (c) and (d) above, or that the eight other “witnesses” were either looking away or are unavailable, there is no basis on which I can find that discovery is necessary. In effect applying some practical commonsense to the situation, there is a sort of rebuttable presumption that the plaintiff can himself offer evidence of his accident at the trial: if not, the deponent should depose to whatever difficulty is being encountered. (That having been stated, however, video evidence is of such an exceptional, unanswerable “probative” quality (even though it is still only documentary evidence) that both parties should normally have access to it before the trial. We are informed that there is no video of this accident).
As for (e), regarding the adequacy of the cleaning system, the position is a little more complex. The plaintiff, having given his evidence as to the slipperiness of the wet floor, can invite the trial judge to find, by way of inference, that the cleaning system was inadequate. He may, however, be met by the defendant’s evidence and contention that the system employed discharged the obligation to be reasonably careful. The café owner is not, after all, an insurer – reasonable care is all that is called for. Certainly, the denial of the allegation that he failed to have a proper cleaning system suggests that the defendant may press his case on that basis.
In fairness to the plaintiff, then, documents recording the cleaning which was undertaken around the time of the accident should be discovered. After all, the defendant will probably want to rely on them, too, if they are favourable. Contrariwise, if they are not, the defendant ought not be allowed make a case which is at variance with the actual, which he might attempt if the documents are not now discovered.
Having ascertained, then, the actual cleaning which took place in the hours immediately preceding the accident, how is the Court to assess its “adequacy”? An “expert” might offer an opinion based on an inspection of the premises but does this issue need such “expertise”? Surely it is not a technical issue. The fact that similar accidents occurred in the past when the same system was in operation might point to inadequacy. The previous similar fact evidence would be a sort of statistical basis on which the Court could base its own conclusions as to whether the system was careful enough. The fact that the system was changed afterwards might suggest inadequacy at the time of the accident though it would by no means be conclusive. Such evidence may indeed by “relevant”, but is it “necessary”? I think not. None of the foregoing is “needed” to enable the Court to make a finding as to adequacy. Indeed, properly speaking, “adequacy” may not be a fact at all, rather it is a label attaching to facts; a characterisation. It would not be perverse for a jury to find want of reasonable care in the absence of formal evidence of “inadequacy”: the facts of the instant case provide a sufficient basis for such judgment. A jury would not take long to apply it’s own experience of these matters. The trial judge will do likewise: he surely does not need schooling in what is or is not “reasonable care”.
Accordingly, there will be an order for discovery only of the records of the cleaning schedule for the evening of 6th January, 1996. Although we are informed that there is no recording of the incident, for completeness sake I will order discovery since, on principle, such recordings would normally be discoverable, and the order should reflect the general principle.
Since the plaintiff failed to offer any evidence on which the Court could assess necessity (and in the absence of such evidence the Court has had to judge what discovery is self-evidently “necessary”) the plaintiff will not be awarded the costs of this application nor will they be reserved. Only the costs of the defendant will be reserved.
This small case may appear to be not worth the analytical effort spent in spelling out this decision. The methodology employed however applies with equal force to far more complex and substantial cases. That is why I have explored it. Practitioners are asked to take note.
Allen v Trabolgan Holiday Centre Ltd
[2010] IEHC 129
JUDGMENT of Mr. Justice Charleton delivered on the 30th day of April, 2010
1. The Occupiers’ Liability Act 1995, codifies responsibility in tort by the occupiers of premises towards entrants. There are three categories; visitors, trespassers and recreational users. As with previous common law as to the liability of occupiers for injury caused to those on premises which they control, the obligations under the legislation are limited to the static condition of the land and buildings. Harm alleged to arise out of action taking place on the premises, be that a sporting event like show jumping, or the cutting down of trees for timber, are adjudged under ordinary negligence rules.
2. Under s. 3 of the Act the occupier owes a common duty of care towards a visitor. This duty is defined as an obligation to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. As to that duty, it is clear that merely establishing that an accident occurred on premises is not enough. The plaintiff must show that a danger existed by reason of the static condition of the premises; that in consequence of it he/she suffered injury or damage; and that the occupier did not take such care as was reasonable in the circumstances to avoid the occurrence. The duty of care so defined is at a markedly higher level than that which applies to recreational visitors, such as those exploring the countryside or historical sites, or to trespassers. A visitor is defined in s. 1(1) of the Act as a person who enters as of right, for instance a fire fighter; or someone paying to go to the theatre would be an examples of that; who is in the premises on the invitation, or with the permission of, the occupier, this would extend to both the customer of a shop and a guest coming to a private house for a meal; and those who come to a place for a recreation without charge and who are a family member, or someone invited, or are there for social reasons.
Facts
3. On the 20th August, 2008, Louise Allen, the plaintiff, claims that she slipped on a muddy and unpaved footpath at Trabolgan Holiday Centre. She was there as a paying guest on holiday, so she is a visitor and the defendant is the occupier. The defendant does not deny that she slipped, as that is obvious. Rather, the defence is that the accident was her own fault and that her version as to where she slipped is to be doubted. It is pleaded that Ms. Allen cannot demonstrate any want of care as she shows neither a danger on the premises nor any want of such care as was reasonable in the circumstances to avoid her being injured by that danger. While everyone accepts that she slipped and fell, an issue has arisen as to whether she was wearing appropriate footwear and as to whether the accident took place on the footpath leading back to her holiday chalet or on the grass immediately beside it.
4. I find myself in a position where, as a matter of probability, I feel I can accept some, but not all, of the plaintiff’s evidence and that of her sister-in-law. In looking at whether I can accept some of her evidence, having rejected a piece of her evidence and that of her sister-in-law, I have carefully considered demeanour. In my judgment, the portion of the evidence of Ms. Allen and her sister-in-law which I do accept has not been undermined by the single fact which I feel constrained to hold against her. Further, the theory that she slipped on wet grass and not on the path is not backed up by evidence but is based on speculation. No one saw that happening and because when Trabolgan Holiday Centre employees came on the scene they did not ask her what had happened. This is not surprising as she was in agony.
5. Ms. Allen is a young woman who comes from Dunlavin in County Wicklow. She works in Clondalkin as a credit controller and has established an exemplary record of diligence. She has always been interested in Gaelic football. Prior to this accident, she had discontinued her playing career but was involved in coaching at a high level. She is now involved in management and some coaching by direction, as opposed to by example. This is because of the accident. When it happened, she, accompanied by her brother and her sister-in-law Gina Allen, and niece and nephew aged three years and six years, were taking a holiday break. It was a wet August. While Trabolgan was good choice, as it has many indoor activities, the outside ground was soaked. By the time photographs came to be taken on behalf of the defendant the day after the accident, the weather had changed, with brilliant sunshine in the place of the misty rainy conditions that prevailed for most of the previous day.
6. At about 18.00hrs, together with her sister-in-law and niece and nephew, Louise Allen went from her holiday chalet to the central area of the holiday complex. There they booked for a family meal a bit later on in the evening. Then, the two adults and two children returned along the designated paths to their chalet in order to change for the meal. Both women were wearing jeans. Gina Allen has told me, and I accept, that she was nervous of her jeans trailing on the path where the accident occurred, because it was muddy. I regard it as probable that a similar consideration applied to Louise Allen. They went along tarmacademed paths and then took a designated path up a slight incline through some trees towards their chalet. The path was narrow and not covered in any binding agent. The sisters-in-law were almost together. Louise Allen was carrying her three year niece on her back while her nephew cavorted on ahead. I do not regard it as probable that Louise Allen diverted from the path with a small child on her back. Rather, given the state of the ground and the fact that she was carrying a child, it seems to me to be highly probable that she confined herself to the path. Her nephew, on the other hand, was probably running all over the place. Since Louise Allen was entirely involved in minding her niece, it is more probable, to my mind that, that if anyone stepped off the path it would have been her sister Gina Allen. I also regard the evidence of the two Allen ladies on this issue to be both consistent and credible.
7. Louise Allen described the accident. She said her right foot slipped on an accumulation of mud on the edge of the path and that she went over, hearing a crack. She was unable to get up and was in severe distress. Her ankle was disfigured by a complete displacement. Her sister-in-law sent her nephew for help and, in due course, her brother, and then the lifeguard at the centre Ross Broekhuizen, arrived. The life guard rendered first aid, arranged blankets and propped her head. He was then replaced by the duty manager John Devlin, when he had to return to work. About fifty minutes later the men in the company assisted in helping paramedics carry her to an ambulance.
8. Ms. Allen said that she did not walk on the grass. Whereas as she had walked down this path before, she did not remember using it coming up to the chalet. Her right foot slipped on something that she said was not a big hole, but an accumulation of mud. Possibly because she wanted to protect the child on her back, and because of the extra weight, she fell very severely completing displacing her left ankle. I will return to this later. When seen by Trabolgan employees, she was on the grass. She says, and I think it is true, that she was moved slightly by her brother and sister-in-law for comfort’s sake.
9. Nike runners were produced in court. These were what the plaintiff says she was wearing. They were white and very new looking. Her sister-in-law agreed with her evidence. In contrast, the Trabolgan duty manager remembers one of her feet being bare and the other being shod with footwear that was variously described in cross-examination as ‘plimsolls’ and ‘rubber dollies’. Mr. Devlin’s actual description in evidence was of a multi-coloured canvas upper shoe with a lace through six eyeholes and a plastic side having an underside that had virtually no grip. His description was of an unusually coloured and inexpensive canvas beach shoe. I do not think that he was making a mistake in his detailed description. It also seems to me to be probable that better footwear might have been saved, in the particular conditions, for later on. This, however, is the only aspect of the plaintiff’s case that I feel unable to accept. On the remainder of what she said, I have carefully scrutinised her credibility, and that of her sister-in-law. I accept it.
Danger on the property
10. It is undoubtedly the case that there was a danger on this property. It consisted of a ditching in the site of the path in which a quantity of slimy wet mud had accumulated. Anyone putting their foot into it might easily have skidded. That danger would be increased through carrying a small child. Since Trabolgan is a family resort, the occupiers must expect people of all shapes, ages and sizes and that they would behave in the way that families do while relaxing, whether that be carrying children in a piggy back or playing on the grounds. There might be dangers in playing on wet grass, and anyone who chooses to act that way is taken to accept the danger. A path is different. It is the occupier saying: this is how you go through the premises safely. Some paths may be different, as with a rough rural footpath. They may carry clear risks for those who choose to use them. This path was not a choice. It was the way from one building to another. The accumulation of mud and wet on this path was a clear danger to any visitor that might wander along this path. In that regard I accept the evidence of Desmond Kirwan-Browne, consulting engineer.
Reasonable care
11. Then, I asked myself, was there a failure to take such care as was reasonable in all the circumstances to ensure that Ms. Allen did not suffer by reason of the danger? In my view there was. Trabolgan Holiday Centre designated a number of tarmacademed paths between the buildings and the chalets. It is clear that the plaintiff could have chosen another route, and she was questioned about this. Her answers were convincing. The footpath provided both a handy route and it was a designated walkway. Perhaps at some stage it was planned to cover that footpath. At the time of the accident it was stones and mud. Because it was cut into a slope, water would inevitably run down it. At the edges, in the event of any ditching, both mud and water would accumulate. What care is reasonable in the circumstances depends to a large extent on how visitors could reasonably be expected by the occupier to behave on the premises. Probably the plaintiff would not have slipped had she not been carrying her niece, or if she did, the fall would not have been as bad. As I have said, Trabolgan Holiday Centre must expect that kind of behaviour. A slithery path is a clear hazard to someone in those circumstances. Perfection is not called for, simply reasonable care. That would have been present had there, perhaps, been extra gravel on the path or had the path been tarmacademed across with an appropriate surface that provided grip or otherwise treated so that water could run down the slope without the accumulation of mud. This was not a case where the plaintiff embarked on the exploration of woodland and where the expectation would then have been of paving that would require appropriate care. The circumstances oblige me to look at the use to which the path was put. It was clearly designated as an appropriate means of traversing the holiday centre in all weathers. There was nothing exploratory or risk-taking about using it.
Contributory negligence
12. The particulars pleaded in the defence of contributory negligence encompassed the plaintiff failing to exercise adequate care; failing to look where she was walking; and being the author of her own injuries. My view is that, on a muddy pathway, and with a child on her back, that the plaintiff made clear contribution towards this accident. Part of that involved footwear that did not have a proper grip.
13. In consequence, while Trabolgan Holiday Centre failed to take the care that was reasonable in all the circumstances as to the static condition of its property, and in particular allowed a danger to cause injury to Ms. Allen, her want of care must reduce the damages by 25%.
Damages
14. The plaintiff suffered a very severe ankle injury. She was in severe pain for a period of some hours after the accident. She was out of work for ten weeks returning, on crutches, because of a need to protect her employment. During the year after the accident she still had ongoing symptoms with swelling on the lateral side of her ankle and soreness on the medial side after prolonged walking. Then, her walking distance with comfort was approximately half an hour. This must have been a severe contraction of the enjoyment of her life in sport. The fracture to her ankle was healed in an anatomical position with normal congruency of the joint. This involved a skilful operation under general anaesthetic with the insertion of metal plating and screws. Rehabilitation has been difficult and is not complete.
15. As of the present time the plaintiff complains of not being able to get back fully into coaching. She says that in the morning she must warm up her ankle by doing exercises. She has had a lot of physiotherapy but, almost two years later, it is only intermittent now. After being stationery for a few hours she needs to exercise her ankle a bit before weight bearing on it. At times, there can be some swelling. Whereas she was on the usual range of medication for pain and swelling for some months, she takes little enough now.
16. I think the up to date summary and prognosis is that provided by Dr. Pegum in his report of the 15th December, 2009:-
“Ms. Allen’ ankle has improved. Her symptoms can be expected to improve further but she will probably always have an occasional twinge, especially if she runs. The tendency to ache and swell at the end of the day will subside. The only affect of the metal in place will be to make the wearing of boots uncomfortable, since there would be pressure over the plate itself. None of the other symptoms are related to the presence of metal and there appears to be very little risk of developing arthritis.”
17. Nonetheless, having read the medical reports, and seen relevant photographs, and having regard to the plaintiff’s evidence, which carries no trace of exaggeration, I regard this as a significant ankle fracture with some ongoing problems. It cannot be classified, however, according to the Personal Injuries Assessment Board book of quantum, as a serious and permanent condition. Given, on the other hand, the seriousness of what the plaintiff has been through, it certainly does not fit into the lowest category of a substantially recovered ankle injury.
18. I would assess the plaintiff’s general damages in the sum of €50,000. That may be divided as to €30,000 to date, and because the plaintiff is young, €20,000 into the future. In addition, there are medical expenses of €7,020.
19. While the plaintiff was out of work, her employer paid her net wages. As in Hogan v. Steele & Company Limited [2000] 4 IR 587, she gave an undertaking to her employer to repay that money. It does not matter, in my view of the law, whether that undertaking was given before sickness pay was offered to her, or after she returned to work. Nor does it matter whether the undertaking was given in writing or orally. The reality is that I accept that it was given. Therefore the obligation arises. That is the only question. The figures here are somewhat uncertain. Ms. Allen was paid €8,679 during her time off sick. In addition to that, she also received about ten weekly payments under social welfare entitlement which amounted to about €1,800. These she passed onto her employer. So, she owes him €6,879 but this must be reduced as well by 25%. Total damages are therefore €63,899. So, dividing that by four and multiplying it by three, one gets the figure of €47,924.25 as the correct figure taking into account her contributory negligence.
Result
20. Therefore, there will be judgment for the plaintiff in the sum of €47,924.25 and costs will follow that event.
McDonald v Frossway
[2012] IEHC 440,JUDGMENT of O’Neill J. delivered on the 2nd day of November, 2012
1. The plaintiff was born on 23rd September 1976, is a secondary schoolteacher. She suffered a serious injury to her right ankle at 11.15pm or thereabouts on 3rd October 2009, in the first and second named defendants’ restaurant known as ‘Bleu’ in Dawson Street, Dublin 2.
2. The plaintiff alleges in the proceedings that her accident was caused by the negligence of the first and second named defendants as occupiers of this restaurant and by the negligence of the third named defendant, a firm of architects who designed the interior of the restaurant in or about 2002 to 2003.
3. On the evening of the accident, which was the first time the plaintiff had been in this restaurant, the plaintiff had arranged to meet six friends of hers to have dinner there. They booked the table for 8.00pm but had a drink in a pub nearby and arrived at the restaurant at 8.10pm. They were seated in a portion of the restaurant which was to the rear, right side, partially behind the bar as shown in the photographs taken by Mr. Romeril, an engineer, who gave expert evidence for the plaintiff.
4. This area of the restaurant was at a higher level than the front portion of the restaurant and to get to it, it was necessary to go up three steps.
5. On the right-hand side of these steps, as one ascends them, there was what appears to be a thin screen which partitioned the steps from the dining area behind it, so as to prevent diners in that area from falling over onto the steps. The screen was in height approximately 1 metre above the top step or floor level of the upper level.
6. On the other side of the steps, there is a low tassle wall which separates the steps from a ramp. This wall is 75mm or 3 inches approximately above floor level at the upper level and 510mm above the floor level at the bottom of the steps and graduates in between, corresponding to each of the risers in the steps.
7. The rise in the top step was measured by Mr. Romeril at 158mm, whereas the rise in the other steps was 143mm each.
8. The bottom and middle step were illuminated, each by a light built into the low wall between the steps and the ramp and these lights were positioned close to the edge or nosing of the steps. The lighting, generally, in the restaurant was described as soft or low and could be dimmed or brightened as required.
9. The two tables in the upper part of the restaurant were pushed together to accommodate the plaintiff’s party and the plaintiff was seated on the second chair from the end nearest the bar with her back towards the steps. The plaintiff was adamant that the bar stools shown in Mr. Romeril’s photographs were not there when her accident occurred.
10. The plaintiff and her party had starters, main courses, desserts and coffee and drank wine with the meal. During the meal, between courses, the plaintiff left the table once, definitely, and maybe twice to go outside the restaurant to smoke. Needless to say for that purpose, she had to go down the steps and come back up them on her return.
11. At about 11.15pm, as the meal came to an end and the bill was paid, the group had scattered somewhat. One person had gone to the restroom. Three were at the table and the others outside, smoking.
12. The plaintiff decided to join those outside. She rose from her chair, took her handbag in her left hand and moved to the top of the steps. She put her right foot forward intending to place it on the step below the upper floor level. Her evidence was that her right foot overshot the step. She had an immediate sensation of her stomach lurching and she realised she was falling. She put out her right hand to grab something but there was nothing to grab as the low wall separating the steps from the ramp was down at foot level. She appears at that stage to have gone in to freefall and fell over the low wall and came to rest at the bottom of the ramp where a piece of matting is shown in Mr. Romeril’s Photograph No. 7. She ended up lodged against the glass partition that separates the ramp from the tables on the other side of the ramp.
13. In this fall, she suffered a very serious fracture of her right ankle. At the time, she described herself as mortified and she was unable to get up because of her injured ankle which was visibly deformed. In due course, she was assisted by her friends to a chair inside the door and was brought by taxi to St. Vincent’s Hospital. Here, her ankle was treated appropriately.
14. The plaintiff claimed that the accident was caused by the negligence and breach of duty of the first and second named defendants in failing to take reasonable care to ensure her safety while in the restaurant and, specifically, in failing to have provided a handrail on the steps and in failing to have provided adequate lighting to illuminate the steps on which she fell, and also in failing to mark or clearly distinguish the nosings of the top and bottom of these steps.
15. The third named defendant was brought into the proceedings on foot of an application by the first and second named defendant to join them as a third party, but on that application the plaintiff applied to join this party as a co-defendant and that was done by order of this court made on 17th January 2012.
16. The case made against the third named defendant by the plaintiff is that they were negligent and in breach of duty in failing to design the interior of this restaurant so that it had a handrail at the side of the steps, had adequate lighting to illuminate the steps and in failing to ensure that the nosings of the top and bottom steps were adequately or properly marked or distinguished so as to be clearly visible in poor light.
17. I am satisfied that the plaintiff’s fall was not caused by a lack of visibility of the steps. It is clear that when she put her right foot forward to step onto the step below the floor level from where she had been, she did know the step was there. She had gone up and down these steps probably three times before her fall. In her evidence, she said she presumed she was looking at the step. When she attempted to put her foot on it, she described her foot as overshooting the step. It is not at all clear what was the precise cause of this happening. It might have been the fact that the rise between this step and the upper level was 15mm greater than the rises between the lower steps, which could explain why her foot overshot. This is what happens when there are significant differences in the risings between steps in the same flight of steps. It may simply have been a momentary loss of concentration or inattention which would be quite understandable at the end of a long meal, in the ambience of normal conviviality in a busy restaurant.
18. At all events, I am satisfied that the plaintiff was not caused to fall because she did not know these steps were there or could not see them. Her evidence satisfies me that indeed she could see the step, notwithstanding the rather poor level of light illuminating them and also the absence of clear distinguishing markings on the nosings of the top and bottom steps and also the predominantly dark colouring of the steps.
19. The real problem, so far as the plaintiff was concerned, was the absence of a handrail. Had this been there, I am quite satisfied that even if the plaintiff had missed her first step, and indeed a handrail would have made that event much less likely in the first instance; the handrail would have confined her mishap to a harmless stumble and prevented it becoming a dangerous freefall resulting in the injury she suffered.
20. I am quite satisfied that had there been a handrail at the steps, the plaintiff would not have suffered the injury she did.
21. The question to be decided in these proceedings is whether there was any negligence or breach of duty on the part of the defendants in failing to have provided a handrail at this location.
22. Mr. Romeril was of opinion that the absence of a handrail here was in breach of the relevant provisions of the Building Regulations and/or Technical Guidelines and also, apart from these altogether, a handrail was an essential requirement to clearly identify the presence of the steps and where they began and to assist someone who might miss their footing on the steps.
23. Mr. Noonan, an architect called for the third named defendant, while disputing that a handrail was required in this location by the Building Regulations or Technical Guidelines, nonetheless accepted that a handrail would have reduced the risk of someone stumbling on the stairs.
24. I am of opinion that anyone, lay or expert, who considered the relevant features of the location of the stairs, namely, in a busy city restaurant, in an ambiance where the lighting was relatively low, the rather dark colouring of the stairs, the absence of any clear markings on the nosings of the stairs, the normal noise, hubbub and conviviality that one would expect in a restaurant of this kind late at night, the fact that diners at that time of night would be enjoying themselves and may have consumed some alcohol, the constant movement around the restaurant of patrons and staff; these features would, I have no doubt, brought about a realisation there was a high level of risk that a diner late at night would miss their footing on the steps and stumble. Once a stumble occurred on these steps, there was nothing to prevent that stumble becoming a freefall as happened to the plaintiff.
25. Handrails are a common item of internal architecture and encountered in almost all places and buildings to which the public have access and where steps must be negotiated. In my opinion, it must have been readily foreseeable to the first and second named defendants, as experienced restaurateurs, that the absence of a handrail on these steps would result in someone having a bad fall resulting in serious injury.
26. I have come to the conclusion that the first and second named defendants failed in their duty to take reasonable care to ensure the safety of the plaintiff while in this restaurant in not having a handrail at this location and are liable to the plaintiff accordingly.
27. The next question is whether the third named defendant was negligent in not designing in a handrail at the steps. The third named defendant denies negligence on the basis that they designed this aspect of the restaurant to meet the requirements of the Building Regulations and these do not require a handrail.
28. I accept that the Building Regulations in force in 2002-2003 did not require a handrail at this location because there were only three risers.
29. That, of course, is not the end of the matter. In this location, in addition to the other features mentioned earlier, there is a low wall i.e. at foot level one side, and on the other, a thin screen which would not afford any support to someone who had moved onto the steps in the event of a stumble because the edge of the screen would be almost certainly either out of reach altogether or very difficult to grasp in order to prevent or control a stumble.
30. As I have said earlier, any person, lay or expert, giving due consideration to all of these features of the location could not but realise the dangers posed by the absence of a handrail.
31. I am quite satisfied that an architect offering an expert service, a fortiori, could not but have realised the necessity for a handrail in this location. Placing total reliance on the Building Regulations in circumstances where the absence of a handrail was a glaring and obvious omission does not afford the third named defendant a defence.
32. The first and second named defendants cannot excuse their failure by saying they engaged an independent expert contractor when the danger posed by the absence of a handrail in this location must have been readily foreseeable to them as experienced restaurateurs. They did not need the advice or assistance of an expert to appreciate such an obvious risk.
33. The third named defendant, likewise, cannot excuse their failure to have designed in a handrail by a misplaced reliance on the Building Regulations when the danger posed by the absence of a handrail at this location must have been glaringly obvious to them had they given the matter due consideration.
34. I have come to the conclusion that the first, second and third named defendants were all liable. I am satisfied that the fairest apportionment of fault between them is 50% to the third named defendant and 50% between the first named defendant and the second named defendant.
35. I should say, before concluding on this aspect of the case, that I do not think that the shoes the plaintiff was wearing are a relevant contributory feature to the plaintiff’s accident. The shoes in question, although they have an elevated platform sole and heel, are not particularly high by modern standards and are a type of footwear commonly worn by young women in social situations including dining in restaurants.
36. I do not accept that there was any contributory negligence on the part of the plaintiff in wearing these shoes, nor is there any other evidence of any contributory negligence on the part of the plaintiff in failing to take due care for her own safety.
37. I am satisfied that the plaintiff is entitled to recover the full amount of her assessed damages.
38. As a result of this accident, the plaintiff suffered a serious injury to her right ankle. She was taken to St. Vincent’s Hospital and there an X-ray demonstrated a trimalleolar fracture dislocation of the right ankle. She was kept in hospital overnight and the following day, Sunday 4th October, she had an open reduction and internal fixation carried out with a screw inserted across the medial malleolus, a plate over the lateral malleolus and a plate over the posterior malleolus which achieved an anatomical reduction. She was kept in hospital for three days and discharged in plaster of paris and on crutches. She was in a plaster of paris for six to eight weeks and on crutches. After the plaster of paris was removed, she continued to use either a crutch or stick until January 2010. She returned to work at the beginning of February 2010. She had had a considerable amount of physiotherapy and her ankle remained painful and swollen, particularly after standing or walking for a considerable period of time.
39. She continues to suffer pain in her ankle, particularly after standing or walking for lengthy periods. Her walking tolerance is no more than 45 minutes. She describes currently three types of pain in her ankle, firstly, a pain which occurs at the end of the day from tiredness and that is across the top of the foot. The second pain is at the back of the foot and occurs after periods of immobility and can be relieved by mobilising the ankle. The third is a sharp or darting pain into the knuckle of the ankle which occurs regularly but relatively infrequently. She continues to do ankle exercises on a daily basis to minimise pain and discomfort in her ankle and maximise her mobility.
40. It would appear that the surgery to her ankle gave her a good anatomical result, but there remains a risk of post-traumatic degenerative change. It is described by Mr. Sean Dudeney, the orthopaedic surgeon who carried out the surgery, as a “possibility”.
41. Mr. Dudeney’s conclusion is expressed as follows:
“This lady had a very significant ankle fracture with dislocation of the talus requiring internal fixation of the medial malleolus, collateral malleolus and posterior lip of the tibia. She has gone on to do well. Her X-rays are satisfactory with no evidence of post-traumatic degenerative change. Prognosis is guarded, however, in view of the severity of her injury. She is for further review in one year’s time with up to date X-ray. She is currently functioning very well. There is a chance, however, that she may develop post-traumatic arthritis in the future.”
42. In my view, the appropriate sum to compensate the plaintiff by way of general damages for her pain and suffering to date is the sum of €45,000.
43. It is clear that she is going to continue having considerable limitation of the normal use of this ankle. Her walking tolerance, it would appear, will remain limited, and it would appear she will continue to have to do exercises on a daily basis to maintain the mobility of the ankle and to keep pain and discomfort to a minimum. There are surgical scars on both sides of her ankle, which are permanent but not of much cosmetic significance. The metal work in her ankle appears to be a permanent fixture and the screws are both visible and palpable under the skin.
44. The major risk for the future is of the development of degenerative change in the ankle, but this has not happened yet and is described by Mr. Dudeney as only a possible eventuality. Thus, in assessing her compensation for the future at this point in time in this regard, what she has to be compensated for is merely the existence of this risk rather than the eventuality itself.
45. Bearing all of this in mind, in my opinion, the appropriate sum to compensate the plaintiff by way of general damages for her future pain and suffering is the sum of €50,000. Thus, the total award for general damages will be €95,000. Special damages are agreed at €2,000 and consequently there will be judgment for €97,000.
Deehan v Loughlinstown Inns Ltd t/a The Lough Inn
[2014] IEHC 182
JUDGMENT of Mr. Justice Barrett delivered on the 1st day of April, 2014
Facts
1. This is a personal injuries action arising from an incident that occurred at The Lough Inn on the evening of 21st January, 2011. It comes to the court by way of appeal from a failed Circuit Court action brought by Ms. Deehan. During the course of the appeal the court was presented with conflicting evidence as to what happened at The Lough Inn on the date in question. On the whole the court prefers the version of events as recounted by Ms. Deehan. Her testimony was corroborated in important respects by that of a disc jockey who was present, witnessed much of what occurred and appears to have no reason to tell falsehoods. Thus the court finds that on the balance of probabilities the following is the sequence of key events that transpired at The Lough Inn on that January evening.
2. Ms. Deehan attended a ‘Ladies’ Evening’ at the Inn. This was a ticketed event to which there was paid admission. The section of the Inn in which the evening’s entertainment was conducted was less than half-full. Some alcohol was consumed by Ms Deehan. At some point during the evening’s entertainment a spot prize was thrown into the audience. Several people jumped to catch the prize, among them Ms. Deehan. In the excitement of the moment someone pushed against Ms. Deehan and she fell and hit herself on the leg of a loudspeaker that was sitting on the floor. As a result of the fall, Ms. Deehan suffered the personal injuries that have led to the present action.
3. During the course of her testimony, Ms. Deehan indicated that one reason for bringing the present appeal was that she did not want people to think that she has been telling lies. The court has accepted Ms. Deehan’s version of events as substantively true. The question arises whether she is entitled in law to compensation for the injuries that she has suffered.
Applicable principles
4. The Occupiers’ Liability Act 1995 imposes a “common duty of care” on occupiers in respect of visitors. Under s. 3 of the Act the extent of this duty is “to take such care as is reasonable in all the circumstances …to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.” Counsel for Ms. Deehan contended that in fact there was a heightened duty of care arising in the circumstances in issue in this case. Two cases were cited before the court in this regard, namely the decision of the Supreme Court in Coleman v. Kelly and Others (1951) 85 ILTR 48 and that of the High Court in Rodgers v. J.A.C.K.S. Taverns Limited [2012] IEHC 314.
5. In Coleman, the plaintiff, a paid entrant to an agricultural show at Elphin, was knocked down and injured by a horse which had thrown its rider and was galloping at a fast pace. In an action against the show’s promoters, a jury found them to be guilty of negligence. On appeal to the Supreme Court, that court declined to set aside the findings of the jury, holding, inter alia, that a higher duty of care is owed to a paid entrant to an organised event. However, a detailed consideration of the judgments in Coleman indicates that the case does not afford the unqualified support to Ms. Deehan’s cause of action that it may at first glance appear to offer. Thus, per Maguire C.J.,at 51:
“It was not the duty of the defendants to provide against improbable or unlikely happenings ….They were, however, under an obligation to provide against damage …from happenings which any reasonable occupier of premises in their position ought to foresee ….The jury were also, entitled to hold that danger arising from such a happening could have been guarded against by the erection of a wooden paling or even a wire fence leading towards the opening into the paddock. Either of those methods could have been easily and inexpensively adopted”
Two key points arise from the above: that event promoters are not required to guard against improbable or unlikely happenings; and that the commercial and practical feasibility of such safeguards as might be taken is relevant to a consideration of whether those safeguards ought to be taken.
6. In his concurring judgment, Black J., at 54, observed that:
“[T]he promoters of outdoor games and sporting events were not insurers of spectators, even when they paid for admission. They were not bound to warn or protect spectators against every kind of possible danger that might materialize. There were many potential dangers incidental to such events that the “reasonable man” expected to encounter and did not expect to be guarded against.”
This, Black J., again at 54, attributed to either or both of two factors:
“[T]he remoteness of such a danger becoming operative, and the magnitude of the trouble and expense that would be necessary to guard effectually against it.”
7. Black J.’s observations appear equally relevant to an indoor event ofthe type that is at the centre of the present proceedings. As with the Chief Justice, Black J. had regard both to the probability of a dangerous event arising and the degree of trouble and expense that would be necessary to guard against such danger. He also makes the point that there are dangers that reasonable people expect to encounter, in respect of which they do not expect to be guarded against, and for which, this Court would add, they ought not to expect compensation.
8. In his concurring judgment in Coleman, Lavery J., at 56, elected to treat the case before him as one of contract law, holding that:
“The terms to be implied in the contract should be that the defendants undertook to use reasonable care and skill to make the premises safe for the purpose for which they were being used and to use reasonable care and diligence to see that the competitions were conducted without risk to the spectators. The spectators in general and the plaintiff in particular undertook on their part to take reasonable care for their own safety ….The spectators further undertook to accept, subject to discharge by the defendants of their responsibilities, the dangers inherent to the entertainment.”
9. Lavery J. appears, if anything, to impose positively onerous requirements on persons attending paid events. Provided the operators of an event use reasonable care and skill to make premises fit for purpose and to operate competitions without risk to attendees, he was prepared to conclude that, in the case before him, the attendees undertook to take reasonable care for their own safety and to accept the dangers inherent to the entertainment.
10. Before seeking to reduce the foregoing to a set of principles that might usefully be applied in the present case, it is worth mentioning briefly the Rodgers case referred to by counsel for the plaintiff. That was a personal injuries action arising from a melee outside a pub where a fancy-dress night was being held. In the course of giving judgment in that case, Peart J. noted, at para. 27, consistent, it might be observed, with the judgment of the Supreme Court in Coleman, that:
“In my view the duty of care owed by the defendant [pub-owner] to its patrons is to take all reasonable steps to safeguard patrons on their premises. I would extend that to a duty to safeguard patrons immediately outside the premises also. But the duty is to guard against risks and dangers that are foreseeable.”
11. What principles does the foregoing consideration of applicable case-law suggest arise to be applied in the case presented by Ms. Deehan? First, the duty of a pub operator is to take all reasonable steps to safeguard patrons against risks and dangers that are foreseeable. Second, a pub operator is not required to guard against improbable or unlikely happenings. Third, the commercial and practical feasibility of such safeguards as might be taken by a pub operator is relevant to a consideration of whether those safeguards ought to be taken. Fourth, there are dangers that reasonable people expect to encounter, in respect of which they do not expect to be guarded against, and for which they ought not to expect compensation. Fifth, provided a pub operator uses reasonable care and skill to make premises fit for purpose and to operate competitions without risk to attendees, it may be possible to infer a contractual obligation whereby attendees undertake to take reasonable care for their own safety and to accept the dangers inherent to the entertainment.
Conclusion
12. Applying the principles just considered to the present case, the court concludes as follows. First, it has not been proven in these proceedings that The Lough Inn failed to take all reasonable steps to safeguard its patrons against risks and dangers that were foreseeable. The proprietors of The Lough Inn cleared a space for entertainment that took place in a pub that was more than half-empty, setting aside one alcove for the entertainment and cordoning off another alcove for the disc jockey. Second, the fact that Ms. Deehan fell to the floor does not seem an improbable or unlikely event at a venue where alcohol has been taken and spirits are high and thus is an event in respect of which reasonable safeguards ought to have been, and were, taken. Third, it is not clear to the court what additional safeguards might have been taken to render The Lough Inn safer on the evening in question. It has not been proven to the court that the loudspeaker against which Ms. Deehan fell was negligently positioned; on the contrary, the evidence suggests that care was taken to ensure that it was safely positioned. Moreover, the truth is that Ms. Deehan could have fallen anywhere in the pub and the only means of effectively guarding against the risk of such a fall would have been to swaddle every available surface in the pub in protective material. For The Lough Inn to ‘accident-proof its premises in such a manner would be both highly expensive and entirely impracticable, factors to which, as the judgments in Coleman make clear, this Court can have regard in determining, as it does, that such a measure is not required by law. Fourth, a person who freely elects to go to a pub, who freely elects to drink alcohol, who freely elects to engage in a party game and who freely elects to jump for a spot prize, can reasonably anticipate that she may fall, cannot reasonably expect that every part of the pub will be proofed so that there can be no injury occasioned if she does fall, and ought not to assume that she will be entitled to compensation when in fact she falls. Bad things can happen to good people and still no compensable event may arise. Fifth, to the extent, if at all, that the matter now before the court falls to be treated as one of contract law and not tort, the court finds that Ms. Deehan had undertaken to take reasonable care of her own safety and to accept the dangers inherent to the party game in which she engaged.
13. Ms. Deehan impressed the court in her testimony as a decent woman who is entitled to, and has, the court’s sympathy for the painful injuries that she suffered at The Lough Inn. However, for the reasons stated, her action against the defendant in these proceedings must fail.
Platt v OBH Luxury Accommodation Ltd
[2015] IEHC 593
JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 11th day of November, 2015
1. Shortly after 11 pm on the 15th of February 2009, the Plaintiff, who was a guest in The Old Bank House, Kinsale, Co. Cork (the premises), fell from the open window of his bedroom onto the roof of the adjoining post office. As a result of the fall the plaintiff suffered multiple and potentially life threatening injuries in respect of which he brings these proceedings.
2. Quite how the plaintiff came to fall from the window is but one of several hotly contested issues which the Court is required to determine. That the plaintiff fell onto the roof is not in question. He says he lost his balance. The defendants say he threw himself out of the window; in short, that he jumped. If the plaintiff jumped it was agreed that that would be the end of the case. Accordingly, it is proposed to determine that issue first.
3. The first and second named defendants are sued as the owners and occupiers of the premises, which, at that time, was run as an adjunct of or annex to the Blue Haven Hotel, Kinsale. The plaintiff brings these proceedings against the defendants for breach of contract and/or alternatively for misrepresentation, negligence and breach of duty at common law or, alternatively, for breach of statutory duty pursuant to the provisions of the Occupier’s Liability Act, 1995 and the Hotel Proprietor’s Act, 1963.
4. The defence delivered on the 21st of December 2011, put the plaintiff on full proof of his claim save for an admission that he and his fiancée were lawful visitors and that the premises was in the occupation and ownership of the first defendant. The defence otherwise raises a plea that the plaintiff was guilty of negligence, including contributory negligence, the essence of which is that the plaintiff was the author of his own misfortune, in particular by throwing himself out of the window of their bedroom following a row with his fiancée. A special reply to the defence joining issue with those pleas was delivered on the 21st of November 2012.
Background
5. The plaintiff was born on the 7th of March 1972 and resides with his partner, Ms. McKenna, at 7 Queensland Avenue, Thatto Heath, St. Helens, Merseyside, England. The plaintiff and Ms. McKenna have known one another since 2005 and came to Kinsale on a short break for Valentine’s weekend.
6. Some six months earlier the plaintiff had commenced a training course with a view to changing career and qualifying as a Sky installation engineer. He had completed his training and was due to start work the week following the break away in Kinsale. The plaintiff’s previous vocational history included twelve years working as a commis chef after which he qualified for and undertook work as a heavy goods vehicle driver.
7. With regard to his sporting and recreational life, the plaintiff had engaged in judo and boxing for some ten years and had also played rugby from the age of eleven until he was nearly thirty years old. Early in his rugby playing career, and whilst on a rugby tour of Ireland, the plaintiff had stayed in Kinsale. He had fond memories of his stay there and wanted to bring his fiancée to stay and see the town.
8. On the Saturday of the Valentine’s weekend the plaintiff and his fiancée spent the day sightseeing and ended it with dinner in the Blue Haven Hotel. They had become engaged, had celebrated with champagne and had thoroughly enjoyed themselves. On the Sunday morning Ms. McKenna awoke feeling ill. She has been diagnosed and treated for epilepsy or anxiety fits; consequently she is not supposed to take alcohol. She had a cup of tea but was unable to eat a breakfast. Afterwards they went back up to the room and packed their suitcases as they wanted to have the rest of the day free of that chore. Ms McKenna was still feeling unwell. She thought she might have been pregnant but a test proved negative. They then went out for some lunch during which, on the plaintiff’s evidence, he had two pints of Murphy’s stout. Afterwards, they went for short walk following which they returned to their bedroom where they watched television.
9. At about six o’clock, and as it was their last night, they decided to go out. They went to the White House Inn where the plaintiff had stayed previously whilst on the rugby tour. His recollection was that his fiancée had one or two peach schnapps. She might also have had vodka. Her evidence was that she had had three or four drinks. She felt better. As to his own consumption the plaintiff’s evidence was that he had consumed three pints of Murphy’s stout.
10. Having had their drinks the plaintiff and his fiancée went to a Chinese for a meal. They arrived there at between half nine and ten. Ms. McKenna had started to feel unwell again and asked the plaintiff to order her some soup, which he did. The plaintiff also ordered a couple of starters and a couple of main courses.
11. By the time Ms. McKenna came back from the ladies toilet, the plaintiff had eaten the starters and also had started to eat Ms. McKenna’s soup to which she reacted badly. She described herself as being a bit obsessive / compulsive about her food and in particular did not like anyone touching it. The plaintiff was aware of that. Annoyed by his behaviour, and because she was also feeling unwell again, she went back to their accommodation, taking the room key and leaving the plaintiff alone.
12. He ate some of the food and, according to his evidence, had a few sips out of another pint of Murphys but did not finish that drink before paying his bill and leaving. The plaintiff accepted that there had been some cross words between himself and Ms. McKenna whom he described as being in a bit of ‘a mood’ before she left. The plaintiff did not have a room key and as it was approaching eleven o’clock he had to go down to the Blue Haven to get a key. He met the duty manager, Seamus Healy, whom he took to be night porter.
13. The plaintiff returned to the Old Bank House with Mr. Healy. As they approached the room it was the plaintiff’s evidence that he thought the door was closed. His recollection was that Mr. Healy was walking in front of him. The door was then opened slightly. The plaintiff tried to speak to Ms. McKenna but she closed the door. The plaintiff told Mr. Healy that he would talk to Ms. McKenna and felt sure that eventually she would let him in. Mr. Healy left indicating that if necessary the plaintiff could stay in the Blue Haven for the night.
14. Mr. Healy having departed, the plaintiff made a number of efforts to get Ms. McKenna to open the door. He was concerned that Ms. McKenna had become more ill because of the mix of medication and drink.
15. Rather than returning to the Blue Haven to get a key, the plaintiff decided to break into the room by shoulder barging the door. He gained entry by doing so, breaking the lock and door frame in the process; the door was left hanging off its hinges.
16. On the plaintiff’s evidence Ms. McKenna had been sick and was in the bathroom where she remained. She declined his offer of help. He decided to have a cigarette. There was a large double window in the bedroom which was essentially made up of two inward opening window sashes. There was a low window sill which was of sufficient dimensions that it could be used as a seat. The plaintiff’s evidence was that he opened one of the windows and sat on the window ledge or sill. He was facing in towards the room. He knew that he ought not to have been smoking so was trying the blow the smoke out of the window.
17. On the plaintiff’s engineering evidence, the distance from the window opening down to the roof of the adjoining post office was 7 metres. When he got to the end of the cigarette the Plaintiff put his arm out of the window and tried to flick the cigarette away so that if seen it would not be considered to have come from their room . It was at this juncture that he lost his balance. He couldn’t recall whether he had kneeled to flick the cigarette away and that his knees had slipped or quite how he had come to fall, but one way or the other he described himself as going backwards and sideways out of the window. Ms McKenna gave evidence that when she visited the plaintiff in hospital in Cork he told her that as he stood up he fell out backwards.
18. The plaintiff did not accept that his alcohol consumption had rendered him intoxicated or that he had been in any way affected by the drink he had consumed that day. As far as he was concerned he ‘felt fine’ whilst sitting on the window seat smoking a cigarette.
19. On the 18th of February 2009 the plaintiff made a cautioned statement to Garda Michael Heffernan in which he said:
“I vaguely remember going back to the room. I was on my own. I think Christine was inside. I remember knocking on the door, there was no answer. I shoulder barged the door open. I remember sitting by the window having a cigarette with both windows open. I remember trying to get back in and loosing my balance and falling.”
There was some controversy as to whether or not both windows had been opened by the plaintiff. Although his evidence was that he thought it was just one, it is clear from his statement, made three days after the event, that he thought both windows were open. Under cross examination he accepted that he was not sure.
20. Under cross examination the plaintiff accepted that he could not remember whether he was sitting or kneeling at the time when he fell. He thought that he had only opened the right hand window but accepted that he was unsure.
21. In the replies to particulars the plaintiff gave an account of the accident in which he said that he was sitting on the window seat before falling backwards from it, that he had been drinking alcohol and estimated that he had consumed about seven to eight pints in the twenty-four hour period prior to the accident. When this account was put to him under cross examination he agreed that that was essentially correct although he took issue with the suggestion that he had consumed seven or eight pints on that day. He accepted that whilst Ms. McKenna was in a mood he rejected any suggestion that because of that he had jumped out of the window.
22. In a cautioned statement made to Garda Keating on 16th February, 2009, Ms. McKenna recalled that there had been some arguing in the room and that the next thing she heard was the plaintiff shouting in pain because “…he had gone out of the window”. This is the same phrase that is attributed to Ms McKenna in the statements of Garda Kelly and Garda Heffernan of the 1st of November 2010.
23. In her evidence, Ms. McKenna said that when she came out of the bathroom she recalled looking around the room but not being able to see the plaintiff. She heard some screaming. She looked out the window. She could see nothing because it was dark but she could hear the plaintiff screaming below. She had a vague recollection of being spoken to by a police officer in the bedroom.
24. Garda David Kelly and Garda Michael Heffernan both gave evidence that they first met Ms. McKenna in the hotel bedroom and that she was in a very agitated and distressed state. Garda Kelly made two statements, one of 1st November, 2010 and the other on the 1st March, 2011. In his first statement he referred to Ms. McKenna as saying that the plaintiff had “gone out the window” and that he and Garda Heffernan were shown where the plaintiff was on the roof. In his second statement, Garda Kelly also refers to the conversation which he had with Ms. McKenna in the hotel bedroom but records that she told him that she and the plaintiff had had an argument; that he had gone to the window and “had jumped” out. The statements are contradictory. Garda Kelly explained that he did not have sight of the first statement, which he though he had mislaid, at the time when he made the second.
25. Garda Heffernan made a statement of 1st November, 2010. He also recorded Ms McKenna telling him that the plaintiff had “gone out the window”. In that statement, Garda Heffernan also referred to a conversation which took place between Ms. McKenna and Garda Kelly when she and Garda Kelly were down by the ambulance outside the hotel premises and in the course of which he says that Ms. McKenna made allegations to Garda Kelly that the plaintiff had tried to commit suicide following a fight earlier that night.
26. In evidence, Garda Kelly said that the first occasion on which it was said to him by Ms. McKenna that the plaintiff had jumped out the window was when he first met with her in the bedroom. Accepting that Ms. McKenna was in a distressed state both in the bedroom and also when he spoke with her again later outside the hotel, his recollection was that Ms. McKenna said that she and the plaintiff had had an argument earlier on in the night and that the plaintiff had “jumped” out the window.
27. Garda Kelly accepted that no notes were taken on the night and that when he made his statements he was working from memory. He accepted that there was no reference to Ms. McKenna telling him that the plaintiff had jumped out of the window in his first statement and he also accepted that the account of the plaintiff jumping out of the window referred to in the second statement was made to him when they were standing outside the premises. He accepted that when he first met Ms. McKenna it was likely he would have asked her what had happened. Garda Heffernan was with him at that stage but left very shortly afterwards to attend to the plaintiff on the roof.
28. In his evidence, Garda Heffernan’s recollection as to what was said or indicated was that the plaintiff had “gone out the window”. There was no suggestion in his evidence that he was told or had a recollection of Ms. McKenna telling Garda Kelly, whilst they were in the room together, that the plaintiff had “jumped out of the window”.
29. Ms. McKenna rejected any suggestion that she had told the gardaí, when they first met her in the room, that the plaintiff had “jumped”. However, she did accept that she had made such a statement to Garda Kelly when they were standing on the street beside the ambulance. Mr. Seamus Healy, the duty manager, gave evidence that when he spoke with Ms. McKenna on the street outside the premises, she told him that there had been an argument in the bedroom and that the plaintiff had said that “he would jump out of the window, which he did”.
30. Ms. McKenna said she did not witness the accident. She did not know whether the plaintiff had fallen or jumped out. Her explanation to the Court for telling Mr. Healy and Garda Kelly that the plaintiff had “jumped” was that this suggestion had been made to her in the course of a telephone conversation which she had had with her son whilst she was standing with Garda Kelly and Mr Healy outside the premises.
31. She explained that she was in a distressed state, her mind was everywhere and she started thinking the worst. She thought the plaintiff was dead or was going to die and that she might be accused of murder. She thought she was going paranoid. It was in this context that her son had made the suggestion that if it came to it she would just have to say that the plaintiff had jumped. Garda Kelly could not recall whether he had been present during such a call but Mr Healy gave evidence that he remembered Ms McKenna having a phone conversation with her son when they were standing outside the premises.
32. Ms. McKenna developed serious physiological problems subsequent to these events and gave evidence that in 2010 the Mental Health Services in England had tried to section her for what was said to have been psychotic episodes. She was not, however, hospitalised at that time but she went on to be hospitalised having been ‘sectioned’ in 2013. She had two hospital admissions that year, one lasting four to five weeks and the other some six weeks.
33. At the time of these events Ms McKenna was taking Keppra, Clobazam and Codeine. She explained that she had suffered with fits which were diagnosed either as being epileptic or caused by anxiety. Either way, she had been treated with as high a dose of this medication as was permissible.
Decision on the conflict of evidence and cause of the fall
34. I had an opportunity to observe the demeanour of Ms. McKenna as she gave her evidence in the course of the trial. I found her to be unreliable as a witness. She often displayed poor recall or no memory at all about many of the matters or questions of importance in these proceedings, including conversations which had taken place during appointments between the plaintiff and the experts examining and or carrying out assessments for the purpose of these proceedings and at which she was present. In reaching this conclusion I am conscious that she has had significant medical difficulties involving serious psychological problems which required proactive medical intervention and treatment.
35. The evidence of Garda Kelly, Garda Heffernan and Mr. Seamus Healy, in so far as it concerned the emotional state of Ms McKenna on the night, was that she was distraught, distressed and agitated when first encountered by the Gardai in the hotel bedroom and also later when standing outside the premises beside the ambulance. Indeed, she refused to go in the ambulance because she thought the plaintiff was dead or was dying and did not want to go hospital, on the contrary, she wanted to get a plane and go back home to the U.K. that evening.
36. Ms. McKenna left the Chinese restaurant in what the plaintiff described as ‘a mood’. She was still in ‘a mood’ when the plaintiff and Mr. Healy came up to the hotel bedroom. I accept Mr. Healy’s evidence that after getting no response to his knocking on the door he used the master key to open it but, that having done so, the door was then shut. That Ms McKenna shut the door is not in question. She gave evidence of doing so when she saw the clothes on somebody outside in the corridor which she did not recognise. This is consistent with Mr. Healy’s evidence that it was he and not the plaintiff who was attempting to gain entry to the room.
37. The plaintiff’s evidence was that he would talk Ms. McKenna around and that ultimately he felt that she would let him in. This was corroborated by Mr. Healy who was content with that and left the scene. Before doing so he was able to overhear the plaintiff trying to persuade Ms. McKenna to let him into the room. The conversation was neither loud nor argumentative. Nevertheless, it is quite clear that after Mr Healy departed the scene, the plaintiff’s attempts to persuade Ms. McKenna to let him in were unsuccessful.
38. The plaintiff freely acknowledged that he did not go back to Mr. Healy to get a key, rather, he decided to break into the room; damaging the lock and doorframe in the process and for the cost of which the plaintiff accepted responsibility.
39. His explanation for shoulder barging the door was that he had become increasingly concerned about Ms. McKenna who was ill inside. Considering the combination of her admitted alcohol intake that evening in the White House Inn and her prescribed medication it is, in my view, both plausible and probable that she was as ill as both herself and the plaintiff said she was on returning to their room. In the circumstances there was little the plaintiff could do to be of assistance. There was no independent evidence of any ongoing significant argument or row between them after the plaintiff had gained access to the bedroom.
40. It is undoubtedly the case that the plaintiff had certainly annoyed his partner by commencing to eat her soup, especially in circumstances where he knew she was not well and in any event had a problem with her food being touched. She was clearly not disposed to let the plaintiff re-enter the bed room and he broke down the door to do so. At that stage I am satisfied that she was ill in the bathroom. I am also satisfied that references in witness statements to the plaintiff and Ms McKenna having an argument are, as a matter of probability, references to what had happened in the restaurant and not what had happened in the hotel bedroom.
41. This couple had known one another since 2005. They had become engaged. The Plaintiff had retrained and was due to commence work in a new career as a Sky engineer the week following their break away. They were well settled and suited to one another. They are still together and have ended up being carers for each another for which they both receive State benefits. There was no evidence to suggest that on that evening plaintiff was mentally disturbed or otherwise mentally unstable, depressed or behaving in a way indicative that he was contemplating self harm; never mind suicide.
42. They had been in occupation of the bedroom since the previous Friday and had spent a considerable amount of time there during daylight hours. It cannot but have been obvious to both the plaintiff and to Ms. McKenna, as it would have been to any reasonable person, that there was a very significant drop from the bedroom window to the roof of the adjoining post office. Viewed objectively, as it must be, to jump or fall out of the window of the bedroom could only have resulted in very serious and potentially fatal injuries.
43. If Ms. McKenna had told Garda Kelly, when she first met him in the bedroom, that the plaintiff had jumped out the window that would be very significant evidentially because it would have occurred at a point of time prior to the conversation he had with her outside the premises when she accepts that she did make such a statement.
44. Whilst Garda Kelly gave evidence that it was his recollection that that was what he was told when he first met Ms. McKenna, he accepted that he was relying on his memory for these events. He did not have his first statement at the time when he made the second statement.
45. The statements made by both officers on the 1st November, 2010, specifically refer to Ms. McKenna saying that the plaintiff had “gone out the window”. Both of these officers are highly experienced. Given the traumatic nature and potential consequence of a statement to the affect that somebody had jumped out the window of a bedroom on the top floor of the premises it is, in my view, improbable that if such a statement had been made by Ms. McKenna to either of these officers when they first met her that that would not have been remembered by them as, indeed, it was remembered by both Garda Kelly and Mr. Healy when subsequently made by her to them outside the premises. Moreover, when Mr. Healy spoke with the plaintiff that evening he had no impression or concern that the plaintiff might be or was considering self harm or that he would attempt to take his own life.
46. The subsequent statement made by Garda Kelly as to what was said to him by Ms. McKenna when he first met her contradicts the account of what she said recorded in the statements of the 1st November, 2010. As those statements are consistent in so far as they refer to what she said to the gardaí about what had happened when they first met her in the hotel bedroom and as both of those statements were made much closer in time to the events to which they refer, I think it likely that they are more reliable as evidence of what Ms McKenna said than the later statement and the evidence of Garda Kelly.
47. Furthermore, it seems to me that the use of such language by Ms. McKenna is more sensible and consistent with a finding that she did not witness how the plaintiff came to fall onto the roof of the adjoining post office. In reaching this conclusion I also consider it significant that she used the same phraseology to describe what had happened to the plaintiff when she made a cautioned statement to Garda Keating as was recorded in the first statements of the Gardaí.
48. To jump out of the window in question must necessarily have involved the formation of an intention to commit that act and in the particular circumstances of this case to find as a fact that that is what the plaintiff did would require the Court to come to the conclusion that the plaintiff knew that by deciding to jump he would, as a matter of probability, sustain fatal injuries and that accordingly he intended to commit suicide. Having regard to the evidence and the findings of fact already made I am satisfied that it is improbable that Mr. Platt intended to do any such thing.
49. The general rule is that he who alleges must prove. The plea in this case is that the plaintiff threw himself out the window. It was submitted on behalf of the plaintiff that the gravamen of this plea given the distance through which he would fall was that the plaintiff intended to commit suicide and that whereas in this case that was an improbability, cogent evidence to displace that improbability would be required if the defendant was to succeed. In this regard the plaintiff relied on the recent decision of the Supreme Court of the United Kingdom in Braganzav v. BP Shipping Ltd [2015] 1 WLR 1661. Whilst I have no difficulty in adopting the legal principal enunciated by the Court in that case as a persuasive authority in the case of an unexplained fatality, it seems to me to be of limited assistance where, as in this case, the plaintiff survived the fall and takes issue with the plea that he threw himself out of the window.
Conclusion
50. I accept the plaintiff’s submissions that the defendants have not discharged the onus of proof placed upon them by the law to establish, on the balance of probabilities, the plea in the defence that the plaintiff threw himself out of the window. In reaching this conclusion the Court has also had regard to the nature of the plaintiff’s injuries which, in my view of the medical evidence, are more consistent with an accidental fall from the window than with jumping out of it. Finally I am satisfied on the engineering evidence that it would not have been necessary for the plaintiff to open both windows if he had intended to jump. The fact that both windows had, as a matter of probability, been opened by him is, in my view, consistent with his decision to smoke a cigarette in the room in a manner where the risk of detection was minimised or eliminated altogether.
Liability
51. Engineering evidence on behalf of the plaintiff was given by Mr. Spitere, consulting engineer. He attended the accident locus and took a number of photographs which were admitted in evidence. He prepared a report for the assistance of the Court. He gave evidence as to the dimensions of the window including the distance between the floor and the sill edge, which he measured at 480 millimetres. The significance of that measurement, in his opinion, was that it was below the window sill height above floor level which would constitute a guard in itself and which he said is 800 millimetres.
52. Under the 1997 building regulations, where the distance between the window sill and the floor is less than 800 millimetres there is a requirement for guarding to prevent falling. The ope of each window sash was measured at 600 millimetres which would have been a sufficient width when taken with the height of the window to permit a person, such as the plaintiff, to jump or fall without the necessity of opening the adjoining window sash. The window sill was measured at 365 millimetres in depth which, when taken with its height from the floor is sufficient to be taken as a seat.
53. Mr Spitere considered the window sill to be very low and to be part of a window which was equivalent to a door that opens fully; there ought to have been a guard across the window opening in such circumstances. Although the building was old, his view was that the windows were relatively modern and certainly put in place after the 1991 building regulations had come into force. There had been a joint engineering inspection and it had not been suggested to him by the defendant’s engineer nor had he been advised that the windows had been inserted before 1991.
54. Consideration also had to be had to the fact that this was a window in a hotel bedroom where guests might not be familiar with the window, where there would be children staying in the room, or where a guest could be intoxicated or might be at risk of stumbling around in the dark at night such as a guest who was sleepwalking. The window sashes were inward opening and could be fully opened. The window ope was too big and the sill or ‘seat’ too low. There was no restriction on the distance to which the window sashes could be opened.
55. It was his opinion that if fitted in a house that an ordinary householder would consider, if thought about at all, that the window was dangerous. Its dimensions were such that in the fully open position if a person stumbled in the room they could quite simply and easily have fallen out through it. There were a number of inexpensive safety precautions which could have been adopted to render the window opening safe. The fixing of a window bar across the ope or the fitting of opening restrictors to the window sashes would have sufficed. Mr. Spitere’s evidence as to the safety or otherwise of the window arrangement was not challenged and no engineering evidence on behalf of the defendants was called.
56. Apart altogether from the common law duty of care owed to the plaintiff in respect of any activity on the premises , the first named defendant, as hotel proprietor and occupier of the premises owed a statutory duty of care towards the plaintiff under the provisions of the Occupiers Liability Act 1995 ( the Act of 1995) and the Hotel Proprietors Act 1963 ( the Act of 1963)
57. S.3 of the Act of 1995 provides :
“(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5 .
(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
In addition to the statutory duty owed by the occupier under s.3 of the Act of 1995, s.4 of the Act of 1963 provides that:
“…Where a person is received as a guest at a hotel, whether or not under special contract, the proprietor of the hotel is under a duty to take reasonable care of the person of the guest and to ensure that, for the purpose of personal use by the guest, the premises are as safe as reasonable care and skill can make them.”
58. Both Acts have been pleaded and relied upon by the plaintiff. Accepting, as I must, the evidence of Mr. Spitere, I am bound to conclude that the window in question was unsafe and constituted a danger to lawful visitors in the premises, including the plaintiff who fell from it, thus rendering the occupier and hotel proprietor of the premises – in this instance the first named defendant – liable both in common law negligence and for breach of its statutory duty of care under the relevant provisions of the Acts already referred herein.
Contributory negligence
59. It was not seriously contended on behalf of the plaintiff that there should not be a finding of contributory negligence on his part. However, it was submitted that whilst there was no moral blameworthiness in the circumstances giving rise to the plaintiff falling out of the window, accepting the existence of the apparent risk, it was conceded that an apportionment of 20% against the plaintiff would be reasonable in all the circumstances.
60. The question for determination by the Court therefore is not whether the plaintiff is guilty of contributory negligence but rather the degree of fault which should be attributed to the plaintiff.
The Law
61. Commenting on the meaning of “fault” in s. 34 (1) of the Civil Liability Act 1961 Kenny J. in his judgment in Carroll v. Clare County Council [1975] I.R. 221 at pages 226/227 observed:
“I think that “fault” in s. 34 … means a departure from a norm by a person who, as a result of such departure, has been found to have been negligent and that “degrees of fault” expresses the extent of his departure from the standard of behaviour to be expected from a reasonable man or woman in the circumstances. The extent of that departure is not to be measured by moral considerations, for to do so would introduce a subjective element while the true view is that the test is objective only. It is the blameworthiness, by reference to what a reasonable man or woman would have done in the circumstances, of the contributions of the plaintiff and defendant to the happening of the accident which is to be the basis of the apportionment. I think that the use of the word “moral”, when addressing a jury in connection with blameworthiness, is likely to mislead them.”
60. In O’ Sullivan V Dwyer [1971] I.R. 275 The Supreme Court held that a distinction between causation and fault had to be observed and that the degrees of fault are not to be apportioned on the basis of the relative potency of their respective causative contributions to the damage. Such fault is to be measured by objective standards and in this regard Walsh J stated:
“…Blameworthiness is to be measured against the degree of capacity or knowledge which such a person ought to have had if he were an ordinary reasonable person …. Fault or blame is to be measured against the standard of conduct required of the ordinary reasonable man in the class or category to which the party whose fault is to be measured belongs …”
61. Intoxication does not relieve a person of legal responsibility for their acts or omissions and so it is that in evaluating the conduct of someone in the context of negligence or contributory negligence the court is bound to approach that task from the perspective of what would be expected of an ordinary reasonable person in full control of their faculties, having due regard to the circumstances of the case. This is not intended to be taken as a statement of law to the effect that the fact of intoxication is altogether irrelevant to the determination of fault. However it is a matter which may properly and ought to be brought into account when assessing the reasonableness or otherwise of the plaintiff’s conduct.
Evidence of inebriation
62. It was accepted by the plaintiff in reply to particulars, and in his evidence, that on the day of the accident he had consumed alcohol. In replies to particulars the plaintiff accepted that he had consumed between seven and eight pints in a 24 hour period prior to the accident. In his evidence the plaintiff said that on the day of the accident he had had two pints of Murphy’s in the afternoon and three and a half pints in the evening. He had taken a few sips out of his pint in the Chinese restaurant but did not finish it.
63. It was submitted on behalf of the plaintiff that whilst he had consumed some alcoholic drinks he was not particularly intoxicated and in support of this submission relied on the evidence given by Mr. Healy, the defendant’s duty manager, who had spoken with the plaintiff very shortly before the accident and in whose opinion the plaintiff was not intoxicated.
64. The plaintiff insisted that whilst he had consumed the admitted number of drinks over the afternoon and evening, he “felt fine” when he was sitting on the window seat having his cigarette.
65. In determining the extent to which, if at all, the plaintiff was intoxicated at the time of the accident the Court is fortunately not dependant on his evidence alone. Shortly after speaking with Ms. McKenna in the hotel bedroom, Garda Heffernan went to see what assistance he could render. He attended the plaintiff on the roof of the post office. The plaintiff was in a lot of pain. Garda Heffernan was in very close proximity to him on the roof when they spoke. Whilst acknowledging that the plaintiff was hurt and in a lot of pain, it was also his evidence that the plaintiff’s speech and a clear smell of alcohol from his breath indicated to him that the plaintiff was intoxicated.
66. Garda Kelly was involved in assisting the removal of the plaintiff when he was being carried down the hallway in the post office to the waiting ambulance. He gave evidence that the smell of alcohol from the plaintiff’s breath was very strong. At that stage the plaintiff had been on the roof for over an hour. Under cross examination both Garda Kelly and Garda Heffernan accepted that Mr. Healy might be in a better position to assess whether or not the plaintiff was intoxicated as he had been speaking to and walking with the plaintiff shortly before the accident, though what a police officer and a civilian might consider by the term ‘intoxication’ would most likely be different.
67. Like the gardaí, Mr. Healy had also made a statement which dealt with the question of intoxication. His evidence was that whilst it was obvious that the plaintiff had drink taken and that as a result he would not have given the plaintiff the keys of his car. He did not consider the plaintiff to be intoxicated; he wasn’t falling down drunk.
68. In the course of his duties he would have had to assess whether someone who had drink taken should or should not be served more alcoholic drink and accepted that a hotel manager or barman’s definition of intoxication might differ from that of a policeman when making such an assessment.
69. Mr Healy gave evidence as to his own opinion of what constituted intoxication. In his view any person who was falling down, staggering, or slurring words too much would be intoxicated; the plaintiff wasn’t like that, he wasn’t falling over. As to what it was that made it obvious to him that the plaintiff had been drinking and was not, therefore, someone to whom he would give the keys of his car, Mr Healy explained that there were a number of factors involved and which he identified as: the smell of drink, the way in which the plaintiff had spoken to him, and his manner, which he explained as being more friendly than would have been the case if he had not been drinking.
70. These attributes and those described by the Gardai warrant the Court in coming to the conclusion that the plaintiff had consumed a sufficient quantity of alcohol to cause inebriation to the extent that his faculties were so affected as to make that obvious to the sober observer. If Mr Healy would not have given him the keys of his car I think it safe to infer that if considered by the gardaí to be intoxicated, as he was, the plaintiff’s judgment would have been affected to the extent that it would have been both unlawful and unsafe for him to drive.
71. There were various descriptions – including kneeling and slipping – given by the plaintiff in reports, statements and in his own evidence to explain how he fell out of the window but all of which are a variation on the same theme. The fact is that the plaintiff has no clear recollection as to why or what it was that caused him to fall from the window.
72. In his direct evidence he recalled that he was leaning, that his arm was outside the window, and that he was trying to flick the cigarette away from the window so that it wouldn’t land underneath. It was at that point that he lost his balance. He couldn’t be sure whether or not he fell because he kneeled to flick the cigarette away and his knees slipped. All he could remember was just going out of the window backwards and sort of sideways (to paraphrase the plaintiff’s own words). Prior to flicking out the cigarette the plaintiff said that he was sitting on the windowsill. He was facing into the bedroom but blowing the smoke out the window. The description of the accident first given by the plaintiff and closest to the event is that contained in his statement of the 18th of February 2009 in which he says that he remembered sitting by the window having a cigarette with both windows open, of trying to get back in, losing his balance and falling.
73. Whether he lost his balance and fell as a result of leaning out the window opening when trying to flick the cigarette away or lost his balance in the course of trying to get back into the room from the window seat, his loss of balance is, on the evidence, most likely explained, at least in part, by the plaintiff’s state of inebriation.
Decision on the apportionment of fault.
74. The engineering evidence given on behalf of the plaintiff by Mr. Spitere as to the configuration of the window in general was that an ordinary householder, if thinking about it at all, would consider the window to be dangerous.
75. That evidence is unchallenged. The depth and height of the windowsill was such that it could easily be sat upon. Indeed, it could have been taken as a window seat. The two window sashes were inward opening. There was no restriction on their arc of movement; they could open fully. In the absence of any restraint there ought to have been safety bar across the window ope.
76. As this accident so clearly demonstrates, the dimensions of each window alone were sufficient to enable a fully grown man, without restriction, to fall through the opening onto the roof below. That situation was dangerous and unsafe not just for the plaintiff but for anyone having reason to be in the room, including children. The Court has already found that the first defendant has a liability in law for that state of affairs.
77. Having due regard to the opinion of the plaintiff’s engineer given in evidence that the danger was such that it would have been obvious to an ordinary householder if any thought was given to it at all, viewed objectively the plaintiff cannot but have known of the danger. If for some unexplained reason he didn’t, then he ought to have known of it. I am satisfied that once he opened both windows and sat on the window seat the serious risk of injury consequent upon his doing so was apparent and obvious. I am also satisfied that the plaintiff opened both of the windows which, unfortunately for him, probably explains, at least in part, his evidence that there was nothing to catch hold of when he made a grab to try and prevent himself falling.
78. That he opened both of the windows is consistent with his desire to ensure that the smoke from his cigarette would not enter the room. Moreover, his description in evidence of leaning out to flick away the cigarette is also consistent with that purpose and from which it would seem reasonable to infer that immediately before the fall the plaintiff was sitting at or very close to the edge of the seat nearest the window ope and certainly much closer than the edge of the seat or sill facing the bedroom.
79. The actions or inactions of the plaintiff are to be assessed – as with those of the defendant – objectively. The fact that the plaintiff’s appreciation of the danger and his failure to take any precautions commensurate with that danger were dulled by his state of inebriation affords him no excuse in law. It is no more of an excuse than the failure of an inebriated passenger to appreciate that the driver of a car with whom he or she has agreed to travel was also inebriated or with the failure of an inebriated passenger to wear a seat belt.
Conclusion
80. The plaintiff acknowledges that he knew smoking in the hotel bedroom was not permitted. In fact what he was doing was unlawful. Mention was made in the course of the evidence to a smoke alarm in the room which, given the nature of the accommodation, would not be surprising. It was the plaintiff’s desire to engage in what he knew to be a banned activity and to ensure that that activity was not discovered, including the act of flicking away the finished cigarette, which brought the plaintiff into a position where he was in close proximity to and was an actor in the danger of which he must, I am satisfied, have been aware. If he wasn’t then he ought to have been.
81. If the Court were concerned with the apportioning of fault on the basis of the potency of the parties’ respective contributions to the injuries and loss then, in the particular circumstances of this case, I would have been inclined to attribute at least the same degree of fault against the plaintiff as against the first defendant. However, that is not the basis in law on which fault is to be apportioned.
82. In assessing and apportioning fault on the basis of the blameworthiness of the respective causative contributions of the parties to the injuries and loss , the Court must have regard to the fact that the negligence and breach of statutory duty on the part of the occupier and hotelier was an ever present source of real danger to all persons having reason to use the bedroom in question, including children. Such danger arises from the provision of windows in the bedroom the configuration and the dimensions of which enabled the windowsill to be taken and used as a seat and the window sashes to be opened fully, and the absence of a safety bar across the window ope; whereas the negligence on the part of the plaintiff is concerned with carelessness for his own safety.
83. Having regard to the findings made and applying the law, the Court considers the blameworthiness of the plaintiff’s carelessness in the circumstances of this case to be of a high degree and in respect of which an apportionment of 40% responsibility on his part is considered appropriate with the remaining 60% being attributed to the first named defendant.
The injuries and special damages claim.
84. As a result of the accident the plaintiff sustained what, on any view of the evidence, were very serious and potentially life threatening injuries. In addition to physical injuries the plaintiff also developed psychiatric injuries and psychological sequelae. The physical injuries may be briefly summarised as follows:
(i) Right sided rib fractures from the sixth to the eleventh rib
(ii) Small right sided haemothorax
(iii) A minor crush fracture of the T5 vertebra
(iv) A crush fracture of the T10 vertebra
(v) A comminuted fracture of the body of T11 vertebrae
(vi) A comminuted fracture of the body of L1
(vii) A burst fracture of the body of L3
(viii) A anterior partial fracture of the body of L5
(ix) A complex comminuted subtrochanteric fracture of the right femur which was grossly comminuted.
85. The subtrochanteric fracture of the right femur was treated surgically. The surgery resulted in an eleven inch long surgical scar over the lateral aspect of the upper right femur which was described as being pale thin and neatly sutured. Over the distal thigh there were two neat healed scars a half inch long representing the insertion site for the distal interlocking screws.
86. Repeat x-rays taken on the 17th of June 2014 disclosed that the subtrochanteric fracture is ununited and that the plaintiff has got a hypertrophic mal-union. The distal nail used to fix the fracture was broken at the screw/nail junction and there was some metal debris around the tip of the proximal nail. X-ray examination taken on the 18th of May 2009 indicated that the head/neck angle on the right femur was 135 degrees as opposed to 170 degrees on the left which means that there had been a collapse of some 15 to 20 degrees into varus from the correct head/neck angle for the femur. The x-rays taken in 2014 showed some further angulation with the head/neck angle being 110 degrees.
87. There was considerable controversy in the course of the trial as to whether or not the plaintiff’s right subtrochanteric fracture had been successfully treated to the point where it had healed. It was the opinion of Mr Pennie, Consultant Orthopaedic surgeon retained by the defendants, and contained in a report prepared and handed in for the assistance of the Court, that, when successfully treated, symptoms from a subtrochanteric fracture of the femur would be expected to settle down in an otherwise fit individual and that most people would return to a normal full and active life with, at most, some non-disabling aching discomfort on heavy activity.
88. The plaintiff’s evidence was that he was crippled and in severe pain with symptoms worsening instead of getting better – especially in relation to his right leg – and that his ability to ambulate independently was significantly affected to the extent that he needed assistance with mobilisation, and was compelled to use crutches as well as a wheelchair, as well as a commode which doubled for toileting. He could walk unaided but not very far. He was essentially house bound and needed to be cared for because of the seriousness of his injuries. He was unable to attend to ablutions unaided. He could only wash the upper part of his body. He had a mobility scheme car which he could use to go to the shop or chemist or for medical appointments or otherwise when necessary or in emergencies.
89. The physicians who treated him in the two year period following the accident advised him that the fracture to the right femur had healed. He, on the other hand, felt it hadn’t: he couldn’t weight bear or walk properly on it and was in excruciating pain and discomfort. Notwithstanding, when the plaintiff was seen by an orthopaedic surgeon, Mr. Manning, in 2011 and was told by him that the fracture had healed. The plaintiff had by then been discharged from further orthopaedic care and remained so.
90. However, Mr. O’Driscoll, a Consultant Orthopaedic surgeon retained on behalf of the plaintiff, having reviewed the earlier x-rays and also having arranged to take up-to-date x-rays in 2014 reported and gave evidence that the fracture had not only not healed in the sense that there was non-union and that some of the metalwork was broken, but also that there was an abnormal angulation between the neck and head of the fractured femur which had worsened with the passage of time.
91. The plaintiff was cross examined on the basis of the medical opinion expressed by Mr. Pennie in his report. However, when Mr. Pennie came to give evidence he had had the benefit of the evidence given by Mr. O’Driscoll as well as sight of the up-to-date x-rays as a result of which he accepted that the subtrochanteric fracture had not united. He accepted that in the case of non bony union there were surgical treatments which could be offered and which would most likely result in there being a very good chance that full bony union could be achieved. Accepting the existence of non union and abnormal angulation Mr. Pennie did not think, however, that the complaints and disabilities made to him by the plaintiff were consistent with his condition. The presentation and reporting by the plaintiff in relation to the seriousness of his injuries and the on-going consequential disabilities and disablement suffered by him became a central feature in the case calling into question, as will be seen, the plaintiff’s credibility.
92. The plaintiff made a claim in respect of past and future special damages totalling £1,493,103.13 sterling. He swore an affidavit of verification in respect of that claim on the 30th of April 2015, having previously sworn affidavits of verification in respect of the personal injury summons and replies to particulars delivered in the proceedings. In the particulars of personal injury indorsed on the personal injury summons the plaintiff pleaded that he:
“…remains severely incapacitated following his accident. His right arm feels cold. He has suffered electric shocks down his left arm from his neck. The scars on his right leg causing a burning sensation. He has severe back pain which never settles. He suffers shooting pains into his right leg which is constant, the skin goes red and the whole leg feels extremely hot. He cannot sleep and suffers nightmares. He continues to take numerous medications including amitiptyline, diclofenac, gabapentin, oramorph, zomorph, zopiclone and paracetamol in addition to medication for asthma and unrelated problems. The plaintiff requires two crutches to stand and needs significant assistance to mobilise. The plaintiff completely non weight bears on the right leg.”
93. With regard to injuries to his lumbar spine the plaintiff pleaded that he had no movement and that he had an absent knee-jerk on the right side and that he was in constant pain. He also pleaded that his disabilities were such that he:
“…finds it very difficult to get about at present and spends most his time lying down on his bed or, if he can get up, lying on his sofa. He has become very depressed as a result of his ongoing difficulties….Other than for attending hospital appointments, the plaintiff has been house bound since his return to his home. He feels imprisoned in his home.’
94. With regard to care it was pleaded that:
“As a result of his injuries the plaintiff has been unable to independently live and is much dependant on his partner, Christine McKenna, for ongoing assistance. He has required assistance in the past and he is likely to require ongoing assistance in that respect. He will need limited assistance during the day and care at night. His considerable difficulty with stairs and his home has had to be rearranged so as to permit him to gain access to the bathroom/and/or light facilities. Concern arises in relation to his future care requirements.”
95. The plaintiff’s presentation to the Court was one of a person who was profoundly disabled as a result of his injuries; sitting as he did, sometimes semi-reclined, and except when giving evidence, in a wheelchair. He mobilised with assistance from the wheelchair to the witness box with crutches and with great difficulty. Having regard to the case as pleaded and the opening, his presentation was not unexpected.
96. As to his claim for special damages, apart altogether from a claim for past and future loss of earnings, and past and future care, the plaintiff also made a number of other claims based on his disabilities and which included a claim for future aids and equipment. Under that heading a claim was made for a light wheelchair; a powered wheelchair; an Invacare Comet scooter; a clutch holder; a long handled shoehorn; fissure handles for elbow crutches; a long handled foot sponge; a self-propelled shower chair; a rambler trolley; an adjustable toilet seat and frame; a stair lift; a Theraposture 2 motor lift and recline chair; a boot lift mini hoist; a skilled handyman seven days a year; a gardener one hour per week for 52 weeks; a cleaner for 1.5 hours per week for 52 weeks; provision for payment in respect of the mobility scheme or, in the event that the plaintiff could not access mobility allowances, provision to purchase a suitably adapted vehicle.
97. Ms. Gail Russell, rehabilitation consultant, was retained on behalf of the plaintiff to assess and report on all aspects of his daily living, the claim for gratuitous family care required by reason of his disability and the need for any aids and appliances as well as future care that maybe of assistance to him in the future. She prepared an expert report dated the 7th of November 2012 and gave evidence at the trial.
98. In October 2014, Ms Jane Toplis, rehabilitation consultant, a co employee of Ms Russell, was retained on behalf of the Plaintiff to assess and report on the plaintiff’s accommodation needs in the short and long term. She prepared a report on the 11th of November 2014 and gave evidence at the trial.
99. Mr Paul Jackson, rehabilitation consultant, was retained on behalf of the Plaintiff to report on the employment and earnings implications as a result of the plaintiff’s injuries. He prepared a report dated the 15th of May 2013 and gave evidence.
100. These reports were prepared following interview with the plaintiff. Ms McKenna, who was generally in attendance, rendered assistance and participated when required during interviews by Ms Russell and Ms Toplis. Each of these experts refer to the medical reports, notes and records of the plaintiff made available to them by way of assistance in completing their assignment. The reports of all three experts were furnished to and relied upon by Mr Brendan Lynch, Consulting Actuary, in the preparation of his report dated 14th of May, 2015. He also gave evidence.
101. Medical evidence was given on behalf of the Plaintiff by Professor LP Ormerod, Professor of Respiratory Medicine, regarding the plaintiff’s chest injuries; by Dr Forsyth, Associate Specialist in Chronic pain in relation to his painful symptoms and relevant treatment; Dr John Wills, Pain Specialist, in relation to the plaintiff’s condition and capacity to work; Dr Benjamin Hugh Green, Consultant Psychiatrist, in relation to the plaintiff’s psychiatric condition and psychological sequelae; and Mr Michael O’Driscoll, Consultant Orthopaedic Surgeon, in respect of the plaintiff’s orthopaedic injuries. A report of Mr Khan, Consultant Orthopaedic Surgeon, who examined the plaintiff in January 2012, was also admitted. All of the medical witnesses who gave evidence prepared reports which were handed into court during the trial.
102. Medical evidence was given on behalf of the defendant by Mr. Bruce Pennie, consultant orthopaedic surgeon, by Professor Wilkinson, consultant psychiatrist, and by Professor Jack Phillips, consultant neurosurgeon. Evidence in relation to the care and rehabilitation aspects of this case was given on behalf of the defence by Ms. Bukowski, occupational therapist and by Mr. John Parkinson, rehabilitation consultant. The defence witnesses all prepared reports which were handed into court in the course of the trial.
103. The presentation of the plaintiff both to the experts retained to give evidence on his behalf and the experts to give evidence on behalf of the defendant was of a man so disabled by his injuries that he was almost incapable of doing anything or, if doing anything, then only with the assistance of or reliance upon others. His disabilities were such that even when he came to be assessed by his own experts a full medical examination appropriate to the plaintiff’s injuries and complaints could not be carried out.
104. When the plaintiff was being assessed by Ms. Toplis he was so immobilised by his pain and disability that he was unable to demonstrate to her the very limited mobility which he admitted to having. The plaintiff claimed that he spent most of his day either in bed or on a sofa in the living room. He was incapable of going up or down the stairs. He needed assistance to mobilise from his bed to a commode and from there to a settee or vice versa. He was unable to weight bear on his right leg and had developed a painful symptomology in his left leg which he used to take the weight of standing or walking the very short distance he admitted to being able to walk, such weight bearing being assisted by the use of crutches. The plaintiff rarely left the house. He had difficulty negotiating the front two steps without assistance. He could not drive and shopping was done online or with the assistance of neighbours. Although he had a car through the motability scheme, when used it was driven by his partner Ms. McKenna. On the rare occasions when he did leave the house that was for the purpose of attending medical appointments to which he was taken either by ambulance or by being driven. He did not know when, if at all, he would ever be able to return to driving. Save for the short distances inside his home and then only on the ground floor, where he had his bed, the plaintiff was dependent on crutches, a wheelchair or commode for mobilisation.
105. Relying on the medical evidence contained in the reports furnished, on their own assessment, and the veracity of the plaintiff’s account of his disabilities and corroborated by Ms. McKenna, the rehabilitation experts concluded that the plaintiff was profoundly disabled and that even with the holistic approach to treatment suggested by Mr. O’Driscoll being successfully carried out, there were question marks as to whether or not with appropriate retraining the plaintiff would ever be able to hold down a permanent job.
106. Unlike Ms. Toplis, Ms. Bukowski, reporting for the defendants, was able to observe the plaintiff transferring from his bed to the wheeled commode by hopping on his left leg, using his crutches for support and with assistance from Ms. McKenna. The distance required to carry out that transfer was four to five steps. Ms. Bukowski observed the plaintiff did not put any weight through his right leg and relied heavily on crutches, facially grimacing whilst carrying out the transfer which was slow and appeared to cause a great deal of pain and effort. Ms. Bukowski’s conclusion was that the plaintiff was likely to require crutches to mobilise for many years to come and possibly for the remainder of his life.
107. When the plaintiff was seen by Mr. Pennie for the purposes of preparing a supplementary report on the 6th May, 2014 the plaintiff told Mr. Pennie that he would try to get out of his bed onto a couch most days and that he would probably and usually do that using a wheelchair; although on good days he would walk up and down the living room using crutches. He described his disability as being essentially the same as when first medically reviewed; he had been not out of the house except for appointments with medical professionals. On medical examination he was able to get out of his wheelchair and stand with the use of two crutches and the assistance of Ms McKenna and her son.
The plaintiff’s evidence
108. The plaintiff gave evidence as to the extent of his injuries and the effect that those have had and continue to have upon him. He described himself as being destroyed; of only being able to sleep 2-3 hours a day and that for about 21 hours a day he is in agony. In terms of his mobility, his evidence was that he was very confined and had to sleep downstairs in the house. When his symptoms were really bad he had to have his right leg lifted out of the bed, and that he could then get onto crutches. If he needed to get to the front door of the house then he would use a commode. Mobilising in the house, limited though it was just left the plaintiff in more and more pain. With regard to the use of his right leg, he said that if he put weight on it he was in agony; it had not gone up or down since he had come out of hospital. When asked by his own counsel whether he had gone out to the shops with his partner in a wheelchair and with crutches he replied that he had done it all, like coming to the court (in a wheelchair); he had also gone out crutches. His intimate life had essentially come to an end. His partner had also developed serious mental problems with which he had had to cope and to which reference was made earlier in this judgment.
109. As to why and when he would leave the house his evidence in chief was that this would generally only happen when he had to attend medical appointments, when his partner was ill or if they had no money or had no food, were not able to shop online, or were not able to get friends or family to buy things for them.
110. Both himself and his partner have joint employment and support allowance and they both get carers allowance for each other. He knew he was in agony with his leg but was distressed by the physicians – whom he had seen before Mr. O’Driscoll – telling him that his right leg injury had healed. He described pains running down his legs like he was being electrocuted and that his groin felt that there was something stabbing in it. In addition to this he had back pain. He thought he was taking between twenty-four to twenty-six tablets a day including liquid morphine, anti-depressants and sleeping tablets. Despite all of this medication when he was awake he was in pain.
111. There was a local shop about 100-150 yards away which he could get to but then he required to take extra medication to deal with the pain which would then turn him into a “zombie”. He said that he did not drink and had not taking an alcoholic drink since the accident. He described having a mobility car which he could use to get to the shops or the chemist. Generally he would get to the door of the house on his commode but then negotiate the two steps down at the front door and could then get himself into the car. He always got a mobility car with a higher roof so as to assist him getting in and out of the vehicle. Psychologically he described his head as being a complete mess. He had been unable to make a number of appointments because of his problems.
112. The social services had broken a number of promises to him including the provision of a stair-lift, a wheelchair, new crutches, and ramp to enable to him to negotiate the two steps at his hall door. He could do with the doors of his house being widened so that he could get about in a wheelchair if he was really struggling. He was very despondent; his life had simply been destroyed.
113. When cross-examined in relation to his capacity to drive a car provided under the mobility scheme, the plaintiff confirmed that he did drive when he really had to do so. That could be as often as every day depending on what he had to do. Since the accident he had become addicted to marijuana. Some times he would drive to the Tesco supermarket in Prescott and wait for a lad from whom he could buy his marijuana. He gave evidence that sometimes he could buy the product every day or sometimes it was once a week. It depended how bad the pain was and also upon how much money he had at the time. He accepted that he had not told any doctor about his addiction to marijuana because he felt embarrassed and ashamed for himself. He accepted that he had not told any of his doctors that he was able to shop by using a trolley onto which he would put his weight.
114. When asked as to whether he had told his experts that he was able to drive, the plaintiff gave evidence that he would have done so. In fact, it was his evidence that he was sure that he would have told them that he needed to get to the shops sometimes because he had no help. As far as he was concerned he told the doctors that he did drive.
115. He accepted that sometimes he could walk up from the car to a house to get marijuana and that he could walk short distances without crutches but not very far without them. He could also mobilise outside without a wheelchair. When it was suggested to the plaintiff that he told his experts precisely the opposite, he rejected that and said he thought he had told them that sometimes he would have to go out especially when his partner was not well, such as to go and get food. When it was suggested to him that he had told his doctors that he could not weight bear, the plaintiff rejected that and said that he told them he could. He was asked whether he could negotiate the steps at the front of the house without crutches. His answer to that was that he probably could not. He described having to hold on to the wall or bounce down on his left leg if he wasn’t using a crutch.
116. When the particulars of the disabilities resulting from the injuries given in the reply to particulars were put to the plaintiff and in respect of which he swore an affidavit of verification, the plaintiff said he could not remember what the position was in the year 2011 or 2014 or, for that matter, 2015 and whilst he accepted that the signature must have been his, he could not remember actually signing the affidavit. He did not even remember going to see his solicitors. When he was asked about the particulars which indicated that he was unable to weight bear on his right leg the plaintiff replied that he told his doctors that he was trying to get the weight down on his leg but that when he did so he was crippled.
117. With regard to the apparent contradiction between the evidence he was giving in relation to what he was able to do as far as his right leg was concerned and what was contained in the replies to particulars, his evidence was that whilst he could not remember everything there had obviously been what he described as “a big cock-up”. He accepted that he could in fact take weight on his right leg but that it was like walking on a broken leg and that hr could be left in crippling pain.
Surveillance evidence.
118. The defendants retained the services of the Cotswold Group located at Montpellier Court, Gloucestershire Business Park, Gloucestershire, England. The private investigators who undertook the surveillance were named as witnesses to fact on the defendant’s disclosure schedule dated the 27th of May 2015. The plaintiff refuted the suggestion made to him by counsel for the defendants that the reason he had given evidence as to his ability to mobilise without the aid of crutches, a wheelchair, a commode, to go shopping, and to drive a car was because he had become aware, albeit very late in the day, that he had been placed under surveillance.
119. Video surveillance of the plaintiff was introduced into evidence and shown to the Court. Recordings of the plaintiff were made on the 9th of March 2014, on the 6th of May 2014, on the 1st of December 2014, on the 6th of January 2015, on the 7th of January 2015 and on the 9th of March 2015. That evidence amply demonstrated that the plaintiff’s ability to negotiate the steps of his house unaided, to open the gates of his driveway, to bend down to do so, to go supermarket shopping unaided, to walk without the use of crutches, to load the contents of his supermarket trolley into the boot of his car, to raise his arm and close the boot lid of his car, to drive, and that when attending a medical appointment he mobilised with crutches and the use of a wheelchair.
120. Suffice it to say that the presentation of the plaintiff on the video was in stark contrast to the reporting and presentation made by him to his own experts and to those retained on behalf of the defendant in this case. The video evidence was put to the plaintiff. He accepted what the video showed but did not accept that these were regular occurrences; rather, that he only drove in emergencies or otherwise when he had to and he made a similar observation in relation to shopping. The video didn’t show the pain that he was in when doing those things.
121. The plaintiff explained his failure to recollect attendances at medical and other expert appointments and particularly what had been said during the course of those appointments by virtue of having serious memory difficulties. This was particularly evident in the course of his cross examination. On Tuesday the 9th of June he said he couldn’t remember anything about the previous Friday in court other than the fact that he was there. Ms. McKenna had similar difficulties especially when being cross examined in relation to her attendances with the plaintiff at expert appointments. She accepted that while she may have been physically present, her mind was somewhere else. She said that in their house it was like the blind leading the blind.
122. With the exception of Professor Green, all of the expert witnesses were afforded an opportunity of reviewing the video evidence before they gave their evidence to the Court. Mr. O’Driscoll commented that the video showed the plaintiff to be walking with what he described as a dreadful lurch consistent with an unhealed fracture. However, he accepted that the surveillance evidence did not show the severe behavioural chronic pain reactions that were evident at the time of examination or when the plaintiff was talking about his problems. He made an assumption that the plaintiff was unable to drive because of his injuries. He agreed that he was in possession of Ms. Russell’s report and that she had clearly been given to understand that the plaintiff was not driving. It was his evidence that when the plaintiff came to see him on both occasions for the purposes of medical examination and report that he was told that the plaintiff had been driven.
123. Under cross examination Ms. Russell accepted that the video showed the reality of the plaintiff’s abilities. Without assessing the plaintiff it was a challenge to her to give evidence in relation to the plaintiff’s claim for care but having viewed the video she thought that there was little personal care that the plaintiff would need. She accepted that the presentation made to her was quite different to that seen in the video. She had prepared a report and made her assessment on the basis of the presentation made to her.
124. The expert witness accepted that Ms. McKenna had been present at interview and had given information when requested. Both Mr. O’Driscoll and Ms. Russell agreed that the picture of the plaintiff seen in the video evidence was not the picture given to them. Mr. O’Driscoll agreed that had he been given that picture he would have dwelt less on the chronic pain and the psychological problems but he would still have said the plaintiff had a significant disability and would have not be able to undertake manual work. He agreed that there were many behavioural abnormalities exhibited when the plaintiff came to see him and, presumably, when seen by other specialists which were not seen on the video. He wasn’t able to carry out a full examination of the plaintiff.
122. If the plaintiff had presented as shown in the video evidence, Mr. O’Driscoll said that he would have expected to have been able to examine the plaintiff. In his view the truthfulness of an account was a matter for the Court rather than for him. Mr. O’Driscoll described the presentation made by the plaintiff to him at the time of medical examination and assessment as an “exaggeration” when compared to what was seen on video. He had to proceed on the basis of the medical notes and records, the x-rays, and what the plaintiff told him and on his examination. He thought that there were behavioural factors at play which were attributable, at least in part, from being told that his orthopaedic injuries had essentially healed whereas the severe injury to his right leg had not healed but nobody believed him.
123. Dr. Wills also agreed that the picture of the plaintiff presented to him was not what was seen on video. The presentation to him was of a man who was almost immobilised. He had given his opinion relying on that presentation.
124. Professor Wilkinson gave it as his opinion that there was a marked difference in terms of the plaintiff’s ability to mobilise between what the plaintiff was claiming when examined by him and what was evident on video. He agreed that that there were a number of psychological factors at play which might be said to explain the plaintiff’s behaviour. However, he considered that the plaintiff knew what he could and could not do. A failure to disclose that was, to his mind, something deliberate; it amounted to deliberate exaggeration. He considered the elaboration of physical symptoms for psychological reasons to be a bit of a nebulous idea. His view was that one would expect a person elaborating physical symptoms for psychological reasons to behave consistently. In his view, that was absent in this case and constituted a discrepancy in terms of the claim versus what was to be observed on video.
125. When asked to comment on the picture of the plaintiff as presented in the video evidence, Mr. Parkinson’s answer was that it was a video of a man not as he described himself to him, but rather the plaintiff was a different man. He was walking but he told him he wasn’t able to walk. He was driving but he was told he could not drive. When he assessed the plaintiff he was lying in bed; the plaintiff could just about potter across to the sofa five paces away on a good day and that was his limit.
126. Mr. Parkinson had asked the plaintiff to complete a questionnaire. In answer to a question as to whether he could reach up and down the plaintiff answered no but it is clear from the video surveillance that he was able to reach up to close the boot lid of his car.
127. Ms Bukowski, like Ms. Toplis and Ms. Russell, having seen the video expressed the view that in order for her to give an opinion as to the plaintiff’s requirements it would be necessary to carry out a full reassessment of the plaintiff, preferably after appropriate medical treatment had been carried out.
128. From a neurological perspective of the case Professor Phillips’s opinion, having seen the video, was that the plaintiff’s presentation was unusual and not explained from his perspective on any scientific basis. He accepted that the plaintiff had a dysfunctional right hip but did not accept that the plaintiff had a chronic pain syndrome. The plaintiff was certainly capable of being rehabilitated. He thought that the plaintiff needed a hip replacement which, despite its complexity, could be done. The plaintiff then needed a pain management programme as well as a programme of cognitive behavioural therapy. He agreed that if the tripartite intervention suggested by Mr. O’Driscoll was undertaken, the plaintiff’s ability to rehabilitate more quickly and more successfully was achievable.
129. He accepted that there would be a disability of walking around with a limp accompanied by pain and discomfort localised in the muscles around the hip and he also accepted that there was a significant psychological component in the plaintiff’s case.
Application for dismissal of the plaintiff’s claim.
130. At the conclusion of the evidence counsel on behalf of the defendant applied to the Court to have the plaintiff’s claim dismissed pursuant to the provisions of s. 26 of the Civil Liability and Courts Act 2004 (the Act of 04). Detailed written as well as oral submissions in relation to the case in general, and this issue in particular, were made by the parties and have been read and considered by the Court.
131. Having regard to the evidence given by and on behalf of the plaintiff in this case and the nature of the issue now under consideration, it is considered appropriate to observe that when asked whether the Court could rely on the content of the expert reports insofar as they referred to his presentation and what the plaintiff was recorded as saying to the experts, the plaintiff accepted that the Court could rely on the reports.
The submissions.
132. It is not intended to set out an exhaustive summary of the written and oral submissions which were made. However, given the nature of the application I consider it appropriate to outline the essence of these as follows.
133. It was submitted on behalf of the defendants in relation to this issue that on all of the evidence there could be no controversy but that the presentation and account of his disability given by the plaintiff to each expert retained to examine and report, was exaggerated. Insofar as he gave the experts to understand that he could not drive, that he couldn’t weight bear through his right leg, that he was housebound, and that he required at least two elbow crutches to carry out a very limited ability to walk, he knew that to be false and misleading.
134. It was also not in dispute that the plaintiff had sworn three affidavits of verification some of which he knew to be manifestly untrue in several material respects. The experts who had been called to give evidence did the best they could to assist the Court having regard to what they had seen on the video; that was substantially different to what they had reported. All of the experts, with the exception of Professor Green, had seen the video. However, what was in dispute between the parties, were the consequences which should flow as a result of those matters.
135. It was accepted that on an application under s. 26 of the Act of ‘04, the onus of proof lay on the defendants. The test to be applied was subjective but, once established, the plaintiff was not entitled to recover damages even for those injuries not directly tainted by false and misleading evidence.
136. The presentation of the plaintiff to his experts had resulted in the furnishing and particularisation of a claim for special damages to the defendant on the 29th of April, 2015 which, when actuarialised, amounted to £1,493,103.13 sterling.
137. It was submitted that the only tenable explanation for the difference in the plaintiff’s evidence between what he had admitted he was able to do in evidence and the accounts given by him to his experts was that he had become aware, after receipt of the defendant’s disclosure, that he had been placed under surveillance.
138. It was submitted that the contents of the personal injury summons and replies to particulars insofar as they portrayed the extent of the plaintiff’s disabilities arising from his injuries and the consequences of those disabilities for the future were false and misleading and which had been verified in three affidavits of verification sworn in accordance with the provisions of s. 14 of the Act of ‘04.
139. Apart altogether from the case as pleaded and verified on affidavit, it was submitted that the plaintiff had had given false and misleading evidence at the trial and had knowingly caused false and misleading evidence to be adduced by his presentation and reporting to the experts retained on his own behalf and on behalf of the defendant. It was submitted that there could not be any innocent reason or explanation or excuse by reference to psychological sequelae to explain the reporting and presentation to the experts. The plaintiff knew that his presentation and reporting in relation to the extent of the disabilities consequent upon his injuries were grossly exaggerated by him. Moreover, no step was taken by the plaintiff to inform his experts as to the true state of affairs concerning his ability to mobilise independently before the trial, nor to instruct his solicitors to inform the defendants of that by way of service of a notice of additional and updated particulars and verified on affidavit. In his evidence the plaintiff gave various conflicting explanations on his change of position which, by inference, were false. Otherwise he sought to avoid answering difficult questions by claiming memory loss. No credible explanation was given by him for the adjustment of his position as presented to the experts and that in his evidence to the Court particularly with regard to his ability to mobilise, shop, and drive.
140. It was further submitted on behalf of the defendants that if the Court took the view that they had not met the bar for an order under s. 26 the Court was, on the evidence, entitled under common law to strike out the plaintiff’s claim on several grounds set out in the decisions of Shelley Morris v. Bus Atha Cliath [2003] 1 IR 232, Vesey v. Bus Eireann [2001] 4 I.R. 192, Arrow Nominees v. Blackledge [2002] 2 BCLC 167, Summers v. Fairclough Homes Ltd [2012] 4 All ER 317.
141. In support of their application under s. 26 the defendants relied upon Ahern v. Bus Eireann [2011] IESC 44, Higgins v. Caldark [2010] IEHC 527, Meehan v. BKNS Curtain Walling System Ltd & Anor [2012] IEHC 441, Ludlow v. Unsworth [2013] IEHC 153, Salako v. O’Carroll [2013] IEHC 17 and Waliszewski v. McArthur & Company [2015] IEHC 264.
142. In reply it was submitted on behalf of the plaintiff that the section did not apply at all to the circumstances of this case. The plaintiff had given truthful evidence. Mr. O’Driscoll gave a perfectly good explanation as to why the plaintiff would think that he was walking on a broken leg.
143. Whilst accepting that the video evidence clearly presented a different picture to that conveyed to the experts and to the plaintiff’s own evidence given in chief before he was cross examined, and that that could fairly be described as an inconsistency or exaggeration, it was submitted that this was not an inconsistency or exaggeration within the meaning of the section because in this case the plaintiff was not knowingly or deliberately intending to mislead. He had an honest subjective belief that he was seriously injured and disabled as a result of those injuries.
144. On any view of the evidence the plaintiff has a serious injury and the only question is how devastating those injuries are for him. The inconsistencies or exaggerations were, it was submitted, excusable. The circumstances of this case would not warrant a dismissal of the claim. The plaintiff’s experts had given evidence taking into account the existence of the inconsistencies so no further reduction in relation to special damages would arise. This was a clear case where, if the section applied, an injustice would be done were the plaintiff’s claim to be dismissed. Whatever else this was not the claim of a chancer engaging in skulduggery. It was a very different case involving a man with serious physical and psychological difficulties.
145. It was also submitted on behalf of the plaintiff that the common law in relation to the making of an exaggerated claim prior to the coming into force of the Civil Liability in Courts Act, 2004 remains instructive in identifying the approach which the court should take in relation to evidence given in personal injuries actions. Referring to the decision of the Supreme Court in Shelley Morris v. Dublin Bus Atha Cliath [2003] 1 IR 232 and in particular to the judgment of Denham J. at p. 239 the plaintiff submitted that this was a case which fell into the second of the three scenarios set out by Denham J. in her judgment when dealing with the issue of exaggeration by a plaintiff in court proceedings and which were as follows:
“First, there is the case where the whole claim is concocted. The accident did not happen or did not happen as claimed. This is a fraudulent claim and will be dismissed by the trial judge.
Secondly, there is the situation where there is a genuine claim but the effect of the injuries is exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have. This type of approach involves no conscious lying by a claimant. The trial judge would determine the value of the damage suffered in accordance with the evidence, but would not condemn the evidence of the plaintiff.
A third scenario exists where there is a genuine case made establishing negligence but the plaintiff deliberately exaggerates the injuries, knowing that he or she is exaggerating the injuries and their effects. This may take on the appearance of a fraudulent claim. The lies of the plaintiff are apparent to the judge. It is at this stage that the trial judge (who has heard all the evidence and seen the witnesses) must exercise his or her judicial discretion. At issue is the credibility of the witness. If the credibility is so undermined that the burden of proving the claim has not been met then the trial judge will dismiss the claim. However, to achieve a fair result in all the circumstances, the trial judge may assess the credibility of the witness in light of the evidence of other witnesses. It may be that the negligence of the defendant is established but that the evidence of the plaintiff as to the injuries or some of the injuries may not be credible. This may arise in circumstances where injuries are not easily assessed objectively but great reliance has to be placed on the evidence of the plaintiff, for example in soft tissue injuries. The evidence of a plaintiff is critical. In a situation where the plaintiff has told a mixture of the truth and lies, his or her credibility is completely undermined. It is for the plaintiff to prove his or her case on the balance of probabilities. It may be that the deliberate exaggeration is such that the credibility of the witness is called into doubt and the burden of proof is not carried. Consequently, the plaintiff will not succeed in proving the claim to which such deliberate exaggeration applies.
146. It was submitted that the history as given by the plaintiff to the experts did not mislead them and that truthful evidence was given at the trial such that any exaggeration did not result in any misapprehension as to the plaintiff’s current condition and the type of treatment which would benefit him.
147. It was accepted that if the Court took the view that the plaintiff was deliberately misleading the experts, was going about matters deviously, conscientiously and knowingly in order to try to exert momentum in his claim then certainly the case would fall outside the second category in the Shelley Morris case. However, it was contended that in the particular circumstances of this case the plaintiff himself would not call or consider his presentation or reporting as exaggeration. One way or the other he had disabling injuries and he honestly believed in the extent of his disabilities.
148. With regard to the evidence given at the trial and his affidavits of verification, it was submitted that to the extent that any of the plaintiff’s evidence was false or misleading in any material respect or that any affidavit of verification sworn by him was false or misleading in any material respect, that the plaintiff did not know that such evidence was false or misleading.
149. It was also contended that although his reporting to doctors as reflected in the replies to particulars and affidavits of verification contained inaccuracies, when regard was had to the evidence of Mr. O’Driscoll and the ultimate acceptance by Mr. Pennie of the true nature of the plaintiff’s injuries, the plaintiff’s evidence was not false or dishonest but was, instead, a manifestation of his subjective perception of his condition and response to the blindness of a series of doctors to the true objective causes for his pain.
150. Undoubtedly the plaintiff was not as catastrophically injured as he honestly believes himself to be. The Court should award damages for what it now knows on the evidence is the truthful position of the plaintiff; a person who has suffered and continues to suffer from his injuries. In such circumstances this was a case where the Court should exercise discretion in his favour; to do otherwise would result in an injustice – as contemplated by the Act – being done to him. I took this to mean that even if the Court concluded that the section did apply, it had discretion to award damages representing what the Court knew to be reality of the plaintiff’s injuries. If the section did not apply there was, on the authorities, an unquestionable discretion to do so.
The Common law
151. The issue of exaggeration by a plaintiff in court proceedings at common law has been considered and outlined in a number of decisions in recent years. The law was extensively reviewed by the Supreme Court in Vesey v. Bus Eireann [2001] 4 I.R. 192 and Shelley-Morris v. Bus Atha Cliath [2003] 1 IR 232. Both parties relied on these decisions and accepted that the provisions of the common law were not ousted by the Civil Liability and Courts Act 2004. In essence there may be cases which fall outside the strict provisions of s. 26 of the Act which would, nevertheless, be governed by the common law position as enunciated in those authorities.
152. In Vesey it was held by the Supreme Court that it was not the responsibility of a trial judge to disentangle the plaintiff’s case where it had become entangled as a result of lies and misrepresentation systematically made by the plaintiff. The rationale for this is that if the trial judge were to embark on the task of doing so it would risk a perception of bias. Whilst the plaintiff might rely on the advice of his lawyers, doctors, engineers and other professionals none of the professional advisors were responsible for the factual contents of the pleadings or information given in replies to particulars.
153. That there could be circumstances in which the court would be entitled to dismiss a claim in its entirety as a result of the prosecution of what in effect amounted to a fraudulent claim is undoubted and was fully recognised in the decision of the Supreme Court in Shelley-Morris. In that case the Court observed that the issue is not a new one; exaggeration may arise in different ways in different cases. The extract from the judgment of Denham J. in this regard has already been set out earlier in this judgment.
154. Both Denham J. and Hardiman J. observed that the deliberate exaggeration by a plaintiff in the prosecution of a claim could, in an appropriate case, amount to an abuse of the judicial process. The rationale at law for this being that the courts have a duty to protect their own processes from being made a vehicle of unjustified recovery.
155. These decisions are also authority for the proposition that the onus of proof, lying as it does on the plaintiff, is to discharge that onus in a truthful and straightforward manner. Where that has not been done a court is not obliged to nor entitled to speculate in the absence of credible evidence as to do so would be unfair to the defendant. As to what action the court should take when satisfied that there has been an abuse of process, the court has an inherent jurisdiction, in a proper case, to stay or strike out the plaintiff’s proceedings.
156. Where a plaintiff has been found to have engaged in deliberate falsehoods to the point where the issue arises as to whether or not there has been an abuse of process of the court, Hardiman J. observed that a number of corollaries would arise from such a finding namely:
“(a) the plaintiff’s credibility in general, and not simply on a particular issue, is undermined to a greater or lesser degree;
(b) in a case, or an aspect of a case, heavily dependant on the plaintiff’s own account, the combined effects of the falsehoods and the consequent diminution in credibility mean that the plaintiff may have failed to discharge the onus on him or her either generally or in relation to a particular aspect of the case;
(c) if this occurs, it is not appropriate for a court to engage in speculation or benevolent guess work in an attempt to rescue the claim, or a particular aspect of it, from the unsatisfactory state in which the plaintiff’s falsehoods have left it.”
The Civil Liability and Courts Act 2004.
157. Section 26 of the Act provides:
“—(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that—
(a) is false or misleading, in any material respect, and
(b) he or she knows to be false or misleading,
the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that—
(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the affidavit,
dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.”
158. There have been a number of decisions on the meaning and effect of this provision which were reviewed by this Court in the recent decision of Waliszewski v McArthur and Company [2015] IEHC 264. The provisions of s. 14 and s. 26 of the Act were in force and governed the proceedings in this case. It is pertinent to observe that the section is by its terms confined to a plaintiff’s personal injury action and as I observed in Waliszewski:
“It is a provision which places in the hands of a defendant a weapon to attack and destroy a plaintiff’s case where evidence in any material respect which the plaintiff knows to be false or misleading has been given by the plaintiff, or where the plaintiff dishonestly causes such evidence to be given or adduced.”
159. It is quite clear from the authorities that when successfully invoked, there are serious and potentially penal consequences for the plaintiff. The court is obliged to dismiss the action altogether unless to do so results in an injustice being done.
160. It is well settled that the burden of proof under the section rests on the defendant who must satisfy the requirements of the section on the balance of probabilities. See Aherne v. Bus Eireann [2011] IESC 44; Meehan v. BKNS Curtain Walling Systems Ltd & Anor [2012] IEHC 441; Salako v. O’Carroll [2013] IEHC 17 and Waliszewski v. McArthur & Company [2015] IEHC 264.
161. The Act vests in the court a statutory jurisdiction to dismiss proceedings where a plaintiff gives or adduces, or dishonesty causes to be given or adduced, evidence that is false or misleading in any material respect where he or she knows such evidence to be false or misleading. The swearing of an affidavit of verification by a plaintiff which is false or misleading in any material respect and which the plaintiff knew to be false or misleading when swearing the affidavit is no less significant than the giving of false or misleading evidence. Quite separately and independently of the adducing or giving of evidence at the trial, the court has also vested in it by virtue of the provisions of s. 26 (2) a statutory jurisdiction to dismiss the action.
162. In either case s. 26 subs. 3 provides that an act is done dishonestly by a person if he or she does the act with the intention of misleading the court. It is significant that in the context of applying the provisions of the section with regard to the committal of a dishonest act that the court is concerned with the intention of the person committing that act rather than with whether the court has actually been misled.
163. The draconian effect of the provisions requires that they be construed strictly. It is not, as I observed in the judgment of this Court in Waliszewski:
“…intended to be nor should it be viewed as a vehicle for a defendant to have a plaintiff’s claim dismissed in the presence of unexplained circumstances where there are anomalies or inconsistencies in the evidence. See Dunleavy v. Swan Park Ltd [2011] IEHC 232… [and] Nolan v. Mitchell and Anor [2012] IEHC 151.”
164. Where the court finds that a plaintiff has knowingly sworn an affidavit which is misleading in any material respect or where a plaintiff has knowingly given evidence or dishonestly caused evidence to be given which is misleading in any material respect, the court is required by the provisions of s. 26 to dismiss the claim unless to do so would result in an injustice being done. The question of injustice fell for particular consideration in the case of Higgins v. Caldark Ltd [2010] IEHC 527. In that action the plaintiff suffered very serious injuries which included the necessity of surgically amputating his right thumb. A very substantial claim for special damages was advanced, part of which was abandoned three days prior to the date on which the case was listed for hearing. The Court found on the evidence that the claim for future costs advanced in the amount of €137,415 was largely based upon false and misleading information which the plaintiff gave to his experts. It was contended on behalf of the plaintiff that when he swore his affidavit verification he did not know or was not fully aware that some of the averments within his verifying affidavit were false and misleading. However, the Court found that the averments within the plaintiff’s affidavit of verification were materially false and misleading and that the plaintiff was aware of that when swearing his affidavit. With regard to the evidence given at the trial the Court found that the defendant did not discharge the onus of proof.
165. With regard to the question as to whether a dismissal would result in an injustice being done, and in respect of which similar submissions had been made on behalf of the plaintiff as are made in this case, the Court found that in his evidence the plaintiff had made no attempt to exaggerate the nature or extent of his injuries or their consequences and that, in common law, he had an entitlement to recover damages from the defendants to compensate him for those injuries and his consequent losses. However, the Court held that that entitlement had been statutorily qualified by the provisions of s. 26 of the 2004 Act. Commenting upon the draconian nature of the provision and the precise sanction which the court was required to impose where there had been a finding of the type made in that case, Quirke J. stated:
“…the imposition of the sanction has the effect of depriving the claimant of damages to which he or she would otherwise be entitled. The court must disallow both that part of the claim which has been based upon materially false and misleading averments, and also that part of the claim which would otherwise have been valid and would have resulted in an award of damages.
That sanction must be imposed unless its imposition ‘would result in an injustice being done’.”
165. It had been submitted on behalf of the plaintiff that the Court should disallow that part of the plaintiff’s claim which had been based upon his false and misleading averments and should allow that part of his claim which was valid and which would otherwise have resulted in an award of damages. It was contended that the relevant provision within s. 26 of the Act conferred a discretionary power upon the Court to make such an award. The learned trial judge, referring to this submission, observed as follows:
“…however, when the court has made a finding of the kind made in this case, its power to award damages is restricted and may only be exercised for certain stated reasons based upon evidence of certain exceptional circumstances. It must be satisfied, on the evidence, that dismissal will result in injustice and it must identify the nature and extent of the injustice.
The fact that the dismissal of an action would deprive a plaintiff of damages to which he or she would otherwise be entitled cannot, by itself, be considered unjust. Section 26 of the Act contemplates and requires such a consequence. Evidence in some proceedings may disclose the likelihood of injustice consequent upon dismissal. For instance, it may be unjust if the claim of a catastrophically injured claimant for the cost of ongoing care is dismissed because he or she has knowingly adduced some (perhaps trivial) misleading evidence in respect of some other category of damages. Similarly, the dismissal of a fatal injuries claim based upon misleading evidence knowingly adduced by an adult plaintiff, may unjustly penalise an infant or incapacitated dependents. In this case, dismissal of the plaintiff’s action will have severe consequences for him. It will deprive him of significant compensation for his injuries and their consequences. It will affect his life and lifestyle in the future.
However, the court’s discretion is limited. It may not be exercised simply because the statutory sanction required would have very severe consequences for a hard working and likable man who suffered a serious injury. The misleading evidence within the plaintiff’s verifying affidavit was not trivial. It was intended to support claims for very substantial sums by way of damages.”
In that case the Court found that there had been no evidence of exceptional or other circumstances adduced which would warrant the exercise of its discretion by refusing the application and the proceedings were dismissed.
166. That rationale was adopted and applied by this Court in Meehan v. BKNS Curtain Walling Systems and another [2012] IEHC 441. Ryan J. held that:
“Section 26 is mandatory. If it applies to the case, the legitimate parts of the claim cannot survive with only the false or misleading elements dismissed”.
Addressing the question of what constitutes injustice in the context of the section, the learned trial judge observed:
“One of the examples given in the cases is if a plaintiff who told a relatively trivial lie had catastrophic injuries then it would be wholly disproportionate in that situation and accordingly unjust to dismiss the whole action because of a relatively unimportant or peripheral or trivial untruth”.
The Court found that there was no evidence of exceptional or other circumstances adduced which would have enabled it to find that the dismissal of the action would result in an injustice and accordingly the plaintiff’s claim was dismissed.
Decision on the defendant’s application to dismiss the proceedings.
167. I have had the opportunity during the course of the trial to observe the demeanour of the plaintiff as he gave his evidence and also in the way in which he sat in and transferred from a wheelchair to and from the witness box. He presented as a man who was grossly disabled in terms of his mobility with the expression of a person in constant pain. As I have already observed earlier in this judgment, the plaintiff’s presentation came as no surprise having regard to the pleadings and the opening of the case made on his behalf. This, in my view, is significant having regard to the evidence which enfolded and in particular the surveillance evidence of the plaintiff. The plaintiff carries the onus to prove his case on the balance of probabilities. The law requires that onus to be discharged in a truthful and straightforward manner. I am satisfied on the evidence that, with particular regard to the issue in respect of the extent of the disabilities consequent upon his injuries, the plaintiff did not do so in giving his evidence. In that regard I found the plaintiff’s answers to questions put to him as to what he had or had not said to the experts concerning the level of his disabilities neither honest, credible nor reliable.
168. The defendants submitted that if for any reason they failed to meet the onus placed upon them in relation to the application under s. 26, then they sought to rely on the common law as enunciated in the decisions of Vesey and Shelley-Morris to have the plaintiff’s claim dismissed. The application of the defendants under s. 26 involved a two-pronged approach. They sought an order for dismissal not only on foot of the provisions of s. 26 (1) but also pursuant to the provisions of s. 26 (2).
169. The application under s. 26 (2) is based on three affidavits of verification sworn by the plaintiff in relation to his claim; the most recent of which was an affidavit of verification sworn by the plaintiff on the 30th of April 2015 in respect of the plaintiff’s claim for special damages and future loss. Whilst it was accepted in submissions made on behalf of the plaintiff that there were some inconsistencies in the pleadings and particulars, these were not made knowingly to be either false or misleading.
170. The affidavit of the 30th April exhibited a preliminary schedule of special damages and future loss totalling £1,493,103.13 sterling. At para. 3 of the affidavit the plaintiff averred that:
“…I have studied the contents of the said preliminary schedule of special damage and future loss which was drafted pursuant to my instructions and I state that the particulars included in same and that all the averments and/or pleas contained within same are correct, true and accurate in every respect to the best of my knowledge.”
171. The plaintiff went on to aver at para. 4 that:
“I have been advised by my solicitor that if I make a statement within this affidavit which is false or misleading in any material respect and/or which I note to be false or misleading, I will be guilty of an offence pursuant to s. 14 of the Civil Liability and Courts Act, 2004”.
172. The plaintiff concluded his affidavit of verification by averring that:
“…the matters contended for by me within this suit are correct and accurate to the best of knowledge and belief.”
173. The surveillance video in this case commences on the 9th of March 2014; some thirteen months prior to the affidavit of verification in relation to the claim for special damages. The surveillance video shows the plaintiff’s ability to mobilise unaided, including his ability to shop, and drive a car, on the 9th of March, 18th of March, 6th of May and 1st of December 2014, and on the 6th of January, the 7th of January and 9th of March 2015. I find as a fact that the surveillance evidence represents the truth concerning the plaintiff’s ability to mobilise independently of crutches or a wheelchair, to drive his car, to go shopping, and to walk on his right leg albeit with a pronounced limp.
174. That surveillance of the plaintiff was completed on a date prior to the swearing of his affidavit of verification in respect of his claim for special damages. Mr. Brendan Lynch, consulting actuary, prepared a report on behalf of the plaintiff dated the 14th of May 2015 in relation to the plaintiff’s future loss of earnings, care, aids, appliances and services, and recurring costs associated with accommodation. The capital value of these heads of damage was given in a range of £784,962 to £928,267 sterling. Mr. Lynch gave evidence at the trial. He confirmed in evidence that he had relied in the preparation of his report on the reports of the experts retained and furnished by the plaintiff. Having viewed the video evidence, the plaintiff’s experts gave evidence on the basis of what they had seen. This resulted, during the course of the trial, in an abandonment or modification of a significant portion of the claim for special damages.
175. Whilst there was no video evidence in relation to the plaintiff’s ability to mobilise until 2014, it was conceded that the pleadings and particulars delivered prior to that time did contain some inconsistencies. It is clear that Ms. Jane Toplis assessed and reported as recently as the 11th of November 2014. What is also clear from the video surveillance is that when the plaintiff was seen by Ms. Toplis in November 2014, by Mr. Pennie in May 2014, by Ms. Bukowski in November 2014, by Professor Phillips and Mr. Parkinson in January 2015, he had the ability to mobilise in the way seen and could not but have been aware of his abilities in this regard at the time when he was examined and/or assessed by those experts. It follows from the foregoing that he also possessed that knowledge at the time when he swore his affidavit in April 2015. That affidavit was sworn by the plaintiff in circumstances where his solicitors had advised him of the consequences, which he acknowledged, of his swearing an affidavit which was false or misleading in any material respect.
176. It was submitted on the plaintiff’s behalf in respect of the application under both sub paragraphs 1 and 2 of s. 26 that the plaintiff had an honest subjective belief in the extent and seriousness of his disabilities. Whilst it is an incontrovertible fact, founded on the evidence of both Mr. O’Driscoll and Mr. Pennie, that the plaintiff’s subthrochanteric fracture has not in fact healed and that the limp with which he walks is consistent with and attributable to that condition, I am satisfied that this has not resulted in the level of disability represented by the plaintiff both to his experts and to those of the defendants. In my view of the evidence, the level of disability portrayed by the plaintiff to the experts was not consistent with the injuries or what is seen on video, but is and was a gross exaggeration of the truth of the plaintiff’s ability to mobilise unaided.
177. What is relevant to this issue, however, is whether the plaintiff had a subjective, genuine and honest belief that he was so disabled when he swore his affidavits of verification. In this regard the Court has to be satisfied on this application that the exaggeration by the plaintiff, about which there cannot on the evidence be any doubt, was deliberate. As to that I accept the evidence of Professor Wilkinson that it was so. In answer to question 133 as to whether there was any explanation for this presentation, Professor Wilkinson’s evidence was as follows:
“..Well, I think I would say that it’s deliberate exaggeration. He knows that he can do these things but he doesn’t tell anybody. So, to my mind, that is something deliberate. I am making an inference that he is aware of what he does. He is aware and he has, I think, admitted in evidence that he does these things and I think he has always been aware of that. So, to my mind that is deliberate exaggeration. If you turn up, for example, to Mr. Phillips with your leg outstretched in that bizarre way, how does that fit in with just a bit of exaggeration to make it clear that there is something wrong, I don’t know.”
In answer to question 148 Professor Wilkinson said:
“…elaboration of physical symptoms for psychological reasons is a bit of a nebulous idea and it is what it is, it is what it says except that you would expect people to behave consistently. So, they should behave all the time as if they’ve got that condition and that’s where there is a discrepancy in this case in terms of the claim versus the observed finding.”
178. I find the evidence of Professor Green to be of no assistance on this issue as he was not afforded an opportunity to view and could not comment on what was to be seen on the video.
Conclusion on the application under section 26 (2).
179. Having regard to these findings I reject the plaintiff’s submission that this is a case to which the provisions of S. 26 do not apply. Being satisfied, as I am on the evidence, that the truth concerning the plaintiff’s ability to mobilise unaided is that as portrayed in the surveillance video, and accepting as I do the evidence of Professor Wilkinson, I am satisfied that when the plaintiff swore his affidavits of verification he knew what the truth was and that, with particular regard to his affidavit in respect of his claim for special damages, he knew that that claim was based on the presentation of his disabilities made by him to his own experts, that that presentation was grossly exaggerated, and that his intention in doing so was to maximise the damages he sought to recover from these defendants.
179. The fact that part of the claim for special damages was either abandoned in full or substantially modified at trial – the plaintiff’s experts doing the best they could on the basis of the surveillance evidence they had seen – affords no excuse in relation to this application. Rather, what is relevant is what the plaintiff intended at the time when he swore his affidavits of verification. I am satisfied that the swearing of the affidavit in respect of his claim for special damages in particular was a dishonest act within the meaning of the section.
180. When it was suggested to the plaintiff that the only reason he gave evidence accepting that, on rare occasions and generally in the context of an emergency, he could in fact weight bear on his right leg unaided, that he could mobilise without crutches or the use of a wheelchair and that he could drive was because he had recently become aware that he had been placed under surveillance, the plaintiff denied that was the reason and said that he would have always given such evidence. I do not accept that answer was truthful.
181. The plaintiff made no effort to correct the record by, if necessary, seeking an adjournment for the purposes of having his experts and those of the defendant reassess and report on what is in fact the truth concerning his ability to mobilise, nor did he instruct his solicitors to deliver further particulars to represent to the defendants and to the Court what was in fact the truth. Rather he was content for the case to commence and to be opened, as it was, with what his own counsel portrayed as a very significant claim for future loss both in respect of aids and appliances, loss of earnings and future care.
182. I am satisfied that were it not for the surveillance evidence the plaintiff would have proceeded with the claim as presented; with his experts giving evidence in line with the reports which they had prepared for these proceedings. It was only after the video surveillance was shown to the rehabilitation and vocational experts that they modified their evidence in relation to the plaintiff’s requirements; doing the best they could on the basis of what they had seen. Accordingly, I am satisfied that the defendants have discharged the onus of proof placed upon them in relation to the application under s. 26 (2) of the Act.
183. Insofar as the application pursuant to s. 26 (1) is concerned, I am satisfied that when the plaintiff gave evidence that his right leg had not gone up or down since he came out of hospital, he knew that that evidence was false and misleading. I reject as untrue his evidence that he was only able to walk a short distance without crutches and only went out of the house on rare occasions – generally in the case of emergencies – when his partner was unwell, when there were no family or friends to do the shopping, or when having to attend medical appointments. The surveillance evidence taken over the period of a year gives the lie to that. Moreover, when it was put to him that none of the experts had recorded his ability to mobilise, especially outside of the house without the benefit of crutches or a wheelchair, or his ability to drive a car, the plaintiff’s evidence was evasive; answering either that he couldn’t remember or, alternatively, that he had told them what he could do. As I have already found, his answers were neither honest, credible or reliable.
Conclusion under S. 26 (1).
184. When pressed, the plaintiff accepted that in relation to both his presentation and reporting to the experts that the Court could rely on the contents of the reports as a record of what he had said when being examined or assessed. In their turn, each of the experts variously accepted that the picture conveyed by the surveillance video was different, not in accordance or was otherwise inconsistent with the presentation and reporting made by the plaintiff to them. I am satisfied and find as a fact that when the plaintiff was giving evidence in relation to what he had told the experts concerning his disabilities, the record of his presentation and disabilities contained in the expert reports correctly reflected the presentation and what had been said by the plaintiff. There was no record made of his true abilities to mobilise independently. Moreover, I am satisfied and find as a fact that he knew his presentation and reporting to be an exaggeration of the truth, and am driven to the conclusion, as a matter of probability, that his intention was to mislead for the purpose of maximising his claim. No plausible or satisfactory explanation or evidence which the Court could accept for not informing the experts of his ability to mobilise independently and to drive was given. Having due regard to all of these findings, I hold that the defendants have also discharged the onus of proof in relation to the application under S. 26(1) of the Act.
Injustice
185. Having reached these conclusions it is necessary for the Court to consider, as was submitted by the plaintiff, the question of whether the dismissal of the plaintiff’s claim will result in an injustice being done to him.
186. In the particular circumstances of this case I adopt the views expressed in the judgment of Quirke J. in Higgins v. Caldark, and applied in Meehan. Whilst the dismissal of the plaintiff’s claim will have severe consequences for him and will deprive him of significant compensation for the severe injuries which he undoubtedly sustained as a result of the accident – the Court having made the findings it has in relation to liability and the apportionment of fault – that cannot, by itself, be considered unjust since it is clear from the provisions of the section that such a consequence is both contemplated and required.
187. Considering the nature and magnitude of the claim in these proceedings, the matters in respect of which misleading or false averments were made or evidence was given were neither trivial nor excusable. On the contrary, evidence was given and averments were made which were knowingly misleading and/or false in a material respect and intended to support a very substantial claim by way of damages.
188. Insofar as it was part of the plaintiff’s submissions that the court has discretion envisaged by the section to award the plaintiff damages in respect of those injuries about which there is no real dispute, that submission has to be rejected. The discretion of the court under the section is limited and may not be exercised simply because the statutory sanction required will have very severe consequences for the plaintiff. That the court could, in an appropriate case, accede to such a submission in circumstances where it had decided that dismissal of the action would result in an injustice being done would seem to follow. In that event, the discretion of the court would fall to be exercised in accordance with the principals of common law referred to earlier in this judgment. This, however, is not such a case.
Conclusion on the question of injustice.
189. Notwithstanding the conclusions reached in respect of liability and the apportionment of fault, there are not, in my view of the evidence, exceptional or other circumstances which would warrant the Court in finding that a dismissal of the plaintiff’s claim would result in an injustice.
189. Having reached these conclusions, I find it unnecessary to express a view in relation to the application of the common law to this case save that, had it been necessary to do so, I would have rejected the plaintiff’s submissions that this was an action which fell within the second category of claim enunciated in the judgment of Denham J. in Shelley Morris.
Ruling.
190. Upon the findings made and the conclusions reached the Court is required to dismiss the plaintiff’s claim and I will so order.
191. There being no evidence that the 2nd named defendant was either the owner of the hotel or occupier of the premises, or otherwise evidence of negligence on his part, the proceedings also fall to be dismissed against that defendant on those grounds.
McNamara v University College Dublin
[2015] IEHC 90
JUDGMENT of Mr. Justice Barr delivered on the 4th day of February 2015
1. On 28th September, 2012, the plaintiff had an appointment with a member of the staff of University College Dublin. The meeting was to take place in the Nova building on the Belfield campus in Dublin. The plaintiff stated that shortly before 11am he entered the Belfield campus from the upper entrance on Foster’s Avenue. The plaintiff parked his car in a car park which was adjacent to a pedestrian walkway. The car park and walkway is shown in photograph number two in Mr Tennyson’s booklet of photographs.
2. The defendant’s witness, Ms Sara Casey, stated in her evidence that the plaintiff had told her that he parked his car in a car park near the Sutherland School of Law, which was under construction at the time. She said the plaintiff recounted that he had walked down the side of the building site, with hoarding on his left; and that at the end of the hoarding, he turned to his right and walked along another path also with hoarding to his left. He said that he took a further right turn at the end of this hoarding, which would bring him to the car park and walkway, as shown in Mr Tennyson’s photograph number two.
3. While there is some disagreement between the parties as to how the plaintiff made his way to the walkway shown in photograph number two, the parties seem to be agreed that the plaintiff came to be on this particular walkway, where he met with his accident. In the circumstances it is not necessary to resolve this dispute as to the route which the plaintiff took to get to the walkway in question.
4. The plaintiff stated that he entered the walkway through a gap in a small hedge between the car park and the walkway. The walkway is approximately 126m long and 3.5m wide. The plaintiff stated that on this particular day at approximately 11am, the walkway was crowded with students coming and going from their lectures. The plaintiff stated that most of the students were walking against him. As he came towards the end of the walkway, there were two groups of students coming against him. After that there was a line of five people also coming against him. The plaintiff was walking on the walkway slightly to the right, on the side which was bordered by a large hedge.
5. The plaintiff knew the general area where the Nova building was located. However, he stopped a man, who was in the line of five people coming against him. The plaintiff stated that the man was on his own; he just happened to be walking in a line with the other four people on the walkway. The plaintiff asked the man if he was going in the correct direction for the Nova building. The man replied “Yes” and indicated that the building was over to his left. With that the man continued on. The plaintiff said that he took one step forward when his knees hit a bollard in the shape of a cube, which had been placed with another similar bollard on the walkway. The plaintiff tripped and fell to the ground, suffering a fracture of the left radial head.
6. There were two cube shaped bollards placed across the walkway. They were situated 10m back from the pedestrian crossing on the road within the campus. They were approximately 115m from the Glenamena end of the walkway. The bollards were two granite cubes measuring 450 x 450 x 450mm (18 inches). There was a gap of 1.7m (5 feet 7 inches) between the bollards.
7. The plaintiff stated that he had not seen the bollards due to the large volume of people coming against him on the walkway. Ms Casey, the assistant safety officer, stated that the particular walkway is one of the main access routes for students leading from the student residences to the other buildings on the campus.
8. The plaintiff stated that the man he spoke to, was standing in front of the bollard, thereby blocking his view of it. When he had confirmed the location of the Nova building, he simply stepped forward and immediately came into contact with the bollard as a result of which he tripped and fell to the ground.
9. It was put to the plaintiff that the bollards were plainly visible, if he had been keeping a proper lookout of where he was going. The defendant’s engineer, Dr. Woods, stated that the bollards were visible from a distance back of 97m. This measurement presupposes that the plaintiff had a clear line of sight of the walkway ahead of him, which was not obscured by the presence of other people on the walkway in front of him. The plaintiff was very clear in his evidence that, at the time of the accident, his line of sight of the bollards was obscured due to the large number of people coming against him on the walkway.
10. The plaintiff’s engineer, Mr Tennyson, was of the opinion that the use of these cube shaped bollards was a crude way of preventing vehicles entering the walkway. He stated that the use of isolated bollards on the walkway represented a danger to the plaintiff, as he would not have been aware of their existence. He was of the view that the cube shaped bollards were unsuitable for a busy pedestrian zone. It was dangerous because they were low level and were difficult to see with pedestrian traffic on the walkway. In this regard, Mr Tennyson thought that the bollard, being grey in colour, did not stand out sufficiently from the surrounding tarmacadam surface of the walkway.
11. Mr Tennyson was of the view that such bollards could be used at other locations, such as if placed at the edge of a kerb to prevent vehicles mounting the curb. Or they could be used if there was a line of such bollards thereby making them more visible. In this regard, he noted that such bollards were used by Dun Laoghaire Rathdown County Council at the ferry port in Dun Laoghaire. However, they were in a line of bollards interspersed with planting boxes, placed at the edge of the footpath or promenade area, so as to prevent vehicles parking on the edge of the kerb or entering the promenade area. In such circumstances, the cubes would be visible because they were being used in a wide open space and therefore their presence would not be obscured by other people using this area. Also, the fact that they were placed in a long line would have alerted pedestrians to their existence.
12. In Mr Tennyson’s opinion, the defendants should have used posts at the locus to prevent vehicles entering onto the walkway. Such posts would be fixed into the ground and would be approximately waist height. Posts of this kind had been used by the defendant on a number of walkways throughout the campus.
13. The defendant’s engineer, Dr Woods, thought that the height of the bollard at 18 inches was not particularly low lying or dangerous. He thought that there was quite good colour contrast between the granite cube and the surrounding tarmacadam surface. He was of the view that even when a large a number of people were on the walkway, the flow of pedestrians would have to come inwards to pass through the space between the cubes. At this point, the cubes would be visible to an oncoming pedestrian. The flow of pedestrians would then fan back out over the width of the walkway. He was of the opinion that the cubes would still be visible through the legs of the oncoming pedestrians. However, he accepted in cross-examination that if a person was standing directly in front of the cube, he would block the plaintiff’s view of it; and that if there was a large number of people on the walkway, a persons view of the bollard would be obscured.
14. Dr. Woods accepted that if the defendants were doing a risk assessment of the locus, they should have taken into account the large number of people in the area. On the evidence, they did not appear to have carried out any such risk assessment. In this regard, evidence had been given by Mr Ciaran Bennett, the ground facilities manager with UCD Estate Services. He stated that there was a problem with vehicles entering the walkway, hence the need for the cube shaped bollards to prevent this from happening. He stated that the defendant did not carry out any risk assessment when deciding to place cubes at the locus. They just made sure that there was sufficient space between the cubes to allow for wheelchair access to the walkway.
15. Mr Bennett stated that there were a number of different types of bollards used throughout the campus. They used steel posts on a number of walkways. He stated that the drawback of using such posts was that they needed ground works to secure them into the ground. This could pose a difficulty if there were underground cables in the area. He accepted that steel posts could have been used at the locus.
16. In the course of his evidence, the plaintiff recounted the content of a telephone conversation which he had with Ms Casey. He said that the lady from UCD had phoned him and, in the course of the conversation, had said that the bollards had been put in place to stop bicycles going onto the walkway. He recounted that she said “we must do something about them, maybe paint them. We need to make them more visible”. In her evidence, Ms Casey denied ever making such comments to the plaintiff in the course of their telephone conversations.
The Law
17. The legal duty owed by an occupier of premises to a visitor thereon, is governed by s. 3 of the Occupiers Liability Act, 1995. That section provides as follows:-
“3.—(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5 .
(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
18. The term “visitor” is defined in s. 1 of the Occupiers Liability Act, 1995 as:-
(a) an entrant, other than a recreational user, who is present on premises at the invitation, or with the permission, of the occupier or any other entrant specified in paragraph (a), (b) or (c) of the definition of “recreational user”,
(b) an entrant, other than a recreational user, who is present on premises by virtue of an express or implied term in a contract, and
(c) an entrant as of right,
while he or she is so present, as the case may be, for the purpose for which he or she is invited or permitted to be there, for the purpose of the performance of the contract or for the purpose of the exercise of the right, and includes any such entrant whose presence on premises has become unlawful after entry thereon and who is taking reasonable steps to leave.”
19. In Louise Allen v. Trabolgan Holiday Centre Limited [2010] IEHC 129, Charleton J. gave the following analysis of the common duty of care which is owed by an occupier to a visitor:-
“2. Under s. 3 of the Act the occupier owes a common duty of care towards a visitor. This duty is defined as an obligation to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. As to that duty, it is clear that merely establishing that an accident occurred on premises is not enough. The plaintiff must show that a danger existed by reason of the static condition of the premises; that in consequence of it he/she suffered injury or damage; and that the occupier did not take such care as was reasonable in the circumstances to avoid the occurrence. The duty of care so defined is at a markedly higher level than that which applies to recreational visitors, such as those exploring the countryside or historical sites, or to trespassers. A visitor is defined in s. 1(1) of the Act as a person who enters as of right, for instance a fire fighter; or someone paying to go to the theatre would be an example of that; who is in the premises on the invitation, or with the permission of, the occupier, this would extend to both the customer of a shop and a guest coming to a private house for a meal; and those who come to a place for a recreation without charge and who are a family member, or someone invited, or are there for social reasons.”
20. I will now proceed to apply these legal principles to the facts of this case.
Conclusions on Liability
21. The plaintiff was present on the UCD campus due to an arrangement that he had to meet with a member of staff in the Nova building. In these circumstances, the plaintiff was a “visitor” within the meaning of the Occupiers Liability Act, 1995. The defendant owed to him the common duty of care which amounts to a duty to take reasonable care to prevent the plaintiff suffering injury due to any danger on the premises.
22. I am satisfied that the plaintiff has given a truthful and accurate account as to how he came to have his accident. I accept that there was a large number of pedestrians on the walkway in front of the plaintiff at the time of the accident; and that his view of the bollards was obscured by the volume of pedestrians coming against him. Accordingly, the plaintiff was not guilty of contributory negligence in failing to see the bollards which had been placed across the walkway.
23. This raises the question as to whether the use of these bollards at the locus constituted a danger on the premises. I am satisfied that the bollards did constitute a danger to people using the walkway and to the plaintiff in particular. The bollards were isolated in the sense that they were not part of a line of bollards. They were a low lying obstacle, measuring only 18 inches high. When there was a large number of people on the walkway, their presence would have been obscured to pedestrians coming from the Glenamena end of the walkway. In the circumstances, to place a low lying obstacle on the walkway created a danger at the locus.
24. The defendant has made a case that such bollards were used elsewhere on the campus and are also in use at Dun Laoghaire ferry port and on Capel Street Bridge. I do not accept this as a fair comparison. The use of the cubes in Dun Laoghaire and on Capel Street Bridge was different to the use of the cubes in this instance. At the ferry port and at Capel Street Bridge, the cubes were used in a fairly wide expanse such that they would be visible to persons using these areas. Secondly, they were used as a part of line of such cubes, thereby making them more visible.
25. From the photographs taken by Mr Tennyson, it would appear that the cubes used elsewhere in the college, were either at the side to prevent vehicles mounting the kerb or entering across areas of vegetation, or were in wide expanses such that they would be plainly visible to persons using the area.
26. In the present case the cubes were placed across a walkway measuring 3.5m wide. When the walkway was busy with pedestrian traffic, their presence would be obscured from the line of sight of persons approaching from the Glenamena end. The presence of such low lying obstacles at the locus constituted a danger and a breach by the defendant of the common duty of care owed to the plaintiff. I am satisfied that if the defendant had given thought to the question, they would have seen that the use of such cubes at the locus constituted a danger to persons on the walkway. As Mr Tennyson said, this was a crude method of preventing vehicular access to the walkway. The same result could have been achieved by placing posts across the walkway. This would have prevented cars going down the walkway, but would not have constituted a trip hazard to pedestrians on the walkway. If there were any underground cables in the area, the posts could have been moved forward or backwards as required. In the circumstances, I am satisfied that the defendant is liable for the injuries suffered by the plaintiff. As already noted in this judgment, I do not consider that the plaintiff failed to take reasonable care for his own safety.
27. As already noted herein, there was a stark conflict of evidence between the plaintiff and Ms Casey as to the content of their telephone conversation. I do not find it necessary to resolve this conflict. However, I do not make any finding that there was any such admission of liability express or implied on behalf of the defendant in the course of this telephone conversation.
Quantum
28. The plaintiff is 65 years of age. He is right hand dominant. He suffered a fracture of the left radial head. He was taken to St Vincent’s University Hospital on the day of the accident where he came under the care of Mr Sean Dudeney. He suffered significant pain and limitation of movement of the elbow joint in the immediate aftermath of the accident. He managed to continue with his work as a business consultant, due to the fact that his wife drove him to business meetings. He had four sessions of physiotherapy treatment between 13th October, 2012, and 9th February, 2013.
29. He was reviewed by Mr Dudeney on a date that is unclear. However it would appear to have been in 2014, because there is reference in the report to x-rays having been taken at two years post-accident. At the time of this examination, the plaintiff complained of intermittent left elbow pain. He was aware of this pain while swimming the backstroke. He avoided lifting on the left side and had difficulty driving. Overall, he rated his elbow at 85% of normal and felt that this was similar to the examination approximately one year previously. He continued to do his elbow exercises. He had no pain at night time and no mechanical locking. He was on no medication for the pain.
30. Examination revealed a loss of five degree of full flexion and full extension. He had full supination and pronation and there was no neurovascular deficit. He had some diffuse tenderness over the lateral aspect of the elbow in the region of the radial head.
31. Initial x-rays had showed a very minimally displaced fracture of the radial head, with evidence of haemarthrosis. An x-ray taken at the time of that examination showed a satisfactory appearance of the elbow joint and specifically of the radial head. There was no evidence of post traumatic degenerative change.
32. Mr Dudeney was of opinion that the plaintiff’s symptoms had largely plateaued. He had some very minimal loss of range of movement which was not functionally significant and current x-rays at two years post injury showed no evidence of post traumatic degenerative change and, overall, a satisfactory appearance of the elbow.
33. Mr Dudeney stated that he would expect the plaintiff to continue to have some minimal symptoms into the future. There was no evidence of gross post traumatic degenerative change and he thought that the development of this was highly unlikely. The main difficulty for the plaintiff appeared to be when driving. Mr Dudeney was of the opinion that this may continue to bother him when driving. He would expect the plaintiff to go on to have minimal long term functional sequalae and not to develop post traumatic degenerative change
34. The plaintiff was seen by Mr James Colville FRCSI on behalf of the defendant on 4th June, 2014. At the time of that examination the plaintiff complained that he still had a problem with his elbow when driving. He had noticed that he had lost some movement in his elbow. He did not think that there had been any change in the recent past and he has learned to live with his symptoms. Examination of the left elbow comparing it to the right revealed a loss of extension of ten degrees. There was also a loss of supination of ten degrees. There were no clinical signs of arthritis.
35. Mr Colville noted that the plaintiff had sustained a painful injury requiring a short period of treatment, from which had made a good recovery. However, he had not made a full recovery. He had lost about ten degrees of full straightening of the elbow joint. This was unlikely to change with time, but it would not get any worse. He also had a slight loss of turning of the forearm which, in Mr Colville’s opinion, was a permanent reminder of his injury. Neither of these restrictions represented a significant functional deficit. The fracture involved the joint surface but was minimally displaced and the likelihood of the plaintiff developing arthritis in the long term was remote. The symptoms of which the plaintiff complained were reasonable and to be expected.
36. The special damages in this case amount to €765.00.
37. I am satisfied that the plaintiff has given a truthful account of his injury and recovery to date. He continues to have symptoms especially when driving, swimming and gardening. He has limitation of movement of the elbow joint, which will be permanent. In these circumstances, I award the plaintiff the following damages:
General damages to date €45,000.00
General damages for future pain and suffering €20,000.00
Special damages € 765.00
€65,765.00
Altman v Blackrock Clinic
[2015] IEHC 35
JUDGEMENT of Mr. Justice Bernard J. Barton delivered the 20th day of January, 2015.
1. The plaintiff was born on the 4th day of December, 1954. She brings these proceedings against the defendant for damages for personal injuries and loss arising as a result of an accident which occurred on the 29th day of June, 2006 in the defendant’s premises known as the Blackrock Clinic, County Dublin. The plaintiff, who was a pedestrian, claimed that she fell as she was preceding from the access road to and from the clinic onto a pedestrian walkway and which was located adjacent to the entrance to the clinic car parks.
2. The plaintiff alleged in her pleadings that she was caused to trip and fall on a step and/or an incline and/or a ramp and which she alleged constituted a hazard for pedestrians including herself. A full defence was delivered to the plaintiff’s claim thereby putting liability between the parties in issue. The defence also incorporated a plea that the plaintiff was guilty of contributory negligence the essence of which was that the plaintiff was the author of her own misfortune.
3. During the course of the opening of the case it became apparent that the plaintiff, who represented herself, her former solicitors having come off record, was not in a position to call some of the medical witnesses who had treated or who had advised her and that she wanted to update her particulars of personal injury and loss. In this regard the court acceded to her application to adjourn the trial of the action insofar as it related to the question of quantum but directed, on an application by the defendant under O.36 of the Rules of the Superior Courts, that all matters of fact relating to the issue of liability be tried separately, both parties then being in a position to proceed with that aspect of the case.
4. The evidence of the plaintiff was that she drove into the Blackrock Clinic for the purposes of collecting her mother who was in a wheelchair and waiting for the plaintiff at the hospital reception. The plaintiff was driving a black BMW motorcar and was unaccompanied. On reaching the car park barrier she noticed a car parking space to her right which was located on the public road side of the barriers and which was one of several parking spaces reserved for consultants and members of staff.
5. In the course of her evidence the plaintiff indicated that she was happy to be able to park in the vacant space as it meant that she did not have to pay for parking and saved her the inconvenience of searching for one in the clinic’s car parks. Accordingly, she reversed into the vacant staff car parking place, got out of her car, and started to cross the access road. As she did so she realised that she had left her mobile phone in the car to which she returned: having retrieved her phone she recommenced crossing over the access road to a pedestrian walkway which was located on the side of the road opposite the staff car parking facilities.
6. The plaintiff was very familiar with the clinic and had attended there on a number of occasions before the date of the accident. She described the grounds in some detail including the pedestrian walkway the presence of which she was aware.
7. It was the plaintiff’s evidence that she had driven into the clinic shortly after 4pm and that as she was re-crossing the road she was holding a handbag and her mobile phone.
8. It was her evidence that as she approached the walkway one of her feet caught off something which she believed to be the kerb of the walkway itself and as a consequence of which she fell forward and landed on the walkway pavement. Her feet, however, ended up just over the road surface. She recalled her phone and her bag flying out of her hand as she fell and that whilst on the ground she was able to retrieve her handbag but not her phone. She thought she had been unconscious for a short period of time and recalled that a member of staff, who transpired to be a Mr. Noonan, arrived to render assistance. The plaintiff was still lying on the ground at that stage; she could not get up and had difficulty feeling her feet.
9. According to her evidence the surface of the road was black in colour as was the surface of the walkway and which she described as being filthy dirty. She described works going on at the entrance to the clinic but was not sure who was responsible for these works. I took this to be an indication by the plaintiff that she thought that these were in some way connected with the clinic and possibly explained the condition of the walkway as described by her. She also gave evidence that as a result of the presence of large trees which were in full foliage and which were in the vicinity of the walkway and the staff car parking area that the scene of the accident was very dark; moreover she gave evidence that there were a lot of bushes in the beds of the walkway which protruded out as far as the road as well as encroaching onto the walkway itself.
10. It was clear from the photographic evidence given by the defendant’s facility manager Mr. McGowan and by the engineers called on behalf of both parties that the pedestrian walkway was made up of red pavers or bricks. It was the plaintiff’s evidence, however, that at the time of her accident the colour of the bricks or pavers could not be seen because they were nearly black in colour due to the presence of filth and dirt which had collected on the walkway surface.
11. As to the mechanism of the fall the plaintiff said that neither of her feet had mounted the walkway surface at the moment when she tripped. She was certain that one of her feet had caught on something and as to what she believed that to be the kerb.
12. Three weeks after the accident the plaintiff went back to the clinic and noticed that the trees had been cut back as had the bushes, moreover, she noticed that a yellow paint, which she described as being unusual and very noticeable, had been painted on the kerb where the accident had occurred.
13. It transpired in the course of the hearing that there was no issue between the parties as to the fact that the kerb was painted with a yellow paint after the date of the accident and that that had been carried out by the defendant’s grounds man. It followed that at the time and date of the accident the kerb of the walkway where the accident had occurred had not been highlighted by painting.
14. With regard to the painting of the kerb, the defendant’s facility manager, Mr. McGowan, gave evidence that the defendant’s architects had given certain safety advice after familiarising themselves with the premises preparatory to designing a multi-storey car park and additions to the hospital. They first arrived on site in 2005. They had advised, amongst other things, that a number of steps located at various parts of the premises ought to be highlighted by being painted in different colours and that the purpose of that was to assist the visually impaired. It was his evidence that the step in question was not included in the advice given by the architects and that the step had not been painted either directly as a result of that advice nor as a result of any instruction of the management including his own but rather had been included in the painting of the other steps by the defendant’s Lithuanian grounds man on his own initiative. The painting of the step had nothing whatsoever to do with the accident.
15. Returning to the evidence of the plaintiff, she said that having had a back operation in the past she was a particularly careful person and that on the day of the accident she was wearing what she described as sensible, flat and comfortable shoes. With regard to the lighting and weather conditions prevailing at the time of the accident the plaintiff said that the tall trees were blocking the light and although the weather was fine one would think that it was, as she put it, black dark. In passing I note that poor lighting as cause or contributory cause to the accident was not pleaded or particularised by or on behalf of the plaintiff when she was legally represented or otherwise. The defendant did not, however, take any objection to this evidence at the trial presumably because the plaintiff was then a lay litigant and because the defendant was, in any event, in a position to deal with such evidence.
16. In the course of cross examination it was put to the plaintiff that she had crossed the road at a pedestrian crossing a suggestion which she rejected, it being her recollection and belief that there was no pedestrian crossing there at the time.
17. Photographs were then put to the plaintiff which, it was suggested, showed a black BMW car in a staff car parking place and said to be the property of the plaintiff. Her initial response was that she could not confirm that it was her car because she could not make out the registration number but, subsequently, having reviewed CCTV footage taken at the time of the accident, she agreed that it was her car.
18. It was also put to the plaintiff that the series of photographs which had been taken later in the afternoon of the day of the accident by the defendant’s facilities manager, Mr. McGowan, showed an altogether different scene to that which she had described in her evidence. Her initial response to the photographs was that they were not accurate; she said they did not show the scene as it was at the time of her accident and she questioned whether they had been taken on the same day.
19. It was put to the plaintiff that the photographs showed the presence of a pedestrian crossing and that both the road surface and the cobble lock pavers, which could clearly be seen to be red in colour, at the time when the photographs were taken, were in good condition. The plaintiff accepted that this was so.
20. It was also put to the plaintiff that the photographs showed that the bushes which were in the walkway bed were not, as she had suggested, over growing either the walkway nor the road and, again, she accepted that this was what the photographs did indeed show, however, she insisted that at the time of her accident the scene was as described by her in evidence and not as portrayed in the photographs.
21. When invited to comment on the scene of the accident as portrayed in the photographs the plaintiff agreed that one would, indeed, be very unfortunate to have an accident in the scenario as evidenced by the photographs: in fact her own assessment of the scene as portrayed was that such would be, in her own words, a freak accident.
22. The plaintiff also agreed that in the scene as portrayed in the photographs the walkway was clearly visible and that on crossing the road it would have be obvious to any pedestrian that one was approaching a walkway, however, the plaintiff again repeated in her evidence that the photographs did not fairly reflect the condition of the cobble lock pavers nor the scene in general as it was at the time of her accident. Moreover, she felt that the kerb ought not to have been present. In her view there should have been a slope up to the footpath from the road surface and not a kerb. She did not think that the layout was a good design.
23. A version of the cause of the accident contained in para. 2 of the replies to particulars was put to the plaintiff. According to this, it was the uneven cobble lock pavers or bricks which had caused her accident. She rejected this account and insisted that she had tripped as a result of one of her feet hitting the kerb.
24. On the 24th of May 2011 the plaintiff attended a joint engineering inspection at the clinic and identified the locus in quo.
25. According to an account of the accident contained in the report of Mr. Cathal Maguire, consulting engineer retained on behalf of the defendant, he was advised at the scene that, having crossed the pedestrian crossing, the accident had occurred at the footpath on the far side of the road from where she had parked her car. According to this account the plaintiff stepped up onto the footpath and then fell describing how her trailing foot caught behind her so that she tripped and fell onto the footpath.
26. The plaintiff said that the defendant’s engineer had misunderstood the description of the accident mechanism and that as far as she was concerned she had never stood up onto the path with either foot before she fell.
27. The evidence given in the course of the trial established that there were a series of CCTV cameras, totalling about 25 in number, located in and around the premises on the date of the accident and that these were recording in freeze frame mode at one frame per second instead 25 frames per second required for continuous motion picture. It was put to the plaintiff that freeze frame footage of the accident had been recorded and that this footage was about 15 minutes in length. She accepted that she had seen this video previously.
28. There was some controversy, however, as to when the plaintiff was first given the video and also about the images recorded in freeze frame, it being suggested that there were some missing seconds and that the footage may have been edited.
29. The first few minutes of the video was said to show the scene of the accident, the events leading up to the accident, the accident itself, and the immediate aftermath of the accident. The court viewed that part of the video from 4.17.35 seconds pm to 4.21.55 seconds pm. The plaintiff accepted that it was not necessary to view the remainder of the footage as the court was concerned only at the hearing with the issue of liability.
30. The video footage clearly showed the plaintiff driving up to the barrier, reversing from the barrier, into a staff car parking space, getting out of her car, crossing immediately beside or on the pedestrian crossing, and as she was just reaching the walkway, disappearing from the view of the camera behind a large sign that was in fact a plan of the car park and the premises for the assistance of visitors.
31. It was evident from the footage that the plaintiff had fallen and landed on the walkway but the video footage was of no assistance as to the cause of the fall.
32. When viewed by her the plaintiff accepted that the video showed that it was her BMW car that was seen in the footage copy, that it was she who was seen crossing the road on or along the side of the pedestrian crossing and that she was seen to be walking briskly. Evidence was given by the plaintiff’s son, Scott Altaman about the freeze framing in the video. He highlighted missing seconds of footage for which he said there had been no explanation. In this regard he gave by of an example the fact that the video did not show the plaintiff’s first partial crossing of the road nor did it show the plaintiff’s actual fall itself nor the reason for the fall. It was also his opinion that the video footage showed the footpath/walkway to be in shadow.
33. Mr. Desmond Kirwan Browne, consulting engineer, was called on behalf of the plaintiff. He prepared two reports one dated the 25th May, 2011 and the other dated August 2011. He gave evidence that the height of the kerb above the road surface was 88 millimetres which he considered to be below the minimum safety requirement. His evidence was that the kerb height should have been between 115 and 150 millimetres.
34. In the first report of Mr. Kirwan Browne described the accident as happening when the plaintiff tripped at the kerb, that the plaintiff’s foot was arrested behind her, that she was on the cobble lock when she fell, and was aware of her trailing foot catching. He added that the plaintiff felt that the manner in which she fell was such that she considered that it was the kerb that caused her to trip and fall.
35. It was Mr. Kirwan Browne’s evidence that had the kerb been painted in the way in which it was subsequently to the accident and had been constructed to a height greater than 100 millimetres it would have been more visibly apparent to pedestrians. In his opinion if the kerb had not been highlighted at the time when the accident occurred then what appeared to him to have happened was that the plaintiff was unaware of the presence of the kerb.
36. The plaintiff herself took issue with the description of the mechanism of the accident contained in the report of Mr. Kirwan Browne and as a result of which the subsequent report of August 2011 was commissioned. This report also contains a description of the accident. In that report the accident is described as occurring when the plaintiff tripped over her right foot on the edge of the path falling forwards on the edge of the path and that her left foot also caught as she fell forward. The manner of her fall caused the plaintiff to believe that it was the kerb that had caused her to trip and fall.
37. Under cross examination Mr. Kirwan Browne accepted that he had received instructions from the plaintiff’s then solicitor and had been furnished with an attendance on the plaintiff taken by her then solicitor which he read and from which it appeared that the accident was attributed to a combination of causes and which he considered required clarification.
38. Mr. Kirwan Browne accepted that if the plaintiff’s foot was up on the footpath and her trailing foot caught on the kerb that that would indicate that she must have been aware of the kerb since a conscious decision would have been required to lift her foot up high enough to get it onto the walkway surface from the road, however, he thought that if that is what had happened then the plaintiff’s left foot would in all likelihood have followed suit.
39. Mr. Kirwan Browne agreed that the double yellow lines painted along the road at the foot of the kerb which separated the road from the flower beds through which the walkway ran had the effect of highlighting to pedestrians the existence of the kerb in general. A similar effect would also be created by what he agreed was the red colour of the cobble lock pavers in the walkway.
40. The defendant’s facilities manager, Mr. McGowan, has been an employee of the defendant since six months before the clinic opened to the public and was working in that capacity on the day of accident. He was alerted to the accident by a member of staff some fifteen minutes after its occurrence and gave evidence that it was he who had taken the photographs of the scene shortly after the plaintiff had been removed from there by ambulance at 5.50 pm. It follows that his photographs were taken approximately two hours after the accident. They were taken in the presence of another member of staff, Mr. Noonan, who had attended to render assistance to the plaintiff at the scene within minutes of the occurrence of the accident.
41. Mr. McGowan gave evidence that there was a general maintenance policy and programme for the grounds in the clinic. He gave evidence in relation to the subsequent painting of the kerb by the grounds man and also evidence in relation to the advices which had been received from the architect and to which reference has already been made earlier in this judgment. No instructions had been given by him regarding the painting of the step or kerb in question either as a result of the accident or otherwise. As to the question which had been raised concerning the validity of the freeze frame video his evidence was that it had not been edited or compromised in any way.
42. Carmel Mangan has been the matron of the Blackrock Clinic since its inception. It was her evidence that as matron she had both management and nursing responsibilities and that as to the former she was deputy chief executive officer. The defendant’s safety procedures were such that she would have been notified of any accidents, as indeed she was in this case, but also gave evidence that during her tenure as matron she was not aware of any accident occurring in the grounds of the clinic prior to the date of this accident. She also gave evidence that the parking spaces, one of which was utilised by the plaintiff, were reserved for consultants and staff. While she remembered talking with the plaintiff subsequent to the accident by phone she did not recall the content of the conversations.
43. Cathal Maguire, consulting engineer, gave evidence on behalf of the defendant and confirmed attending at the joint inspection. He said that the account of the accident circumstances set out in his report was obtained from the plaintiff’s engineer, Mr. Kirwan Browne, in the presence of the plaintiff and that it was his recollection that the plaintiff also demonstrated the accident in the way described in his report. On being cross examined in respect of this matter by the plaintiff Mr. Maguire rejected the plaintiff’s suggestion that he was mistaken in his recollection. Whilst accepting that he was also told that it was the kerb which had caught the plaintiff’s foot he added that it was her trailing foot.
44. With regard to the question of visibility, his evidence was that the colour of the road surface, black; the colour of the kerb, concrete; and the colour of the pavers, red; made the kerb and footpath arrangement even more noticeable than most kerbs and paths in the city of Dublin where it was a common feature for the kerbstones and the footpath surfaces to be of the same colour, most commonly that associated with granite and/or concrete. The arrangement was, in his opinion, clearly visible at 25 feet and being the approximate distance which the plaintiff would have had to walk in order to reach the walkway from her car.
45. His evidence in relation to the measurement of the height of the kerb was the same as that of Mr. Kirwan Browne but he did not accept that there was something unsafe about the height especially when the kerb was clearly visible, moreover, on the account of the accident given to him there was no possibility that the plaintiff could have accidentally put her foot upon the walkway surface without deliberately raising her foot to do so and that therefore she must have been aware of its existence. The height of the kerb at less than four inches was a common feature throughout the city and county of Dublin. There was nothing unusual or hazardous about that. Indeed it was his opinion that the locus in quo was much more striking as a result of the contrasts created by the black and white surface of the pedestrian crossing, the grey colour of the kerb and the red colour of the pavers and was as a consequence obviously more visible than the footpaths commonly encountered by pedestrians all over the city and county.
Conclusion
46. The plaintiff brings these proceedings against the defendant in negligence for breach of duty and breach of statutory duty. The complaint against the defendant is in essence one relating to the static condition of the premises. The plaintiff’s case in law is, put in simple terms, that the defendant was in breach of the statutory duty of care owed by it to her as a lawful visitor pursuant to the provisions of s.3 of the Occupiers Liability Act, 1995. The common duty of care towards a visitor provided by that section is a duty to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. Both statutorily and also formally in common law the test, therefore, is and was one of reasonable care and no more. It is also clear from the provisions of this section that the determination of the common duty to take such care as is reasonable in all the circumstances also involves having regard to the care which the visitor may reasonably be expected to take for his or her own safety. The occupier, in this case the defendant, is not in law an insurer of the plaintiff’s safety in the premises. The mere occurrence of an accident does not in law result in the imposition on the occupier of strict liability for that event.
47. It is the plaintiff’s case that the arrangement and walkway and kerb on the side of the road with which she was presented as she crossed over the access road constituted a hazard not just for her but for any pedestrian in the circumstances then prevailing and as described in her evidence and was therefore a danger within the meaning of the section.
48. It is my view of the evidence lead at the trial that the plaintiff was mistaken in her recollection of the following circumstances prevailing at the scene when she fell:
(a) that the pavers were filthy dirty to the extent that they presented a black appearance or nearly black appearance in colour,
(b) that it was nearly dark due to shadows cast from large trees in the vicinity,
(c) that bushes were encroaching onto the roadway and onto the walkway
(d) and that there was no pedestrian crossing at the locus in quo.
49. Quite how the plaintiff came to give the initial evidence she did in relation to the pedestrian crossing is, to put it mildly, puzzling since not only is it evident from the photographs taken by Mr. McGowan but also from the freeze frame video footage and the account she apparently gave to her engineer contained in his report that she knew not only that the crossing existed at that time but that she had actually utilised it to cross the road.
50. When the plaintiff was being cross examined her initial response to a photograph said to be of her black BMW car was that she could not confirm that it belonged to her as she could not make out the registration number though, having viewed the video footage, she subsequently accepted that it was her car.
51. Again I have a difficulty in understanding how the plaintiff came to give that evidence since whilst she may not have been aware of the photographs until shortly before the hearing she had certainly been in possession of or had viewed the video prior to that. Likewise she subsequently acknowledged that the pedestrian crossing shown in the video was present at the time of her accident and that it was she who was seen briskly crossing on or along the side of it at the time.
52. I accept as evidence the freeze frame video footage as most likely portraying both the conditions and circumstances prevailing at the time of the accident and that although taken approximately two hours subsequent to the accident the photographs also portray the topographical features which presented themselves to the plaintiff when she got out of her car. Insofar as there are missing seconds from the CCTV footage this, in all probability, was a function of the recording rather than any deliberate interference and in this regard I accept the evidence of Mr. McGowan. Even if there had been some editing at the point of the CCTV footage referred to by Mr. Altman in his evidence this would not have had any material bearing on the general conditions prevailing at the scene on the day and at the time of the accident, moreover, the plaintiff herself accepts that the person captured on the footage and seen to be crossing the road either on or along the side of the pedestrian crossing was herself. Although captured by a camera which appears to have been mounted in or about the clinic building and therefore at some distance from the scene, the daylight prevailing was such as to enable that and the other images to be clearly shown in the relevant portion of the video footage to be captured.
53. Neither the video footage nor the photographs lend any evidence to nor do they in any way corroborate the evidence of the plaintiff with regard to the effect on the lighting conditions of large trees in the vicinity, nor the colour or condition of the walkway pavers, nor in relation to the pedestrian crossing, nor the presence of bushes encroaching onto the road or footpath. Quite the contrary is the case. Having reviewed the portions of the video relevant to the issue of liability and the photographs taken by Mr. McGowan I am compelled to reject the evidence of the plaintiff with regard to those matters and which, according to her evidence, were prevailing at the time of the accident.
54. Having regard to her own evidence, I find as a fact that the plaintiff was very familiar with the Blackrock Clinic from previous visits there and was aware of the pedestrian crossing when she parked her car, moreover, as she crossed the road along or immediately beside the pedestrian crossing she was also aware from her previous experience that the pedestrian walkway was raised above the level of the access road. Even if I am wrong in reaching that conclusion in relation to her knowledge acquired from her previous visits to the clinic, I am satisfied that on the basis of the scene as portrayed in the photographs taken by Mr. McGowan and by the relevant video footage as well as on the engineering evidence of Mr. Maguire, which I accept, that even if the plaintiff had never been to the clinic the presence of the kerb at the edge of the road and the walkway was clearly visible to any pedestrian, including herself, keeping a proper lookout, paying attention and approaching from the car parking spaces as the plaintiff was on the occasion in question.
55. There was no evidence of any previous accident at the locus in quo nor any complaint relating to the arrangement of the road, walkway and kerb the subject matter of these proceedings, on the contrary, the defendants had received advice from architects concerning safety at the premises in the year prior to the accident which included the highlighting of steps elsewhere in the premises by painting these in different colours for the purposes of highlighting those for the benefit of the visually impaired but which did not include the step up from the road surface constituted by the walkway kerb nor had there been any reported or recorded complaints or accidents otherwise in the grounds of the defendant’s premises prior to the accident, a fact corroborated on the discovery of documents which has been made in this case. Having had an opportunity to observe the demeanour of both Mr. McGowan and Ms. Mangan I am quite satisfied that they were reliable and truthful witnesses and whose evidence, which I have summarised in relation to these matters, is accepted by the court.
56. Insofar as it was alleged and contended that the kerb and walkway arrangement constituted a hazard or trap and was therefore a danger, the criticism levelled by Mr.Kirwan Browne regarding both the height and the highlighting by painting of the kerb was based, as he has put it in his own report and in evidence, on the premise that the plaintiff was unaware of the presence of the kerb.
57. On her own evidence and on my finding of the facts quite the opposite was the case: the plaintiff was aware of the kerb both as a result of her previous experience of the premises as well as what was there clearly visible and plainly to be seen by anyone preceding as the plaintiff was on the day and in the conditions and circumstances as portrayed by the photographic and freeze frame video evidence.
58. I am fortified in my findings of fact and the conclusions to which I have come by the plaintiff’s own and very frank and fair acceptance that if a person were unfortunate enough to have an accident in the conditions and features portrayed and evidenced by the photographs and on the freeze frame video footage that that would, in her own words, be a freak accident.
59. Having regard to the facts as found and, indeed, the plaintiff’s own assessment when applied to them can lead to only one sensible result in law, namely, that the arrangement which presented itself to the plaintiff on the day and at the time of her accident did not constitute a danger and that being so it seems to me unnecessary that the court determine the precise mechanism of the plaintiff’s fall. In the circumstances of this case it does not necessarily follow from the fall that there was a danger present. If I am wrong about that then I would add that on the evidence I am not satisfied either as to the mechanism nor the reason for the fall.
60. There is no doubt but that the plaintiff suffered injuries and as she herself has put it suffered a lot over the years since the occurrence of this accident and which, on a human level, one cannot but have sympathy. Litigation brings its own stresses into the bargain, nevertheless, the onus is on the plaintiff to establish, on the balance of probabilities, the case that she had pleaded and made against the defendant. Having regard to the facts found on the evidence and the conclusions to which I have come the plaintiff has failed to prove her case against the defendant in accordance with the law. Accordingly, the court will vacate the order adjourning the trial of the action in relation to all issues of fact relating to the question of quantum and will make an order dismissing these proceedings.
Kane v Zoological Society of Ireland
[2016] IEHC 393
JUDGMENT of Mr. Justice Barr delivered on the 6th day of July, 2016
Introduction
1. This action arises out of an accident which occurred on 12th June, 2011, when the plaintiff was visiting Dublin Zoo with her husband and young son, who was celebrating his first birthday. While walking through the zoo, the plaintiff slipped on a wet manhole cover and fell backwards onto the ground. In the course of falling she suffered a fracture dislocation of her right ankle.
2. Liability is not in issue in these proceedings. The only oral evidence given at the trial was that given by the plaintiff herself. The medical evidence in the case consisted of a number of medical reports, which were agreed in evidence.
The Plaintiff’s Evidence
3. The plaintiff stated that on 12th June, 2011, she and her husband decided to take their young son to the zoo for his first birthday. They were accompanied by two other friends, who also had children with them. The plaintiff stated that while she was pushing her child’s buggy, she was caused to slip and fall to the ground on a wet manhole cover. She stated that in falling, she heard the bones in the lower part of her right leg breaking. She stated that she was in great shock and pain immediately after the fall.
4. The plaintiff stated that when she looked at her lower leg, she could see that the foot was dangling from the leg and appeared to be held on by the surrounding soft tissues. The plaintiff remained lying on the ground. Help was summoned and an ambulance arrived after approximately 30 minutes. She was taken to the casualty department of Connolly Memorial Hospital. X-rays taken at the hospital showed a trimalleolar fracture dislocation of the right ankle. The ankle was initially reduced and was put in a cast. It was necessary for the plaintiff to have surgery on the ankle; however, due to extreme swelling of the ankle joint, she was not able to have this surgery until 16th June, 2011. Surgery involved the reduction and internal fixation of the lateral malleolus, with a plate and screws and the medial malleolus was fixed with two screws. The posterior malleolus was treated conservatively.
5. The plaintiff stated that in the initial days in the hospital until she had the operation, she experienced extreme pain in her ankle. During this time she was confined to bed and was not even able to go the toilet. In all, she was detained in hospital for a period of ten days. She was discharged to the outpatients department on 22nd June, 2011. At this time, her ankle had been immobilised in a plaster cast. She had to use crutches to move around.
6. The plaintiff stated that after discharge from hospital, she was severely disabled in all aspects of her life. She had to go upstairs by sitting on the steps and moving up from one step to another on her bottom. She had to have help looking after her young son. Unfortunately the carer, who was looking after son, fell while carrying her son into the crèche. The owners of the crèche telephoned the plaintiff and told her that there was a problem with her son and that he had suffered a fracture in the fall. The owners of the crèche came to the plaintiff’s house and gave her a lift to the hospital. The plaintiff found this particularly distressing given the fact that she could not adequately look after her son.
7. The plaintiff’s ankle was in a plaster cast for seven weeks. She was obliged to keep her foot elevated during this time. She stated that her sleep was disturbed with pain and it was very uncomfortable in bed at night.
8. On 3rd August, 2011, the plaster cast was removed. The plaintiff continued to require the use of crutches. She was told that she could gradually increase weight bearing. When reviewed in September, she was advised to continue increasing weight bearing gradually. She stated that during August and September her ankle was particularly painful. In all she was required to use crutches for a period of sixteen weeks. She also used a wheelchair for a portion of this time. She stated that someone in the hospital had told her that a wheelchair would be beneficial. She used it for part of the time and in particular when looking after her young son. The plaintiff stated that the injury affected her badly, as it was very difficult for her to look after her young son. She was distressed that she was not able to carry out all of the activities that a mother would for a one-year-old child.
9. The plaintiff stated that the metal plates and screws that had been inserted into her ankle joint were painful. She said that she could feel the screws and that on certain movements of the ankle the skin would be pinched. It was particularly painful if anything hit off any of the metal work. The plaintiff stated that she lost a lot of spontaneity as a result of the injury and in particular she is unable to go walking as she had done prior to the accident. When she goes walking she is obliged sometimes to stop due to pain. She was unable to cycle her bicycle, or go running. As a result of the operation the plaintiff had been left with a 7 cm scar medially and a 10 cm scar laterally on her right ankle. She has been and remains embarrassed by the scaring.
10. The plaintiff also developed arm and shoulder discomfort as a result of using the crutches. She had difficulty working at a computer due to arm pain. She had difficulty moving her arms behind her back and she was unable to sleep on her right side. Due to the metal work in her ankle, she was unable to wear high heels, or go dancing.
11. On 22nd May, 2014, the metal plates and screws were removed from her ankle. This led to some improvement in the type of footwear that she could wear; however she states that for comfort, she generally wears runners.
12. The plaintiff also suffered psychiatric sequelae. She stated that she was exhausted from all the pain that she had suffered in her ankle. She had nightmares about the accident. She felt uncomfortable in her role as a mother. When her son was injured in the fall going into the crèche, she was deeply sad due to the fact that she could not do anything to help him. She stated that in the nightmares, she would relive the experience of falling backwards and hearing her bones break and seeing her young son looking at her with great concern. She had come under the care of Dr. Murphy, Consultant Psychiatrist. She had been advised counselling. However, due to the fact that she was made redundant in February 2013, she could not afford counselling at that time. In more recent times, she has had counselling provided by the HSE, for which she only has to pay €10 per hour. She has been having this for the last ten months and attends on a weekly basis. She states that she still has anxiety and depression. She is anxious when she sees her son falling in the playground and when walking in the rain. She is very aware of her feet.
13. In relation to her present condition, the plaintiff stated that her foot was still swollen and scarred. She was embarrassed about the appearance of her ankle with the scars, particularly during the summer months. She stated that she continues to experience pain in her ankle every day. She has difficulty on stairs, especially descending stairs. She stated that she is not able to walk uphill or on steep slopes. She cannot walk on uneven ground or on soft ground such as a sandy beach, as her ankle feels unstable.
14. The plaintiff stated that she was unable to participate in Breton dancing, which she had enjoyed prior to the accident. She stated that it was similar to Irish dancing. In terms of her work, she had been unfit for work after the accident for a period of six months until December 2011. She was made redundant from her employment in February 2013. In recent months she has obtained part time work with a French speaking website.
15. In cross examination, the plaintiff stated that she had come under the care of Mr. Peter Keogh, Consultant Orthopaedic Surgeon, who had furnished a number of reports. She stated that she saw Prof. Michael Stephens, Consultant Orthopaedic Surgeon, on one occasion on 21st February, 2013, on behalf of the Injuries Board. It was put to the plaintiff that Mr. Keogh, having reviewed the x-rays, was of the opinion that the ankle had achieved a good anatomical result and was healing satisfactorily. He did not expect the onset of arthritis. The plaintiff accepted that as being correct.
16. The plaintiff accepted that in his second medical report Mr. Keogh thought that the removal of the metal work could be undertaken and he did not think that she would develop arthritis. The plaintiff accepted this as correct.
17. It was put to her that in the third medical report, he stated that the plaintiff’s right ankle was 1.5cm bigger than the left ankle. The plaintiff stated that while that might be correct, the ankle tended to be more swollen in the evening. She accepted that the doctor found that she had a good range of movement in the ankle joint and had made a good recovery and he did not think that arthritis would be a feature. She accepted that Mr. Keogh had reached this opinion having had the benefit of the updated x-rays.
18. The plaintiff accepted that she had gone on holidays with her husband and son, during the four month period that she was using crutches. She stated that this had been a planned holiday and they went ahead with it. The plaintiff accepted that things did improve after the initial four months on crutches. She accepted that when her husband was unemployed, he was in a position to help her with general tasks around the house.
19. The plaintiff stated that she had taken painkillers initially, but she was not able to take much medication as she was allergic to it. She stated that she had taken some anti-depressant medication, which had been prescribed for her, but she found that she was intolerant to it. In terms of her psychiatric sequelae, the plaintiff accepted that there had been stress caused by separate fertility issues and her husband being made unemployed. It was put to her that Dr. Mulcahy, the defendant’s psychiatrist, was of the opinion that she would not have any long time term sequelae. The plaintiff stated that she hoped that that prognosis was correct.
20. The plaintiff accepted that she had been referred to Dr. Murphy, the Consultant Psychiatrist, by her solicitor. She stated that she had been suffering emotionally and did not know how to get help. She saw Dr. Murphy on one occasion. He told her to attend with her G.P. He recommended the anti-depressant medication, Effexor; however, she did not take it, because she was on separate fertility medication at that time and she also had high cholesterol.
The Medical Evidence
21. The plaintiff was first seen by Mr. Peter Keogh, Orthopaedic Surgeon, on 15th June, 2012, one year post-accident. At that time she complained of ongoing discomfort in her right ankle. She was able to walk but she limped after a long day. She was only able to walk for half an hour maximum, whereas prior to the accident she used to walk for three hours unimpaired. She was anxious about riding a bicycle and was also anxious in wet weather. She had difficulty walking on rough ground. She was not able to run. She was conscious of the scars to her ankle. She stated that her ankle would swell at night-time.
22. The plaintiff also complained of discomfort in her arms, especially in the right shoulder, which she said were sore at the time of the accident and were aggravated by using the crutches. She complained of pain when using a computer at work. She had difficulty reaching behind her back and had discomfort sleeping on the right side at night.
23. On examination, Mr. Keogh noted the presence of scars on either side of her ankle. The metal work was palpable on the lateral side. There was mild swelling of the ankle. The plaintiff had good sub-talar and mid-tarsal joint movements. Examination of the shoulders revealed a full range of movement, with tenderness anteriorly and no definite rotator cuff signs. X-rays taken on that day showed satisfactory maintenance of the ankle mortise. There were no degenerative changes in the ankle and there was good bone healing. He was of the opinion that the overall appearance was satisfactory.
24. Mr. Keogh noted that at one year post-accident, the plaintiff had ongoing symptoms and functional limitation in the ankle. These were likely to be permanent. He stated that although this was a severe injury, he did not think that she would develop arthritis in the ankle. The scarring would be permanent. He stated that the plaintiff may also have strained her shoulder and had some ongoing symptoms in the right shoulder. No serious long-term sequelae were expected.
25. The plaintiff was reviewed on 15th November, 2013, two and half years post-accident. The plaintiff complained of ongoing discomfort on the lateral side of the ankle. This was constant. She felt that her ankle was swollen and some of the metal work was prominent. She complained that if she went for a walk for leisure, sometimes she would have to stop walking due to pain. Examination revealed a 1 cm swelling of the right ankle, compared to the left. The two scars remained visible. The metal work was not palpable through the skin. X-rays taken at that time showed satisfactory maintenance of the ankle mortise. There was no evidence of degenerative change in the ankle. One of the screws at the distal end of the fibular plate may have backed out a small amount. The fractures were solidly healed.
26. Mr. Keogh discussed removal of the metal work with the plaintiff. However, she was on other medication for unrelated issues and it was decided not to proceed with that operation at that time.
27. Mr. Keogh was of the opinion that the plaintiff had ongoing symptoms in the ankle with functional limitation as outlined. This was not surprising and such sequelae were thought likely to be permanent. Although she had a severe injury, the ankle mortise had been restored to a near anatomical position and he did not think that she would develop arthritis in the ankle. She would have permanent scarring. One of the screws had backed out and had become a little prominent. The plaintiff was discharged for review on a p.m. basis.
28. The plaintiff was reviewed by Mr. Keogh on 15th May, 2015, some four years post-accident. The metal work in her ankle had been removed on 22nd May, 2014, in Blanchardstown Hospital, were she was treated as a day case. The sutures were removed on 6th June, 2014, and she was finally reviewed in the out-patients clinic on 1st August, 2014. At that time her wounds were healed and she felt improved following removal of the metal work.
29. At the examination with Mr. Keogh, the plaintiff complained of ongoing discomfort in the ankle every day. She could not run and she could not wear high heels. She found it awkward to walk on uneven ground and had difficulty even crossing the road. She was able to do some gardening with difficulty. She was nervous walking in wet grass. She had been made redundant from her job in Air France in February 2013 and expressed a desire to go back to work. She also expressed some ongoing emotional difficulties and was going to see a counsellor in the following months. She had not returned to cycling her bicycle.
30. On examination, Mr. Keogh noted the presence of the scars. The ankle joint was swollen. There was a differential of 1.5cm on measurement around the malleoli. She had a good range of ankle and sub-talar movements. X-rays taken on 6th June 2014 showed a normal ankle mortise with no obvious degenerative change to date.
31. Mr. Keogh noted that she had ongoing symptoms in the ankle which, at that stage, he thought likely to be permanent. He was of the view that the plaintiff should not develop arthritis in the ankle. The scarring and swelling to her ankle would be permanent. She also had ongoing psychological difficulties and he suspected that that was due to loss of confidence.
32. The plaintiff had also been seen by Prof. Michael Stephens, Consultant Orthopaedic Surgeon, on behalf of the Injuries Board on 21st February, 2013, some one year and eight months post-accident. She complained that her right ankle was uncomfortable and painful, particularly when walking on uneven ground and also on grass or sand. The ankle would swell. Two weeks prior to that examination, it had swollen very badly and she nearly had to use a crutch.
33. On examination, Prof. Stephens noted the presence of the scars on either side of the ankle. He thought that these were slightly pink but not significant. She was tender around the fibular plate particularly the upper end, were she found it stretching at times. Her right ankle circumference was 1 cm larger than her left ankle. She had full plantar flexion but loss of the terminal range of dorsiflexion in the right ankle.
34. Prof. Stephens was of the opinion that the plaintiff had a very significant fracture. It was more than a fracture in the fact that the talus had moved laterally and into an externally rotated position, i.e. it was a fracture dislocation. He was of opinion that his particular fracture that involved three malleolii indicated the severity of the injury and the degree of movement of the talus in the ankle mortise, i.e. the articular cartilage is often scratched and chipped by the fact that the ankle was dislocated. This was compounded by the fact that the plaintiff was overweight and there would have been greater force on it as she went over on the ankle. He was of opinion that she had residual symptoms which were consistent with this. He thought that she would probably require the removal of the metal work during or near the end of 2013. Due to the fact that it was a very traumatic injury, there was a risk of post traumatic osteoarthritis, which he put at about 20%. The fact that it was a fracture dislocation would mean that it could cause scuffing on the articular cartilage hence giving rise to the risk of arthritis.
35. The plaintiff was seen by Dr. Dennis Murphy, Consultant Psychiatrist, on 21st February, 2014. She stated that she thought of the accident every day and could not talk about it without crying. She felt it had changed her as a person. Prior to the accident, she had been active, enjoying activities such as walking for charity or doing charity cycles. She had gradually resumed walking, but could only do short distances. She had previously enjoyed hill walking and Breton folk dancing, but was not able to pursue these activities at the time of the examination. She could no longer wear high heels.
36. The plaintiff stated that she had had nightmares following her discharge from hospital, perhaps on a weekly basis. She also had flashbacks to the accident, especially when it rained, on birthdays, when bad things happened, or indeed they could come on spontaneously. She complained that she was generally more anxious and more easily worried than before. She had previously enjoyed challenges, but this was no longer the case. She was more easily startled. She was very protective of her son and became anxious when she saw him running. She described increased vigilance for danger, especially in playgrounds. She avoided all her previously enjoyed activities.
37. The plaintiff stated that she was also subject to frequent weeping episodes and now had no sense of humour. She no longer enjoyed things and her energy was low. Her sleep was disturbed, with broken sleep and initial insomnia. She described increased appetite and increased weight due to comfort eating. She described deceased libido and increased irritability. She could get less done, particularly housework.
38. Dr. Murphy noted that on examination her mood was depressed and she was distressed at interview. He formed the view that the plaintiff had developed Post Traumatic Stress Disorder and depression following the accident. She remained symptomatic from these conditions. The prognosis was difficult to be certain about, but it was usual to anticipate gradual improvement, particularly with treatment, although in some instances symptoms could be long standing.
39. Finally, the plaintiff was seen by Dr. Michael Mulcahy, Consultant Psychiatrist, on behalf of the defendant on 5th June, 2014. He noted that the plaintiff had been referred to Dr. Murphy, Consultant Psychiatrist, by her solicitor in March 2014. She saw him once and he apparently recommended antidepressant medication, namely Effexor, which was prescribed by her GP, but she had not commenced it at the time of that examination. She was attending at the Beacon Hospital for infertility treatment.
40. On examination, Dr. Mulcahy noted that she was using an elbow crutch but was able to handle steps. She recalled the stress of caring for her infant son, while her ankle was in plaster. She was tearful in recounting her current complaints that were based mainly on her fears regarding future employment. Both her husband and she were unemployed during most of 2013. He had since found a job. She had attended two courses at DCU, but she remained doubtful about her future job prospects. Her confidence had been eroded. Whereas previously she had been a most active person, her continuing immobility had deprived her of a valuable recreational outlet.
41. Dr. Mulcahy was of the view that the plaintiff had experienced a very stressful time on several fronts in the aftermath of her accident. She was able to cope initially and was handling the situation reasonably well, in that she was able to return to work and her son was able to attend a crèche. However, the loss of family employment had precipitated a depressive reaction. This was unlikely to resolve until she found alternative employment. The fact that she had not started her prescribed medication, indicated how she realised herself that environmental factors were predominating in causing her current low mood. Notwithstanding this, she was acutely aware of the very difficult time she experienced after the accident and the way it had affected her life. However, Dr. Mulcahy pointed out that she was a resourceful lady and there was no need to assume that she would have any long-term psychiatric problems as a consequence of her accident.
Conclusions
42. In summary, this 43-year-old woman suffered an injury when she slipped on a wet manhole cover at the defendant’s premises on 12th June, 2011. She suffered a tri- trimalleolar fracture dislocation of the right ankle. She was in a plaster of Paris cast for seven weeks and was on crutches for a total of sixteen weeks. During a portion of this time, she was required to use a wheelchair. After the accident, she was rendered unfit for work and remained so unfit until December 2011. Thereafter, she was able to continue with her employment with Air France until made redundant in February 2013.
43. I am satisfied that the plaintiff has given a fair and accurate account of her symptoms and disablement from the time of the accident down to the present time. She suffered extreme pain at the time of the accident and in the hours and days following. The ankle fracture required operative treatment, which was carried out on 16th June, 2011. This involved reduction and internal fixation of the fracture and the insertion of plates and screws. These remained in situ until 22nd May, 2014.
44. The plaintiff’s progress since the time of the accident has been adequately set out in the medical reports, which have been admitted in evidence and are summarised above. At present, she continues to experience pain in the right ankle on a daily basis. She is not able to walk long distances, nor to cycle her bicycle. This has been a cause of distress to her, as she used to participate in charity walks and charity cycles prior to the accident. The plaintiff is not able to run, nor can she walk on uneven ground, or on wet grass or on sand. She is unable to participate in Breton dancing, which she had done prior to the accident. I accept Mr. Keogh’s opinion that these symptoms will be permanent.
45. The plaintiff’s ankle remains swollen and has an increased circumference of 1.5cm, greater than the left ankle. She has been left with two scars measuring 7cm and 10cm on either side of the ankle. These will be permanent. I have viewed the scarring and while they are not grossly disfiguring, I can well appreciate that they are a cause of some embarrassment to the plaintiff, who is a reasonably young woman.
46. The plaintiff also suffered shoulder and arm pain from using the crutches in the immediate aftermath of the accident. However, this does not appear to have caused any long-term sequelae.
47. The plaintiff also suffered from psychiatric difficulties after the accident. She had nightmares, where she relived the feeling of falling backwards, hearing bones break and seeing her young son look at her with anxiety. She was seen on one occasion by Dr. Dennis Murphy, Consultant Psychiatrist, on referral from her solicitor. He was of opinion that the plaintiff had developed symptoms of Post Traumatic Stress Disorder and depression following the accident. She remained symptomatic at the time that she saw him on 21st February, 2014. In terms of a prognosis, he stated that it was usual to anticipate gradual improvement, particularly with treatment, although in some instances symptoms can be long standing. It appears that the plaintiff was prescribed antidepressant medication, namely Effexor, but it is not clear whether she actually took this medication, or was unable to do so due to being on other medication for unrelated matters.
48. The plaintiff has received some counselling in the last ten months and this is continuing. In relation to her psychiatric sequelae, these were to some extent caused by stress, brought on by the fact that she and her husband were experiencing fertility difficulties and both were unemployed during 2013. Dr. Mulcahy was of opinion that there was no need to assume that she would have any long-term psychiatric problems as a result of her accident.
49. Finally, while Prof. Stephens thought that there was a 20% risk of the plaintiff developing degenerative arthritis in her right ankle joint, Mr. Keogh, who has seen the plaintiff on three occasions and most recently on 15th May, 2015, and also had the benefit of up-to-date x-rays, is of opinion that the plaintiff is not likely to develop degenerative arthritis in the ankle joint. I accept this as being the likely scenario.
50. In reaching the award of damages in this case, I have had regard to the helpful guidelines given by the Court of Appeal in Payne v. Nugent [2015] IECA 268, Nolan v. Wirenski [2016] IECA 56, and Shannon v. O’Sullivan [2016] IECA 93.
51. Having regard to the principles laid down in the above cases and having regard to all the matters outlined herein, I award the plaintiff general damages for pain and suffering and disability to date in the sum of €65,000 and general damages for pain and suffering and disability and scarring into the future, in the sum of €40,000, together with special damages of €9,988, giving a total award of €114,988.
O’Flynn v Cherry Hill Inns Ltd t/a Oliver Plunkett Bar
[2017] IECA 211
JUDGMENT of Ms. Justice Irvine delivered on the 21st day of July 2017
1. This is an appeal against the decision of the High Court of the 14th January, 2016, whereby the trial judge awarded the plaintiff/respondent, Ms. Saundra O’Flynn, (“Ms. O’Flynn) €75,000 by way of general damages in respect of injuries received by her on the premises of the defendant/appellant Cherryhill Inns Limited (“the Oliver Plunkett bar”) on the 17th February. 2012. In so doing the High Court judge concluded that in setting the closing speed for an automatic door at other than the slowest possible speed the defendant had failed in its duty to protect customers such as Ms. O’Flynn from foreseeable injury, which in her case occurred when the ring finger of her left hand became trapped in the hinged recess of that door.
Summary of the liability evidence
2. On the evening of the 17th February, 2012, Ms. O’Flynn, who was then 64 years of age, and two of her friends, Ms. Eileen Cronin and Ms. Laura O’Mahony went to enjoy a few drinks in the Oliver Plunkett bar. After a while, and at a time when Ms. O’Flynn had consumed approximately three glasses of wine, Ms. Cronin and Ms. O’Mahony went to an outdoor smoking area. Ms. O’Flynn followed them a few minutes later. There was a door separating the bar from the smoking area and this had a hydraulically operated self-closing device. She told the Court that she pulled the door towards her to go through it and having done so put her left hand behind her in a type of impulse reaction to restrain the door she felt would be closing behind her. In doing so the tip of the ring finger of her left hand entered the rebate of the doorframe on the hinged side where it was crushed and then severed by the closing door. Ms. O’Flynn was unable to explain how her finger had become caught in the rebate. She nonetheless offered her opinion that because she had lost the top of her finger that the door must have swung quite hard.
3. Ms. Cronin was sitting just inside the automatic door in the smoking area. She told the Court that everything happened “really really quickly”. The door hadn’t, she said, closed like a normal door and it certainly had not closed like a “slower door”. Ms. O’Mahony was also seated where she had a view of the door. She said the accident happened “in an instant” and that “[i]t was just so fast.”
4. Mr. Philip O’Doherty, consulting engineer on behalf of Ms. O’Flynn, explained that the door was intended to close to 30 degrees with a fair degree of speed and thereafter very slowly. The mechanism was designed to give the person going through the door the chance to ensure that their fingers did not become caught as the door closed. Mr. O’Doherty explained that if the door was closing too quickly, a person might not get the chance to pull their fingers out. From the fact that Ms. O’Flynn had not managed to extract her fingers in time to avoid injury, he proposed that the probable cause of her injury was that the closing mechanism had malfunctioned. Mr. O’Doherty also stated, in what I can only describe as a burst of enthusiastic speculation unsupported by the evidence of any witness that “The reason her hand was behind her was to stop the door from slamming on her, on her legs or her feet. You know that’s the reason you would do that.” In turn the High Court judge suggested to Mr. O’Doherty that it was likely that Ms. O’Flynn had put her hand behind her because she was taken by surprise at the speed of the door’s closure and that she had probably done so because there was something “odd” about the door.
5. In the course of a further exchange between the High Court judge and Mr. O’Doherty the witness confirmed that if the door had been working properly Ms. O’Flynn would likely have felt some pressure on her finger and would have had sufficient time to remove it before it got crushed. In response to questioning on the same issue by Ms Hyland S.C, for the defendants, Mr O’Doherty stated that it was to be inferred from the fact that she hadn’t been able to retract her finger that the timing mechanism on the door must not have been working properly on the day in question.
6. Because of the findings ultimately made by the trial judge concerning liability and causation, it is also important to observe what evidence was not given by Mr. O’Doherty, he being Ms. O’Flynn’s sole expert evidence. He did not assert that it was his professional opinion that it was unreasonable or unsafe for the occupier to have set the timing mechanism for the closure of this particular door at 5.5 seconds. Neither did he contend that because of the configuration of the premises that the defendant was under an obligation to set the timer on the door to the maximum closure time of 7 seconds. Indeed, it was his evidence that if set at 5.5 seconds a person who had their finger in the hinged recess of the door would get sufficient warning as the door was closing to allow them extract their finger so as to avoid injury. However, Mr. O’Doherty speculated that an occupier of a public house premises might be tempted to tension the door so that it would close more swiftly in order to avoid smoke travelling from the smoking area into the bar.
7. Having carefully considered the transcript of the evidence, it is fair to state that it was Mr. O’Doherty’s expert opinion that it was highly probable that the automatic door had malfunctioned on the night of Ms. O’Flynn’s injury such that it had closed behind her without restraint or alternatively that it had been set with a significantly faster closing speed than the 5.5 seconds recorded at the time of inspection to minimise smoke entering the non-smoking areas of the premises.
8. Mr. Pat O’Connell, consulting engineer on behalf of the defendant, gave evidence that the automatic door was one which complied with the prevailing British Standard. He explained that automatic doors of this nature were to be found in every type of public building and all operate on the same principle. A closing time of 3 to 7 seconds was within the acceptable range and this door when examined was set to close over a period of 5.5 seconds. Even though closure decelerates over the last part of the closing cycle it was his opinion that once the door started bearing in on a finger within the rebate of the doorframe on the hinged side, as opposed to a finger resting on the leading-edge of the closing door, the individual concerned would have little chance of extracting their finger. In the former scenario the grip of the door would be instantaneous and then, of course, there was the issue of reaction time.
9. In the course of his evidence, Mr. O’Connell stated that while contributory negligence was a matter for the Court, it was his opinion that anybody using a door such as this, if they put their hand behind them in an effort to restrain the closing door, ought to have looked behind them to ensure that they were placing their hand against the door proper rather than into the rebate of the doorframe.
10. Mr. Creed S.C., on behalf of the plaintiff, put two propositions to Mr. O’Connell, neither of which had been advanced by his own engineer, as the basis upon which liability might be found against the occupier. The first of these was a query as to whether in setting the closing time for the door the occupier should have taken into account factors such as the location of the door. The second was that given that patrons in a public house would be consuming alcohol the closing mechanism should be set to the slowest closing time. Mr. O’Connell disagreed with both propositions stating that 5.5 seconds was “absolutely satisfactory” in this scenario.
11. In addition to the evidence of Mr. O’Connell, evidence was given by a Mr. Heffernan who was first to arrive on the scene after the accident, Mr. Weldon, the bar manager, and a Mr. Murray who had provided first aid, all of whom stated that they had noted nothing untoward about the door that night. Mr. Fergus Byrne, maintenance manager, also gave evidence that he inspected the door at nine the following morning and that it was operating normally. He gave evidence that he maintains approximately 40/50 of these doors for the defendant. There were 12 in the Oliver Plunkett bar and 24 across the road in another pub called Reardon’s. His uncontested evidence was that the tensioning on these doors never slips and that the closure timing settings on the door concerned had not been altered since the accident. According to Mr. Byrne, the only thing that ever went wrong with an automatic door was that it might stay open as a result of a shortage of oil due to a leak. He also stated that in his opinion a hand would not become caught on the leading edge of an automatic door as it closed but that on the hinge side, it would be a “different story”.
12. In the course of cross examination it was put to Mr. Byrne that in a pub situation that the timing of the closing device “should be at the further end” (presumably of the 3 to 7 second spectrum) to which he replied, “[i]t would be an idea to have it at the longer closing, yes”.
Judgment of the trial Judge
13. At the commencement of his judgment the High Court judge records that no one had observed the exact moment when the accident happened. All the plaintiff had been able to say was that she travelled through the door. Her friends could do no more than say that she had put her hand up as she came through the door. It was for this reason that the High Court judge said it was difficult to determine how the accident had happened. He then concluded that she had instinctively put up her hand behind her as this was what people do when walking through a door and she could not be faulted for that instinctive act.
14. When it came to the facts upon which he decided the liability issue in the case the trial judge reached somewhat different conclusions. He expressed himself satisfied that when Ms. O’Flynn had arrived where she wanted to be, namely immediately beyond the automatic door in the smoking area, that the door was still coming towards her and that she needed to protect herself from it. This was why she had put out her hand. He then proceeded to find as a fact that the calibration on the door had been insufficient to protect her in circumstances where she was going to be stopping immediately beyond the door.
15. The basis upon which the trial judge found the defendant liable for Ms. O’Flynn’s injuries was that he concluded that there had to be a difference in the calibration for spring-loaded doors, depending upon where a particular door was situated and what was immediately beyond it. Because the area immediately beyond the door in question was a place where people tended to gather and might stop rather than proceed onwards, he concluded that the door should have been calibrated to afford more time to the person passing through to get “free” of the door. Given that the calibration of the door had proved insufficient to protect Ms. O’Flynn, the trial judge found liability against the defendant and that Ms. O’Flynn had not been guilty of any contributory negligence.
Submissions of appellant
16. Mr. John Lucey S.C., on behalf of the defendant, submits that the trial judge made no real finding of negligence against the defendant that would have entitled him to award compensation to the plaintiff. He submits that there was no evidential basis for the liability finding and that no consideration was given to the evidence of the defendant’s witnesses. Counsel submits that in circumstances where Ms. O’Flynn had admitted putting her hand behind her to restrain a closing door that a finding of substantial contributory negligence was warranted.
17. Insofar as the award of damages made by the trial judge in the sum of €75,000 was concerned the award was simply not proportionate having regard to her injuries and was also not in keeping with the compensation advised in the Book of Quantum for partial amputations of a finger in the plaintiff’s personal circumstances.
Submissions of respondent
18. Mr. Tom Creed S.C. submits that the fact that the door in question may have operated in accordance with the British Standard on the day of inspection was not dispositive of the liability issue. There was evidence to support the trial judge’s finding of liability on the basis that the defendant, in setting the closing time for the door, had failed to consider the fact that patrons would not necessarily be proceeding straight through the door and might be compromised if intending to move left to join activities immediately beyond the door. He relied upon the evidence of Mr. O’Doherty to the effect that a person coming through the door moving immediately to their left would be compromised as they would be moving towards the hinged side of the door. He also relied upon evidence of the defendant’s maintenance manager, Mr. Byrne, to support his submission that the trial judge was entitled to conclude that the door should have had a longer closing time having regard to the fact that it was in a public house.
19. Mr. Creed submits that the trial judge’s finding was also supported by the evidence of Mr. O’Connell, the defendant’s engineer, concerning the desirability of having a longer closing cycle in circumstances where a person travelling through the door might want to immediately stop thereafter because of the location and set up of tables inside the door.
20. Mr. Creed also submits that it was open to the trial judge on the evidence to make no finding of contributory negligence against the plaintiff. Finally, he submits that the award of damages was within the permissible range. The damages were not excessive to the extent required i.e. 25% or 30% as would warrant the Court treating the award as an error in principle.
Role of the appellate court
21. Where an appellate court does not enjoy the benefit of hearing and seeing witnesses the circumstances in which it may interfere with the findings of a High Court judge are indeed limited. Those circumstances are identified in the often cited decision of McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 where he described the role of the appellate court in the following terms at page 217:-
“1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v. Macken [1899] 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference — in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.”
22. It is with the aforementioned restrictions in mind that I will briefly address the liability issue in this case. It goes without saying that the burden of proof in every personal injuries claim rests upon the plaintiff. They must prove their claim on the balance of probabilities and proof of that claim will depend upon the facts found by the trial judge and whether on those facts liability is established.
23. It is for the trial judge to adjudicate upon the claim pleaded and advanced at trial. Insofar as a claim is to be advanced based on expert evidence S.I. No. 391 of 1998 requires the plaintiff to deliver to the defendant in advance of trial, any report to be relied upon and that must contain the substance of the evidence to be adduced by that witness. This is so the defendant may properly understand the case to be made against them.
24. It does not perhaps need to be stated that it is not any function of the court to propose an alternative set of facts to those which the plaintiff has sought to establish in evidence or to canvass an alternative liability case to that which was advanced on their behalf in their pleadings, expert reports and evidence.
Nature of the claim
25. In the present claim it is important to record that the liability of the defendant to Ms. O’Flynn is claimed to arise in negligence and also pursuant to the Occupiers Liability Act 1995 (“the 1995 Act”). It is common case that the duty of care owed by the occupier under the 1995 Act to a visitor such as Ms. O’Flynn is akin to the standard of care in ordinary negligence. The statutory duty of the occupier is provided for in s. 3 of the 1995 Act which provides as follows:-
“3(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.
(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
26. While it may appear pedantic to so state, an occupier is not the insurer of the welfare of a visitor and their duty of care does not extend to taking all steps as might be necessary to ensure (my emphasis) that the visitor will not be injured whilst on their premises.
27. Having considered the evidence adduced in the High Court and all that has been submitted to this Court on the appeal, I am satisfied that there was no evidential basis upon which the trial judge was entitled to make a finding of liability as against the defendant. I am also satisfied that, even on the facts found by the trial judge, the same would have warranted a very substantial finding of contributory negligence on the part of Ms. O’Flynn.
Findings of fact
28. The High Court judge found as a fact that Ms. O’Flynn, because she was meeting her friends immediately inside the automatic door, required greater time to get beyond the door than if she had been walking straight on. However, Ms. O’Flynn gave no evidence that she had any difficulty getting through the door or that she was held up in any respect in clearing the door. There was no evidence that she was obstructed by people standing or communing beyond the door in the smoking area such that she might have found it difficult to complete her passage through the doorway. Neither did she or any other witness suggest that she sustained her injury due to insufficient time afforded to her to get beyond the door. Even if there had been insufficient time, no expert evidence was called to establish that the defendant had failed in its obligation to Ms. O’Flynn by failing to provide her with more than 5.5 seconds to pass through the door and its hinge having regard to the circumstances which pertained.
29. It is to be inferred from the evidence of Ms. O’Flynn and that of her friends who were present on the night in question and from the expert evidence of Mr. O’Doherty, consulting engineer, as flagged in his expert report, that the claim she intended to pursue was to be based on the probability that the closing mechanism on the door was not working such that it “swung quite hard”, “didn’t close like a normal” door close and “didn’t close like a slower door”. Further, Mr. O’Doherty had given evidence to the effect that the fact that Ms. O’Flynn had not been able to withdraw her hand was proof that the door was not operating at the closing speed of 5.5 seconds as was contended for by the defendant but was either not working at all or had been tightened to an excessively fast closing time to keep smoke out of the common areas. That however was not the case that the High Court judge adjudicated upon. He found liability against the defendant for an act of negligence that was not pleaded, not referred to in the expert report of the plaintiff’s consulting engineer, was not referred to by him in his oral evidence and was unsupported by any other evidence in the course of the trial.
Discussion and decision re liability issue
30. It is clear from the judgment of the trial judge that he accepted as a matter of fact that the door in question was not malfunctioning on the night in question. It is implicit from his judgment, where he expressed himself satisfied that in calibrating the closing time for the door that “more than the medium” amount of time should be given to protect a person in Ms. O’Flynn’s situation from the closing door, that he accepted the evidence of the defendant that the timing mechanism had been set to 5.5 seconds. Accordingly, it is clear that the trial judge rejected the claim, which Ms. O’Flynn had sought to advance through her witnesses, which was to the effect that the closing mechanism of the door was either not working or had been set to the lowest possible calibration such that the defendant should be found liable.
31. Core to the liability finding made by the trial judge was his conclusion that the defendant was in breach of its duty of care to Ms. O’Flynn in its failure to calibrate the closing mechanism on the door having regard to its location and the setup of the area immediately beyond it. However, the evidential basis for that finding is simply not present on any review of the evidence. Mr. O’Doherty, the plaintiff’s engineer, did not make that case. His evidence in response to extensive questioning by the trial judge was that if the door was working property, as was contended for by the defendant at a closing setting of 5.5 seconds, Ms. O’Flynn would have felt some pressure on her fingers as the door started to close on them but would nonetheless have been able to extract them before they got crushed. Thus it was his opinion that her injury was caused as a result of the malfunctioning of the timing mechanism. The only other possibility, in his opinion, was that the defendant might have set the timer to a shorter timeframe so that the door would close more quickly to keep smoke out of the non-smoking area.
32. Not only was Mr. O’Doherty’s evidence insufficient to support the liability finding made by the trial judge but the finding is unsupported by any other evidence. I reject Mr. Creed’s submission that the finding can be supported either by the evidence of Mr. Byrne or that of Mr. O’Connell. Mr. Byrne did no more than make a modest concession that when fixing a timer for a door in a pub situation that it would be “an idea” to have it at the “longer closing”. Mr. O’Connell went no further than to agree that it would “be more desirable” to give a long time rather than a short time if adjusting the closing mechanism of a door in circumstances where the occupier was aware that there would be tables inside that door. To support the finding made by the trial judge the plaintiff would have to have proved that it was common practice in a situation such as that which pertained in the defendant’s premises that automatic doors would be set to a 7 second closing time and that it was recognised that to set such a door to any lesser closing speed would foreseeably cause injury to the customer. In this case the trial judge had no such evidence. To the contrary, he had positive evidence from Mr. O’Connell that 5.5 seconds was considered satisfactory for automatic doors in circumstances such as presented in this case and he also had evidence from Mr. Byrne that this was the standard setting for all automatic doors in the public house premises owned by the defendant.
33. In the aforementioned circumstances there was no evidence entitling the High Court judge to find that the defendant had failed to use reasonable care when it set the timing mechanism on the door in question at 5.5 seconds.
34. Apart from what I have already stated, the judgment of the High Court judge does not make clear how he resolved the issue of causation. It follows from what he stated in relation to liability that he was clearly satisfied that had the mechanism been set to close over a period of 7 seconds that Ms. O’Flynn would have had sufficient time to extract her fingers without injury. It follows that given that he accepted that the mechanism was working on the night in question and was operating on a 5.5 second closing time that he must have concluded that so operated the door was unsafe and did not provide sufficient time for a customer to extract their fingers once aware the door was closing. However, the High Court judge did not state how it was that he reached that conclusion. After all, it was Ms. O’Flynn’s own engineer, Mr. O’Doherty, who stated that if the door was set to 5.5 seconds closing time that, in his view, she would have been able to extract her fingers safely. It follows that the only basis upon which the High Court judge could have awarded damages to the plaintiff is if he had accepted the defendant’s evidence, i.e. that of Mr. O’Connell, that at 5.5 seconds the door at that point in time when it would be felt by the customer would instantaneously grip the finger such that it could not be withdrawn. However, if that was the basis upon which the High Court judge proceeded there was simply no evidence to suggest that at 7 seconds the plaintiff would have avoided injury and would have been in a position to extract her fingers.
35. For all of the aforementioned reasons the finding of liability must be set aside.
Contributory negligence
36. In light of the conclusions which I have just expressed, it is perhaps superfluous to engage with the trial judge’s finding that on the facts as found by him there could be no finding of contributory negligence. Nonetheless I consider it important, in the context of cases of this nature, to state that I could not disagree more with his conclusion that a patron such as Ms. O’Flynn was not to be faulted in any respect for an injury which he concluded she sustained when the tip of her finger was amputated due to the fact that she had blindly put her hand behind her into the hinged recess of an automatic door with a 5.5 second closure speed.
37. Adult members of society are obliged to take care for the own safety and cannot divest themselves of responsibility for their actions. The duty of care of the publican is to take reasonable care for the safety of those who come to socialise on their premises. Their statutory obligations are those provided for in the Occupiers Liability Act 1995 which imposes upon the occupier equivalent duties to those required at common law. They must take reasonable care to protect the visitor from dangers on their premises.
38. From infancy we are warned of the risk of injury from closing doors. The education of toddlers concerning this particular type of danger probably starts when they first encounter the safety latch on the kitchen press. The concerned parent attaches such a device not only to keep children away from dangerous substances that may be in those presses but because they well understand the risk to little fingers that may be inserted unwittingly between the leading edge of the door and its frame or into the recess on the hinge side of the door. It is not long before that risk is absorbed by even relatively young children such that they can be left to move around their own homes where similar risks present with the opening and closing of larger and heavier doors.
39. Beyond the home, doors are part of every day life and automatic doors are no exception. They are commonplace in buildings of every nature. Automatic doors are encountered in every type of public building including hospitals, schools, courts and offices. As adults we know we must avoid leaving our fingers between the leading edge of the door and the door frame as it closes. Likewise, we are only too aware of the consequences of placing our fingers near or within the recess of the hinged side of a door. To propose that an adult should be considered blameless, and I use the word blameless in the legal sense in which that word is understood, for an injury sustained when, having proceeded through an automatic door, they blindly placed their hand behind them in a manner such that their fingers were placed in the hinged recess of the door is in my view untenable.
40. We are all guilty from time to time of doing things without paying sufficient attention to the consequences of those actions in terms of potential risk. When we do so and sustain injury as a result we are to blame and we must absorb the consequences of our conduct unless we can demonstrate that some other party was in some respect culpable. On the facts of this case, as already explained, there was no basis for any finding of negligence or breach of duty on the part of the Oliver Plunkett bar. That being so, Ms. O’Flynn must be considered to be the author of her own misfortune.
41. It is indeed regrettable that Ms. O’Flynn sustained what was undoubtedly a significant and disfiguring injury to her left hand. However, judges must be careful not to allow the significance of an injury influence their judgment when it comes to deciding as a matter of law who is to be considered responsible for that injury. On the evidence before him there was no basis upon which the High Court judge was lawfully entitled to conclude that the defendant had any responsibility for this plaintiff’s unfortunate injury.
42. For all of the reasons set out earlier in this judgment, I would allow the appeal.
Byrne v Ardenheath Company Ltd
[2017] IECA 293,
JUDGMENT of Ms. Justice Irvine delivered on the 9th day of November 2017
1. This is the appeal by Ardenheath Company Ltd. against the judgment and order of the High Court, Hanna J., dated the 25th February, 2016. In his judgment, Hanna J. found the defendants liable in negligence for injuries sustained by Ms. Louise Byrne on the 20th December, 2012 when she fell whilst walking down a grassy bank from the defendants’ car park at Mountview Shopping Centre, Blanchardstown, Dublin 15 to an adjacent footpath. He also found Ms. Byrne guilty of contributory negligence to the extent of 40%.
2. The High Court judge assessed the damages to which Ms. Byrne was entitled in respect of pain and suffering to date in a sum of €50,000 and €70,000 in respect of pain and suffering into the future. The total award made by the trial judge, allowing for agreed special damages of €5,066.87, was €125,066.87 which, when discounted to take account of Ms. Byrne’s contributory negligence, resulted in an overall award of €75,040. He also awarded Ms. Byrne her costs of the proceedings when taxed and ascertained.
3. By notice of appeal dated the 23rd March, 2016, the defendant/appellant (“Ardenheath”) seeks to challenge the validity of the trial judge’s findings in respect of liability and also his assessment of the general damages to which he considered Ms. Byrne entitled both in respect of pain and suffering to date and pain and suffering into the future.
Relevant background facts
4. Ms. Byrne was born on the 22nd April, 1967 and is the mother of four children. At the time of the accident the subject matter of the within proceedings she was working as an information officer with the Blanchardstown Centre for the Unemployed on a part time basis. Her work required her to deliver leaflets to housing estates in the Blanchardstown area.
5. On the 20th December, 2012, accompanied by two of her colleagues, Phyllis Lee and Carol Byrne, she drove to Mountview Shopping Centre with a view to parking her car there whilst she distributed leaflets in the locality. The car park was conveniently close to the housing estate which was to be the focus of her activities. It was a drizzly, damp day as they got out of the car. Ms. Lee and Ms. Carol Byrne exited first and stepped over the kerbstone in front of the car after which they had made her way down the adjacent grassy bank to the footpath which was no more than 10 feet away. Ms. Louise Byrne, having retrieved her handbag from the boot of the car, followed taking the same route to the footpath. In her evidence, Ms. Byrne stated that because the car park was busy and she needed to get to the pathway which was just in front of her, she went down the grassy bank. She slipped on this slope and suffered a serious break to her ankle.
6. It is perhaps relevant at this point to give some detail concerning the car park of the Mountview Shopping Centre as the same is relevant to the liability findings ultimately made by the trial judge. The Land Registry Map and Overhead Aerial Image attached to the report of Denis Wood Associates, Consulting Engineers, shows that the shopping centre comprises two building developments. The larger building is served by a car park which provides spaces for approximately 85 to 90 cars. That car park has approximately 250 feet of grass frontage to the north and a further approximate 250 feet of like frontage to the east. The smaller building is serviced by a car park providing approximately 25 spaces and this area enjoys a grass frontage to the north of approximately 150 feet. There are four entrances from the roads and footpaths which surround the north and eastern sides of the shopping centre. Entrance number 1 is at the south east corner of the overall site and is sufficiently wide to accommodate both vehicles and pedestrians. The continuous grass frontage to the north of the larger car park, which incorporates a footpath parallel to the roadway, is broken by two pedestrian only entrances. These are identified as entrances numbered 2 and 3 on Aerial Image 1. Entrance number 4, like entrance number 1, is a wide entrance sufficient to accommodate both vehicles and pedestrians. This entrance separates the two areas of grass frontage to the north of the shopping centre. There is approximately 150 feet between entrance number 4 and entrance number 3. The entire car park is separated from the grass area which surrounds it by a continuous kerbstone which is 6 inches in height. There are no markings on the road surface of the car park to guide the movements of either pedestrians or motorists. Finally, of relevance to the circumstances surrounding Ms. Byrne’s fall is the fact that the grass slope between the car park at the point at which she parked her car and the adjacent footpath has a slope of approximately 31°.
Judgment of the High Court
7. As to the circumstances relevant to these proceedings, the trial judge found as a fact that Ms. Byrne had driven into the smaller car park and had parked her car 5 to 6 car parking spaces to the right of the entrance through which she had driven. Concerning the grass area upon which Ms. Byrne fell, the High Court judge observed that there was a very definite slope and that “there appears to have been no accommodation of any description to allow for persons coming out of or entering into that part of the car park”.
8. The following is what the High Court judge stated concerning the location of the accident and which is recorded at p. 9 of the transcript of his judgment:-
“The only designated exit, as I have said, in this instance was a shared vehicular entrance. There was a cutaway as one entered or exited the entrance which could physically accommodate pedestrians, I suppose, but it wasn’t marked out, it wasn’t indicated as such, and there was no way really of saying that pedestrians were to use that or not. A pedestrian, if one were to be very strict about it, would have to wander down past the entrance and carry on to one of the two pedestrian entrances in the other half, as it were, of the car parking area and then carry on up again. Very often, as we know, people don’t do that, people will take shortcuts, as is evident from the photographs. People were taking shortcuts all over the place in this area because that’s what people do and that’s why people have to be given the choice. But were they given an appropriate choice in this case?”
9. Based on the evidence of Mr. Barry Tennyson, engineer on behalf of the plaintiff/respondent, the High Court judge went on to find, as a matter of fact, that as there was no pedestrian only designated entrance for pedestrians wishing to get from the footpath to the smaller car park or vice versa, they had to go up and down the slope. The trial judge noted the engineer’s evidence to the effect that it would have been a simple matter for Ardenheath to have installed a pedestrian only entrance consisting of a step and a barrier at the location where Ms. Byrne had fallen. Its absence was, according to Mr. Tennyson, a “design fault”. It was Mr. Tennyson’s evidence that the barrier and step would have stopped pedestrians walking up and down the slope and would have cost Ardenheath no more than €5,000. The trial judge also noted the engineering evidence given on behalf of the defendant to the effect that there was no design fault with the entrances to the car park. He further noted the consulting engineer’s evidence that there was no justification for the claim that, in failing to provide a further pedestrian only entrance between entrance number 4 and the north west corner of the site, Ardenheath had not taken reasonable care for pedestrians wishing to get from the car park to the adjacent footpath.
10. The trial judge accepted Mr. Tennyson’s evidence that the absence of a pedestrian only entrance between entrance number 4 and the north west corner of the car park (i.e. along the 150 foot of frontage to the north side of the smaller car park) constituted a basic design fault. This fault, he found, was further evidenced by the fact that there were two pedestrian only entrances for patrons using the larger car park who wished to access the footpath incorporated within the grass perimeter at the north side of the larger car park. According to the trial judge, the standard that had been deployed in the larger car park represented what Mr. Tennyson considered to be good practice, whereas the smaller car park had a design fault which represented bad practice and a departure from the standard of care owed to Ms. Byrne as a visitor.
11. Having found Ardenheath liable for breach of its duty as the occupier of the car park, the trial judge went on to hold Ms. Byrne 40% liable in respect of her injuries. He did so based on the fact that the slope upon which she had fallen was obvious, allied to which it was a drizzly day and the grass was wet and slippery at the time. Given that she had decided to go down the slope, it would appear that the trial judge concluded that she had not done so either “gingerly” or “carefully” such that she had contributed to her fall.
12. As to her injuries, Ms. Byrne sustained a bimalleolar fracture subluxation of her left ankle which required internal fixation and a hospital stay of two days. Thereafter, her left leg and foot were retained in a plaster of Paris cast for six weeks. The trial judge described Ms. Byrne’s Christmas as “something of a catastrophe” as she had great difficulty mobilising. She undertook physiotherapy but continued to have discomfort in the ankle with the result that she had the metal fixation removed from her ankle in March 2015, a procedure which was carried out as a day case. X rays taken in April 2015 did not demonstrate any degenerative change but identified the presence of a washer on the medial side of the ankle which has become fused to the bone. The trial judge accepted Ms. Byrne’s evidence that she had difficulties with ongoing pain, discomfort and swelling of the ankle and expressed himself satisfied that this would likely continue into the future whilst acknowledging the possibility of some alleviation in her symptoms. He described the scarring to the ankle, which this Court has seen, as significant and bilateral in nature and he considered it reasonable that Ms. Byrne was embarrassed by this scarring.
Legal Principles
13. As there is no real dispute concerning the principles to be applied on this appeal, it is unnecessary to refer to them in any great detail.
14. Suffice to say that when it comes to interfering with findings of fact made by a trial judge, the well established principles set out in Hay v. O’Grady [1992] 1 I.R. 210 apply. If the findings of fact made by the trial judge are supported by credible evidence, the appellate court is bound by those findings regardless of how voluminous and apparently weighty the testimony against them may be. As was stated by McCarthy J. “the truth is not the monopoly of any majority”.
15. An appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence of recollection of fact and a different inference has been drawn by the trial judge. But in the drawing of inferences from circumstantial evidence, an appellate court is in as good a position as the trial judge.
16. As to the circumstances in which an appellate court will interfere with an award of general damages, two of the decisions most frequently relied upon are those of Lavery J. in Foley v. Thermocement Products Ltd. [1954] 90 I.L.T.R. 92 and McCarthy J. in Reddy v. Bates [1984] ILRM 197. The former judgment advises that the test to be applied by an appellate court is to decide whether there is any “reasonable proportion” between the actual award of damages and what the court, sitting on appeal, would itself be inclined to give. For this purpose, the appellate court will make its own assessment of the damages it considers proportionate and then decide whether the award made by the High Court judge should be considered “an entirely erroneous estimate of the damage or is plainly unreasonable”. The latter decision advises, inter alia, that an appellate court should only interfere with an award of general damages if it considers that there is an error in the award which is so serious that it should be considered to amount to an error of law and that a general rule of thumb would require a discrepancy of at least 25% before the appellate court could justify intervening.
17. As to the calculation of general damages, the jurisprudence in this area of law requires that awards of damages for pain and suffering be both just and fair. An award must be (i) fair to the plaintiff and the defendant, (ii) objectively reasonable in light of the common good and social conditions in the State, and (iii) proportionate within the scheme of awards for personal injuries generally. (See for example Denham J. in M.N v. S.M [2005] 4 IR 461 and that of this court in Nolan v. Wirenski [2016] IECA 56).
18. It is important, as I stated in Nolan v. Wirenski, that minor injuries should attract appropriately modest damages, middling injuries moderate damages and more severe injuries damages of a level that are clearly distinguishable in terms of quantum from those that fall into the other lesser categories of injury. Further, the fact that a judge describes an injury as significant does not mean that the damages must be substantial. How significant the injury is for the purposes of assessing damages should be assessed in the context of the whole spectrum of potential injuries to which any individual might be exposed.
19. As to how a judge at first instance might make a fair and just assessment of the damages to be awarded in respect of pain and suffering in any case, commencing at para. 43 of my judgment in Shannon v. O’Sullivan [2016] IECA 93, I stated as follows:-
“43. Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:-
(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?
(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?
(ix) For how long was the plaintiff out of work?
(x) To what extent was their relationship with their family interfered with?
(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?
44. As to the court’s assessment as to the appropriate sum to be awarded in respect of pain and suffering into the future, the court must once again concern itself, not with the diagnoses or labels attached to a plaintiff’s injuries, but rather with the extent of the pain and suffering those conditions will generate and the likely effects which the injuries will have on the plaintiff’s future enjoyment of life.”
The appellant’s submissions
20. Mr. Declan Buckley S.C., on behalf of Ardenheath, submits that there was no credible evidence upon which the trial judge could have found Ardenheath in breach of its statutory obligations as occupier of the car park. He argues that its obligation did not extend beyond providing care that was reasonable in all of the circumstances.
21. The reason the plaintiff was injured was because of her own blameworthy actions. According to Mr. Buckley, Ms. Byrne should have been found 100% responsible for her own injuries and for the High Court judge to have found the defendant 60% liable was to permit her to abrogate all responsibility for own actions. He submits that Ms. Byrne knew she was taking a shortcut. She knew she was wearing runners which would not provide her with a good grip. She knew that it was wet and that the grassy area over which she intended to cross had a severe slope. She also knew it was not a designated entrance and that the entrance which she had used to enter the centre by car was no more than five car spaces away. Further, counsel relies upon the fact that Ms. Byrne was under no compulsion to go down the slope she did. She was not in a hurry. It was not argued that she could not find an exit. She knew where it was and she was not under any pressure in terms of time.
22. Counsel then addressed the trial judge’s finding that there was a design fault because of Ardenheath’s failure to provide a designated pedestrian only entrance comprising a concrete step with a barrier either side proximate to where Ms. Byrne had slipped. He relies on the fact that there was no evidence of any track on the grassy slope to suggest that patrons “habitually went up and down” the slope at any particular point between the smaller car park and the foot path immediately to the north of it. There was no indication for a need for any such path. Mr. Buckley further submits that every pedestrian deciding not to use entrance number 4 to exit the smaller car park would likely take different routes down the slope depending upon where they had parked their car and where they intended to go having exited the car park. This was not a case where there was evidence of a “desire line” as a result of the habitual use of one particular path of travel.
23. Mr. Buckley submits that there was no reason why on the morning in question, having regard to the traffic in the car park, a pedestrian such as Ms. Byrne would not have walked to entrance number 4 and used that as her means of accessing the footpath. He further submits that she did not decide to exit down the slope because she was in any way concerned that she could not safely use that exit. She took a short cut and was not entitled to seek to have his client pay for the consequences flowing from the risk she had taken.
24. Finally, counsel submits that the damages awarded by the trial judge for pain and suffering to date and pain and suffering into the future were not just, fair and proportionate, but were excessive, having regard to the injuries sustained by Ms. Byrne and her likely prognosis. He asks the court, in the event of liability being upheld against his client, to conclude that the award amounts to an error of law such that it should be set aside in favour of a lesser sum in respect of both categories of damages.
The respondent’s submissions
25. Mr. Eugene Gleeson S.C. on behalf of Ms. Byrne submits that the trial judge was entitled to prefer the evidence of Mr. Tennyson to that of the defendant’s consulting engineer, Mr. Colin Flynn. Mr. Tennyson’ s evidence was that if Ardenheath had taken reasonable care for the safety of person visiting the shopping centre it would have provided a pedestrian only entrance with a barrier erected on either side of it to ensure that pedestrians did not exit the smaller car park by going down the slope which joined the smaller of the two car parks to the footpath immediately in front of it. He submits that the trial judge was entitled to find that reasonable care required Ardenheath to construct a barrier to stop people going down a desire line and that it was within his discretion to make that finding based upon the expert evidence.
26. According to counsel, there was credible evidence to support the trial judge’s finding that there was a design fault in the design of the smaller car park because it did not, unlike the larger car park, have a pedestrian only entrance. He relied upon the principles advised in Hay v. O’Grady to support his submission that there was no basis upon which this Court could lawfully interfere with the High Court judge’s finding in respect of liability.
27. Finally, Mr. Gleeson submits that the damages awarded by the High Court judge in respect of pain and suffering to date and pain and suffering into the future were not disproportionate or unfair having regard to the injuries sustained by his client. The evidence was that she had endured much by way of pain and suffering to date and will continue to do so into the future. In particular, she had very significant scarring to the ankle, which was permanent and was the source of great embarrassment to her.
Discussion
28. Given that the facts are not in dispute, the question on this appeal is whether the trial judge was correct as a matter of law in the standard of care which he demanded of Ardenheath as occupier of the car park where Ms. Byrne sustained her injury. The starting point for a consideration of this issue is of course the provisions of the Occupiers’ Liability Act 1995 (“the Act”).
Occupiers’ Liability Act 1995
29. The nature and extent of the duty owed by an occupier to a visitor to their premises is set out in s. 3 of the Act which provides as follows:-
“3.(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.
(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
30. Whilst the trial judge in most personal injuries cases will be assisted, in reaching his or her decision as to whether an occupier has complied with their obligations under the Act, by expert witnesses such as consulting engineers, it is for the trial judge, and the trial judge alone, to decide that issue having regard to the facts established in any particular case. The role of the expert witness is to guide the court and to bring to its attention all of the evidence which they consider might assist the judge in forming his or her independent judgment as to whether or not the parties complied with their respective obligations. This evidence will often include assistance in the form of photographs, maps, measurements and any relevant statutory provisions or regulations.
31. It was my experience as a trial judge that the effectiveness of the assistance offered by expert witnesses in almost all disciplines, whether that evidence was in respect of the standard of care proposed or a party’s compliance therewith, was frequently compromised by the fact that, all too often, their opinions all too often appeared to correspond too favourably with the interests of the parties who retained them. I continue to remain of that view as an appellate court judge where the transcript may lead one to the conclusion that a given expert had become so engrossed in their client’s position that they were clearly incapable of providing truly independent guidance for trial judge.
32. I mention these facts because they highlight the need, particularly in cases where the court is not dealing with a complex specialist field of activity, for the trial judge, not only to consider the expert evidence tendered by the parties but to bring ordinary common sense to bear on their assessment of what should amount to reasonable care. The present case would, in my opinion, fall into that category insofar as it concerns the care to be expected of the owner of a shopping centre car park for visitors seeking to exit the car park on foot.
33. The situation is of course different in cases involving a specialised field of activity such as the practice of obstetrics or the operation of a nuclear power plant, to take but two extreme examples of the types of cases in which a judge should never substitute their own views for those of appropriately qualified experts. In such cases, evidence is required from persons with specialised skills and the judge cannot be the sole arbiter of what constitutes reasonable behaviour, because they know nothing of the risks that may be involved. However, this is not such a specialist case.
Evidence in the High Court
34. It is necessary, having regard to the findings of fact made by the High Court judge to mention some particular aspects of the evidence.
35. Whilst evidence was given by Mr. Tennyson regarding “desire lines”, a factor referred to by the trial judge in his judgment, it is important to note that there was no worn track or “desire line” going down the grassy slope between the small car park and the footpath evidencing the demand of pedestrians to exit the small car park otherwise than by using entrance number 4.
36. Material also is the fact that there was no evidence to suggest that it would not be reasonable, in the context in which that word is used in the Act, to expect pedestrians and vehicles to share the same entrance such as those numbered 1 and 4 in this case. Further, there was no evidence that such use was in breach of the planning permission granted for the shopping centre or that it was in breach of any other regulation or safety requirement for commercial premises.
Liability conclusions
37. Core to the liability finding of the trial judge was his conclusion that there was a “design fault” in the smaller car park, in that, unlike the larger car park, it was not served by a pedestrian only entrance.
38. It is correct, as can be seen from the Land Registry Compliant Map and as was found by the trial judge, that the larger car park does indeed have two pedestrian only entrances (numbers 2 and 3). These are in fact relatively close to each other on the north side of the car park. However, what the trial judge failed to observe is that the larger car park has two continuous areas of grass frontage of approximately 150 feet, one to the north and the other to the east of the shopping centre of equivalent length to that fronting the smaller car park through which there are no designated pedestrian entrances. Thus I cannot identify any credible evidence upon which the trial judge could validly have concluded that there was a “design fault” by reason only of the absence of a designated pedestrian path through the area of continuous frontage to the north side of the smaller car park where Ms. Byrne fell. For this reason, I am satisfied that the trial judge’s finding of a design fault based upon the disparity of pedestrian only entrances between the two car parks is not supported by the evidence, regardless of whether it was Mr. Tennyson’s opinion that there was such a design fault.
The duty of care of the occupier
39. Contrary to what is to be inferred from the judgment of the High Court judge, the liability of an occupier for the safety of a visitor to one area of its premises is not to be judged by the standard of facilities which it provides for visitors to any other area of its premises. The fact that an occupier may provide lesser facilities or a less safe environment, even if it was its intention that the standards be the same, is not of itself evidence of negligence. The question a court considering the matter must address is whether the area which has the lower standard of facilities or the lesser standard of safety, assuming that to be the location of the subject accident, complies with the occupiers’ statutory obligation to take reasonable care in all of the circumstances. Unfortunately, the trial judge did not adopt that approach but instead condemned the occupier for providing what he, incorrectly as it happens, considered to be a lesser standard of care for pedestrians using the smaller car park.
40. Accordingly, I am satisfied that the trial judge made two significant errors. First, he erred as a matter of law in concluding that Ardenheath, by reason of its failure to provide equivalent facilities in terms of pedestrian only entrances in the smaller car park as were available to visitors to the larger car park, had necessarily fallen short of its statutory obligation to provide reasonable care. Second, based upon the opinion evidence of Mr. Tennyson, he found that there was a “design fault” in Ardenheath’s failure to provide a designated pedestrian only entrance along that area of grass frontage to the north of the shopping centre where the Ms Byrne fell, when the evidence demonstrated equivalent areas of frontage to the larger car park which had no such pedestrian only entrances.
41. It was these conclusions on the part of the High Court judge, together with his acceptance of Mr. Tennyson’s opinion that Ardenheath, if taking proper care for the safety of those expected to use the shopping centre, would have installed a step close to where Ms. Byrne fell and a barrier along the whole of the frontage to the north of the smaller car park to deter patrons from walking down the grass slope, that ultimately caused the trial judge to find Ardenheath liable in respect of Ms. Byrne’s injuries.
42. Bearing in mind that what amounts to reasonable care is a question of law for the trial judge on the facts of any given case, the question which this Court must address is whether the trial judge was correct as a matter of law when he concluded that Ardenheath was in breach of its statutory duty to take reasonable care for Ms. Byrne in its failure to fence off the offending slope where she slipped and provide her with a pedestrian only exit or step somewhere along the grass frontage to the north of the smaller car park where she fell.
43. Relevant to this issue are certain factors which may be considered by a trial judge when analysing whether an occupier may be said to have complied with its obligation to provide reasonable care for a visitor to its premises. One such factors is the probability of an accident occurring and in this regard it is relevant that there was no evidence of any history of accidents on this particular slope. A further consideration is the likely gravity of the injury that might result from the risk posed. In this regard, while Ms. Byrne did suffer a severe injury, the gravity of the risk posed by the slope was relatively benign when considered against the gravity of the type of injury that might be sustained due, for example, to the absence of a railing on the top of a public building. Another relevant factor in the judge’s analysis would be the cost of eliminating the risk. In this case, the evidence was that the cost of providing the step and adjacent barriers proposed by Mr. Tennyson would have been relatively low i.e. in the sum of approximately €5,000.
Decision
44. For my part, I am satisfied that the trial judge erred in law when he concluded that the defendant had failed to comply with its statutory obligations in its failure to have in place the barrier and concrete step system advocated by Mr. Tennyson. First of all, as s.3 (2) of the Act makes clear, the occupier is entitled, when deciding what steps it should take to comply with its obligation, to assume that its visitors will take all reasonable care for their own safety and that an adult normally can look after his or her welfare. The occupier is entitled to take into account that an adult normally can look after his or her welfare. That begs the question as to what Ardenheath as occupier was entitled to expect of a visitor such as Ms. Byrne who wanted to leave the smaller car park on foot to go to the housing estate across the road from the car park.
45. I am satisfied that Ardenheath was entitled to assume that an adult exercising reasonable care would avoid the 31º wet grassy slope, particularly having regard to the presence of the 6 inch kerbstone, the fact that they were wearing shoes that provided little grip, and that they needed to go no further than the modest distance required leave the car park through entrance number 4 using a tar macadam surface. There was, after all, no evidence that entrance number 4 was not suitable as a safe entrance for both cars and pedestrians. Further, the evidence of Ms. Lee was that on the day of Ms. Byrne’s accident, whilst the car park was busy, there was no reason why she could not have walked the distance of five or six car park spaces so as to make her exit on a proper and safe surface. This is not a case where, in order to have avoided the wet grassy slope, Ms. Byrne would have been required to walk any substantial distance in order to find a dedicated surfaced exit.
46. All that is not to say that there is anything to stop a visitor such as Ms. Byrne deciding to take a short cut down such a slope to get more quickly or directly to their desired destination. However, if they do they cannot be said to have used reasonable care for their own safety and if they are injured as a result they cannot seek to blame the occupier. I am accordingly satisfied as a matter of law that, in providing visitors to its smaller car park with a safe and proximate entrance (Entrance number 4), Ardenheath complied with its duty to take reasonable care for Ms. Byrne on the 20th December, 2012.
47. I am satisfied that to hold Ardenheath liable for breach of its statutory obligations for failing to install a barrier along the area of grass frontage to the north side of the smaller car park in order to stop pedestrians such as Ms. Byrne exiting the centre by going down a short but steep grassy slope, when there was a safe exit only a short distance away, would be preposterous and would be tantamount to constituting Ardenheath the insurer of the safety of its customers. Further, to conclude that Ardenheath was obliged to deploy preventative measures of the type proposed by Mr. Tennyson in order to meet its “reasonable care” obligations under s. 3(2) of the Act would potentially have significant adverse repercussions for all of those who occupy land open to visitors which is not entirely flat such as the local authorities responsible for many of the wonderful open spaces and parks in this country.
48. The implications of imposing such a standard might be said to support the proposition that “reasonable care” required an occupier of land open to visitors to erect a fence at the top of any grassy slope of 31 degrees or more and to provide a step or a series of steps, presumably at regular intervals, to allow that slope to be negotiated by visitors. Indeed, it might even be said that the occupier was obliged to erect a barrier at the bottom of the slope, if the slope was sufficiently long from top to bottom, lest visitors decide go part of the way up and slip and injure themselves on a wet day.
49. I am satisfied that the visitor should be expected to take reasonable care descending a grassy bank and if it be wet and slippery and they are in unsuitable footwear that they will decline the risk or that if they decide to accept it they will take responsibility for the consequences of that decision. Judges should be careful when interpreting statutory provisions such as s. 3 of the 1995 Act to ensure that they do not inadvertently and contrary to the intention of the legislature by their judgments end up denying children the joy of running down a grassy slope in a public park on a dry summer day or the golfer the pleasure of playing to an elevated green surrounded by a grassy bank. The court must consider the obligation of the occupier against the backdrop of the statutory provision which entitles them to assume that the visitor will use reasonable care for their own safety. In this case, had Ms. Byrne not acted in breach of her obligation to take reasonable care for her own safety, entrance number 4 would have provided her with a safe and proximate method whereby she could exit the centre.
Conclusion
50. For the reasons earlier set out in this judgment, I am satisfied that the trial judge erred in law when he concluded that Ardenheath was in breach of its statutory duty to take reasonable care for the safety of Ms. Byrne when visiting its shopping centre premises on 20th December, 2012.
51. The duty of care owed to Ms Byrne by Ardenheath is that provided for by s.3 (2) of the 1995 Act. That duty is described as “the common duty of care” which means a duty to take such care as is reasonable in all the circumstances having regard to the care which a visitor may reasonably be expected to take for his or her own safety.
52. In her decision to exit the car park by going down a steep grassy bank which was wet and slippery whilst wearing shoes that had little or no grip, Ms Byrne did not take the reasonable care for her own safety that Ardenheath was entitled to assume she would take. I am satisfied that Ardenheath, in providing a reasonably proximate surfaced exit for visitors wishing to leave the shopping centre from the smaller of its two car parks and having regard to the care that it was entitled to reasonably expect of Ms Byrne, had complied with it statutory obligations under the 1995 Act and that the trial judge erred in law in setting a standard of care which required the installation of a step with barriers either side at the locus of Ms Fogarty’s fall.
Newman v Cogan
[2017] IECA 176
JUDGMENT of Ms. Justice Irvine delivered on the 16th day of June 2017
1. This judgment focuses upon the duty of care owed by an occupier of premises to a visitor where they personally take on the task of carrying out repairs within their own home.
2. By judgment and order of the High Court (O’Neill J.) dated the 5th December, 2012, the trial judge dismissed the plaintiff’s (“Ms. Newman”) claim for damages for personal injuries sustained by her on the defendants’ premises on the 22nd June, 2007. He also awarded the defendants the costs of the proceedings, to be taxed in default of agreement. It is against this judgment and order that Ms. Newman now appeals.
Background
3. Ms. Newman was born on the 13th November, 1985. Her partner, Emmett Cogan (“Mr. Cogan Jnr.”), is the son of the defendants who are the owners of a property at Dugganstown, Devlin, Co. Meath (“the premises”). That premises is a traditional style farmhouse which was over sixty years old at the date of trial and which was extended in the 1960s. At the time Ms. Newman sustained her injury the upper half of the inner door of the back porch contained two glass panels. Over the years these panels had occasionally been broken as a result of the normal rough and tumble of family life. The football and the slither were cited as the main culprits. After one such incident, in or about the year 2000 or 2001, the first named defendant (“Mr. Cogan Snr.”), who is a farmer, inserted two new patterned glass panels into the door.
4. At about 12:30 pm on the 22nd June, 2007, Ms. Newman and Mr. Cogan Jnr. went out into the yard at the back of the house. She wanted to have a smoke while he went out for the purpose of retrieving a bag of meat from the deep freeze which was in an adjacent shed. Ms. Newman then went back into the house not realising that Mr. Cogan Jnr. was close behind her. She closed the door and was still facing it when he tripped over clutter in the porch area. He fell forward and his outstretched left hand, which was carrying the bag of frozen meat that he had retrieved from the deep freeze, went through the glass panel on the left side of the door with considerable force. The glass shattered in an explosive fashion and one of the many glass shards that were thrust into the air went into Ms. Newman’s right eye.
5. Tragically, notwithstanding the best efforts of the medical profession, Ms. Newman lost the vision in her eye and now has an artificial eye.
6. Prior to the hearing in the High Court the parties agreed that in the event of liability being found in favour of Ms. Newman the appropriate award of damages would be a sum of €200,000.
The High Court hearing
7. In circumstances where there is no appeal against the facts found by the trial judge concerning how Ms. Newman sustained her injuries and that these are as described above, it is not necessary to engage with the evidence that was given by Ms. Newman or Mr. Cogan Jnr.. The only other evidence heard by the Court, and to which I will later refer, was from the consulting engineers retained by the parties, namely Mr. Frank Abbott on behalf of Ms. Newman and Mr. Anthony Tennyson on behalf of the defendants. Mr. Cogan Snr. did not give evidence.
Judgment of the High Court
8. The trial judge was satisfied that in order to resolve the issue of liability the question he had to answer was whether or not the defendants had failed in their duty of care as occupiers of the premises in having glass of the type that caused Ms. Newman’s injury in the door when the accident occurred. The engineers were agreed that the glass in the door at the time was annealed glass, i.e., ordinary domestic glass, which, whilst suitable for use in windows, was unsuitable and dangerous for use in a door because if broken it fractured into shards unlike safety or toughened glass which if broken shattered into smithereens and fell directly to the ground.
9. It is important at this point to state that the within proceedings were brought by Ms. Newman founded on a claim that the defendants were liable to her in respect of her injuries by reason of the duty of care required of them pursuant to the Occupiers Liability Act 1995 (“the 1995 Act”). Thus, the trial judge was correct to start his assessment of the liability issue by seeking to identify the duty of care owed by Mr. Cogan Snr. to any potential visitor to the premises at the time he replaced the glass in 2000/2001.
10. From his judgment it would appear that the trial judge accepted that the duty of care owed by Mr. Cogan Snr. to Ms. Newman at the time he replaced the glass panels in 2000/2001 was to be assessed in accordance with the test suggested by the English Court of Appeal in Wells v. Cooper [1958] 2 Q.B. 265, a decision to which I will later return. Relying upon the head note in that decision he described the duty of a householder such as Mr. Cogan Snr. at the relevant time, in the following manner:-
“20. As the head note in this case makes plain, the standard of work to be expected of a householder in these circumstances, who has taken on a repair of this kind, is not quite the same as that to be expected from a tradesman who is performing the task for reward and subject to contractual obligations, where the standard would be much higher. In effect, the householder will be considered to have discharged his duty of care unless it established (sic) that what he did was something which no reasonably competent tradesman, in this case, a glazier, would do.”
11. Having regard to the standard of care, by which he was satisfied Mr. Cogan Snr. was to be judged, the trial judge, having considered the evidence before him concluded, as follows:-
“23. Whilst I am quite satisfied that the evidence of the two engineers establishes that a professional glazier performing the task for reward would not have installed the type of glass which the first named defendant used, it does not follow at all that the first named defendant’s choice in this regard is to be condemned simply because a professional glazier performing the task for reward would not have chosen the same glass. The evidence of the engineers does not go so far as to suggest that a reasonably competent amateur glazier, such as the first named defendant, when replacing a pane of glass in his own private dwelling, could not reasonably have believed that the glass used was adequate or suitable for the location in question.
24. Insofar as the selection of the glass is concerned, the only inference that can be drawn from the evidence is that the first named defendant probably purchased it from a retail supplier of glass.”
12. I pause here to make three observations regarding the last mentioned statement, albeit that these are matters to which I will later return. First, the expert testimony of both engineers was to the effect that a reasonably competent or skilled tradesman, who the trial judge treated as equivalent to the skilled amateur glazier, would in 2000/2001 have known that the glass Mr. Cogan Snr. selected for the door was unsuitable for that purpose. Second, there was no evidence to support the trial judge’s finding of fact that Mr. Cogan Snr. was a reasonably competent amateur glazier. He did not give evidence and no other evidence was advanced as to his DIY or glazing competence. Third, there was no evidence from which the trial judge was entitled to infer that Mr. Cogan Snr. probably purchased the glass which he used in the door from a retail glass supplier.
13. The trial judge next referred to the fact that Mr. Cogan Snr. had carried out the installation of the glass competently whilst recording that there was no evidence as to what was in his mind at the time he effected the repair. He also referred to the technical standards and guidelines which applied in 2000/2001 which required the use of toughened/safety glass in doors and concluded that these would have been known to all professionals engaged in the building industry.
14. What follows next is how the trial judge applied the facts, as found by him, to the duty of care of the occupier of a premises who decides to take on a DIY task such as that advised in Wells. I will set out his conclusions in full as they are critical not only to the submissions made, but also to my conclusions on the appeal. He stated that:-
“29. I am quite satisfied that it could not reasonably be suggested that a householder who elects to carry out a relatively simple repair, such as the replacement of a pane of glass, as was done by the first named defendant in this case, and no doubt as is done by householders day in day out up and down the country, could be expected to be familiar with the technical standards set down in the technical guidelines associated with the Building Regulations. Thus, it could not be said that a householder, who was a reasonably competent glazier, such as the first named defendant, could not have reasonably believed that the glass chosen was suitable for this location.
30. To hold the defendant liable, in negligence, for choosing the glass that the first named defendant installed in this door in 2000 or 2001, would be to impute artificially to him knowledge of the technical aspects of glazing which could not be expected of somebody who was not involved in the building industry or glazing trade or to hold that he should have had this knowledge. To do this would be to impose upon the defendants a duty of care which would be artificial and which, in all probability, they had no real chance of discharging. Thus, in choosing this particular type of glass, which is in common usage in dwellings, it could not reasonably be said that the defendant failed in his duty as occupier of this premises, to the plaintiff, to take reasonable care to protect her from dangers on the premises.
31. What is required by the law is that the occupier take reasonable care in all of the circumstances and, in my opinion, the plaintiff has failed to demonstrate that the defendants failed in that regard.”
Submissions of the appellant/plaintiff
15. Mr. Devlin S.C., on behalf of Ms. Newman, submits that the duty of care owed by Mr. Cogan Snr. as occupier of the premises was to take such care as was reasonable in all of the circumstances as per s. 3 of the 1995 Act. In circumstances where Mr. Cogan Snr. took on the task of replacing a glass panel in the door of his porch, his duty of care was to be determined in accordance with the principles laid down in Wells. That being so, whether Mr. Cogan Snr. had discharged his legal obligations was to be tested against the standard to be expected of a reasonably competent tradesman or glazier. Counsel submits that the trial judge incorrectly applied that test to the evidence. The evidence of Mr. Abbott and Mr. Tennyson was that in 2000/2001 a reasonably skilled tradesman would have given due consideration to the suitability of the glass to be used at the particular location and having done so would not have installed glass of the nature which was installed by Mr. Cogan Snr.
16. Mr. Devlin further submits that there was no evidence to support the trial judge’s finding of fact that Mr. Cogan Snr. was a competent glazier for the purposes of applying the reasoning in Wells to the liability issue in the case. The evidence was that he was a farmer and had managed to install the glass in the door in question. No evidence was adduced to establish what if any competence he had in carrying out DIY tasks or if any steps were taken by him to take care for the safety of persons such as Ms. Newman whom might visit the premises at the time he replaced the glass in the door.
17. Based on the evidence of Mr. Abbott and Mr. Tennyson that no reasonably competent tradesman in 2000/2001 would have installed ordinary glass in the door the trial judge was bound to find the defendants to have been in breach of their statutory obligations.
Submissions on behalf of the defendants/respondents
18. Mr. Turlough O’Donnell S.C., on behalf of the defendants, submits that the trial judge was correct as a matter of law when he concluded that Mr. Cogan Snr. had discharged his duty as occupier to Ms. Newman. His client was not to be judged by the standards to be expected of a professional glazier or even by those to be expected of a competent tradesman or amateur glazier. Whether he had discharged his statutory obligation was to be judged by the standard of care to be expected of a farmer in Mr. Cogan’s Snr.’s situation who considered himself capable of carrying out the replacement of a pane of glass. Thus, the onus was on Ms. Newman to establish that Mr. Cogan Snr. knew or ought reasonably to have known that there were standards governing the use of glass in doors or that he might reasonably have been expected to know that to render the door safe he would have to use toughened glass.
19. Mr. O’Donnell submits that there was no evidence called to establish that Mr. Cogan Snr. had any actual knowledge of the prevailing standards or regulations or that he ought reasonably to have known of the requirement for toughened glass in the door. It was for the plaintiff to call evidence from a farmer or a person of like competence to that of Mr. Cogan Snr. to demonstrate that such an individual ought reasonably to have known of the danger of installing non-toughened glass in the door in 2000/2001 and she had not done so.
20. Counsel for the defendants quite properly accepted that insofar as he had, in the course of his oral submissions, urged this Court to reject the test advised in Wells, the same was in conflict with the respondents notice and the written submissions lodged on their behalf. That said, he submits that in the High Court the defendants did not accept that the duty of care owed by Mr. Cogan Snr. as an occupier of the premises at the time he effected the repair to his door in 2000/2001 was to be determined in accordance with the test identified by the Court of Appeal in Wells.
Discussion and decision
21. The starting point for a consideration of the trial judge’s conclusions in respect of the liability issue must be the provisions of the 1995 Act as it is the defendants’ alleged breach of their obligations thereunder that forms the basis of Ms. Newman’s claim.
22. That being so, the first matter of significance is that it is not disputed that Ms. Newman was a “visitor” and the defendants were the “occupiers” of the premises for the purposes of the 1995 Act. Second, Mr. Abbott and Mr. Tennyson were agreed that any door containing glass poses a potential danger to persons who may use it. However, the door on the Cogan’s premises would not have been a danger if it had contained toughened or safety glass. It constituted a danger because it contained glass which if broken was destined to shatter into shards with the potential of causing serious injury. The state of the premises was accordingly dangerous within the meaning of the 1995 Act at the time of Ms. Newman’s visit. In that context, it is relevant to note that the definition of a “danger” in relation to a premises is defined in s. 1 of the 1995 Act as, “a danger due to the state of the premises” and that the definition of a “premises” includes “any fixed or moveable structures thereon”, which would, of course, include a door.
23. Given the danger that existed on the Cogan’s premises at the time Ms. Newman sustained her injury it is next important to consider the nature and extent of the duty owed by the occupiers of that premises to their visitor. This is provided for in s. 3 which states:-
“3.(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.
(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
24. Because there was a danger on the premises, namely the door which contained glass that was volatile, the question the High Court judge was obliged to consider was whether the defendants in light of the presence of that door could be said to have discharged their duty to take reasonable care for those who might visit the premises in all of the circumstances. The relevant circumstances in this case of course, as was correctly observed by the trial judge, centre upon the conduct of Mr. Cogan Snr. when he installed glass that was objectively unsuitable for use in the door in 2000/2001.
25. It is clear from the judgment of the High Court judge that having correctly identified the duty of care owed by the Cogans under the 1995 Act, he next considered the standard by which Mr. Cogan Snr.’s actions were to be judged in circumstances where it was his actions in undertaking the task that had caused the danger which in turn was responsible for Ms. Newman’s injury.
26. Notwithstanding the defendants’ submission that the test identified in Wells should not be applied to the facts of the present case, given that the trial judge clearly formed the contrary view and set out to apply it for the purposes of determining the liability issue, it is necessary to engage with the relevant facts and principles which emerge from that decision particularly as it is heavily relied upon by Ms. Newman in support of her appeal.
27. In Wells, the plaintiff, a fishmonger, was in the habit of calling to the defendant’s house to take orders from him. On one such occasion when leaving the defendant’s house Mr. Wells fell a number of feet from a small platform immediately outside the back door when the handle came off in his hand. A stiff pull was ordinarily required to shut the door and on the day in question a strong wind had made the door somewhat stiffer than usual.
28. The defendant, who was an amateur carpenter of some experience, had replaced the handle in question some months earlier securing it with ¾ inch screws, screws which he considered sufficient to withstand the force of the pull required to close the door. He considered that he had effected an improvement when he had changed the handle and this was borne out by the fact that notwithstanding constant use during the months prior to the accident the handle had shown no signs of loosening. It was not disputed that the handle came away because the anchorage afforded by the screws was insufficient to withstand the force necessary to shut the door on the day in question.
29. The plaintiff maintained that ¾ inch screws were unsuitable for the repair and that in order for the door handle to be properly secured 1 inch screws were required. Accordingly, the question the Court had to decide was whether the defendant was to be found liable for the plaintiff’s injuries because he had used the shorter screws.
30. On behalf of the plaintiff it was contended that the defendant was in breach of his duty as an invitor to the plaintiff, who was an invitee, for two reasons. First, the insecure handle was an unusual danger about which the defendant knew or ought to have known and ought to have guarded against. Second, that irrespective of the invitor / invitee relationship, in carrying out the work of affixing the handle himself, he had assumed a duty towards the plaintiff to take reasonable care to protect against any danger created by the insecurity of the handle.
31. On the appeal brought by the plaintiff against the dismissal of his action the English Court of Appeal considered that there was little difference between the two grounds upon which liability had been advanced stating that the duty owed by the defendant was to take reasonable care for the plaintiff’s safety and the question was whether, on the facts of the case, he had done so.
32. The Court in Wells was satisfied that it was clearly foreseeable that if the handle came off the door injury might occur. Thus, the question was whether the defendant ought to have known that the screws which he used were not adequate to fix the handle firmly enough to prevent any likelihood of injury. The Court stated that its decision involved a consideration of the standard of care to be demanded of the defendant in relation to the fixing of the door handle. The occupier was not, it decided, to be held liable because he undertook the work himself instead of employing an expert to do it because the work in question was of a type within the competence of a householder accustomed to doing small carpentry jobs around their own home. However, it behoved him, if he was to discharge his duty of care to a person such as the plaintiff, to do the work with reasonable care and skill.
33. As to the standard by which the plaintiff was to be judged, the Court considered that the degree of care and skill required of him was to be measured, not by reference to the degree of competence that he personally happened to possess, but by reference to the degree of care and skill which a reasonably competent carpenter might be expected to apply to the work in question. If the position were to be otherwise, the extent of the protection that the invitee could claim in relation to work done by the invitor himself would vary according to the capacity of the invitor who could free himself from liability merely by showing that he had done the best of which he was capable, however good, bad or indifferent that best might be. The following is how the Court expressed the standard of care to be applied, at p. 271: –
“Accordingly, we think the standard of care and skill to be demanded of the defendant in order to discharge his duty of care to the plaintiff in the fixing of the new handle in the present case must be the degree of care and skill to be expected of a reasonably competent carpenter doing the work in question. This does not mean that the degree of care and skill required is to be measured by reference to the contractual obligations as to the quality of his work assumed by a professional carpenter working for reward which would, in our view, set the standard too high. The question is simply what steps would a reasonably competent carpenter wishing to fix a handle such as this securely to a door such as this, have taken with a view to achieving that object.”
34. The Court went on to state that on the facts of that case the question to be answered was “whether a reasonably competent carpenter fixing this handle would have appreciated that three-quarter inch screws such as those used by the defendant would not be adequate to fix it securely and would accordingly have used one inch screws instead”.
35. In Wells, of critical importance to the Court’s decision was the fact that the defendant was found to be a man who had experience of domestic carpentry work sufficient to justify his inclusion in the category of the reasonably competent carpenter by whose standard of care he was to be judged. It is of significance also to record that the trial judge had rejected the expert evidence to the effect that any reasonably competent carpenter would or ought to have foreseen that the ¾ inch screws would prove inadequate as being in the nature of wisdom after the event. Thus, in circumstances where the evidence was that the defendant, in doing his best to make the handle secure, had used ¾ inch screws which he considered adequate to fix the handle, he had to be taken to have discharged his duty of care to the plaintiff. The plaintiff was accordingly unable to establish that no reasonably competent carpenter could have used ¾ inch screws believing them adequate for the purposes of securing the handle. It was these factors which lead to the dismissal of the plaintiff’s appeal.
36. Returning to the facts of the present case, I can find no fault on the part of the trial judge in his decision to consider whether Mr. Cogan Snr. had discharged his duty to potential visitors to his premises based on the standard of care advised in Wells, namely, against the standard to be expected of a reasonable carpenter or in this case the reasonably competent tradesman or amateur glazier who might, if Mr. Cogan Snr. had not decided to undertake the work himself, have been engaged to carry out the task.
37. Of particular significance in this regard is the fact that the duty of care under consideration by the Court of Appeal in Wells, namely, that owed by an invitor to an invitee, is described by the Court in precisely the same terms as that which is stated to govern the relationship between the occupier and the visitor in s. 3(2) of the 1995 Act. That being so and having regard to the fact that both cases concern injuries caused to visitors to a premises consequent on failed DIY repairs carried out by the occupier, I consider the Wells decision persuasive authority for the proposition that whether Mr. Cogan Snr. can be stated to have acted with reasonable care in all the circumstances should be judged by the standard of care to be expected of the reasonably competent tradesman who might have been asked to replace the glass in 2000/2001.
38. It follows that I would reject the submission rather belatedly made by counsel for the defendants that Mr. Cogan Snr.’s obligations ought to have been judged, not by reference to the standard of the reasonably competent tradesman, but rather by the standard that might reasonably have been expected of a farmer who considered himself capable of replacing the glass. That is precisely the test that was rejected in Wells. If an occupier’s duty of care when carrying out a task of the nature under consideration in this case was to be measured by reference to the degree of competence that they personally happened to possess rather than by an objective test such as the degree of care and skill to be expected of a reasonably competent or skilled tradesman, the protection which s. 3 of the 1995 Act seeks to afford the visitor from dangers on a premises would be wholly undermined with the occupier able to argue that they should be relieved of liability for dangers which they created in reliance upon their own incapacity.
39. It follows that I reject Mr. O’Donnell’s submission that Ms. Newman was required to call as a witness a farmer or an individual possessed of the type of skills expected of a farmer to say that in 2000/2001 if placing glass in a door they would have known that only toughened glass might safely have been used.
40. Satisfied as I am that the trial judge was correct in law when he decided to measure the care that Mr. Cogan Snr. afforded to potential visitors to his premises when he changed the glass in the door in 2000/2001 by reference to the test in Wells, it is perhaps necessary to consider in slightly greater detail the standard of care identified in that decision. What is crystal clear from the Court’s decision is that the occupier of premises who decides to undertake a household repair, such as the task of changing a handle on a door which later causes injury, is not to have the care they afforded in carrying out that task measured against the standard of care to be expected of the professional carpenter who might have been retained to do the job. Applying that reasoning to the facts of this case, Mr. Cogan Snr. was not to be found negligent for his failure to meet the standard of care that would have been expected of the professional glazier who might have been retained to change the glass in his door. However, neither was the care taken by an occupier in carrying out the task in question to be measured against their own individual competence. Otherwise the protection afforded to the visitor would vary according to the capacity of the occupier who could avoid liability by merely demonstrating that he had done his best in all of the circumstances, regardless of the result.
41. What is clear from the decision in Wells is that the Court of Appeal was intent on identifying an objective standard by which the care taken by an occupier carrying out a DIY job on their premises was to be considered in the event that an invitee was subsequently injured as a result of that work. Thus, it was that the Court settled on the standard of care to be expected of the reasonably competent workman or tradesman who would have the necessary skill to undertake the job in question. The difference between that standard and the standard of the professional who might have been retained for reward to carry out the repair, which the Court rejected as being too high, is not elaborated upon in the judgment. That said, I consider it likely that the Court was seeking to draw a distinction between the professional, who would be expected to be aware of the most up to date requirements, regulations and standards and to carry out the work required in accordance with best practice, and the reasonably competent tradesman who would not necessarily be expected to know of the most up to date requirements, regulations or standards, but who nonetheless would have the skill to carry out the job competently and safely, even if not necessarily in accordance with the prevailing best practice expected of trade professionals. Thus, it was that the Court created an objective test by which the standard of work to be expected of a householder who takes on DIY repairs of a relatively routine nature might be tested. It should be said that the Court also made clear that there were certain types of jobs where the householder might be considered negligent for merely embarking on the task, such as certain electrical works or the like, but the task undertaken by Mr. Cooper did not fall within that category, it being of a type that was commonly carried out by householders.
42. In Wells, Mr. Cooper had given evidence as to his competence and experience in carrying out carpentry work. Based on that evidence the trial judge was satisfied to conclude that he was a competent carpenter who had skills equivalent to those of any reasonably competent carpenter who might have been called upon to carry out the task that had caused the plaintiff’s injury. Those facts are to be contrasted with the facts in the present case where Mr. Cogan Snr. gave no evidence as to what, if any, competence or experience he had in respect glazing activities either in the home or elsewhere.
43. While the Court had evidence that Mr. Cogan Snr. had replaced the glass in the door and that it was still in position many years later, it could not be inferred from those facts that he could be considered, as was the case with Mr. Cooper in Wells, to fall within the category of person who might be considered a reasonably competent tradesman or amateur glazier. In light of Mr. Abbot’s testimony, not only would that evidence have been required to absolve the Cogans of liability, but Mr. Cogan Snr. would then have to have given evidence to the effect that it was his reasonably held belief that in inserting ordinary glass that he was not exposing anyone who might be later on the premises to any risk of injury. However, as we know, there was simply no evidence as to the care, if any, deployed by Mr. Cogan Snr. at the time he changed the glass in the door in 2000/2001. These were all circumstances of importance when it came to the application of the test in Wells to the facts of the present case.
44. Regrettably, when the trial judge came to apply the decision in Wells he did so in reliance upon two findings of fact that were not open to him on the evidence. The first was his finding that Mr. Cogan Snr. was a reasonably competent glazier and the second that Mr. Cogan Snr. had likely purchased the glass from the retail supplier.
45. As it happens, it is not of critical importance that the trial judge impermissibly concluded that Mr. Cogan Snr. was a reasonably competent glazier or that he likely considered him to have skills equivalent to those enjoyed by Mr. Cooper in Wells, the only difference being that in the case of Mr. Cooper his skill was classified as that of a reasonably skilled carpenter as opposed that of a reasonably skilled glazier. Where the trial judge went wrong was in his failure to measure Mr. Cogan Snr.’s duty of care to potential visitors by reference to the care, knowledge and skill to be expected of the reasonably competent tradesman or amateur glazier tasked with replacing the glass in the door in 2000/2001 rather than by reference to his own knowledge of prevailing standards (para. 29) or what might have been expected of the professional glazier (para. 23). In so doing he failed to apply the test in Wells and also ignored the expert evidence of both engineers which was to the effect that a reasonably competent tradesman in 2000/2001 would not have installed ordinary glass in the door in question. Mr. Abbott said that a reasonably competent craftsman would have avoided the use of the type of glass that was in place and that only a “cowboy” would have done so. Further, a reasonably competent craftsman would have known to reject this type of glass if offered to him in a hardware shop for the purpose for which it was intended.
46. As for the defendant’s expert testimony on the same matter, the following was the final exchange between counsel for Ms. Newman and Mr. Tennyson:-
“Q. Mr. Devlin: ….Well, just in relation to my reasonably competent tradesman, I think I’m asking you, would you classify as reasonably competent a tradesman who would put in that type of glass, which you yourself say would not be suitable?
A. No”.
47. In circumstances where Ms. Newman established that no reasonably competent tradesman would have inserted non-toughened glass into the door in question in 2000/2001 and that the premises was dangerous by reason of the condition of that door, the High Court judge erred in law in failing to find the defendants liable in respect of her injuries.
48. Whilst perhaps unnecessary in light of the last mentioned finding, for completeness I feel it appropriate to refer to the conclusion of the trial judge which is identified in the last sentence of para. 29 of his judgment which reads as follows:-
“Thus, it could not be said that a householder, who was a reasonably competent glazier, such as the first named defendant, could not have reasonably believed that the glass chosen was suitable for this location.”
49. The first matter to be observed is, as I have already stated, that there was no evidence to support the finding that Mr. Cogan Snr. was a reasonably competent glazier or, for that matter, a reasonably competent tradesman. The second is that the belief of the occupier as to the appropriateness or safety of their approach to the task is immaterial. The test to be applied is not a subjective one – it is objective. The householder’s reasonable belief is only of potential relevance if he can first establish, as was the case in Wells that he possessed skills equivalent to those of the reasonably competent tradesman that might in other circumstances have been asked to carry out the work in question. In this case, there was no evidence as to Mr. Cogan Snr.’s competence or as to his belief in the correctness of his approach to the task at issue.
Conclusion
50. For the reasons outlined earlier in this judgment I am satisfied that the trial judge was correct as a matter of law in seeking to apply the test enunciated by the English Court of Appeal in Wells when he came to consider the liability of the defendants to Ms. Newman in respect of her injuries pursuant to the provisions of s. 3 of the 1995 Act.
51. While the High Court judge made a number of findings of fact which were not supported by the evidence it was not these findings that led him into error. His mistake was in his failure to faithfully apply the test as advised in Wells to the evidence.
52. Mr. Cogan Snr.’s duty of care as an occupier of the premises when he changed the glass in the door in question in 2000/2001 was to carry out that task with the level of care and skill to be expected of a reasonably competent tradesman. Whilst many a householder may consider himself or herself capable of performing this type of task, when they do so they assume a duty to all who might subsequently be affected by their actions to carry out that task with the care and skill that is required to complete the task safely. If a visitor later suffers injury as a result of a danger caused by the act or omission of the occupier their liability for such a consequence will be judged against the standard of care that would have been expected of the reasonably competent tradesman asked to carry out the same task.
53. The uncontested evidence in the High Court was that no reasonably competent tradesman if asked to replace the glass in the door in question in 2000/2001 would have used anything other than safety glass. Regrettably, that was a standard that was not met by Mr. Cogan Snr. when he undertook the task. In such circumstances the trial judge was obliged to find the defendants were in breach of their obligations under s. 3(2) of the 1995 Act such that he should have found them liable to Ms. Newman who was injured by reason of the installation of glass that did not comply with that standard.
54. For all of those reasons I would allow the appeal.
table that Ms Byrne sustained such a significant injury to her ankle but responsibility for that injury cannot lawfully be laid at the doorstep of Ardenheath who had provided her with a safe and proximate exit which she would have used had she been taking reasonable care for her own safety. Accordingly, I would allow the appeal.
Massey v Stagg
[2017] IEHC 21, Barr J.
DEFENDANT
JUDGMENT of Mr. Justice Barr delivered on the 19th day of January, 2017
Introduction
1. The plaintiff in this action met with his accident while playing a game of five-a-side soccer on an astroturf pitch at Longwood G.A.A. Club, near Longwood, Co. Meath. Towards the end of the game, the plaintiff took a shot at goal but the ball missed the goal and ricocheted off a player and became lodged between the top of the surrounding fence and the ball stop netting which was above the fencing. The ball stop netting had become slack, thereby causing the ball to become lodged between the top of the fencing and the ball stop netting itself.
2. With the assistance of two friends, the plaintiff was lifted up the front of the fencing and was able to dislodge the ball. However, while descending, a ring on the middle finger of his right hand became caught in part of the fencing, which was projecting above the top of the fencing itself in a vertical direction, causing the plaintiff to suffer a severe degloving injury to the middle finger on his right hand. The finger was amputated at the level of the proximal interphalangeal joint.
3. As a result of the accident, the plaintiff’s middle finger on his right hand has been almost completely amputated. He has been left with a permanent injury in this regard. He has lost 80% of the function in the finger and an overall loss of function of 16% in his right dominant hand. In addition, the plaintiff has suffered significant psychiatric sequele as a result of the injury sustained in the accident.
4. A full defence has been filed on behalf of the defendant, which includes a plea of contributory negligence, in particular, that the plaintiff failed to heed warning notices, which had been affixed to the fencing surrounding the pitch, that prohibited players wearing rings or jewellery while playing football on the astroturf pitch.
The Liability Issue
5. The only oral evidence presented to the court on the issue of liability, was that of the plaintiff. He stated that he had played football at the locus for a number of years prior to the accident. He played five-a-side soccer with his friends every Thursday evening. Each of the players would contribute €5.00 to one of the group, who would pay the G.A.A. club for the use of the pitch for one hour.
6. The plaintiff stated that on the night in question, when he had taken the shot at goal, the ball became lodged in the ball stop netting which was above the steel fencing and which had become somewhat slack. This meant that, on striking the ball stop netting, the ball did not bounce back on to the pitch, but instead became trapped between the netting itself and the top of the surrounding fence.
7. The plaintiff stated that in order to retrieve the ball, one of the other players cupped his hands together, so as to enable the plaintiff to put his foot into the cupped hands and was thereby whooshed up the face of the fencing. He then stretched upward with his right hand to release the ball. Unfortunately, while descending, the ring on his right middle finger became caught in the vertical steel bars which formed part of the fencing and which projected upwards from the top of the fencing itself. The weight of the plaintiff’s body descending towards the ground caused the amputation of the finger.
8. The plaintiff stated that the locus of the accident was straight across from the entry gate to the astroturf pitch as shown in Photograph No. 2 in Mr. O’Keeffe’s booklet of photographs. This was shown in further detail in Photograph No. 6, with the locus being just in front and to the right of the floodlight standard as shown in the centre of the photograph. The locus was shown in closer detail in photographs No. 7 and 8. The vertical steel bars which were projecting from the top of the fencing were shown in photographs No. 9 and 10.
9. It was put to the plaintiff in cross-examination that there were notices at either side of the entry gate to the pitch which stated inter alia:
“Users are advised that NO JEWELLERY OR RINGS should be worn while participating in activities at the facility.”
The plaintiff stated that there were no such notices in situ at the time of his accident.
10. By agreement of the parties, the engineers’ reports, which had been furnished on behalf of the plaintiff and the defendant, were handed into court. The plaintiff’s report was from Tony O’Keeffe & Partners, Consultant Engineers. In that report Mr. O’Keeffe stated that his office had investigated over a dozen identical accidents on astroturf pitches around the country. He was of the opinion that the accident was completely foreseeable and there were a number of measures which could have been taken to prevent it which included the following: cut off the 25mm protrusions which served no function whatever at the top of the fence panels, alternatively cover the protrusions with a half pipe tied to top of the panel with cable ties, or provide a fence panel which did not contain these protrusions. The engineer noted that there were such panels available and gave as an example, panels which were marketed as “Heras Support Fencing”. Finally, the engineer recommended that, in conjunction with one of the above measures, the netting should be pulled taut and it should be lapped over the inside of the fence panel and it should be tied securely to the fence panel at closely spaced intervals in the manner which had been done subsequent to the accident, but prior to the time of the engineers inspection.
11. In the conclusion section of his report, Mr. O’Keeffe stated that given the large number of identical accidents which his office had investigated over the years, it could not be suggested that the accident was not foreseeable. The common factor in all of these accidents was a row of exposed wire protrusions at the top of the fence, combined with slackness in the netting above the fence. This caused the ball to become lodged in the interface between the netting and the fence, whereby the slack net effectively forms a shelf which traps the ball behind the top of the fence. He was of the opinion that the defendant could have taken the relatively simple measures as outlined in his report in order to prevent this type of accident.
12. In relation to the notices which appeared on either side of the entrance gate to the astroturf pitch, the engineer noted that the plaintiff denied that such notices were in place at the time of his accident. The engineer was able to state that the notices appeared to have a fairly fresh or new appearance. They did not show any sign of aging due to weather conditions. In such circumstances they were likely to have been of fairly recent origin prior to the time of the engineering inspection. Furthermore, the engineer observed that the notices provided absolutely no warning of the hazard which existed at the top of the fence on the date of the accident, or that a person could loose a finger by not adhering to the rule on the wearing of rings.
13. The defendant’s engineering report was furnished by Mr. Cathal Maguire of Maguire & Associates, from a joint engineering inspection which had been carried out on 20th April, 2015. Mr. Maguire noted that the ball stop netting was a common feature of the design of the perimeter fencing of astroturf pitches. He noted that ball stop netting tended to sag with time, resulting in footballs lodging in the netting above the fencing. Players attempting to retrieve footballs from the netting are vulnerable to the type of injuries sustained by the plaintiff, if they were wearing rings. He noted that unfortunately, a serious accident such as that suffered by Mr. Massey, was not uncommon. He was of opinion that while the perimeter fencing complied with the requirements of the British Standard, it seemed to him that the fencing was not appropriate for this particular application. The vertical wires should have been trimmed so as to ensure that they did not project above the top horizontal wires, so as to prevent the type of injury sustained by Mr. Massey occurring. He was of opinion that the design and construction of the perimeter fencing was unsatisfactory. While it complied with the requirements of the British Standard it was not suitable for the particular application of perimeter fencing for astroturf pitches, especially in view of the significant history of serious accidents occurring at the top of such fencing.
14. Mr. Maguire further noted that it would appear that the G.A.A. club did not properly maintain the ball stop netting.
15. Finally, Mr. Maguire noted that the plaintiff had been playing soccer and the wearing of jewellery and rings during the playing of soccer was generally forbidden. There were warning notices at the entrance to the astroturf pitches advising that jewellery and rings should not be worn. Had the plaintiff abided by the warning notices, as he should have done, he would have avoided his injury. On this basis, he felt that the plaintiff would have difficulty in succeeding in full in his action.
Conclusions on Liability
16. I am satisfied having regard to the substantial agreement in the engineer’s reports in this case, that it was clearly foreseeable that if the ball stop netting was allowed to become slack, footballs would become lodged between the netting and the projections at the top of the fencing. Furthermore, I accept the evidence in Mr. O’Keeffe’s report that accidents such as the one suffered by the plaintiff, are a relatively common occurrence and therefore are foreseeable to the occupiers of the property.
17. I find as a fact that the defendant failed in it’s duty of care as the occupier of the property, to maintain the ball stop netting in a safe and proper condition and in particular in his failure to ensure that the netting did not become slack over time and was looped over the front of the fencing, so it was to prevent balls being caught between the netting and the back of the fencing.
18. Furthermore, both the engineers appear to be in agreement that the fencing itself was unsuitable for use in the particular circumstances, and in particular that the fencing was unsatisfactory because there were vertical steel bars projecting above the top horizontal rim of the fencing itself. The projecting portions should have been removed. Accordingly, I am satisfied that the defendant did not comply with it’s obligations to the plaintiff, who was a visitor on the property, and in particular due to it’s failure to take the remedial steps as set out in Mr. O’Keeffe’s report, they failed to extend to the plaintiff the common duty of care as required of them.
19. The only real issue on liability is whether the plaintiff should be found guilty of contributory negligence for failure to heed the warning notices, which were placed on either side of the entry gate to the astroturf pitch. The plaintiff stated in his evidence that there were no such notices in existence at the time of his accident. There is support for this contention in the report furnished by Mr. O’Keeffe, who stated that at the time of the joint inspection in April 2015, the notices appeared to him to have been of fairly recent origin, due to the fact that they appeared fresh and clean and did not show any signs of weathering. In the absence of any oral evidence on behalf of the defendant as to when the notices were placed in situ, I prefer the evidence of the plaintiff to the effect that there were no notices in place at the time of his accident. Accordingly, it is not appropriate to make any finding of contributory negligence against him.
The Plaintiff’s Injuries
20. Apart from the evidence given by the plaintiff himself, there was no oral evidence produced in relation to the plaintiff’s injuries. Instead, the court was given a number of medical reports from the plaintiff’s treating doctors and a report from Ms. Mary Feeley, Vocational Consultant. On behalf of the defendant, the court was furnished with a report from Mr. Colin Riordan, Hand and Plastic Surgeon from an examination on 17th April, 2015 and a report from Ms. Siobhan Kelly, Vocational Consultant from an assessment carried out on 1st July, 2016.
21. At the time of the injury, the plaintiff stated that he heard a crunching sound as the bone in his finger snapped and then a ripping sound as the middle and top section of his finger was torn away from the rest of his hand. He stated that he experienced immediate excruciating pain. His brother took him to the Emergency Department of Mullingar Hospital. They bandaged the finger and also took photographs of the injured finger. He was told that he would have to attend at St. James Hospital, Dublin at 06.00 hrs on the following morning. He was given pain relieving medication, but was advised only to use it if absolutely necessary, as it might interfere with any anaesthetic that he may be given in St. James Hospital. The plaintiff stated that during that night, he was unable to sleep due to severe pain in his right hand.
22. When he attended at St. James Hospital, he was told that they would try to save as much of the finger as they could, but that it would be necessary to surgically attach the right hand and injured finger to a flap in his groin, so as to enable regeneration of the soft tissues therein. He was brought to theatre and after a five hour operation; he awoke to find his right hand surgically attached to the right side of his groin. He was detained in St. James Hospital for eight or nine days.
23. During the time that the hand was attached to his groin, he continued to experience severe pain his right hand. He required assistance both from the nursing staff and subsequently, upon discharge from his mother, with all aspects of daily living, such as dressing and going to the toilet. He found this very distressing. He also experienced severe pain when the dressings were changed. Initially the dressings had been changed daily and then every two to three days.
24. Approximately three to four weeks after the initial surgery, the plaintiff was readmitted to St. James Hospital to have his hand removed from the groin flap. He understood that this surgery had taken approximately three hours. He had remained in hospital for one day.
25. He returned to hospital one week later for a third operation to undergo a skin graft procedure. The skin graft had been taken from his right thigh and applied to his injured finger. This had been carried out under general anaesthetic. He remained in hospital until 19.00 hours on the same day. The plaintiff stated that during this period he had continued to experience severe pain. Following his discharge after the skin graft operation, he had returned to St. James Hospital every week for six weeks until the skin graft had settled down.
26. The plaintiff reported that the pain had been persistent for two to three months following the accident and had then become more intermittent and unpredictable. The pain was worsened by cold weather, which caused a shooting pain in his hand above the knuckle. He estimated that the severity of this pain was at a level of eight to nine out of ten. He stated that the digit stump itself was numb, but explained that if he hit his hand especially just above the middle knuckle, he would experience severe pain, which could continue for hours.
27. When seen by Dr. Cryan in March 2015, some seven months post-accident, the plaintiff reported some improvement in his experience of pain and stated that he had experienced periods when he had been pain free. The maximum period for which he had been without pain was for one week, on one occasion. These periods were broken by the unpredictable return of pain, which sometimes woke him from sleep.
28. The plaintiff was reviewed by Mr. Matt McHugh, consultant plastic surgeon on 9th February 2016, some eighteen months post-accident. At that time, he had a lot of problems with his right hand. The tip of the stump was very tender and cold weather caused severe pain. The plaintiff had had to give up sport and was unsure what he was going to do in the future, as he was hoping to develop some sort of sports career. The amputated stump itself was sticking out and would get in the way when he made a fist. The plaintiff stated that the finger was more of a hindrance than a help in this regard and he found that the amputated stump was really in the way. The plaintiff was very upset about the appearance of his hand and tried to keep it covered as much as possible.
29. Mr. McHugh noted that the middle finger of the right hand had been amputated at the proximal joint, so that half of the finger was missing. The amputated stump was very tender at the tip and was in the way when he made a fist. This made the hand as a whole very awkward and clumsy. The whole function of the hand was affected. The grip and strength of the hand was markedly affected. Mr. McHugh noted that there was an area of scarring in the right groin, which scarring measured approximately seven inches in length. There was a broad stretched scar, which was very noticeable. The plaintiff was upset about the appearance of this scar.
30. Mr. McHugh gave the opinion that the plaintiff had suffered a severe injury to the middle finger of his right hand. The actual finger itself had been amputated at the middle joint and half of the finger was missing. The half that was left was not really of any use, because there was no movement in it and it was sticking out and was in the way. It was more of a hindrance than a help. He noted that the plaintiff had a lot of problems with his right hand; cold weather was a big problem, general work and day to day tasks were very difficult. The plaintiff did not know what he was going to do in the future and felt that his job prospects were quite limited. Mr. McHugh was inclined to agree with this opinion. At that stage, some eighteen months post-accident, Mr. McHugh did not envisage any improvement in the future. The current position was permanent and no further treatment was indicated.
31. As already noted, the plaintiff suffered significant psychiatric sequelae as a result of the accident. He came under the care of Dr. Elizabeth Cryan, consultant psychiatrist. She first saw the plaintiff on 21st March 2015, some seven months post-accident. At that time, the plaintiff stated that he was very conscious of the appearance of the finger stump and for this reason wore a glove to hide his injured finger. Alternatively, he was inclined to keep his hand in his pocket. He described being very conscious that other people were looking at the finger. He stated that prior to the accident, he had been very sociable and had a wide circle of friends and would stay out socialising until the early hours of the morning. However, since the accident, he had lost confidence and did not socialise as he had done. Indeed, for the two months prior to his assessment by the psychiatrist, he had avoided going out completely. At the time of that assessment, the plaintiff explained that he could manage his personal care, except for cutting up his food. He stated that following the accident he had experienced weakness in the right hand and had dropped items, such as mugs. He was inclined to use two hands to pick up an item, such as a mug of coffee. His ability to write with his right hand, or to type on a keyboard, had been severely affected.
32. The plaintiff stated that he had experienced severe sleep disturbance since the accident. Initially he had been unable to sleep due to pain, but over the following months, he found himself waking up and was unable to return to sleep. He also experienced recurrent nightmares relating to the circumstances of the accident and in particular, he would hear the crunching sound, which had been made when his finger had been broken away from the hand. He stated that the nightmares occurred most nights, but that on an occasional night, he would sleep through. He explained that the nightmares were associated with a recurrence of the pain and on some occasions he was woken by pain. When he awoke, he was inclined to constantly relive what had happened in the accident. He also had recurrent regretful thoughts in which he asked “Why me?”. The plaintiff also stated that his mood had changed since the accident. He described bursting into tears or becoming explosively angry. He had also become particularly irritable since the accident. He had had outbursts of anger at home, during which he shouted at his parents and then burst into tears. Whenever he went out in public, he believed that people were looking at his finger stump, so he tended to wear gloves to hide his hand. He stated that he had lost all interest in sport, which had been his passion prior to the time of the accident. Prior to the accident he had played soccer, Gaelic football, hurling and badminton. Due to the injury, he was unable to grip the hurl or the badminton racket and so had not returned to these sports. Due to pain in the finger he was unable to return to Gaelic football. Due to a fear of injuring his hand, he had not returned to playing soccer at that time.
33. The plaintiff stated to Dr. Cryan that he felt like a “freak”. He had lost all self confidence and was unable to socialise with his friends, or go out and meet girls. He stated that he had contemplated suicide following an explosive outburst and reflected that “This is not living”. He stated that his family protected him from suicide and he did not believe that he would act on such suicidal thoughts. He stated that his concentration had been adversely affected since the accident. He reported a reduction in libido and also reported having a poor appetite. He also described having increased vigilance and a compulsion to check things, for example the water taps in the bathroom. The plaintiff stated that due to ongoing psychiatric sequelae, he had been commenced on Prozac by his G.P. in February 2015. He also took Solpadine to manage severe episodes of pain.
34. The plaintiff stated that sports were his life. He had been captain of the soccer team at school and had also been a member of the hurling team. He had hoped to be called up for the Meath county football team, as he had been asked to train with the team previously, but had not been able to do so due to an injured ankle.
35. Dr. Cryan took a collateral history from the plaintiff’s mother, who stated that prior to the accident the plaintiff had been an outgoing, bubbly person, who was very involved in sports. Since the accident, he had become angry and irritable. He never went out, but spent a lot of time alone in his bedroom. Mrs. Massey was very concerned about the impact which the accident had had on her son.
36. Mental state examination on that date showed that subjectively the plaintiff reported his mood as low, angry and anxious. He considered the future to be bleak and uncertain. He acknowledged the experience of suicidal ideation, but denied any suicidal intent. Objectively, the plaintiff’s effect lacked reactivity and he appeared low and anxious. In his thought content, he described being preoccupied with thoughts of why the accident had happened to him, associated with feelings of self blame and regret.
37. Dr. Cryan was of the opinion that the plaintiff was suffering from post traumatic stress disorder [hereinafter; P.T.S.D.], which was of at least moderate severity. The P.T.S.D. was characterised by intrusive nightmares, and regretful thoughts about the accident, in addition to reliving the experience of the accident and of his subsequent treatment. The plaintiff had tried to avoid such thoughts, but had been unable to do so. He had also avoided a return to the Longwood G.A.A. pitch. These symptoms were associated with marked sleep disturbance, irritability with explosive outbursts, feelings of self-blame, loss of interest and reduced concentration. The plaintiff described feeling disappointed with his psychological reaction to the accident and his consequent injury and was inclined to view himself negatively. He had also become anxious and reported repeated checking behaviours.
38. In addition to the P.T.S.D., Dr. Cryan considered that the plaintiff was suffering from a depressive disorder, which was characterised by low mood, associated with suicidal ideation, but no intent, reduced motivation and a tendency to self-isolate. He had been started on anti-depressant medication by his G.P., but to date, had not experienced any improvement.
39. Dr. Cryan stated that at that time it was too early to give a definitive prognosis. She recommended that he might try psychotherapy, in particular trauma-focused psychotherapy or cognitive behavioural therapy [hereinafter; C.B.T.] which could be undertaken in addition to his anti-depressant medication. She thought that he would need at least ten sessions of C.B.T. She noted that the plaintiff had also developed some obsessional anxiety and checking behaviours, following the accident, which had not been present prior to it.
40. The plaintiff was reviewed by Dr. Cryan on 4th July, 2015, approximately one year post-accident. He reported that in May, 2015, he had tried to cut his wrists. He stated that he had gone out with two friends and had drunk heavily. On arrival home, he had tried to cut his wrist, but had been interrupted by a noise upstairs. He stated that before he had tried to cut his wrist, he had been thinking about doing so for approximately one week and considered that his drinking had given him “the edge”. At the time, he considered that he had wanted to die, but when trying to cut himself, recalled that he had broken down into tears. He had not disclosed his intention to his friends and had not left any suicide note. His parents had learned about the attempted suicide on the following day. They brought him to see his G.P., who had referred him on to the mental health services in Trim. At the time of his assessment by Dr. Cryan he remained on Fluoxetine 20mgs daily.
41. Since the attempted suicide, there had been a further incident at home, where, following a row, the plaintiff had picked up a hurl and thrown it through a window. He then left the house and stayed with a friend, without telling his family. He explained that he had found it easier to be with friends and considered that he was under less pressure when away from his family. This had occurred in or about June, 2015. The plaintiff stated that since that second incident, he had decided to try to “face my demons”. He had returned to playing some football and had also taken up running. He found that the exercise had been helpful to him.
42. At the time of his reassessment, he reported that he felt more hopeful about his recovery because he had started to manage his anger more appropriately. He described ongoing feelings of anxiety and irritability and remained very conscious of people asking him about his hand. He reported that he continued to have ongoing sleep disturbance and he continued to experience nightmares. He also continued to experience memories when he was awake, during which he relived the accident, but considered that this was happening less frequently and less intensely. In relation to his physical experience of pain, the plaintiff reported that this was unpredictable. He explained that he was trying to use his experience of pain to motivate himself and tried to “run it out”. Because of this new strategy the plaintiff estimated that he had experienced less explosive outbursts, though he remained irritable and inclined to snap. He reported having more capacity to walk away from confrontation.
43. He continued to have persistent self-consciousness about his missing finger, except when with people who were familiar with his injury. He stated that he was no longer trying to cover up his finger continuously, but found himself covering it up automatically. He stated that his deformity caused him to feel awkward and self-conscious. He found it very hard to accept the change in his appearance.
44. Since the previous assessment, the plaintiff had returned to Longwood G.A.A. pitch. While that had been a difficult experience, he had managed to stay there and to participate in a game of football.
45. The plaintiff stated that memory of the accident could be triggered by different events; for example, if he saw blood splatter on a film on T.V. He estimated that the experience of intrusive memories was less long lasting than it had been in March, 2015.
46. The plaintiff stated that he had been shocked by his suicide attempt, as he had not considered that he would ever do such a thing. He believed that he would not repeat this behaviour and reflected that the number of good days had increased, although his mood varied. He continued to spend long periods on his own in his bedroom, although he was more inclined to go into town with his two friends. He had cut out alcohol since the incident of self-harm. He reported that his concentration remained poor. He also reported that his checking behaviours had persisted. His self-confidence remained low and he continued to lack self-confidence in relationships. He also remained hyper-vigilant in general.
47. He reported that his level of pain was unpredictable. The better weather had been helpful to his pain level, but he could set off the pain easily for example if he accidentally hit his hand off something. On occasion, he described waking with pain and also awoke following nightmares. He continued to need help when cutting food, such as a piece of steak.
48. In relation to his mental state examination, subjectively he described his mood as low, angry and anxious, although he felt that he was managing his anger outbursts better. He was apprehensive about the future. On occasion, he would experience periods when the accident totally preoccupied him, but on better days, he was inclined to feel less overwhelmed. Objectively, Dr. Cryan considered the plaintiff’s mood was slightly more reactive than it had been during the initial assessment, although his mood remained low and anxious. The doctor was of opinion that he plaintiff was continuing to suffer from P.T.S.D. which remained at a level of moderate severity. Overall he was managing his anger outbursts better, although there had been two serious incidents, one of self-harm and the other of harming property and disappearing. Since the previous assessment the plaintiff had managed to force himself to return to the Longwood G.A.A. pitch and was using running as a coping strategy to deal with feelings of irritability and anger. He remained disappointed with his psychological reaction to the accident and was apprehensive about his future.
49. Dr. Cryan also considered that the plaintiff continued to suffer from a depressive disorder, although his mood had become more variable. There had been some improvement in his sleep pattern, although it had not returned to normal. She was concerned about the incident of self-harm and had made contact with the plaintiff’s G.P. and understood that he had been referred to the mental health services in his area. She noted that he remained on anti-depressant medication. Dr. Cryan considered that the plaintiff’s prognosis had to remain guarded and uncertain, given the episode of self-harm and the unpredictability of his physical and psychological symptoms, although there had been some improvement in the severity of some of his psychological symptoms.
50. In his evidence at the trial, the plaintiff stated that while he thought that he would have recovered by now, he was making some improvement. He hoped to return to college in the begining of 2017 to re-sit the module in the sports and leisure course which he had failed prior to the time of the accident. He stated that with the help of family and friends, he was getting to a better place psychologically. He stated that he was more optimistic now than he had been previously. While he stated that he did not think that he would be able to be a gym instructor due to his injuries, he hoped to become a lecturer or a teacher in the area of sport. He stated that his brother was helping him to use a computer, as it was difficult for him to use a keyboard. He stated that he had taken up running as advised by his G.P. and found this helpful if he was feeling down. He had also started going on a special diet, which he also found of assistance.
51. In addition to the scarring to the stump of the finger, the plaintiff also had a scar in the area of the right groin. This measured 14cm by 4cm at the site of the elevation of the groin flap. When viewed by the court it was red in colour and was clearly visible, but was not grossly ugly.
52. At the hearing of the action, it was indicated by counsel on behalf of the plaintiff, that the plaintiff was not claiming a specific sum for loss of earnings into the future. However, he was inviting the court to make an award of damages under the heading of general damages to cater for the loss of opportunity which the plaintiff would suffer in the job market, due to the injuries and disability which he had suffered as a result of the accident. In this regard the court was invited to consider the report furnished by Ms. Mary Feely, vocational rehabilitation consultant. She noted the plaintiff’s results in the Leaving Certificate and that he had done a Post Leaving Certificate (P.L.C.) course in Sport and Recreation at Columba College, Killucan, which was a Fetac level five course, prior to the time of the accident. However he had failed one subject and was due to repeat that module in autumn, 2014. She noted that his long term plan was to go on to Athlone Institute of Technology and to qualify to work in the sport/fitness/leisure sector. However, she stated that given the plaintiff’s academic background, she had doubts as to whether he would have gained entry to a third level course, or coped with the academic demands of such a course. She was of the view that his likely qualification level would have been the P.L.C.
53. Ms. Feely noted that there was quite a limited range of jobs that would be precluded by the functional loss of a middle finger. It was more difficult to evaluate the effect of occasional pain, which he described. Furthermore, she noted that somebody suffering from cold intolerance was unlikely to work outdoors e.g. as a construction labourer or in forestry, or in a cold environment, such as operative in a meat processing business, or cold store. Therefore the plaintiff would continue to have reduced job opportunity as long as that condition persisted at the current level.
54. Ms. Feely noted that the functional impairment resulting from loss of a middle finger probably should not preclude somebody from resuming such a P.L.C. course and one would be slow to suggest that it would preclude somebody from working as a gym instructor, for example, or working in jobs based on a third level qualification in sport and recreation. Therefore it appeared that one of the main effects of his injury had been to delay him in continuing his plans for training, at least by one year because he missed the opportunity to return to education in September, 2014 and he remained very disrupted for a long time subsequently. In his case the delay has been more protracted due to his psychological state.
55. Ms. Feely noted that at the time of her assessment, the plaintiff presented as very lacking in confidence, with low mood and with a hopeless mindset. He was strongly advised to explore the services of the National Learning Network. She was of opinion that his functional loss was not a barrier to most of the work for which he would have been eligible, but his mental health seemed to be impeding him to a quite inordinate degree and this required psychiatric opinion and prognosis. From a purely functional perspective, the occupational restrictions from such an injury would be relatively low, but his cold intolerance would undoubtedly limit his job opportunity, as would pain. Ms. Feely stated that it was entirely reasonable that he would have been delayed in his occupational plans and generally one would hope that somebody who loses such a finger, would get back on track in terms of training and employment. However he had developed a significant adverse psychological reaction to his situation, in the form of a P.T.S.D. condition and depression, which seemed to have been undermining him to a dramatic level. He reported a very dysfunctional lifestyle with major loss of confidence, an inability to look at his hand due to the cosmetic defect and he was reluctant to be out and about and to interact with others. Ms. Feely stated that it was a matter for psychiatric opinion to comment on as to when, or whether, his response to his circumstances might allow him engage with the world of work, or training / education.
The defendant’s reports
56. The court was furnished with a report from Mr. Colin Reardon, consultant hand and plastic surgeon from an examination held on 17th April, 2015. He noted that at that time the plaintiff complained of severe pain in his right hand, which would shoot up his forearm. His right hand was very sensitive when exposed to cold weather. He could occasionally experience severe pain in his right hand at night. There was reduced strength in his right hand. Certain small items can slip out of his right hand and the injury had affected his writing. He was concerned regarding the appearance of his right hand and tended to wear a glove as much as possible.
57. On examination, Mr. Reardon noted that there was a grossly abnormal appearing middle finger, which had been amputated through the proximal interphalangeal joint. The remaining portion of the finger was atrophic and had been partially closed by means of imported tissue from a groin flap as well as a split skin graft over the ulnar border. All the wounds were fully healed but the skin grafted area was still somewhat pigmented in appearance. On the dorsum of the hand there was a 5cm scar extending proximally from the base of the ring finger. Overall the quality of the skin in the stump was poor and lacked sensation. He complained of discomfort when the stump was firmly palpated.
58. There was some slight loss of flexion in the remaining metacarpal phalangeal joint of the middle finger, which demonstrated active flexion to 70 degrees, compared with normal values of 90 degrees. Extension was normal. He also noted the scar to the right side of the groin. The scar was well healed and non-tender, although still somewhat pigmented in its appearance. There was some slight loss of volume in the area as a result of the flap transfer.
59. Mr. Reardon was of opinion that the remaining portion of the finger will be of little functional value due to the loss of length as well as impairment of sensation. Functional loss equated to 80% loss of function in the finger, which amounted to a loss of 16% of the function in his hand. This would adversely affect both manual dexterity and grip strength. There was also a significant cosmetic disfigurement present, which will be permanent and visible at conversational distance. The wearing of a finger prosthesis may improve the appearance of the hand, but would not improve its function. He expected that over the next two years most of the remaining symptoms would gradually settle, although some symptoms of cold hyper sensitivity may persist into the long term. No late complications were to be expected.
60. The court was also furnished with a report from Ms. Siobhan Kelly, vocational assessor dated 19th July, 2016. She had assessed the plaintiff on 1st July, 2016. She was of opinion that the plaintiff was well positioned to continue in his career in sports and recreation, focusing on the business / administrative aspect. She noted that according to the college prospectus, the course that the plaintiff was engaged in was “designed to equip students with the theoretical and practical skills necessary for employment in the sports and leisure industry, with a particular emphasis on the business aspect of the industry”. She was of opinion that when the plaintiff had repeated the outstanding module, he could secure employment in a range of entry level jobs within the sector, such as leisure centre attendant, sports retail – sales assistant and customer service in tourism / entertainment (e.g. cinema). Such jobs would pay an average of €19,000 – €22,000 per annum and would accommodate the plaintiff’s current education / skills and limitations.
61. Alternatively, he could continue with his studies. He could seek to secure a place on a course such as the Higher Certificate in Business in Sport and Recreation in Athlone Institute of Technology. This is a level six course and would provide him with a background necessary for a successful career in a wide range of tourism, leisure, business and sports related activities, with a particular focus on the business element of sport. He would then have the option of continuing on to a degree level course, if he was capable of doing so.
62. Ms. Kelly was of opinion that returning to education should not pose any significant difficulty for the plaintiff. Any restriction in his speed of writing or keyboard work, could be accommodated through the use of various suitable software such as word prediction software and voice recognition software, which are both widely available. Alternatively the plaintiff could seek employment as a fitness instructor.
63. Ms. Kelly noted that at the assessment the plaintiff had stated that he had considered becoming a secondary school P.E. teacher in the future. However, she was of opinion that he would have had difficulty attaining a place and may have had difficulty completing the course given his previous level of educational attainment and levels of motivation.
64. Ms. Kelly noted that the plaintiff had completed (except for one module) a level five course in Sports and Recreation in his local vocational school. This was a sports orientated course with a focus on the business side of the sports industry, with recommended progression routes to a variety of courses including the Higher Certificate in Business in Sport and Recreation in Athlone Institute of Technology. This option was currently available to the plaintiff and would allow him gain further qualifications and secure employment in management roles, such as leisure centre manager and sports development officer. He had also expressed an interest in becoming a fitness instructor. Suitable options included swimming instructor / aerobics instructor / lifeguard, athletics training, cycling, etc. The starting rate of pay for fitness instructors was €19,000 – €30,000 gross per annum. As already noted she was of opinion that the plaintiff could currently seek employment at a range of entry level jobs including leisure centre attendant, sports retail / sales assistant, customer service in tourism / entertainment (e.g. cinema). Such jobs would accommodate the plaintiff’s current education / skills and limitations.
65. There were also other entry level jobs which may require short term training, which the plaintiff could compete for including: sales work, courier driver, retail security or forklift driver.
66. Ms. Kelly stated that acknowledging the difficulties that the plaintiff had experienced and the resulting reduced functioning of his hand as stated by Mr. Reardon, there were a range of employment options currently available to the plaintiff, as were available to him prior to his accident, or he could continue to further his qualifications and seek suitable and lighter type management roles within the sports and recreation industry. Based on this, she did not agree that there was a loss of earnings or a loss of opportunity for the plaintiff.
Conclusions on Quantum
67. The plaintiff in this case is a young man of 23 years of age, who was born on 8th September, 1993. On 5th August, 2014, he suffered a catastrophic degloving injury to the middle finger on his right hand, while retrieving a ball which had become stuck in netting at the side of an astroturf football pitch. In the course of the accident, the middle finger on his right hand was amputated just below the proximal interphalangial joint. The plaintiff is right hand dominant.
68. Treatment of the injured finger was prolonged and painful. The plaintiff underwent three operations to bring the finger to its current condition. In the first operation, the injured finger was surgically attached to a flap which had been opened in the right side of the plaintiff’s groin. It remained in that position for a number of weeks. This was to allow the soft tissues and the vascular system to regenerate. Some four weeks later, the plaintiff was readmitted to hospital for a further operation under general anaesthetic to remove the hand from the groin flap and to close up the area in the groin. One week following that, the plaintiff returned to hospital to undergo a skin graft procedure. A skin graft was taken from his right thigh and was applied to the stump of the injured finger.
69. Between the operations and subsequent to them, the plaintiff was obliged to attend at the hospital on a frequent basis for change of dressings. He continued to experience severe pain in the finger and hand, particularly in cold weather and if the finger should knock against something. While there has been some improvement, these complaints are continuing down to the present time. In addition to these complaints, the plaintiff finds that the stump of the finger tends to stick out and it gets in the way when he is carrying out simple tasks, such as dressing.
70. The defendant’s expert, Mr. Riordan, considered that over the next two years most of the plaintiff’s remaining symptoms would gradually settle, although he accepted that some symptoms of cold hypersensitivity may persist into the long term. The plaintiff’s expert, Mr. McHugh, was somewhat less optimistic. He stated that he did not envisage any improvement in the plaintiff’s condition in the future. He was of opinion that the position at the present time is permanent and no further treatment was indicated. On this basis, the court is satisfied that the plaintiff’s continuing complaints of cold hypersensitivity and pain if the finger should bang against anything, are sequelea that are likely to continue into the long term.
71. In addition to the plaintiff’s physical symptoms, he has also suffered a severe psychiatric injury due to the effects of the injury, the cosmetic appearance of his hand and his functional disability. This aspect is dealt with in detail in the reports furnished by Dr. Cryan, which have been outlined earlier in this judgment. I accept the evidence of Dr. Cryan as set out in her reports, that the plaintiff has suffered moderately severe P.T.S.D. and a depressive disorder as a result of the injuries sustained in the accident. The plaintiff has required psychotropic medication to deal with this aspect of his injuries. The court notes that on one occasion, in or about May 2015, the plaintiff became so despondent about his physical condition, that he made an attempt to end his life. This indicates that his psychological distress at that time, was of an acute and severe nature. It was not a spur of the moment episode, as the plaintiff told his psychiatrist that he had been thinking about ending his life for about one week prior to that incident. It may well have been precipitated by the fact that he had taken quite an amount of alcohol on the occasion in question. Thankfully, the plaintiff has made considerable improvement and has not tried to self-harm since that time. He has also taken the precaution of giving up drinking alcohol, which was a very sensible thing to do.
72. According to Dr. Cryan, the plaintiff continues to suffer from P.T.S.D. and depression. However, there has been improvement as his mood has become more variable and there has been some improvement in his sleep pattern. Nevertheless, at the time of that report in August 2015, Dr. Cryan was of the view that the plaintiff’s prognosis remained guarded and uncertain, given the episode of self-harm and the unpredictability of his physical and psychological symptoms.
73. The plaintiff is very concerned about the cosmetic aspects of his injury. He feels that the stump of the finger is very unsightly and that people tend to stare at it when he is out in public. For this reason, he usually wears a glove on his hand when out of the house. The plaintiff is also concerned by the appearance of the scar on the right side of his groin, which is visible at conversation distance. Given that the plaintiff is a single young man, this is a significant disability to carry for the rest of his life.
74. At the time of the accident, the plaintiff had been doing a P.L.C. course in sports and recreation at a college in Killucan. He had failed one of the modules and was going to have to repeat that module in the academic year commencing in September 2014. As a result of the injury sustained in the accident, the plaintiff was not able to return to his studies. However, the court was informed that he was due to resume his studies in January 2017. It was not clear whether this was repeating the module which he had failed prior to the time of the accident, or was a new course of study. However, it was a course of study in the sport and recreation area. Counsel for the plaintiff indicated to the court that while there was no specific claim for future loss of earnings per se, they were inviting the court to make a substantial award in the context of the award of general damages to cater for loss of opportunity in the job market generally, which the plaintiff will suffer as a result of the injury to his hand.
75. I do not think that the court can make a substantial award of damages under this heading. This particular plaintiff, is a man who was very involved in sporting activities and who wished to take up a career in the sports and/or leisure industry. Both Ms. Kelly and Ms. Feely, appeared to be of the view that the plaintiff’s functional loss in his right hand would not be a barrier to the type of work in the sports and leisure industry, which he would have applied for if the accident had not happened. Ms. Feely was of the view that from a purely functional perspective, the occupational restrictions from the plaintiff’s injury, would be relatively low, but his cold intolerance would undoubtedly limit his job opportunity, as would pain. She was of opinion that it was entirely reasonable that the plaintiff would have been delayed in his occupational plans, but generally one would hope that somebody who looses such a finger, would get back on track in terms of training and employment. It seems to me that the assessment given by Ms. Feely is a fair and reasonable assessment of the plaintiff’s job prospects at the current time.
76. Given the plaintiff’s educational qualifications to date and the studies which he is likely to pursue in the future, it would appear that he is likely to seek employment as a fitness instructor or leisure centre manager or worker. In such jobs, he would be required to have a knowledge of human anatomy and a good knowledge of the operation of various types of exercise equipment which is commonly found in a gym. He would then give instruction to clients in the safe use of such equipment. This could be done by giving a comprehensive explanation of the equipment and of the amount of exercise that should be undertaken by a client without causing injury to their bodies. I am in agreement with the opinions of Ms. Feely and Ms. Kelly, that the injury to the middle finger on the right hand, would not significantly impair the carrying out of his duties in such a role. In such circumstances, one would not be inclined to award substantial damages in respect of a loss of opportunity in the job market. However, while the plaintiff would like to work in the sports and leisure industry, it may be that for one reason or another he is not able to obtain or retain work in that sector which might occur if the leisure centre were put out of business. In such circumstances, given his educational qualifications, he might be put onto the general job market with the lack of manual dexterity, that he has due to the injuries sustained in the accident. This would significantly impair his chances of obtaining employment in a range of jobs which required a reasonable level of manual dexterity. The plaintiff is entitled to damages to compensate him for the disadvantage that he would experience in the general job market in such circumstances.
77. Finally, in assessing damages in this case, one has to have regard to the fact that the plaintiff was a very keen and accomplished sportsman prior to the time of the accident. He had played soccer, Gaelic football, hurling and badminton prior to the accident. He has stated that since then, he is unable to grip either the hurl or the racket and, therefore, has not been able to return to hurling or badminton. Furthermore, due to the pain in the finger when it is struck against anything, he has not been able to return to playing Gaelic football. This was particularly distressing for him, as he had hoped to be selected for the County Meath football team. This was not just an idle or speculative hope, as I note that he told the psychiatrist that he had previously been selected on the Meath panel, but had not been able to take up his place, due to an injury to his ankle at that time. Thus, it would appear that he had a realistic chance of making the Meath team. It appears that the plaintiff has got back to playing some soccer, albeit at a purely recreational level. He has also taken up running, which has helped in the recovery of his psychiatric injuries. The award of damages, must take account of the fact that as a result of the accident, this plaintiff has been deprived of the ability to participate in sports to the level that he had been prior to the accident, which for him is a considerable loss.
78. The court was invited by Mr. Walsh, S.C., on behalf of the defendant, to have regard to the various heads of compensation as set out in page 37 of the Book of Quantum. While providing some assistance, the values given therein do not take account of the groin flap operation, or the cosmetic consequences of that operation. Nor do those values reflect the fact that playing sports was the plaintiff’s passion; which said activity has been dramatically curtailed as a result if the accident. Nor do they include any amount for loss of opportunity in the job market. In addition, as was conceded by counsel, the valuations given therein, do not take account of any psychiatric sequelea as a result of the injuries.
79. Taking all relevant matters into account, I award the plaintiff general damages for pain and suffering and loss of amenity to date in the sum of €65,000, together with future general damages in the sum of €60,000 and €20,000 for loss of opportunity in the job market and agreed special damages of €700, giving a total award of €145,700.
Powney v Bowvale Developments
[2017] IEHC 441
JUDGMENT of Ms. Justice Creedon delivered on the 7th day of July, 2017
Background
1. The plaintiff was born on 31st December, 1986 and lives with his partner and children in Lusk, Co. Dublin. He is currently unemployed.
2. The plaintiff brings these proceedings in negligence against the named defendants arising from an accident alleged to have occurred on 18th January, 2011 at Mayeston Square Apartment Complex , St. Margaret’s Road, Finglas, Dublin 11.
3. At the time of the accident, the plaintiff was a visitor at the apartment complex within the meaning of the Occupiers’ Liability Act 1995.
The Plaintiff’s Case
4. The plaintiff gave evidence that on the date of the accident he was visiting his friend Lee Clinton at the complex. He stated that he visited the complex frequently, at least twice weekly over the preceding year and a half.
5. He stated that he was carrying an empty fish tank through a common entrance doorway at the apartment complex accompanied by his friend Lee Clinton and partner Nadia Bell. He further stated that he was aware that the closing mechanism on the door was not functioning correctly and that Lee Clinton went ahead of him and put his foot against the door to keep it open as the plaintiff passed through. He stated that Mr. Clinton received a call on his mobile phone and took his foot from the door. The plaintiff stated that this caused the door to slam back against the fish tank causing the tank to break resulting in the injuries to the plaintiff.
6. Photographs were provided to the Court of the door taken by the plaintiff on the 24th May, 2011 showing the broken closing mechanism
7. Mr. Clinton in his evidence confirmed the circumstances of the accident as outlined by the plaintiff. He also gave evidence that the closing mechanism had been broken for a prolonged period of time prior to the accident and particularly, remembered it being an issue for him over Christmas. Ms. Bell was some distance behind and was not able to confirm the details of the circumstances of the accident. She did give evidence of attending the Emergency Department of Beaumont Hospital with the plaintiff after the accident.
8. Agreed Medical Reports of Mr. Brian Kneafsey were provided to the Court.
9. A joint inspection by Consulting Engineers was carried out on 17th December, 2015. At that time the closing mechanism on the door had been repaired. A report on behalf of the plaintiff was provided by Consulting Engineer Pat Culleton who also gave evidence.
The Defendant’s Case
10. It was contended by the defence that the accident did not happen in the manner described. This contention centred on the medical records from the Emergency Department of Beaumont Hospital and the evidence of Dr. Kelada.
11. Dr. Kelada confirmed the contents of his notes and in particular the description of the circumstances of the accident recorded by him as being as a result of an argument at home. He had no specific memory of the plaintiff or the case. In his evidence in relation to the nature and location of the injury, he stated that the injury was caused by glass but could not say whether this was more likely to have been caused in the manner outlined by the plaintiff or in any other manner.
12. Arising from the joint inspection referred to earlier, a report on behalf of the defendant was provided by Sean Walsh Consulting Engineer who gave evidence.
13. Joanne Fleming Director of Fisher Property Management gave evidence as to the system operated by the company for inspection, repair and maintenance of the properties they manage including the location of the incident the subject matter of these proceedings. It was her evidence that a janitor would be present at the property for a couple of hours each day and that over the course of a week/10 days a full inspection of all the blocks in that development would take place.
14. She stated that complaints could be made to them through this janitor. She further stated that, at the time of the accident, no complaints had been received by the company in respect of the closing mechanism of the door. She stated that complaints had been received in respect of the lock on the door and that issue had been remedied.
15. This evidence was confirmed by Richard O’Brien Maintenance Supervisor with Fisher Property Management.
Evidence arising under cross examination
16. The plaintiff, Mr. Clinton and Ms. Bell all strenuously denied that the injuries had been sustained in any manner other than that set out by them in their evidence.
17. While Fisher Property Management asserted that the first notification they had of the matter was a letter received from the Personal Injuries Assessment Board (PIAB) in April 2012, it emerged under cross examination that the plaintiff’s solicitors had written to Fisher Property Management as early as 18th March, 2011. While this correspondence had initially been sent to the wrong address, an acknowledgement of receipt of the correspondence was sent by the company to the plaintiff’s solicitors in March, 2011.
18. Fisher Property Management was not able to confirm the date of the repair of the closing mechanism of the door in question. They were unable to counter the plaintiff’s evidence that the closing mechanism had been faulty for up to six weeks before the incident and had remained unrepaired on 24th May, 2011.
Credibility & Causation
19. The Court takes a very serious view of false or misleading claims being put before the courts and has carefully considered the contention by the defendants that the accident occurred in circumstances other than those set out by the plaintiff. The plaintiff gave evidence of the manner in which he sustained his injuries at the Mayeston Square Apartment complex on the 18th January 2011 and was supported in this evidence by Mr. Clinton and Ms. Bell. The plaintiff initiated correspondence in respect of the matter as early as the 18th March 2011. In that correspondence he sets out the circumstances as set out by him in court. These are also the circumstances outlined at the joint engineering inspection. The plaintiff, Mr. Clinton and Ms. Bell all strenuously denied that the injuries had been sustained in any manner other than that set out by them in their evidence.
20. Dr. Kelada gave evidence to confirm the circumstances of the injury as that recorded by him in his notes. He had no specific memory of the plaintiff or the case and with regard to the nature of the injury, he confirmed that it was caused by glass but could not counter the evidence that it was caused in the manner alleged by the plaintiff.
21. On balance, the Court finds that the accident occurred as set out by the plaintiff.
22. Fisher Property Management Limited being responsible for the repair and maintenance of the door at the centre of these proceedings owe a duty of care to the plaintiff within the meaning of the Civil Liability Act 1961.
23. The evidence establishes that, on the balance of probabilities, the closing mechanism on the door was not functioning correctly on the date of the incident.
24. The evidence further establishes that on the balance of probabilities the mechanism was not functioning correctly for some time before the incident, and at least up to the 24th May 2011, up to two months after Fisher Property Management limited was made aware of the matter.
25. It was reasonably foreseeable and a probable consequence that this defect would cause damage or injury.
26. The plaintiff was frank in his admission that he was aware that the closing mechanism in the door was broken. Despite this knowledge he chose to embark on a dangerous manoeuvre by carrying a glass fish tank through the faulty door resulting in his injuries. Liability for the incident should be apportioned between the plaintiff and the defendant.
Injuries
27. The injuries are as set out in the agreed medical reports. In summary, the plaintiff sustained a deep, complex laceration on the dorsal aspect of his right hand with division of several extensor tendons to include the two main tendons into the thumb and one of the smaller tendons into the index finger. He was admitted that day for surgery that was carried out the next day. The extensor tendon to the thumb was repaired and the plaintiff was placed in a plaster cast. He came back to hospital two weeks later when it became apparent that the tendon repair had ruptured. This required further surgery to re-repair. Further repair proved impossible and the tendon was reconstructed using a tendon graft. He was once again placed in a plaster cast. The most recent report dated the 10th January 2017 confirms that the plaintiff has some sensation of discomfort and tightening after long use of his hand as well as a slightly reduced range of motion of his thumb but this is not causing him major functional problems. He has now been assessed as essentially having normal functioning. He does have obvious scars on the back of his hand. The scar measures approximately 13 cm in length and is permanent. Now, some six years after the accident, no change in this position is expected
Conclusion
28. Given the plaintiff’s knowledge of the defect and the level of control that he had when embarking on the manoeuvre, I find that the defendant was 20% responsible for this accident and the plaintiff was guilty of 80% contributory negligence.
29. In assessing damages in this case, I have had regard to the helpful guidelines set down by the Court of Appeal in Payne v. Nugent [2015] IECA 268, Nolan v. Wirenski [2016] IECA 56 and Shannon v. O’Sullivan [2016] IECA 93. In the course of her judgment in the latter case, Irvine J. stated that it has been long accepted that awards of damages must be:-
“(i) fair to the plaintiff and the defendant;
(ii) proportionate to social conditions, bearing in mind the common good; and
(iii) proportionate within the scheme of awards made for other personal injuries.”
30. Taking all of these matters into account, I measure damages in the sum of €65,000, for pain and suffering to date with €10,000 for future pain and suffering and special damages measured at €3020.82. On apportionment this gives an award to the plaintiff of €15,604.16
O’Shaughnessy v Dublin City Council
[2017] IEHC 774
JUDGMENT of Mr. Justice Barr delivered on the 20th day of December, 2017
Introduction
1. This action arises out of an accident which occurred at approximately 01:00 hours on 4th November, 2007, at Cullenswood Road, Ranelagh, Dublin. The plaintiff had left his flat at No. 6A Oakley Road, Ranelagh, for the purpose of purchasing some cigarettes. Although it was late in the night, he thought that the Spar shop at the triangle in Ranelagh, might have been open. On the night in question, he had his neighbour’s dog, which was a small terrier, on a lead walking in front of him.
2. The plaintiff came out of his flat and turned left onto Oakley Road. He proceeded to the end of the road and then turned right onto Cullenswood Road, where he walked along the right hand footpath going towards the triangle in Ranelagh village.
3. It is the plaintiff’s case that while walking under the Luas bridge, he was caused to trip and fall to the ground, when his right foot came into contact with portion of a stone block, which was projecting from the right hand side of the Luas bridge at ground level. The offending piece of stone is shown in photographs Nos. 3, 4 and 5 which were taken by Mr. Alan Conlan, Engineer, on 5th December, 2007.
4. The defendants were jointly represented at the trial of the action. Each of the defendants denied liability for the accident and also put quantum in issue. The defence also contained a plea of contributory negligence to the effect that the plaintiff was the author of his own misfortune, he had failed to maintain any or any proper lookout, had failed to look at the footpath upon which he was walking, had failed to observe the presence of the stone on the footpath in front of him and had exposed himself to a risk of injury or damage of which he knew, or ought to have known. Thus, all matters were in issue between the parties.
Summary of the Evidence
5. The plaintiff is sixty-one years of age. He had spent most of his working life in Britain, working as a plumber. He returned to Ireland in or about 1994, when his mother became ill. He had worked for various construction firms on and off during the years that followed. He was ultimately made redundant by a company called Tenec in 2001. He had not worked in the interval between that time and the time of the accident.
6. The plaintiff stated that on the night in question, which was a Saturday night, going into the early hours of Sunday morning, he had spent the day in his flat watching television with his friend, Mr. Noel Nugent, who also resided there. The plaintiff stated that he had gone out during the day to purchase cigarettes and some cans of beer. He explained that on that particular evening, he and Mr. Nugent had a neighbour’s dog staying with them, as the neighbour would often leave his dog with them, as he was elderly and did not like walking the dog at night.
7. At approximately 01:00 hours the plaintiff put the dog on a lead and proceeded out to go to the Spar shop in Ranelagh village to purchase some more cigarettes. He left his flat on Oakley Road and turned left and walked down the road to the junction with Cullenswood Road, where he turned right and proceeded towards the triangle in Ranelagh village. The plaintiff indicated that by reference to photograph No. 13, of the photographs taken by Mr. Conlan, he had come down Oakley Road which was to the left of the junction, where the blue house could be seen. He then turned right and started to walk towards the camera. He proceeded down the road and went under the Luas bridge, as shown in photograph No. 8. He stated that the dog was walking some 4/6ft in front of him, tight against the wall. He was following directly behind the dog and was also very close to the wall. As he was going under the Luas bridge going in the direction of the triangle, as shown in photograph No. 2, the wall itself jutted out at the far-end of the bridge. As he came to the very end of that section, his right foot caught on a piece of stone, which was protruding from the wall, causing him to trip and fall forwards onto the ground. He turned to his right as he was falling and landed on his right shoulder.
8. The plaintiff stated that he tripped on the piece of stone which was jutting out from the bottom section of the wall as shown in photograph No. 3, and in closer view in photographs 4 and 5.
9. The plaintiff stated that he was lying on the ground for a few moments. He was in shock and also in severe pain. However, after a few moments, he was able to get himself sitting up. He had managed to keep hold of the lead, so the dog had not escaped. While he was sitting on the ground, a female garda, who had been walking on the far side of the street, saw him and came across. She enquired if he was alright. He assured her that he was all right and told her that he would just rest there for a few moments before proceeding on. The female garda then proceeded on her way. The plaintiff stated that he was unable to get himself into a standing position, so he shuffled on his backside along the pavement to a doorway, or entrance, which was shown beneath the “For Sale” sign in photograph No. 8. He was hoping that by using the aid of the wall, he might be able to stand up. However, he was not able to do so.
10. After some time, the female garda returned. The plaintiff asked her to help him up and she did so. She then escorted him back to his flat on Oakley Road. She used his key to open the front door and left him sitting in the sitting room. The plaintiff was unable to sleep that night due to pain in his right shoulder. His arm became very swollen and sore. Later that day, he went to the Accident and Emergency Department of the Mater Hospital. That was on Sunday 4th November, 2007. They told him to return on the following day to the fracture clinic. When he returned on 5th November, 2007, his arm was placed in a collar and cuff. He was instructed to return a week later. When he did so, he was seen by a Dr. Sinnott, who referred him to the care of Mr. Darragh Hynes, Consultant Orthopaedic Surgeon.
11. X-rays revealed that the plaintiff had a comminuted fracture of the right shoulder. Having examined the plaintiff and reviewed the x-rays, Mr. Hynes admitted the plaintiff to hospital on 13th November, 2007. Two days later, the plaintiff was brought to theatre, where open reduction and internal fixation was carried out to the shoulder. However, due to the grossly comminuted nature of the fracture, it was not possible to insert any screws into the shoulder itself. Post-operatively, the plaintiff’s wound healed. The fracture went on to make a satisfactory, though incomplete, union.
12. The plaintiff had physiotherapy treatment, where he was shown movements of the shoulder joint and was given a home exercise program and was also told to squeeze a rubber ball, so as to increase strength in his arm and shoulder. He stated that he followed this program, until he realised that he was not getting any better, at which stage, he stopped doing the exercises. In terms of pain, he stated that while the pain had been severe during the initial stages, it had pretty much settled after 2008.
13. The plaintiff returned to the U.K. in February 2008. He currently lives there in sheltered accommodation, which has been provided to him by the local authority, on the basis that he has a permanent disability. Having assessed his needs, they installed a wet-room in the house. He is currently on Disability Allowance and Employment Support Allowance from the U.K. government.
14. The plaintiff stated that although he does not have much pain on an ongoing basis, he does require injections from his G.P. from time to time when his shoulder is stiff and sore. He remains quite disabled in the ordinary aspects of his life. He states that he is unable to use his right arm and hand. He had been right hand dominant. Now he is obliged to do everything using his left hand. He finds this difficult and is a lot slower doing ordinary tasks. It affects him when washing and toileting. The toilet seat has been raised and he has rails in the bathroom and shower. He is unable to tie his shoelaces and requires the assistance of a neighbour to do this for him. He has to shave with his left hand. When eating, he uses a fork in this left hand. He does not do much cooking, as he tends to put ready meals into the microwave. He is able to dress himself, but it takes longer than normal. Prior to the accident his hobbies had been snooker and table tennis. He is not able to do these things since the accident. The other aspect of his injury which causes him considerable embarrassment is the fact that as a result of the fracture and the operative treatment thereto, his right arm is 6cm shorter than his left arm. As he is not able to use the right arm, the muscles on the arm have become wasted away. Movement of the right shoulder is limited. He indicated that he was only able to raise his arm approximately at an angle of 45 degrees from the side of his body.
15. In cross-examination, the plaintiff was asked about a number of seizures that he had prior to the time of the accident. While he was unsure of dates, he thought that he may have had a seizure in 2004 or 2006. It was put to him that he had been admitted to the Mater Hospital in February 2007 after suffering a seizure, while in a public house. In the hospital admission records in relation to that event, it was recorded that he may have had a seizure some eight months previously, which would put it circa June 2006. The plaintiff accepted that as accurate. It was put to the plaintiff that in February 2007, he had in fact had two seizures while in the pub. He had had one earlier in the evening, but had recovered and remained on in the pub and then had had a second seizure, which required his removal by ambulance to the Mater Hospital. The plaintiff stated that that was correct. The plaintiff was asked as to the medical diagnosis for the seizures. He stated that the doctors had told him that it might have been epilepsy, which might have been alcohol related. He accepted that he had a brother who also had alcohol related epilepsy.
16. It was put to the plaintiff that during his admission to the Mater Hospital, he had been prescribed a large amount of medication. The plaintiff agreed. He was not able to recall what exact medication had been prescribed. He had also had a drip inserted into his arm on that occasion. It was put to him that from the notes, it would appear that he was prescribed a drug called Cabonax, which was for vitamin deficiencies caused by alcoholism. The plaintiff agreed that he had been given that drug. It was also put to him that he had been prescribed Librium for anxiety and acute alcohol withdrawal. It was put to him that the side effects of Librium, included dizziness and difficulty walking. The plaintiff stated that he was not made aware of any such side effects. He had only been given Librium while in hospital. It was put to him that he had also been prescribed Atoplan and Diazepam for the seizures. The plaintiff did not remember those medications, but accepted that he may have been given them. The doctor had told him that he could have alcohol related epilepsy, due to the fact that he was drinking too much. The plaintiff accepted that he had discharged himself from hospital against medical advice on that occasion in February 2007.
17. The plaintiff was asked as to whether he had been treated by his G.P. after his discharge from hospital in February 2007. The plaintiff stated that he had gone to his G.P., Dr. Joyce. He had seen him after the seizures and before the time of his fall. He had placed the plaintiff on medication to calm him down, which could have been Diazepam. The plaintiff did not think that he was on Librium at that time. He recalled that he may have been told of the side effects of Diazepam, being dizziness, blurred vision and possible ataxia. He was not told anything about possible vertigo. He thought that he took the medication which had been prescribed, possibly up to the time of the accident, but he was not sure.
18. The plaintiff was asked what he had done during the day prior to the fall. He stated that he had just been sitting around his house with his friend Noel Nugent. He may have gone out to the shops during the afternoon to get cigarettes and cans of beer. He could not actually recall going out. He was not sure at what time the dog was left in by his neighbour during that evening. They would have kept the dog overnight. In relation to going out to get the cigarettes, the plaintiff stated that he just decided to go out to get the cigarettes for himself and, his housemate, Noel. He thought that the Spar shop in Ranelagh village had late opening hours. However, he was not certain of that, because he did not get to the shop that night. His intention was to take the dog for a walk and to get cigarettes in the Spar shop, but he was not sure if the shop would actually be open.
19. The plaintiff described that the dog was on a leather lead, which was some 4/6ft long. The dog was walking close to the wall and was cocking his leg against it from time to time. The plaintiff stated that he was walking directly behind the dog and almost touching the wall. He was asked whether he would have taken such a path, given that that would have involved him walking through the urine that had been left by the dog. The plaintiff stated that he did walk along that route, as the dog was very small. He stated that he tended to walk close to the wall, as he did not like to walk near the edge of the footpath close to the road. He was asked why he had not seen the portion of stone sticking out onto the footpath. The plaintiff stated that it was very dark under the bridge and there was no lighting in the area. On this account, he had not seen the piece of stone sticking out from the wall.
20. The plaintiff was asked why in both the solicitor’s initial letter, in his form submitted to the Injuries Board and in his engineer’s report, following an inspection of the locus on 5th December, 2007, the incorrect date of the accident had been given as 9th November, 2007. The plaintiff accepted that that was the wrong date. He could not explain how that mistake had occurred. It was put to him that in his form submitted to the Injuries Board, he had merely stated that he had tripped and fallen at the Luas bridge near the triangle in Ranelagh. He accepted that that account did not mention anything about any stone sticking out from the wall. However, the form had not been filled in by him, although he accepted that it was his signature at the foot of the form. It was put to him that a similar mistake in relation to the date of the accident had been set out in a letter which had been sent to the first named defendant on 30th November, 2007. The plaintiff accepted that the date was mistakenly stated therein, but he could not explain how that had happened.
21. The plaintiff was asked about the female garda, who had come to his assistance. He stated that she had attended on him twice that evening. On the second occasion, she had escorted him home. However, he had not asked her, her name.
22. The plaintiff was asked why his engineer had stated in his report that the plaintiff was “not a 100% sure of the exact accident location. However, he considers it highly probably that he tripped at the protruding stone (photograph 5).” The plaintiff stated that when he went to the locus with the engineer on 5th December, 2007, he told him that he had met with the accident “around about there”, pointing to the accident locus. He stated that he did point out the exact locus to the engineer. He stated that the engineer was wrong to say that he was not sure of the locus. The plaintiff was asked to explain why the engineer had stated that the plaintiff considered it “highly probable” that he tripped on the stone. The plaintiff stated that he was sure of where he had fallen, and that it was most likely because of the stone sticking out from the wall.
23. The plaintiff was asked about his conduct on the evening after the operation had been carried out to his shoulder on 15th November, 2007, while he was still in the Mater Hospital. In particular, it was put to him that the hospital records showed that he was recorded as being missing at 22:00 hours on the evening of 15th November, 2007. The plaintiff initially stated that he had gone out to the gazebo to smoke a cigarette and had fallen asleep out there. When it was pointed out that the hospital records noted that he had returned at 1.15 hours on the 16th, with his girlfriend, Sharon, and had stated that he had been to O’Connell Street to get a lift for his girlfriend, but when she had missed the lift, they had gone to a pub instead; the plaintiff accepted that that had happened. He stated that he had gone out for a smoke and he and his girlfriend had ended up going for a pint.
24. It was put to the plaintiff that his account lacked credibility; that he would be walking so close to the wall to trip on the piece of stone, which was only jutting out 4.75 inches onto the footpath and if he had been that close to the wall and had tripped, he would have struck the wall, when in reality the accident had happened due to the consumption of alcohol. Counsel for the plaintiff objected at this point, pointing out that there was no allegation made in the pleadings, that the accident had occurred due to any consumption of alcohol, or due to taking prescription medication, or was due to alcohol related epilepsy.
25. In relation to his pre-accident work record, the plaintiff accepted that he had returned to Ireland in 1994, and worked for various employers subsequent to that time. Although he had been present in Ireland during the so-called Celtic Tiger years, he had not in fact been working since being made redundant in or about 2001. He confirmed that he had not worked since the accident. In relation to taking prescription medication, the plaintiff stated that while certain medication had been prescribed for him in the Mater Hospital at the time of the seizure in February 2007, he had discharged himself from the hospital and had not taken any prescription for medication with him. Accordingly, he had not taken any of the medication that had been prescribed for him in the hospital, after he had left the hospital on that occasion.
26. Evidence was given by the plaintiff’s sister, Ms. Carmel O’Shaughnessy-Martin. She had been with the plaintiff when he had been brought from the pub to the hospital suffering from seizures in February 2007. This had occurred on the night that their brother, who had died just prior to that time, had been taken to the church in preparation for the funeral. She had kept the plaintiff in her house, so that he would not drink. He had not been drinking during the day and had only had two pints that evening. As far as she knew, the doctors put him on a detox program in the hospital. He subsequently signed himself out of the hospital. He had not had problems since that time. This witness was not cross-examined.
27. Evidence was given on behalf of the plaintiff by Mr. Alan Conlan, consulting engineer. He confirmed that he had taken photographs Nos. 1-7 at the time of his inspection of the locus on 5th December, 2007. The remaining photographs had been taken on 23rd November, 2017. He stated that prior to the opening of the green Luas line for operation on 20th June, 2004, a thorough survey and assessment would have been carried out of the tracks and bridges along the route. It was clear that fairly substantial works had been carried out to reinforce the bridge. These were particularly evident on the far side of the road as shown in photograph No. 14, where an entirely new wall and a concrete plinth had been put in situ to support the overhead bridge. On the side on which the accident had occurred, it appeared that the reinforced concrete plinth had been placed on top of the existing stone wall.
28. Mr. Conlan stated that any visual inspection of the structure of the bridge, would have revealed the protruding piece of stone as shown in photographs 2 – 5. He could think of no reason why the defendants had left the stone protruding out onto the footpath. It could easily have been removed. It served no function at all. In his opinion it ought to have been removed, as it constituted a danger on the public footpath.
29. The protruding stone was approximately 370mm long. Its front facing edge was 50mm high. At the back edge the stone was 100mm high. The stone extended out from the wall of the Luas bridge onto the footpath by 120mm (4.75in).
30. In cross-examination, Mr. Conlan accepted that a person would have to be up against the wall in order to trip on the piece of stone. They would have to be walking along the line of the wall itself and would have to have been almost touching the wall in order to make contact with the stone. He accepted that it was not the usual way in which pedestrians would walk along the footpath. However, in this case the plaintiff stated that he had been following the dog, which had been walking tight to the wall.
31. Mr. Conlan outlined how he had attended at the locus on 5th December, 2007 with the plaintiff and his solicitor. The plaintiff had described the accident as set out in his report. The plaintiff stated that he could not be 100% sure, but as a matter of “high probability” he thought that he had tripped on the piece of stone. Mr. Conlan thought that in phrasing it that way, he was just being honest. He identified the stone as being highly probable as the cause of his fall. Mr. Conlan confirmed that the plaintiff has given him the date of the accident as being 9th November, 2007. He accepted that the plaintiff was wrong in that regard.
32. Mr. Conlan stated that he did not consider the lighting of the locus, as that had not come up at the inspection. That was why it was not mentioned in his report. He accepted that given the particular location, it would be highly unlikely that the plaintiff would not have been able to see his dog at the end of the lead. It was put to the witness that if the plaintiff had told the court that it was so dark, that he could not see the dog at the end of the lead, this implied that he was totally confused. Mr. Conlan accepted that the plaintiff should have been able to see the dog at the end of the lead.
33. No evidence was called on behalf of the defendants.
Submissions of Counsel
34. At the conclusion of the case, counsel for the plaintiff, Ms. Patricia Dillon, S.C., submitted that having regard to the provisions of the Transport (Railway Infrastructure) Act 2001, the third and/or fourth named defendants were the owners and occupiers of the bridge in question and as such, were liable for the nuisance created on the public highway, which caused the injuries sustained by the plaintiff. She submitted that the entire of the railway line known as the Harcourt Street Line had originally been owned by CIE. By virtue of s. 33 of the Transport (Railway Infrastructure) Act 2001, all of the property which had been owned by CIE, was transferred on the establishment day to the third named defendant. The third named defendant had subsequently entered into a contract, which provided that the operation and maintenance of the Luas line, including the Green Line running to Ranelagh, was to be operated and maintained by the fourth named defendant. It was the third named defendant, or the fourth named defendant, which was responsible for surveying the Harcourt Street line to ensure that it was capable of carrying the Luas and it was they who had carried out the works to the bridge in question, as set out by Mr. Conlan in his report and in his evidence.
35. Counsel submitted that in the circumstances, the third and/or fourth named defendant had created or maintained a nuisance on the public highway in letting the piece of stone, as shown in photographs 3 – 5, extend out from the foot of the wall by some 120mm (4.75 inches). The portion of stone that jutted out onto the pavement, served no functional purpose at all. It could easily have been cut away. Based on the evidence of Mr. Conlan, that is what the defendants should have done, in order to render the locus safe.
36. Counsel further submitted that the defendants, and each or either of them, were the owners and occupiers of the bridge and the footpath and as such they owed the common duty of care as defined in the Occupier’s Liability Act 1995 to the plaintiff, who was a visitor on their premises. It was submitted that in permitting the locus to be in a dangerous condition, with the piece of stone jutting out from the wall onto the footpath in the manner that it did, constituted a breach of the common duty of care owed to the plaintiff. In these circumstances, it was submitted that the defendants were liable for the injuries sustained by the plaintiff.
Conclusions
37. There are three issues on liability in this case, as follows: (a) did the defendants, or any of them, create or maintain a nuisance on the public highway; (b) did the plaintiff fall to the ground on the night in question, as a result of tripping against this piece of stone; and (c) if the answers to the two previous questions are yes, was the plaintiff guilty of contributory negligence in failing to see the stone?
38. It is settled law that even a small impediment on the public highway can constitute an actionable nuisance. In Hassett v. O’Loughlin [1943] 78 ILTR 47, O Briain J. stated:-
“A nuisance is not confined to an obstruction on the highway; it may consist of anything which makes the use of the highway unsafe or dangerous to the public.”
39. In the Hassett case, liability was imposed on the defendant for placing a tiny heap of stones on the highway. In Stewart v. Governors of St. Patrick’s Hospital 73 I.L.T.R. 115, it was held that the occupier, of unfenced vacant land adjoining a highway, was liable in nuisance to a person lawfully using the highway, for injuries caused to that person by a pipe projecting from the land in close proximity to the highway.
40. I am satisfied from the evidence given by Mr. Conlan, that the piece of stone, which jutted out from the foot of the wall, as shown in photographs Nos. 3 – 5, constituted a nuisance on the public highway. It may well be that as the stone only jutted out some 120mm onto the highway and as people do not normally walk tight against a wall, for this reason accidents may not have occurred in the past. Just because the vast majority of people will walk some distance from a wall, when walking along the footpath, this does not mean that some people will not walk tight against the wall for whatever reason. I accept Mr. Conlan’s evidence that when this bridge was being assessed in preparation for the commencement of the Luas operation, those carrying out the assessment should have seen that the stone projected out onto the footpath and that the projecting portion served no function whatsoever. I accept Mr. Conlan’s evidence that even on a casual visual inspection, the danger should have been noted and the offending piece of stone should have been cut away. Accordingly, I am satisfied that the third and fourth named defendants created or maintained a nuisance on the public highway, by allowing this piece of stone to jut out onto the footpath.
41. I am also satisfied having regard to the provisions of the Transport (Railway Infrastructure) Act 2001, that the third and/or fourth named defendants were the owners and occupiers of the lands consisting of the Luas line and in particular of this bridge. As such, they were the owners of the highway out to the midpoint in the road. I am further satisfied that in allowing the stone to project out onto the footpath in the manner that it does, they have failed to extend the common duty of care as defined in the Occupier’s Liability Act 1995, to persons using the footpath, who are visitors on their property.
42. The central issue in this case is whether the plaintiff has established that he met with his accident as a result of tripping against the piece of stone in the manner described by him. Having observed the plaintiff carefully giving his evidence and in particular when giving his evidence on cross examination, a number of things are clear to the court. Firstly, he has difficulty with dates. He was unsure in relation to the dates on which he returned to Ireland and was somewhat unclear in relation to the specific dates on which he had actually worked while in Ireland. It would also appear that he had been, at least unsure, in relation to the date of the accident, as it appears that the incorrect date was set out in the initial warning letters from his solicitor and in his form submitted to the Injuries Board. It would also appear that the incorrect date was given to his engineer at the time of the inspection on 5th December, 2007.
43. Secondly, it would appear that the plaintiff has had problems with alcohol in the past. From the records which were referred to in cross examination, it would appear that the seizures suffered by the plaintiff in 2006 and in February 2007, may well have been alcohol induced epileptic attacks. The plaintiff accepted that his brother had also been diagnosed with a similar problem. The plaintiff’s sister gave unchallenged evidence to the effect that she had to take him into her house, so as to ensure that he did not drink to excess at the time of his brother’s funeral. Thirdly, it appears that on the day on which the plaintiff had undergone fairly substantial operative treatment to his right shoulder, he actually left the hospital grounds and spent a number of hours drinking in a pub with his girlfriend. All of this is indicative of the plaintiff having a problem with alcohol. Although not asked specifically how much alcohol he had had to drink on the day and night in question, the plaintiff had candidly stated that during the day he may have gone to the shop to buy some cans of beer for himself and his flatmate.
44. There was also a suggestion in cross examination, that the plaintiff may have been taking certain medication at the time of the fall, the side effects of which may have caused him to suffer from dizziness, loss of balance and/or ataxia. However, two things need to be noted about these assertions; firstly, no medical evidence was called by the defendant to establish what are, in fact, the side effects of the medications that were mentioned in the medical records, nor as to what dosage of medication would normally be required in order to produce these side effects. Nor was it established that the plaintiff had been furnished with a sufficient quantity of medication to induce these side effects. Secondly, it would appear that while certain medication is mentioned in the hospital records from the time he was admitted with the seizure in February 2007, it appears that the plaintiff discharged himself from the hospital against medical advice and as such, he left without any prescription for medication. Thus, the only medication that he may have been on at the time of the accident, and this was not proven, was whatever medication may have been prescribed by his G.P. at that time.
45. Counsel for the defendants, also laid great stress on the fact that in the plaintiff’s engineer’s report, it was stated that he was not a hundred percent sure of the exact accident location. However, the plaintiff was adamant that he fell at that location and considered it highly probable that he tripped on the protruding stone as shown in the photographs. When questioned on this apparent lack of clarity, Mr. Conlan was of the view that the plaintiff was probably just being honest. Having watched the plaintiff give his evidence and in particular in the manner in which he answered questions put to him by counsel on behalf of the defendants, some of which would have been somewhat uncomfortable for him to answer, he was not generally evasive, or lacking in candour.
46. While the court cannot ignore the fact that the plaintiff gave the wrong date for the accident in his initial instructions to his solicitor and to his engineer, thereby causing the incorrect date to be stated in the initial warning letters from his solicitor and in his Injuries Board form, this does not necessarily mean that he is lying about his account of the incident. Not all plaintiffs will present with a well-rehearsed and neatly packaged story. The court must take account of human frailties, whether caused by age, poor memory, or the effects of excessive alcohol consumption over a number of years.
47. It is greatly to the credit of Ms. Gallagher, the plaintiff’s solicitor, and Mr. Conlan, the plaintiffs’ engineer, that they did not try to “nudge” the plaintiff to give a more definite account of his accident, when he attended the locus with them in December, 2007. I am satisfied that Mr. Conlan had faithfully reported what was said to him by the plaintiff on that occasion.
48. Save with the exception of his initial answer in relation to his conduct on the night of his operation, I am satisfied that the plaintiff has done his best to tell the truth in relation to the circumstances of the accident. I think that Mr. Conlan was correct, when he said that the plaintiff was probably just being honest, when he gave his description of the accident to the engineer at the inspection in December 2007. It seems to me that if the plaintiff was going to do a “ready up” in relation to the cause of his fall, the very least he would have done was, that he would have been emphatic as to what he had tripped over and how he had tripped, when giving instructions to his solicitor and engineer. If it was a “ready up” or fraudulent claim, he would also probably have acquired the assistance of a “witness”, who would corroborate his version of events. The plaintiff did neither of these things.
49. A further matter pointing to the truthfulness of the plaintiff, is the fact that he did not try to exaggerate, or embellish his account of his injuries or disability to date. In fact, he very candidly stated that he had not had much pain after 2008. His account that he was not able to use his right arm and on that account has had to learn to use his left hand, is supported by the fact that on a visual examination, the muscles on his right arm are almost totally wasted. This suggests that he is telling the truth, when he states that he does not use the arm at all.
50. Taking all of these matters into consideration, I am satisfied that the plaintiff has told the truth in relation to how he met with his accident. While it is certainly unusual, I accept his account that on the night in question he was walking very close to the wall, directly behind the dog. In these circumstances it is entirely reasonable that his right foot would have come into contact with the protruding piece of stone. While it may be unusual for a pedestrian to walk so close to the wall, it is not indicative of contributory negligence for them to do so. A pedestrian may use the full width of a footpath to walk on. Accordingly, I find that the accident occurred in the manner alleged by the plaintiff. That being the case, having regard to the findings already made in relation to the creation of the nuisance on the footpath and the breach of the common duty of care owed by the defendants as owners and occupiers of the locus, I find that the third and fourth named defendants are liable to the plaintiff for the injuries sustained.
51. The final issue on liability, is whether the plaintiff was guilty of contributory negligence. It has been pleaded that the plaintiff failed to take reasonable care for his own safety; in particular, that he failed to watch where he was going and ought to have seen the portion of the stone which was projecting out onto the footpath. Pedestrians, when walking along the footpath, must take reasonable care. They must keep a proper lookout of the path in front of them and take care to avoid obstacles, or dangers which are readily apparent on the footpath. However, given that the average person is approximately 5ft 8 inches tall, their eyes are at some distance above ground level. Pedestrians are not expected to walk along looking down at their feet, in case there might be obstacles or other dangers on the surface of the footpath.
52. In this case, where the danger existed at ground level and where it would appear that the locus was somewhat badly lit and having regard to the fact that the projecting stone was of the same colour and material as the walls above it and surrounding it, I do not think there was any negligence on the part of the plaintiff in failing to see this particular obstacle on the footpath. Given that the wall and the projecting stone were both grey in colour and the surface of the footpath was of a similar colour, I do not think that it can fairly be said that the plaintiff failed to take reasonable care for his own safety, when he failed to see the stone jutting out onto the surface of the footpath. In these circumstances, I decline to make any finding of contributory negligence against the plaintiff.
53. Turning to the injuries, it is not necessary to repeat the account of the injuries and the account of the disability flowing therefrom as given by the plaintiff in his evidence. The only medical evidence in the case were the two reports and the letter furnished by Mr. Darragh Hynes, Consultant Orthopaedic Surgeon. It is not necessary to set out the content of those reports in detail.
54. In summary, the plaintiff has suffered a grossly comminuted fracture to the right shoulder. This required operative treatment. However, due to the extent of the comminution of the fracture, it was not possible to internally fixate the fracture itself. The fracture has gone on to make a satisfactory, although incomplete union. The plaintiff suffered pain in the shoulder at the time of the injury and for approximately one year thereafter. Since then, any pain or stiffness that the plaintiff has had, has been satisfactory treated by the administration of injections to his shoulder by his G.P. in the U.K. When seen on 18th August, 2015, Mr. Hynes noted that the plaintiff had had an injection approximately three years prior to that i.e. in 2012 and had had a further injection circa September 2014. The plaintiff in evidence, stated that he had had further injections at the rate of approximately two per year.
55. Mr. Hynes is of opinion that the plaintiff’s current position, as set out in his report dated 26th August, 2015, is permanent. The plaintiff will continue to have a significant functional deficit as a result of decreased use of the right arm. He will continue to have difficulties with elevated use of his right hand. Mr. Hynes is of the view that there is unlikely to be any improvement in the future. The good news from the plaintiff’s point of view is that he is of the view that, having regard to the progress made by the plaintiff up to that time, it is probable that the plaintiff will not develop a progressively more painful condition in the shoulder. However, he may require injection treatment from time to time from his G.P. Mr. Hynes enters the caveat that it is possible that the plaintiff may develop sufficient pain, such that surgical intervention would have to be undertaken. This would involve a shoulder replacement procedure. However, he did not feel that the plaintiff’s condition in 2015 was bad enough to warrant that course of action.
56. Thus, the plaintiff has suffered a comminuted fracture to the right shoulder which required operative treatment. While pain in the shoulder had largely subsided with the administration of intermittent injection treatment by his G.P., the plaintiff has been left with a significantly disabled right arm. I accept his evidence that he does not use the right arm and hand. This has required him to use his left hand and as a result, he is considerably slower in doing normal activities of daily living.
57. However, the court must also have regard to two things. Firstly, while Mr. Hynes has stated in his report from August 2015, that the plaintiff “will continue to have a significant functional deficit,” he does not say that as a result of the fracture to the shoulder, the arm is incapable of any use. I accept that as a result of his injury, the plaintiff is functionally limited in his right arm, but I do not accept that the arm is incapable of any use at all. The medical evidence does not go that far.
58. The second point is that the plaintiff was shown a set of exercises by his physiotherapist to strengthen the muscles in his shoulder and arm. On his own evidence, he discontinued doing these exercises, when he came to the conclusion that they were not doing him any good. In these circumstances, the court has to come to the conclusion that on the balance of probabilities, a significant degree of his continuing disability and muscle wasting, has arisen as a result of his failure to follow the rehabilitation programme advised by his physiotherapist, rather than being due to any wrongdoing on the part of the defendant.
59. I accept that he is unable for his pre-accident hobbies of snooker and table tennis. I also accept the plaintiff’s evidence that he is very embarrassed by the fact that his right arm is significantly shorter than his left arm. Some loss of function in the right arm and its being shorter in length, will be permanent. In these circumstances, I award the plaintiff €40,000 for pain and suffering and disability to date, together with €27,500 for disability and loss of function into the future. There are no items of special damage. In view of the fact that the defendants did not separately contest liability, but have reached some arrangement whereby they were jointly represented, the plaintiff is entitled to a joint and several judgment against all of the defendants in the sum of €67,500.
White v Doherty & Anor
[2019] IECA 295
Page 1 ⇓Baker J.Costello J.Donnelly J.THE COURT OF APPEALCIVILNeutral Citation Number: [2019] IECA 295Record Number: 2014/1317BETWEEN/PHILOMENA WHITEPLAINTIFF/APPELLANT- AND –WILLIAM DOHERTY AND S & K CAREY LIMITEDDEFENDANTS/RESPONDENTSJUDGMENT of the Court delivered on the 27th day of November 2019, by Ms. JusticeDonnellyIntroduction1. The plaintiff/appellant, (“Mrs. White”), then aged 73 years, suffered a serious injury toher left arm when she tripped and fell on the 3rd May, 2010 at Woodstown Caravan Park(“the park”), County Waterford. Mrs. White and her husband had a mobile home in thesaid caravan park for approximately forty-six years. The trial judge accepted in full Mrs.White’s evidence as to how her accident occurred. The trial judge rejected her claim fordamages and held that there was no breach of the common duty of care owed by therespondents as occupiers of the park under s. 3 of the Occupiers Liability Act, 1995 (“the1995 Act”). It is against that finding that Mrs. White appeals.2. Mrs. White had walked from her mobile home to the toilet/shower block at about 6pm onthe May Bank Holiday in 2010. Her own mobile home was five or six homes back on theleft hand side of the park as one faced the toilet block. She walked up close to the mobilehomes on the left side. At some point between the last two mobile homes her toe stuck insomething, she lost her balance and as she described it, paddled through the air. As theground was sloping away from her she could not stop herself falling. Mrs. White was notexactly sure where she hit the toilet block but thought it may have been in the centre ofthe wall and recalls sitting up with her back against the wall after she fell.3. At the trial Mrs. White’s claim in negligence revolved around the state of the ground in thevicinity of the toilet block. She claimed it was uneven with protruding stones. Of relevancewas that in or about the winter of 2007/2008, the defendants/respondents (hereinafter“the respondents”) purchased the park for a sum of €860,000. The respondents increasedthe licence fee to €2,500 from the year 2008 from an initial fee of €500. While there wasan issue at the trial as to whether the increased fee was for the landscaping of the park orsimply to pay for the purchase price, the claim in contract was not pursued at the trial. Nodocumentary evidence as to the terms of the licence was given at trial.Page 2 ⇓4. At the hearing of the appeal, counsel on behalf of Mrs. White submitted that there werevarious concerns about the credibility of the respondents’ case. For example, the mainwitness for the respondents, Mr. Carey, had given evidence about the reason for theincrease in the fee, which reason was at odds with that put to Mrs. White in cross-examination by the respondents’ counsel. It was submitted that these were issues ofcredibility that ought to have been taken into account in the consideration of the overallquestion of negligence.5. In the winter of 2008/2009, the respondents had installed a sewerage system andrunning water to each of the mobile homes. The respondents initially gave incorrectinstructions to their engineer that the water had been cut off to the toilet block at thetime of the accident. It was, however, no longer in regular use for mobile home ownersbecause they each had their own toilet provided. Mrs. White’s evidence was that she hadprobably not used the toilet block since she had been provided with her own toilet in hercaravan at least one year prior to the accident. She had a particular reason for using thetoilet block rather than the toilet in her own mobile home on the day of the accident; areason accepted by the trial judge.The Trial Judge’s Findings6. The trial judge accepted that the sewerage and water pipes had been installed inapproximately a three-foot trench which was then back-filled. After that top soil wasspread in the park. This was not sieved top soil and there were stones in it, which the trialjudge accepted was required for drainage. The trial judge held there was grass on therelevant areas. The evidence is that the respondents cut the grass and there does notappear to be a problem with stones protruding through the soil when cutting the grass.7. In her judgment, the trial judge found that: -“the relevant area to the plaintiff’s fall was an uneven, grassy area withindentations of field like quality, not a smooth lawn, and a probability of somestones embedded in the grass and in some patches close to the toilet block wherethe grass was worn there may have been some small, loose stones.”8. The trial judge also accepted the evidence of Mr. Carey on behalf of the respondents, thatduring the year the grass becomes thinner and patchier. There had been evidence thatchildren play soccer in front of the toilet block as they use the wall as a goal and thatsome of the loose, patchier areas in the photographs may result from that activity.9. Ultimately, on the issue of whether there was a breach of the common duty of care setout in s.3 of the 1995 Act, the trial judge found as follows: -“There is a dispute between the two consulting engineers as experts as to whetherthe stony and indented ground constituted what they termed a “hazard”, and Icannot accept the evidence of Mr. Hart on behalf of the plaintiff that the nature ofthe ground in this caravan park can be considered to be a hazard within the normalmeaning of that term. It is common case that the defendants cut the grass in thePage 3 ⇓caravan park, and, as I have already indicated, that it was an indented field withsome stones.”10. The trial judge went on to say that even if it could be considered to constitute a dangerwithin the meaning of the 1995 Act, it did not appear to her that the defendants asoccupiers could be considered to be in breach of the duty of care in maintaining such anindented ground having regard to the care which Mrs. White must be expected to takewhile walking on such indented ground. The trial judge therefore dismissed Mrs. White’sclaim.11. Of some note was that Mrs. White’s engineer, Mr. Hart, had visited the site in November2010, which was approximately six months after the accident at the request of theplaintiff’s family. This was not a formal inspection, but he had taken certain photographs,referred to as photographs number 10 and 11 in his book of photographs. By the time hisformal inspection took place, the scene had changed and further works had been done toprovide a somewhat different entrance towards the toilets. This Court was provided withthe book of photographs. Unfortunately, photographs number 10 and 11 are close ups ofground that did not in themselves self-identify the location of the ground being depictedtherein. The trial judge stated: -“Mr. Hart’s recollection is that they are in the approximate area of where theaccident occurred, but the area was identified for him by Mr. White not Mrs. Whiteand the evidence is Mr. White was not present when Mrs. White fell.”12. The trial judge went on to say:“[I]t seems to me that [the] evidence is too vague to be of any assistance to thecourt or to be accepted as demonstrating the type of ground where the accidentoccurred.”The Appeal13. Although neither the grounds of appeal nor Mrs White’s written submissions containedany specific reference to photographs 10 or 11, these became significant at the hearing ofthe appeal. It appears that at the trial, Mr. Hart, circled an area in photograph 8 which hesaid was the area photographs 10 and 11 depicted. That original exhibit was not availableto this Court. Photograph 8 depicts an area in front of part of the toilet block, which basedon the evidence Mrs. White gave at trial, appears to have been the general area whereshe tripped.14. For the purposes of understanding this judgment, it is necessary to say that photograph10 shows a close-up of an almost bare area of ground with sandy soil and containingseveral stones thereon with one reasonably large stone protruding from the ground. It isnot clear how far the stone protrudes from the ground however and it appears that noevidence was given at the trial as to that. There are small tufts of grass apparent inphotograph 10 and while it is clear that these tufts are not cut short, it is difficult toestimate their height. Photograph number 11 also shows a close-up area of a piece ofground in which there is some bare soil but also areas of growing grass. There are aPage 4 ⇓number of stones in the ground but again it depicts one reasonably large stoneprotruding. Again, it is unclear how far this stone protrudes from the ground. It isapparent that grass, although not cut short, extends above the height of the stone. Thesephotographs were taken in November and the accident occurred in early May. It is thuslikely that they do not reflect the condition of the grass at the date of the accident,though this is not a finding made by the trial judge.15. Counsel for Mrs. White submitted at the hearing of the appeal that the weight of theevidence was such, that these stones were present in what was agreed as the generalarea of the accident. They were protrusions of stone in a caravan park. Counsel for Mrs.White submitted that protrusions of this sort should not have been on what was acceptedas the appropriate path that Mrs. White took to the toilet block. It was submitted that byreferring to a hazard rather than a danger, the trial judge had imposed too high astandard. It was also submitted that in respect of the common duty of care, the fact thatthis was a commercial caravan park was relevant as to whether the duty of care had beenbreached.16. Counsel for the respondents submitted that there had been no error in law or in fact bythe trial judge. As regards issue of the evidence, this Court had to take into account thedecision of the Supreme Court in Hay v. O’Grady [1992] 1 I.R. 210.The Role of the Appellate Court17. In Hay v. O’Grady, McCarthy J. set out the role of an appellate court on the hearing of anappeal as follows: -“1. An appellate Court does not enjoy the opportunity of seeing and hearing thewitnesses as does the trial Judge who hears the substance of the evidence but,also, observes the manner in which it is given and the demeanour of those giving it.The arid pages of a transcript seldom reflect the atmosphere of a trial.2. If the findings of fact made by the trial Judge are supported by credible evidence,this Court is bound by those findings, however voluminous and, apparently, weightythe testimony against them. The truth is not the monopoly of any majority.3. Inferences of fact are drawn in most trials; it is said that an appellate Court is in asgood a position as the trial Judge to draw inferences of fact. (See the Judgment ofHolmes L.J. in the SS. Gairloch (1899) 2 I.R. 1, 18, cited by O’Higgins C.J. in thePeople .v. Madden ( 1977 I.R.) 336 at 339). I do not accept that this is alwaysnecessarily so. It may be that the demeanour of a witness in giving evidence will,itself, lead to an appropriate inference which an appellate Court would not draw. Inmy judgment, an appellate Court should be slow to substitute its own inference offact where such depends upon oral evidence of recollection of fact and a differentinference has been drawn by the trial Judge. In the drawing of inferences fromcircumstantial evidence, an appellate tribunal is in as good a position as the trialJudge.Page 5 ⇓4. A further issue arises as to the conclusion of law to be drawn from the combinationof primary fact and proper inference – in a case of this kind, was there negligence?I leave aside the question of any special circumstance applying as a test ofnegligence in the particular case. If, on the facts found and either on the inferencesdrawn by the trial Judge or on the inferences drawn by the appellate Court inaccordance with the principles set out above, it is established to the satisfaction ofthe appellate Court that the conclusion of the trial Judge as to whether or not therewas negligence on the part of the individual charged was erroneous, the order willbe varied accordingly.5. These views emphasise the importance of a clear statement, as was made in thiscase, by the trial Judge of his findings of primary fact, the inferences to be drawn,and the conclusion that follows.”The Finding of Fact18. In my view, a number of issues arise on this appeal, the first of which is whether thefindings of fact made by the trial judge were supported by credible evidence? If so, thisCourt is bound by those findings, however voluminous and apparently weighty thetestimony against them. This Court may in limited circumstances be in as good a positionas a trial judge to draw inferences of fact. It is important to note, however, that if it isestablished that the conclusion of law reached on the basis of the primary facts andproper inference drawn by the trial judge is erroneous in law then the appellate courtmust vary the order.19. The trial judge accepted that photographs 10 and 11 showed larger stones imbedded inthe ground but stated that the evidence was too vague to be of any assistance to her orto be accepted as demonstrating the type of ground where the accident occurred. It isnecessary to consider if that finding of fact is a finding correctly made on the evidence atthe hearing and/or if it is open to review by this Court.20. The trial judge referred to Mr. Hart’s recollection that this was in the approximate area ofwhere the accident occurred, but the area was identified for him by Mr. White not Mrs.White. It is correct to say that Mr. Hart’s evidence was that Mr. White had indicated tohim the general area where Mrs White fell. Mr. Hart gave evidence that “photograph No. 6was indicated as the general area where Mrs. White lost her footing. There was noparticular area referred to, just that general area.” Mr. White had earlier given evidencethat he did not see his wife fall and that she was brought into one of the other caravansafterwards. In her evidence Mrs. White was asked to indicate by reference to thephotographs where she fell. She made reference to photograph number 5 and said byreference to the photograph that the middle of the wall of the toilet block was roughlywhere she fell.21. Photograph number 5 shows almost the entirety of the toilet block, the front of which hasa solid wall on the left hand side and then an inset area with pillars to the right.Photograph number 6 shows a close up area of the bare patch in front of the wall. Itdepicts only part of the solid wall and part of the open inset area on the right. It does notPage 6 ⇓depict the left hand side of the solid wall. That can be deduced from the dark patch on thewall in photograph number 5 and 6. It is therefore clear that photograph number 6 isfocussed much more to the right hand side of the wall than the middle of the wall.22. For those reasons, while the trial judge may not have set out completely accurately thechain of evidence that demonstrated the location of the ground depicted in photographs10 and 11, there is certainly evidence to support her contention that the evidence ofwhere Mrs. White fell was very vague. No one had given evidence that identified theground in photographs 10 and 11 as being the location of the accident.23. The trial judge also indicated that the evidence was too vague to be of assistance indemonstrating the type of ground where the accident occurred. In so holding, the trialjudge was pointing out that all the photographs demonstrated was that in a certain areathere were two particular stones of some reasonable size. In other words, she did notaccept them as evidence that the entire area in front of the wall consisted of sandy soilwith reasonably large stones embedded therein. This is consistent with her earlier findingthat the toilet block area, being an uneven grassy area, has a probability of some stonesembedded in it.24. In the circumstances, the essential finding of fact made by the trial judge, namely thatthe evidence was too vague to be of assistance or to be accepted as demonstrating thetype of ground where the accident occurred is supported by the evidence on thetranscript. As there is support in the evidence for her conclusion on this finding of fact, Iam of the view that this Court, as an appellate court, must accept the finding. It mustalso be noted that in the present case, there is no other evidence to show that the groundwas embedded with protruding rocks/stones, indeed the evidence is to the contrary; thiswas an area where a push lawn mower was capable of cutting the grass.25. In all of those circumstances, the finding of fact that the plaintiff fell in an uneven grassyarea with indentations of field-like quality, not a smooth lawn, and a probability of somestones embedded in the grass where there may have also been some small loose stones,must stand. The stones to which she referred as embedded in the grass were not thelarger stones depicted in photographs 10 and 11 but the stones in the unsieved topsoilwhich were required for drainage. It is on that basis that this Court must assess whetheras a matter of law there was negligence on the part of the respondents leading to Mrs.White’s injuries.The Findings of Law26. Section 3 of the 1995 Act provides as follows: -“(1) An occupier of premises owes a duty of care (“the common duty of care”) towards avisitor thereto except in so far as the occupier extends, restricts, modifies orexcludes that duty in accordance with section 5.(2) In this section “the common duty of care” means a duty to take such care as isreasonable in all the circumstances (having regard to the care which a visitor mayPage 7 ⇓reasonably be expected to take for his or her own safety and, if the visitor is on thepremises in the company of another person, the extent of the supervision andcontrol the latter person may reasonably be expected to exercise over the visitor’sactivities) to ensure that a visitor to the premises does not suffer injury or damageby reason of any danger existing thereon.”27. Counsel for Mrs. White criticised the trial judge’s assessment of the word “hazard” andsuggested that the trial judge was applying an incorrect test. This submission can berejected promptly. It was accepted that the common duty of care under the 1995 Act wasthe same as the ordinary duty of care at common law. At the hearing, both engineersused the word “hazard” in addressing the question of the presence of stones, whetherlarge or small, in the caravan park. In submissions to the trial judge, counsel for Mrs.White referred to the stones as having created “a trip hazard” and that these were as amatter of probability the cause of the plaintiff’s accident. In the manner in which the trialjudge referred to “hazard”, it is apparent that she was reflecting the language that hadbeen used in evidence and in submissions in the case before her. Furthermore, havingdecided that the stones did not amount to a hazard, she then went on to say that even ifthere was a danger by virtue of the stones there was no breach of the duty of care. Inthose circumstances it is clear she too was using hazard interchangeably with danger.Finally, counsel has not demonstrated how or what would be the difference between ahazard and danger in a legal sense.28. The question of whether these stones amounted to a hazard or a danger is a matter oflaw to which this Court is entitled to reach a conclusion based on the finding of fact. Thequestion of what amounts to a tripping hazard or a danger must depend on the particularcircumstances. At the trial, no evidence was given as to how far a loose stone mightprotrude from the ground before it could be called a tripping hazard. There wascontradictory evidence from the engineers as to whether loose stones or protrudingstones in this instance would amount to a tripping hazard, particularly in the context ofthis being a caravan park. It does not appear to have been the plaintiff’s case at trial orindeed on appeal, that the same smooth core surface should be available all over thecaravan park and therefore no protrusions of any kind could be allowed. Indeed, given themanner in which the caravans are spread throughout the caravan park, if a smooth coresurface was required each caravan would have to have a dedicated path to a toilet blockor indeed to any entry or exit from the park.29. The decision in Lavin v. Dublin Airport Authority plc [2016] IECA 268 is instructive as towhat constitutes a danger. The Court of Appeal found that not every risk which exists ona premises will constitute a danger for the purposes of the 1995 Act. The Court of Appealheld that the common law distinction between an unusual danger and a usual danger wasimportant even in the context of s. 3 of the 1995 Act. In the case of a usual danger,examples of which were a fixed staircase and an escalator, absent some unusual defect ordanger being present and in respect of which the visitor ought to be warned andprotected, the occupier will not be liable if the visitor loses her step and falls. As Peart J.Page 8 ⇓stated: “[i]n other words provided that reasonable care has been taken by the occupierno liability will exist.”30. Counsel for Mrs. White submitted that in considering this as a “field” the trial judge haderred as a matter of law. It was a caravan park operated for commercial value by therespondents. It therefore required different consideration. Different consideration as towhat amounts to a danger or hazard in a commercial caravan park when compared with awild meadow or tilled field may well be appropriate. On the other hand, as a matter ofcommon sense, a caravan park exists in an area of natural beauty or wilderness anddifferent consideration may apply when compared with a pathway to a toilet in an urbanor suburban setting. The question of what constitutes a hazard or danger in the particularcircumstances must take those factors into account.31. The Court of Appeal in Lavin v. Dublin Airport Authority plc held as followed with respectto s. 3 of the 1995 Act:“The section has not expanded the duty of care at common law previously imposedupon an occupier of a premises in favour of an invitee (now a visitor). Rather, itreflects the common law principles, and has put [it] on a statutory footing. In thewords of Charleton J. in Allen v. Trabolgan Holiday Centre Limited [2010] IEHC 129‘The Occupiers’ Liability Act 1995 codifies responsibility in tort by the occupiers ofpremises towards entrants’. He went on to state in relation to the common duty ofcare owed:‘As to that duty it is clear that merely establishing that an accident occurredon premises is not enough. The plaintiff must show that a danger existed byreason of the static condition of the premises; that in consequence of ithe/she suffered injury or damage; that the occupier did not take such care asis reasonable in the circumstances to avoid the occurrence.’”32. Initially, counsel for Mrs. White sought to argue that the trial judge was not entitled totake into account for the purposes of s.3 and assessing the common duty of care “thecare which the visitor may reasonably be expected to take for his own safety”. Counselfor Mrs. White argued that that was only relevant to the issue of contributory negligence.In the course of the hearing, this was conceded not to be correct in law. In assessingwhether there has been a failure on the part of the occupier to take reasonable care, acourt must have regard to the care which the visitor may reasonably be expected to takefor his or her own safety. A statement of the law to this effect is to be found at para. 60of the Lavin v. Dublin Airport Authority plc decision.33. On the facts of the present case as found by the trial judge, there is no basis forconsidering that the evidence demonstrates that the ground consisted of an unusualdanger over and above the type of uneven surface one might expect in a caravan park.Although this was a commercial caravan park where there had been works carried outprior to the accident, the surface which remained was more in keeping with thenaturalistic settings which one expects to find at a caravan park. They are usually foundPage 9 ⇓in areas of natural beauty and, while not areas of wilderness, no visitor would expectpristine surfaces. A certain unevenness of the surface is to be expected.34. It is also a factor that every individual using the caravan park would be expected to takecare as regard any tripping hazard that might exist by virtue of loose or embeddedstones. The findings of the trial judge were that these stones were part of the topsoil andthey did not prevent the cutting of the grass. In the absence of a finding by the trial judgethat these loose or embedded stones had constituted an unusual danger by virtue of theirsize or the fact that they had recently been imported into the area it cannot be said as amatter of law that there has been breach of the common duty of care. On the contrary,the trial judge had found that the stones had not presented any problem with the cuttingof the grass in the area. Having regard to the evidence as to the nature and condition ofthe area in which the respondent fell as found by the trial judge, it cannot be said that, asa matter of law, the trial judge erred in her conclusion that the respondents had notbreached the common duty of care.35. For the above reasons, I dismiss the appeal.
Result: Dismiss appeal
White v Doherty & Anor
[2019] IECA 295
Page 1 ⇓Baker J.Costello J.Donnelly J.THE COURT OF APPEALCIVILNeutral Citation Number: [2019] IECA 295Record Number: 2014/1317BETWEEN/PHILOMENA WHITEPLAINTIFF/APPELLANT- AND –WILLIAM DOHERTY AND S & K CAREY LIMITEDDEFENDANTS/RESPONDENTSJUDGMENT of the Court delivered on the 27th day of November 2019, by Ms. JusticeDonnellyIntroduction1. The plaintiff/appellant, (“Mrs. White”), then aged 73 years, suffered a serious injury toher left arm when she tripped and fell on the 3rd May, 2010 at Woodstown Caravan Park(“the park”), County Waterford. Mrs. White and her husband had a mobile home in thesaid caravan park for approximately forty-six years. The trial judge accepted in full Mrs.White’s evidence as to how her accident occurred. The trial judge rejected her claim fordamages and held that there was no breach of the common duty of care owed by therespondents as occupiers of the park under s. 3 of the Occupiers Liability Act, 1995 (“the1995 Act”). It is against that finding that Mrs. White appeals.2. Mrs. White had walked from her mobile home to the toilet/shower block at about 6pm onthe May Bank Holiday in 2010. Her own mobile home was five or six homes back on theleft hand side of the park as one faced the toilet block. She walked up close to the mobilehomes on the left side. At some point between the last two mobile homes her toe stuck insomething, she lost her balance and as she described it, paddled through the air. As theground was sloping away from her she could not stop herself falling. Mrs. White was notexactly sure where she hit the toilet block but thought it may have been in the centre ofthe wall and recalls sitting up with her back against the wall after she fell.3. At the trial Mrs. White’s claim in negligence revolved around the state of the ground in thevicinity of the toilet block. She claimed it was uneven with protruding stones. Of relevancewas that in or about the winter of 2007/2008, the defendants/respondents (hereinafter“the respondents”) purchased the park for a sum of €860,000. The respondents increasedthe licence fee to €2,500 from the year 2008 from an initial fee of €500. While there wasan issue at the trial as to whether the increased fee was for the landscaping of the park orsimply to pay for the purchase price, the claim in contract was not pursued at the trial. Nodocumentary evidence as to the terms of the licence was given at trial.Page 2 ⇓4. At the hearing of the appeal, counsel on behalf of Mrs. White submitted that there werevarious concerns about the credibility of the respondents’ case. For example, the mainwitness for the respondents, Mr. Carey, had given evidence about the reason for theincrease in the fee, which reason was at odds with that put to Mrs. White in cross-examination by the respondents’ counsel. It was submitted that these were issues ofcredibility that ought to have been taken into account in the consideration of the overallquestion of negligence.5. In the winter of 2008/2009, the respondents had installed a sewerage system andrunning water to each of the mobile homes. The respondents initially gave incorrectinstructions to their engineer that the water had been cut off to the toilet block at thetime of the accident. It was, however, no longer in regular use for mobile home ownersbecause they each had their own toilet provided. Mrs. White’s evidence was that she hadprobably not used the toilet block since she had been provided with her own toilet in hercaravan at least one year prior to the accident. She had a particular reason for using thetoilet block rather than the toilet in her own mobile home on the day of the accident; areason accepted by the trial judge.The Trial Judge’s Findings6. The trial judge accepted that the sewerage and water pipes had been installed inapproximately a three-foot trench which was then back-filled. After that top soil wasspread in the park. This was not sieved top soil and there were stones in it, which the trialjudge accepted was required for drainage. The trial judge held there was grass on therelevant areas. The evidence is that the respondents cut the grass and there does notappear to be a problem with stones protruding through the soil when cutting the grass.7. In her judgment, the trial judge found that: -“the relevant area to the plaintiff’s fall was an uneven, grassy area withindentations of field like quality, not a smooth lawn, and a probability of somestones embedded in the grass and in some patches close to the toilet block wherethe grass was worn there may have been some small, loose stones.”8. The trial judge also accepted the evidence of Mr. Carey on behalf of the respondents, thatduring the year the grass becomes thinner and patchier. There had been evidence thatchildren play soccer in front of the toilet block as they use the wall as a goal and thatsome of the loose, patchier areas in the photographs may result from that activity.9. Ultimately, on the issue of whether there was a breach of the common duty of care setout in s.3 of the 1995 Act, the trial judge found as follows: -“There is a dispute between the two consulting engineers as experts as to whetherthe stony and indented ground constituted what they termed a “hazard”, and Icannot accept the evidence of Mr. Hart on behalf of the plaintiff that the nature ofthe ground in this caravan park can be considered to be a hazard within the normalmeaning of that term. It is common case that the defendants cut the grass in thePage 3 ⇓caravan park, and, as I have already indicated, that it was an indented field withsome stones.”10. The trial judge went on to say that even if it could be considered to constitute a dangerwithin the meaning of the 1995 Act, it did not appear to her that the defendants asoccupiers could be considered to be in breach of the duty of care in maintaining such anindented ground having regard to the care which Mrs. White must be expected to takewhile walking on such indented ground. The trial judge therefore dismissed Mrs. White’sclaim.11. Of some note was that Mrs. White’s engineer, Mr. Hart, had visited the site in November2010, which was approximately six months after the accident at the request of theplaintiff’s family. This was not a formal inspection, but he had taken certain photographs,referred to as photographs number 10 and 11 in his book of photographs. By the time hisformal inspection took place, the scene had changed and further works had been done toprovide a somewhat different entrance towards the toilets. This Court was provided withthe book of photographs. Unfortunately, photographs number 10 and 11 are close ups ofground that did not in themselves self-identify the location of the ground being depictedtherein. The trial judge stated: -“Mr. Hart’s recollection is that they are in the approximate area of where theaccident occurred, but the area was identified for him by Mr. White not Mrs. Whiteand the evidence is Mr. White was not present when Mrs. White fell.”12. The trial judge went on to say:“[I]t seems to me that [the] evidence is too vague to be of any assistance to thecourt or to be accepted as demonstrating the type of ground where the accidentoccurred.”The Appeal13. Although neither the grounds of appeal nor Mrs White’s written submissions containedany specific reference to photographs 10 or 11, these became significant at the hearing ofthe appeal. It appears that at the trial, Mr. Hart, circled an area in photograph 8 which hesaid was the area photographs 10 and 11 depicted. That original exhibit was not availableto this Court. Photograph 8 depicts an area in front of part of the toilet block, which basedon the evidence Mrs. White gave at trial, appears to have been the general area whereshe tripped.14. For the purposes of understanding this judgment, it is necessary to say that photograph10 shows a close-up of an almost bare area of ground with sandy soil and containingseveral stones thereon with one reasonably large stone protruding from the ground. It isnot clear how far the stone protrudes from the ground however and it appears that noevidence was given at the trial as to that. There are small tufts of grass apparent inphotograph 10 and while it is clear that these tufts are not cut short, it is difficult toestimate their height. Photograph number 11 also shows a close-up area of a piece ofground in which there is some bare soil but also areas of growing grass. There are aPage 4 ⇓number of stones in the ground but again it depicts one reasonably large stoneprotruding. Again, it is unclear how far this stone protrudes from the ground. It isapparent that grass, although not cut short, extends above the height of the stone. Thesephotographs were taken in November and the accident occurred in early May. It is thuslikely that they do not reflect the condition of the grass at the date of the accident,though this is not a finding made by the trial judge.15. Counsel for Mrs. White submitted at the hearing of the appeal that the weight of theevidence was such, that these stones were present in what was agreed as the generalarea of the accident. They were protrusions of stone in a caravan park. Counsel for Mrs.White submitted that protrusions of this sort should not have been on what was acceptedas the appropriate path that Mrs. White took to the toilet block. It was submitted that byreferring to a hazard rather than a danger, the trial judge had imposed too high astandard. It was also submitted that in respect of the common duty of care, the fact thatthis was a commercial caravan park was relevant as to whether the duty of care had beenbreached.16. Counsel for the respondents submitted that there had been no error in law or in fact bythe trial judge. As regards issue of the evidence, this Court had to take into account thedecision of the Supreme Court in Hay v. O’Grady [1992] 1 I.R. 210.The Role of the Appellate Court17. In Hay v. O’Grady, McCarthy J. set out the role of an appellate court on the hearing of anappeal as follows: -“1. An appellate Court does not enjoy the opportunity of seeing and hearing thewitnesses as does the trial Judge who hears the substance of the evidence but,also, observes the manner in which it is given and the demeanour of those giving it.The arid pages of a transcript seldom reflect the atmosphere of a trial.2. If the findings of fact made by the trial Judge are supported by credible evidence,this Court is bound by those findings, however voluminous and, apparently, weightythe testimony against them. The truth is not the monopoly of any majority.3. Inferences of fact are drawn in most trials; it is said that an appellate Court is in asgood a position as the trial Judge to draw inferences of fact. (See the Judgment ofHolmes L.J. in the SS. Gairloch (1899) 2 I.R. 1, 18, cited by O’Higgins C.J. in thePeople .v. Madden ( 1977 I.R.) 336 at 339). I do not accept that this is alwaysnecessarily so. It may be that the demeanour of a witness in giving evidence will,itself, lead to an appropriate inference which an appellate Court would not draw. Inmy judgment, an appellate Court should be slow to substitute its own inference offact where such depends upon oral evidence of recollection of fact and a differentinference has been drawn by the trial Judge. In the drawing of inferences fromcircumstantial evidence, an appellate tribunal is in as good a position as the trialJudge.Page 5 ⇓4. A further issue arises as to the conclusion of law to be drawn from the combinationof primary fact and proper inference – in a case of this kind, was there negligence?I leave aside the question of any special circumstance applying as a test ofnegligence in the particular case. If, on the facts found and either on the inferencesdrawn by the trial Judge or on the inferences drawn by the appellate Court inaccordance with the principles set out above, it is established to the satisfaction ofthe appellate Court that the conclusion of the trial Judge as to whether or not therewas negligence on the part of the individual charged was erroneous, the order willbe varied accordingly.5. These views emphasise the importance of a clear statement, as was made in thiscase, by the trial Judge of his findings of primary fact, the inferences to be drawn,and the conclusion that follows.”The Finding of Fact18. In my view, a number of issues arise on this appeal, the first of which is whether thefindings of fact made by the trial judge were supported by credible evidence? If so, thisCourt is bound by those findings, however voluminous and apparently weighty thetestimony against them. This Court may in limited circumstances be in as good a positionas a trial judge to draw inferences of fact. It is important to note, however, that if it isestablished that the conclusion of law reached on the basis of the primary facts andproper inference drawn by the trial judge is erroneous in law then the appellate courtmust vary the order.19. The trial judge accepted that photographs 10 and 11 showed larger stones imbedded inthe ground but stated that the evidence was too vague to be of any assistance to her orto be accepted as demonstrating the type of ground where the accident occurred. It isnecessary to consider if that finding of fact is a finding correctly made on the evidence atthe hearing and/or if it is open to review by this Court.20. The trial judge referred to Mr. Hart’s recollection that this was in the approximate area ofwhere the accident occurred, but the area was identified for him by Mr. White not Mrs.White. It is correct to say that Mr. Hart’s evidence was that Mr. White had indicated tohim the general area where Mrs White fell. Mr. Hart gave evidence that “photograph No. 6was indicated as the general area where Mrs. White lost her footing. There was noparticular area referred to, just that general area.” Mr. White had earlier given evidencethat he did not see his wife fall and that she was brought into one of the other caravansafterwards. In her evidence Mrs. White was asked to indicate by reference to thephotographs where she fell. She made reference to photograph number 5 and said byreference to the photograph that the middle of the wall of the toilet block was roughlywhere she fell.21. Photograph number 5 shows almost the entirety of the toilet block, the front of which hasa solid wall on the left hand side and then an inset area with pillars to the right.Photograph number 6 shows a close up area of the bare patch in front of the wall. Itdepicts only part of the solid wall and part of the open inset area on the right. It does notPage 6 ⇓depict the left hand side of the solid wall. That can be deduced from the dark patch on thewall in photograph number 5 and 6. It is therefore clear that photograph number 6 isfocussed much more to the right hand side of the wall than the middle of the wall.22. For those reasons, while the trial judge may not have set out completely accurately thechain of evidence that demonstrated the location of the ground depicted in photographs10 and 11, there is certainly evidence to support her contention that the evidence ofwhere Mrs. White fell was very vague. No one had given evidence that identified theground in photographs 10 and 11 as being the location of the accident.23. The trial judge also indicated that the evidence was too vague to be of assistance indemonstrating the type of ground where the accident occurred. In so holding, the trialjudge was pointing out that all the photographs demonstrated was that in a certain areathere were two particular stones of some reasonable size. In other words, she did notaccept them as evidence that the entire area in front of the wall consisted of sandy soilwith reasonably large stones embedded therein. This is consistent with her earlier findingthat the toilet block area, being an uneven grassy area, has a probability of some stonesembedded in it.24. In the circumstances, the essential finding of fact made by the trial judge, namely thatthe evidence was too vague to be of assistance or to be accepted as demonstrating thetype of ground where the accident occurred is supported by the evidence on thetranscript. As there is support in the evidence for her conclusion on this finding of fact, Iam of the view that this Court, as an appellate court, must accept the finding. It mustalso be noted that in the present case, there is no other evidence to show that the groundwas embedded with protruding rocks/stones, indeed the evidence is to the contrary; thiswas an area where a push lawn mower was capable of cutting the grass.25. In all of those circumstances, the finding of fact that the plaintiff fell in an uneven grassyarea with indentations of field-like quality, not a smooth lawn, and a probability of somestones embedded in the grass where there may have also been some small loose stones,must stand. The stones to which she referred as embedded in the grass were not thelarger stones depicted in photographs 10 and 11 but the stones in the unsieved topsoilwhich were required for drainage. It is on that basis that this Court must assess whetheras a matter of law there was negligence on the part of the respondents leading to Mrs.White’s injuries.The Findings of Law26. Section 3 of the 1995 Act provides as follows: -“(1) An occupier of premises owes a duty of care (“the common duty of care”) towards avisitor thereto except in so far as the occupier extends, restricts, modifies orexcludes that duty in accordance with section 5.(2) In this section “the common duty of care” means a duty to take such care as isreasonable in all the circumstances (having regard to the care which a visitor mayPage 7 ⇓reasonably be expected to take for his or her own safety and, if the visitor is on thepremises in the company of another person, the extent of the supervision andcontrol the latter person may reasonably be expected to exercise over the visitor’sactivities) to ensure that a visitor to the premises does not suffer injury or damageby reason of any danger existing thereon.”27. Counsel for Mrs. White criticised the trial judge’s assessment of the word “hazard” andsuggested that the trial judge was applying an incorrect test. This submission can berejected promptly. It was accepted that the common duty of care under the 1995 Act wasthe same as the ordinary duty of care at common law. At the hearing, both engineersused the word “hazard” in addressing the question of the presence of stones, whetherlarge or small, in the caravan park. In submissions to the trial judge, counsel for Mrs.White referred to the stones as having created “a trip hazard” and that these were as amatter of probability the cause of the plaintiff’s accident. In the manner in which the trialjudge referred to “hazard”, it is apparent that she was reflecting the language that hadbeen used in evidence and in submissions in the case before her. Furthermore, havingdecided that the stones did not amount to a hazard, she then went on to say that even ifthere was a danger by virtue of the stones there was no breach of the duty of care. Inthose circumstances it is clear she too was using hazard interchangeably with danger.Finally, counsel has not demonstrated how or what would be the difference between ahazard and danger in a legal sense.28. The question of whether these stones amounted to a hazard or a danger is a matter oflaw to which this Court is entitled to reach a conclusion based on the finding of fact. Thequestion of what amounts to a tripping hazard or a danger must depend on the particularcircumstances. At the trial, no evidence was given as to how far a loose stone mightprotrude from the ground before it could be called a tripping hazard. There wascontradictory evidence from the engineers as to whether loose stones or protrudingstones in this instance would amount to a tripping hazard, particularly in the context ofthis being a caravan park. It does not appear to have been the plaintiff’s case at trial orindeed on appeal, that the same smooth core surface should be available all over thecaravan park and therefore no protrusions of any kind could be allowed. Indeed, given themanner in which the caravans are spread throughout the caravan park, if a smooth coresurface was required each caravan would have to have a dedicated path to a toilet blockor indeed to any entry or exit from the park.29. The decision in Lavin v. Dublin Airport Authority plc [2016] IECA 268 is instructive as towhat constitutes a danger. The Court of Appeal found that not every risk which exists ona premises will constitute a danger for the purposes of the 1995 Act. The Court of Appealheld that the common law distinction between an unusual danger and a usual danger wasimportant even in the context of s. 3 of the 1995 Act. In the case of a usual danger,examples of which were a fixed staircase and an escalator, absent some unusual defect ordanger being present and in respect of which the visitor ought to be warned andprotected, the occupier will not be liable if the visitor loses her step and falls. As Peart J.Page 8 ⇓stated: “[i]n other words provided that reasonable care has been taken by the occupierno liability will exist.”30. Counsel for Mrs. White submitted that in considering this as a “field” the trial judge haderred as a matter of law. It was a caravan park operated for commercial value by therespondents. It therefore required different consideration. Different consideration as towhat amounts to a danger or hazard in a commercial caravan park when compared with awild meadow or tilled field may well be appropriate. On the other hand, as a matter ofcommon sense, a caravan park exists in an area of natural beauty or wilderness anddifferent consideration may apply when compared with a pathway to a toilet in an urbanor suburban setting. The question of what constitutes a hazard or danger in the particularcircumstances must take those factors into account.31. The Court of Appeal in Lavin v. Dublin Airport Authority plc held as followed with respectto s. 3 of the 1995 Act:“The section has not expanded the duty of care at common law previously imposedupon an occupier of a premises in favour of an invitee (now a visitor). Rather, itreflects the common law principles, and has put [it] on a statutory footing. In thewords of Charleton J. in Allen v. Trabolgan Holiday Centre Limited [2010] IEHC 129‘The Occupiers’ Liability Act 1995 codifies responsibility in tort by the occupiers ofpremises towards entrants’. He went on to state in relation to the common duty ofcare owed:‘As to that duty it is clear that merely establishing that an accident occurredon premises is not enough. The plaintiff must show that a danger existed byreason of the static condition of the premises; that in consequence of ithe/she suffered injury or damage; that the occupier did not take such care asis reasonable in the circumstances to avoid the occurrence.’”32. Initially, counsel for Mrs. White sought to argue that the trial judge was not entitled totake into account for the purposes of s.3 and assessing the common duty of care “thecare which the visitor may reasonably be expected to take for his own safety”. Counselfor Mrs. White argued that that was only relevant to the issue of contributory negligence.In the course of the hearing, this was conceded not to be correct in law. In assessingwhether there has been a failure on the part of the occupier to take reasonable care, acourt must have regard to the care which the visitor may reasonably be expected to takefor his or her own safety. A statement of the law to this effect is to be found at para. 60of the Lavin v. Dublin Airport Authority plc decision.33. On the facts of the present case as found by the trial judge, there is no basis forconsidering that the evidence demonstrates that the ground consisted of an unusualdanger over and above the type of uneven surface one might expect in a caravan park.Although this was a commercial caravan park where there had been works carried outprior to the accident, the surface which remained was more in keeping with thenaturalistic settings which one expects to find at a caravan park. They are usually foundPage 9 ⇓in areas of natural beauty and, while not areas of wilderness, no visitor would expectpristine surfaces. A certain unevenness of the surface is to be expected.34. It is also a factor that every individual using the caravan park would be expected to takecare as regard any tripping hazard that might exist by virtue of loose or embeddedstones. The findings of the trial judge were that these stones were part of the topsoil andthey did not prevent the cutting of the grass. In the absence of a finding by the trial judgethat these loose or embedded stones had constituted an unusual danger by virtue of theirsize or the fact that they had recently been imported into the area it cannot be said as amatter of law that there has been breach of the common duty of care. On the contrary,the trial judge had found that the stones had not presented any problem with the cuttingof the grass in the area. Having regard to the evidence as to the nature and condition ofthe area in which the respondent fell as found by the trial judge, it cannot be said that, asa matter of law, the trial judge erred in her conclusion that the respondents had notbreached the common duty of care.35. For the above reasons, I dismiss the appeal.
Result: Dismiss appeal
Andrew Larkin v Carlingford Community Development Company
2018 2360 P
High Court
22 May 2019
unreported
[2019] IEHC 329
Mr Justice David Keane
May 22, 2019
JUDGMENT
Introduction
1. On 12 July 2016, the plaintiff Andrew Larkin was playing indoor football at the Foy Centre, Carlingford, which is a sports hall and community centre that is occupied and controlled by the defendant Carlingford Community Development Company, a company limited by guarantee.
2. In the course of that activity, Mr Larkin suffered an injury to his left leg and knee, which he claims was caused when the sole of the sports shoe on his left foot came into contact with some sticky residue on the wooden floor of the sports hall, left behind by duct tape that had been used to secure temporary carpeting for the purpose of a prior event.
3. Mr Larkin seeks damages from the company for the personal injuries that he suffered as a result of that accident.
4. In the personal injuries summons that issued on his behalf on 16 March 2018, Mr Larkin alleges that the accident was caused by the negligence of the company in causing or permitting that sticky residue to be present on the floor of the sports hall or by failing to warn him of its presence there.
5. As a result of the accident, Mr Larkin sustained a fracture to the upper part of his left tibia (or shinbone), where it meets the knee bone, leaving bony fragments there, together with a hyperextension injury, including the rupture of the posterior cruciate ligament. Mr Larkin spent six weeks with his left leg in a cast and several weeks after that with his knee in a supporting frame. The injury has caused Mr Larkin considerable pain, stiffness and soreness.
6. As a result, Mr Larkin, who is a firefighter, was out of work for three months following the accident and spent some months restricted to light duties upon his return to work. Mr Larkin was prevented from engaging in a range of domestic responsibilities and in his usual leisure and sporting activities for some considerable time after the accident and his involvement in sports is still significantly curtailed, due to his lack of confidence in the strength or resilience of the knee joint. Happily, in the most recent report of his orthopaedic consultant, dated 13 February 2019, Mr Larkin is described as having made tremendous progress with his recovery and as being back in active service as a firefighter. While he still experiences some pain and stiffness in his left knee when bending, lifting heavy objects and climbing stairs, he is expected to make a full recovery, subject only to the risk of some post-traumatic osteo-arthritic changes to that joint in the future.
7. The company delivered a personal injuries defence on 19 December 2018. It amounts to a broad traverse of Mr Larkin’s claims, with the single exception of an affirmative plea that Mr Larkin was involved in a tackle when the accident occurred. It also contains what is in substance a plea that Mr Larkin caused or contributed to his own injury by not taking appropriate care, one of the particulars of which is that Mr Larkin failed to pay attention to, or make allowance for, the condition of the surface on which he was playing.
The evidence
i. the plaintiff’s case
8. Mr Larkin’s evidence was as follows. He is 35 years of age. He has been with the fire service as a firefighter since June 2012. At the time of the accident, he had been renting out the hall in the centre for approximately 11 months for twice-a-week indoor football sessions. He had been dealing with John McKevitt on behalf of the centre about the availability of the hall on the Tuesday and Thursday nights when he wanted to use it.
9. On the evening of the accident, he was playing in a game of indoor football in the hall. He was on the left wing in the attacking part of the pitch running for a ball with an opposition player, although they did not make physical contact. When the ball was kicked in another direction, Mr Larkin tried to stop. Usually, when doing so, his sports shoes would slide a little on the polished wooden surface of the sports hall floor. But on this occasion, his left foot stopped dead, causing him to fall awkwardly. There was a clear sticky residue on the floor, which he had not noticed until he fell. He pushed himself over to the wall of the hall and, using it for support, was able to get upright, although he was hobbling badly.
10. About two or three weeks after the accident, at the end of July or start of August, he went back to the centre, where he took a photograph of the floor in the sports hall, using the camera on his phone. He was still on crutches and did not go to, or photograph, the specific area where the accident happened. The photograph that Mr Larkin took was produced in evidence. It depicts what appears to be a long segment of duct tape adhering to the wooden floor in, what he acknowledged, is an area of hall to the left of the main entrance. Mr Larkin testified that, when he went back to the centre some months after that, the fragment of duct tape that he had photographed was still there, and so he took another photograph of it.
11. Mr Larkin gave evidence about the nature and extent of his injuries. That testimony was largely consistent with the medical reports that were admitted in evidence on his behalf by agreement between the parties. He did not undergo surgery, as it was decided to treat his injury conservatively. He was in plaster from groin to toe for six weeks. Then, he was fitted with a hinged knee brace. The hinge was locked for the first two to three weeks and then unlocked to enable him to begin using the knee to support his weight again for another couple of weeks before it was removed. He attended a physiotherapist at the hospital for three months and another physiotherapist for four months after that.
12. Mr Larkin was due to undergo his quinquennial medical examination in the fire service in April 2017 and this served as a focus for his recuperation. He returned to work in September 2016, though undertaking only light duties. That meant that he was unable to perform duties involving the use of breathing apparatus, ladders or the heavy cutting gear employed at the scene of road traffic accidents. However, spurred on by his pending medical examination he was able to make tremendous progress with his recovery. He took Nurofen whenever necessary for the pain associated with his injury.
13. Mr Larkin was sure that he had mentioned the cause of his accident to John McKevitt, when he ran in to him at some point after the accident. It was not until sometime in January 2017 that he spoke to a solicitor about the accident. He was prompted to so because he was worried about his impending medical.
14. Mr Larkin confirmed that he attended an inspection of the sports hall as the locus in quo with Robert Burke, the expert engineer retained on his behalf, on 22 February 2019.
15. Under cross-examination, Mr Larkin confirmed that he is back running and completed a 5k event last week. He reiterated that his accident did not result from physical contact with another player or from a tackle in which he came off worst. He had described the sticky residue that he observed just after the accident as ‘dirty clear’ because it seemed to him to be a clear substance that had become contaminated with fluff and dirt. He confirmed that he had not noticed the mark of the residue, which he described as about a foot and a half in length, before the accident because the wooden floor was light in colour and he had not been in the habit of walking the floor or closely inspecting it before each use of the hall.
16. Mr Larkin confirmed that he organised the five-a-side sessions that he participated in, which were for local youths. He arranged the hire of the hall at €2 a head and charged each of the youths attending €3 because several did not pay at all and he also gave out free sessions as prizes to incentivise participation. Before each session he would take a quick ‘360°’ look around the hall. Any exercise equipment, tables or chairs left in the hall would be moved out into the lobby, but he did not inspect the floor of the hall. He certainly missed the residue that was on the floor that night.
17. Under further cross-examination, Mr Larkin accepted that he should have drawn the problem to the attention of someone in charge of the centre but did not do so.
18. Mr Larkin did not accept that the first Mr McKevitt heard of the accident was when the company received a letter of claim, dated 1 February 2017, from his solicitor, testifying that he spoke to Mr McKevitt ‘within weeks’ when he ran into him locally. Mr Larkin accepted that he should have picked up the phone to notify someone at the centre of the problem that had caused his accident but did not do so. Mr Larkin could not say whether he had run into Mr McKevitt before or after he visited the centre again at the end of July or beginning of August to take a photograph of the floor of the sports hall.
19. When asked why he had gone to the hall then, Mr Larkin said that he went there to see if anything had happened about the condition of the floor. He did not go into the hall during that visit but, presumably from the doorway, took the photograph – captioned ‘Image B’, for the purpose of these proceedings — with the camera on his phone. It depicts part of the floor on the left of the sports hall about 15 steps from the doorway. A strip of duct tape stuck to the floor there is plainly visible in it. However, that strip of duct tape is not located in the part of the hall where Mr Larkin’s accident occurred. That was at the other end of the hall where the temporary stage used for occasional events is erected between the two emergency exits located there.
20. Mr Larkin reiterated that he had attended at the sports hall again in January or February 2017 because he was aware that someone else had begun organising five-a-side football matches there and he wanted to see what was going on. He took another photograph on his phone depicting the same portion of floor that he photographed in July or August of the previous year, but this time as part of a longer shot that also depicted persons playing five-a-side football in the background. In the foreground is what appears to be the same strip of duct tape, stuck to the same part of the floor. That photograph was captioned ‘Image A’ for the purpose of this case. Mr Larkin accepted that he did not tell anyone of any concern he had about the condition of the floor at that time, although he acknowledged that he should have.
21. Mr Larkin had attended a school play in the sports hall with one of his children in December 2015 and could recall temporary carpet installed there ‘from skirting board to skirting board.’ Mr Larkin did not accept that there was a one metre gap between the edge of the carpeting and the wall on each side of the hall, as well as a one or two-metre-wide uncovered aisle running up the centre of the hall when that temporary carpet was in place.
22. It was put to Mr Larkin that the temporary carpet had not been used for any event between a pantomime in December 2015 and a concert by ‘Ireland’s Three Tenors’ on 6 August 2016 and that, in depicting a relatively fresh looking strip of duct tape, the photograph designated ‘Image B’ must have been taken after that date. Mr Larkin did not accept that proposition.
23. Robert Burke gave evidence as an expert engineer on behalf of Mr Larkin. He confirmed that he conducted an inspection at the sports hall on 22 February 2019 in the presence of Mr Larkin and a solicitor for the company. Mr Burke found the floor to be highly polished with no tape fragments or marks visible on it. However, Mr Burke expressed the view that the photographs captioned Image A and Image B clearly show an adhesive tape residue on the sports hall floor, which was likely to have changed the co-efficient of friction of the floor at that point significantly and, for players, unexpectedly, thereby constituting a hazard of which the defendant company knew, or ought to have known.
24. Under cross-examination, Mr Burke accepted that if a duct tape fragment of the kind visible in the photographs taken by Mr Larkin was present on the floor of the sports hall at the time of the accident, then it would have been there for all to see.
25. Colm Farrell, one of the youths who was playing indoor football at the time of the accident was called as a witness on behalf of Mr Larkin. He was at the back left of the pitch from Mr Larkin’s perspective. He saw Mr Larkin running up the left wing after the ball, with another player, Alex Woods, in close proximity. He did not see a tackle or any physical contact between them. As they approached the ball, they were about an arm’s length apart. A pass was made, prompting both to attempt to stop and change direction. Mr Larkin fell forward. Mr Farrell stated that, although he was at the back left of the hall and Mr Larkin was at the top left, he had a clear view.
ii. the defendant’s case
26. The defendant company called Joe Dunne as a witness. He is from Carlingford and was another of the youths who had been playing indoor football that night. He saw Mr Larkin and Alex Woods running towards the ball and going for it. Mr Larkin came out the worst and fell down. Under cross-examination, Mr Dunne accepted that he had not been asked to make a statement until sometime after the incident and that he had not used the word ‘tackle’ in his evidence.
27. The next witness called by the defendant company was Marie Higgins. Ms Higgins lives in Omeath and has been using the sports hall in the centre for fitness classes for about ten years. She gives those classes five mornings and two evenings a week. At present, she has about 10 or 15 people at her classes, although in 2016 she would have had about 15 to 20 persons at each class. As an instructor, Ms Higgins inspects the floor before each class because she does floor work in those classes, which is to say she uses the floor a lot. At the time, she was using the sports hall almost daily and would have checked the hall every day. She had never witnessed sticky residue on the floor there.
28. Ms Higgins first heard about Mr Larkin’s accident at the centre a few months prior to the trial of the action.
29. Under cross-examination, having been shown the strip of duct tape on the floor visible in Image B, Ms Higgins stated that she had never seen it.
30. Michael McGuinness, a member of the committee that manages the Foy Centre, gave evidence. Together with John McKevitt, he was involved in fundraising for the construction of the centre, which was built in 2005. For the purposes of this action, he had created a spreadsheet listing the various events that took place in the sports hall between 12 April and 30 June 2016.
31. Mr McGuinness confirmed that a play was put on at the centre on 17 December 2015 to raise funds to pay for its insurance. Because of the acoustics in the hall, temporary carpeting is installed for such events. The temporary carpeting consists of four strips, each four metres wide, that run the length of the hall up to, and under, the stage. In the current configuration, the carpeting stops a metre short of the wall on each side and leaves a two-metre-wide aisle running up the middle of the hall, to permit easy access for prams and wheelchairs. At the end of the carpet nearest to the main door, single sided duct tape is used to secure it to the floor, to eliminate or reduce any tripping hazard. The persons involved in these arrangements are Mr McGuinness, Mr McKevitt and Thomas Keenan, the caretaker at the centre. After such an event, the temporary stage and temporary carpeting are removed.
32. Mr McGuinness was not aware of any expression of concern about the surface of the floor of the sports hall. He became aware of Mr Larkin’s complaint when he received the letter of claim from Mr Larkin’s solicitor, seven months after Mr Larkin’s accident, because the post for the management committee is sent to his house.
33. Under cross-examination, Mr McGuinness stated that duct tape would be used on the joins, and edges of the carpeting and, sometimes, on ripples in it. Mr McGuinness had no idea how the duct tape shown stuck to the floor in Image B had got there.
34. The penultimate witness called on behalf of the defendant company was its chairman John McKevitt. He stated that, in 2015 and 2016, he was endeavouring to increase the usage of the hall at the centre. To that end, he made various arrangements with persons for the use of the hall but tended not to write the details down. He was happy when Mr Larkin approached him about using the hall for indoor football, once he could be satisfied it would not impinge on existing activities of other users such as Ms Higgins. Mr Larkin would drop the money for the hire of the hall in an envelope through the letterbox of Dan’s Café in Carlingford, where Mr McKevitt would collect it.
35. The removable carpeting for the hall in the centre was acquired about 6 or 7 years ago to improve the acoustics of plays and concerts performed there. The people involved in its installation would be Mr McKevitt, Mr McGuiness and Mr Keenan, the caretaker. They would roll it up to the stage and sometimes to the side walls. But when it was used for school plays, pantomimes and so on, a gap was left at the sides and along a centre aisle. Duct tape was always used to fix the carpet to the floor of the hall at the end closest to the entrance. On one occasion the carpet had been stapled to the floor, but it had been very hard to remove the staples and it was not done again. When there were ridges or ripples evident in the carpet, the committee would ensure that elderly or vulnerable people were escorted to their seats. After use, Mr McKevitt and Mr McGuinness would roll the carpet up and ensure that the floor was cleaned with soap and water and, if necessary, a scraper, like a paint scraper.
36. Mr McKevitt confirmed that there had been a Christmas play and a pantomime in the hall in December 2015 and that Ireland’s Three Tenors had performed there on 6 August 2016.
37. Mr McKevitt testified that he was quite clear that Mr Larkin had never approached him about his accident in the hall and that the first he had heard of it was when Mr McGuinness came to him with the letter of claim from Mr Larkin’s solicitor in February 2017.
38. Mr McKevitt reiterated that duct tape was used for joins, edges and ripples in the carpet, to provide a more secure platform for it on the floor of the sports hall. The duct tape was acquired by Mr Keenan, the caretaker, from a local business named Flagstaff Supplies.
39. The final witness called was Debbie Hamilton. Ms Hamilton lives in Carlingford and has been a management committee member at the Foy Centre since the summer of 2016. Since then, her responsibilities have included taking bookings for the use of the hall. In that context, she introduced a booking system, which involves the use of a diary that she maintains. She confirmed that Ireland’s Three Tenors performed a concert in the hall on 6 August 2016. She further testified that she had noticed Mr Larkin in and around the centre in January 2017 on at least two occasions, although at that time she did not know who he was, prompting her to raise it at a committee meeting.
40. That concluded the evidence.
Analysis
41. There is no doubt that Mr Larkin suffered a serious injury in the sports hall at the Foy Centre on 12 July 2016. The questions in this case are essentially twofold; first, ‘what caused it?’; and, second, if the answer to that question is that the proximate cause was the presence of a sticky residue or substance on the floor there, ‘was there some negligence or breach of duty on the part of the defendant company as occupier or manager of that premises in causing or permitting that to be so?’
42. In that context, there are, in substance, two strands to Mr Larkin’s case. The first is his uncontroverted, though uncorroborated, evidence that, in the immediate aftermath of his accident, he noticed a sticky residue on the floor at the point where he fell. The second is that the sticky residue in question came from the remains of duct tape that had been used on some prior occasion to secure temporary carpeting on that floor.
43. On the first strand of Mr Larkin’s case, it is striking that neither his own witness Mr Farrell nor the company’s witness Mr Dunne, each of whom was present in the sports hall at the time of the accident gave any evidence concerning a sticky residue on the floor. To that extent, the conflict between the evidence of those two young men is immaterial. Whether Mr Larkin’s fall came about in the course of a sudden change of direction or in the course of a tackle, the real issue is whether the proximate cause of that fall was the presence of a sticky residue on the floor for which the company is responsible. I have no doubt about the honesty and sincerity of each of those witnesses. But the accident occurred suddenly and without warning during inherently frenetic sporting activity and, more fundamentally, neither witness appears to have been asked to provide his recollection of events for some time after the accident occurred.
44. The second strand of Mr Larkin’s case involves some necessary inference or conjecture, depending on the view one takes of the evidence. Mr Larkin took two photographs on his mobile phone, one in late July or early August 2016, the other in January 2017. Each depicts another part of the floor of the sports hall with what appears to be a segment of duct tape stuck to it. However, no such segment of duct tape was present when Mr Burke conducted his inspection on 22 February 2019.
45. Nonetheless, Mr Larkin invites the court to conclude from those photographs that there was masking tape present on the floor of the sports hall between July/August 2016 and January 2017 and, from that proposition to infer (or conjecture) that, on the balance of probabilities, there was some residual masking tape present on the part of the floor where Mr Larkin fell on 12 July 2016, creating the sticky residue that he says was present there.
46. However, two other pieces of evidence militate against that inference or conjecture. First, there is the evidence of Ms Higgins, who I found to be an honest and direct witness, that she inspected the floor several times a week before conducting her fitness classes and had never discovered any sticky residue on it. Second, there is the unchallenged evidence of several witnesses on behalf of the company that the temporary carpeting had not been installed at any time between December 2015 and 6 August 2016, when Ireland’s Three Tenors performed a concert in the hall. From the relatively intact appearance of the segment of duct tape in Mr Larkin’s photographs, that invites a countervailing inference or conjecture that Mr Larkin is mistaken in his assertion that he took the first photograph, described as Image B, prior to 6 August 2016. And if that duct tape was not present on the floor of the hall prior to 6 August 2016, it significantly undermines Mr Burke’s inference or conjecture about the presence and nature of the sticky substance that Mr Larkin asserts was present on another part of the floor on 12 July 2016.
47. For that reason, it is particularly unfortunate that Mr Larkin made no formal report of his concerns to the management of the centre. It is understandable that he did not do so in the immediate aftermath of his accident, as he was undoubtedly in great pain and, in all probability, in shock. However, it is less understandable that he did not formally report those concerns at any time over the succeeding days, weeks or months, until he caused his solicitor to write a letter of claim to the company in February 2017. In evidence, Mr Larkin said that he spoke to Mr McKevitt about his accident ‘within weeks’ of its occurrence when he ran into him locally. However, Mr McKevitt was emphatic in his evidence that no such conversation occurred and that the first he heard of Mr Larkin’s accident was when Mr McGuinness came to him with the letter of claim from Mr Larkin’s solicitors many months later. While I do not doubt Mr Larkin’s sincerity, I conclude that he must be in error on this point as I prefer the evidence of Mr McKevitt. I do find it difficult to understand why Mr Larkin was taking photographs of the floor of the hall in July or (as I conclude, more probably) in August 2016 and in January 2017 without bringing the issue formally to the attention of the management committee, even if I were to assume that he had briefly spoken to Mr McKevitt about it on encountering him in the locality during that period. The unfortunate consequence of the way in which Mr Larkin approached the matter was that any opportunity to conduct a prompt investigation of the cause of the accident was lost.
48. One other matter was the subject of some little controversy in the course of the trial, and that was the configuration of the temporary carpeting when installed. Mr Larkin was adamant that, when he had attended a school play with one of his children in the month of December prior to his accident, the temporary carpet had been laid from wall to wall. That was certainly the configuration evident from certain photographs on Facebook of an event held at the centre in 2014. However, the defendant’s witnesses were broadly consistent in their evidence that, in more recent times, the temporary carpeting was configured to leave the sides of the hall and a central aisle uncovered, in order to permit easier access for prams and buggies. The peculiar thing about this dispute was that the defendant’s evidence lends support the plaintiff’s case more obviously than his own evidence on the point does. In indicating during cross-examination where the accident occurred by reference to one of Mr Burke’s photographs of the floor of the hall, Mr Larkin pointed to a spot approximately a metre away from the wall. It is not obvious to me how Mr Larkin’s insistence that the temporary carpeting was installed from wall to wall supports the hypothesis that any sticky residue present on the floor approximately one metre from the wall should be considered, on the balance of probabilities, to be the remains of duct tape used to secure the carpet. In the heel of the hunt, I do not think that the resolution of that controversy is especially material to any of the issues I must decide.
Conclusion
49. As s. 3(2) of the Occupiers Liability Act 1995 makes clear, the common duty of care owed by an occupier of premises to a visitor means a duty to take such care as is reasonable in all of the circumstances “having regard to the care which a visitor may reasonably be expected to take for his or her own safety”. There is no doubt that the common duty of care on the defendant company, under s. 3(1) of the Act of 1995, as the occupier of the centre would extend to taking reasonable steps to ensure that a sticky residue was neither caused nor permitted to be present on the floor of the sports hall while it was being used for activities like playing indoor football. There is also no doubt but that Mr Larkin, as a visitor, would also be expected to take reasonable care for his own safety
50. As with so many other aspects of the law of torts, the correct approach to the issue of proof of negligence is succinctly stated by the authors of McMahon and Binchy, The Law of Torts , 4th edn. (Dublin, 2013) (at para. 9.01) in the following way:
‘As a general rule, a plaintiff in an action for negligence must plead and prove negligence on the part of the defendant in order to succeed. The plaintiff must convince the judge, on the balance of probabilities, that the defendant was negligent. Anything less will not be sufficient.’
51. As many eminent authorities, including the work just cited, also point out, the plaintiff’s evidence must pass beyond the region of pure conjecture and into that of legal inference, although the dividing line between those two concepts is often a very difficult one to draw. In this case, Mr Larkin has failed to satisfy me on the balance of probabilities that there was a sticky residue present on the part of the floor where he fell on 12 July 2016 and, by a slightly wider margin, has failed to convince me on the balance of probabilities, that an inference should be drawn that any such substance that may have been present there was the remnants of adhesive duct tape previously used to secure temporary carpeting that the defendant company had caused to be there or had failed to properly remove from there, or both.
52. For those reasons, Mr Larkin’s claim against the defendant company is dismissed.
Hall v. Meehan
[2004] IEHC 401 (17 December 2004)
JUDGMENT of Gilligan J. delivered on the 17 day of December, 2004.
The plaintiff in these proceedings was born on 8th day of May, 1986 and he resides at Dungloe in the County of Donegal. He is presently a student at University College Galway where he is studying Arts.
The defendant was at all material times to these proceedings the Manager of Schoil Roisin Dungloe Co. Donegal.
On 4th day of June, 1992 at a time when the plaintiff was six years of age and a pupil at the defendant’s school he met with an accident as a result of which he suffered personal injuries in respect of which he now claims damages against the defendant.
The background circumstances are that in the late 1980s the play area in the immediate surround of Schoil Roisin which was a two teacher school was in need of repair and unfortunately the school authorities were not in a position to obtain any funds from the Department of Education as a result of which various parents came together and brought in sand and soil in order to make a playing area and surrounded this area with concrete breeze blocks which were laid on their side to separate the path area immediately outside the school from the playing field area. This was voluntary work on behalf of the parents and Mrs. Langan who was the school principal at the time of this accident has given evidence that the breeze blocks would have been in position for approximately 4 – 5 years prior to the accident the subject matter of these proceedings. She accepted in evidence that the Department of Education were probably not even aware that this voluntary work had been carried out by the children’s parents in order to better the school facilities in the absence of any funds being available.
The circumstances of the accident on 4th day of June, 1992 are that the plaintiff was running and collided with another pupil in the immediate vicinity of the concrete breeze block kerb and as a result of the collision he fell backwards onto the kerb as a result of which he suffered an internal injury to his left kidney.
The plaintiff pleads his case in terms that he was caused to fall and fell backwards on to one of a row of sharp edged breeze blocks which were present in the playground as a consequence whereof he suffered severe injuries loss and damage.
There is no dispute as to the circumstances of the accident.
Mrs. Hall the plaintiff’s mother gave evidence that the school has now been completely renovated but she took a number of photographs of the concrete breeze blocks on 27th day of January, 1997 and I am satisfied on the evidence that these photographs which are numbered P3 – P12 represent a reasonable portrayal as to the situation that would have pertained as of the date of the accident but making some allowance for additional wear and tear and bearing in mind Mrs. Langan’s evidence that these blocks had been in position since the late 1980s probably some 4 – 5 years prior to the accident occurring. Mrs. Hall described the edge of the breeze block kerb as being sharp and she also states that she expected the school facilities to be safe for her child and she was not aware when she sent him to the school that the school grounds were in an unsafe condition. She accepts that she brought her son in and out to school and that she was aware that generally the school was not in the best of condition but she did not carry out any risk assessment.
Ann Kelly Consulting Engineer gave evidence on the plaintiff’s behalf that the kerbing in position and as shown in Mrs. Hall’s photographs of 27th day of January, 1997 was of a ‘make shift’ variety and consisted of rough concrete blocks with rough and sharp edges. She says the type of block used was one which would have been plastered over in the course of normal building works. She states that kerbing in its environment is a smooth finished product and she describes proprietary kerbing as being light rounded kerbing. She does not believe that the breeze blocks should have been used because of the foreseeability of falls and it was likely that any injury sustained would be a more severe injury because of the sharp nature of the blocks as opposed to an injury which would be sustained if a proprietary type of kerbing had been in place. She also states that proprietary kerbing was available in 1992. She accepts that the contact point as between the plaintiff and the edge of the concrete block is of some importance in relation to the injury sustained but in her view the edging should never be sharp especially in a school playground where falls are more likely. She takes the view that the kerbing in question was unusual. She describes the edging as shown in the photographs as being broken away in places. Ms. Kelly does not accept that under British standards it is permissible to have kerb stones in situ with sharp edges. She says that if this type of product was to be used then a pre-cast concrete could have been placed in situ which would have been a different material of a smoother surface and that normally a pre-cast kerb would have a bevelled edge.
Ms. Kelly takes the overall view that concrete blocks of the type used are not intended to be used as kerbing but are an easy and cheap alternative and in her view had proper round edged kerbing been used then any injury sustained was likely to have been of a relatively minor nature.
Ms. Kelly also took photographs of the defendant’s premises on 4th day of March, 2004 which show a greatly improved layout with a completely different kerbing in position.
Dr. Denis Wood Consulting Engineer gave evidence on the defendant’s behalf that he visited the school premises on 28th of April, 2004 and he had the benefit of a Polaroid photograph as taken of the general area where the accident occurred but this photograph in my view is not sufficiently distinct and quite clearly the photographs as taken by Mrs. Hall in January 1997 present a much fuller view as to the layout that pertained generally. Prior to appearing in court Dr. Wood has not seen Mrs. Hall’s photographs. He takes the view that from an inspection of these photographs that the exposed edge of the concrete breeze blocks is weathered and rounded and he describes them as being laid flat. He refers to British Standard 7263 which specifies the requirements for the dimensions of concrete kerbing and he refers to series of diagrams attached to the British Standard and he is of the opinion which he accepts is a different opinion to that of Ms. Kelly that the edge of the concrete breeze kerbing is well rounded and in general terms complies with the British Standard but he accepts this standard came into being in 1994 and he is not aware as to the content of any regulation that may have been set out in any prior standard which may have applied in Great Britain in 1992.
Dr. Wood proffers the opinion that in his view the fundamental situation is that the plaintiff would have suffered the injury in any event as it was an internal injury and not a surface injury. He says in his view the blow had to go through the outer layers of the body and the injury would not be affected by a small change in the edging and in effect he says the plaintiff’s left kidney organ impacted the kerb and he would have suffered the same injury if he fell in the same manner against the renovated kerbstone now in situ.
Dr. Wood accepts that a smooth surface would be ideal but he would not draw back from recommending the use of breeze blocks if they were insufficient funds available for a smooth round edged kerbing.
Dr. Wood in effect takes the overall view that the depth of penetration in respect of this particular injury was not influenced by a slight difference in the kerbing that was actually in position and some other form of kerbing that may have been chosen.
Dr. Wood describes the new kerbing from the photographs as being 2 – 3 inches in height where as the height of the concrete block on its side is a standard
4 inches. He concedes that if general improvements were being carried out he would recommend the replacement of the concrete blocks with alternative kerbing.
I note the description of the injury and accident as sustained by the plaintiff herein as given by Peter McLean Consultant Urologist in his report of the 23rd August, 1999 wherein he states:
“This 13 year old boy was involved in an accident while playing in the school yard. He fell and hit the sharp end of the kerb with his left loin area. This resulted in gross hematurria and hospital admission.”
This accident occurred prior to the coming into effect of the Occupiers Liability Act, 1995. The plaintiff was an invitee on the defendant’s school premises and the relevant law pertaining is that as set out in the leading case of Indermaur v. Dames LRICP 274 wherein Willes J. stated:
“And with respect to such a visitor at least we consider it settled law that he using reasonable care on his own part for his own safety is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know and where there is evidence of neglect the question whether such reasonable care has been taken by notice lighting guarding or otherwise and whether there was contributory negligence in the sufferer must be determined by a jury as a matter of fact.”
In Foley v. Musgrave Cash & Carry unreported Supreme Court 20th December 1985 McCarthy J. took the view that the court should no longer be talking about “unusual dangers” in the type of case before the court and that the general negligence approach was to be preferred. Griffith J. while admitting that the plaintiff was an invitee took the view that the duty of the occupier was to take reasonable care in all the circumstances to see that the premises were reasonably safe for the invitee.
I prefer the evidence of Mrs. Hall and Ann Kelly to that of Dr. Wood in respect of the condition of the edge of the breeze block kerbing. Dr. Wood takes the view that the exposed edge is weathered and rounded. Indeed he goes as far as to state “well rounded”.
Mrs. Hall describes the edge of the concrete block as being sharp and Ms. Kelly in her interpretation of the photograph as taken by Mrs. Hall describes the blocks as being rough with sharp edges and that in general terms the kerbing is of a make shift variety.
Accordingly I take the view that the kerbing that was in place was of a makeshift variety consisting of rough concrete breeze blocks with a sharp edge and broken in places.
I take the view that kerbing with sharp rough edges was inappropriate for installation in a school premises where inter alia 6 year old boys would be running and as would be normal falling. Quite clearly in my view the sharp rough edge of the kerbing presented an unusual danger to school children particularly of a tender age on the defendant’s school premises and further I am satisfied that this was a danger of which the defendant knew or ought reasonably to have known as it appears self evident from the photographs that if a child was to fall against the sharp rough edge of the kerb stone an injury was likely to follow and the significance of that injury would be determined by the velocity involved in the impact against the sharp edge.
Accordingly I find that the defendant as the occupier of the school premises was guilty of negligence and breach of duty in failing to take reasonable care to prevent damage from an unusual danger of which he knew or ought to have known.
Quite correctly no allegation of contributory negligence is made out against the plaintiff having regard to his tender years at the time of the accident.
The remaining issue is the proposition put forward by Dr. Wood that the plaintiff would as a matter of probability have suffered the internal injury he sustained whether or not he fell against the particular kerbing that was in situ or some other form of smooth well rounded kerbing that would have complied with any relevant applicable British standard at the time of the accident.
I take the view in this regard that from a very early stage in these proceedings it has been apparent that the plaintiff’s claim relates to sustaining an internal organ injury as a result of falling backwards against the sharp edge of a concrete breeze block kerb stone. In the medical report of Mr. Peter McLean Consultant Urologist as previously referred to the injury is described as the plaintiff falling and hitting the sharp end of the kerb with his left loin and this resulting in gross haematuria and hospital admission.
Ms. Ann Kelly on the plaintiff’s behalf takes the view that if proper round edged kerbing had been used then any injury sustained is likely to have been of a relatively minor nature.
The onus of proof in this regard rests with the plaintiff to satisfy the court that on the balance of probabilities the injury as sustained by him was as a result of his left loin area impacting the sharp edge of the concrete breeze kerb stone.
I take the view that I have to decide this particular case on its own facts and I accept that on the balance of probabilities the injury that was actually sustained by the plaintiff was caused by him falling and hitting the sharp end of the kerb with his left loin area which resulted in gross haematuria and subsequent hospital admission. I am not satisfied to accept the evidence of Dr. Wood that the same injury would have been suffered by the plaintiff if some form of well rounded kerbing that complied with any relevant British Standard had been in place instead of the kerbing that was actually in situ and I am further satisfied that there can be no comparison between the relatively minor nature of an injury that is described by Ms. Kelly that may have been sustained if a proper round edged kerbing had been used in comparison to the actual injury as sustained by this plaintiff coming into contact with the sharp edge of the kerb. I am fortified in this view by the fact that on 8th day of June, 1992 the plaintiff still had a considerable amount of haemorrhage into his kidney and in the space surrounding the kidney and his blood count had dropped to 9.6.
Accordingly I am satisfied on the balance of probabilities that the injury as sustained by the plaintiff was caused by him coming into contact with the sharp edge of the concrete breeze kerb stone and I am not satisfied on the evidence to accept the proposition that the injury as suffered by the plaintiff would have been sustained in any event as a result of a similar impact with an alternative rounded kerb stone.
As regards quantum the accident and its aftermath was undoubtedly a traumatic experience for the plaintiff and by the time his mother came to collect him from school at 2 p.m. on the day of the accident he was in a very weak condition. He was brought straight away to Letterkenny General Hospital and at the time of his admission was passing heavily blood stained urine and was complaining of severe pain on the left side of his abdomen. Following various tests that were carried out it was clear that the plaintiff had suffered an injury to his left kidney. X-rays showed that the right kidney was entirely normal but on the left side the upper pole and mid group calyces were normal but the lower calyces showed splaying and stinging with extensive filling defect in the renal pelvis consistent with blood clot. Also the lower end of the left urethra was pushed medially indicating blood clot. As the plaintiff’s condition remained stable it was decided that surgical intervention was not warranted and that his left kidney could be preserved.
The plaintiff was detained in hospital until the 15th June, 1992. A DSMA scan was carried out which showed differential function of 61% on the right side and 39% on the left side.
The plaintiff was reviewed in July 1992 at which time he appeared to be making a good clinical recovery and was again reviewed on 26th January, 1993 at which time he was totally asymptomatic.
The plaintiff returned to school in September 1992. I note the views of Mr. Ronald Thompson Consultant Surgeon as set out in his report on 7th March, 1999 wherein he took the view that the plaintiff suffered significant damage to his left kidney as a result of the trauma with scarring of the lower pole of the kidney but with a normal collecting system. In his view the DMSA scan indicated a 20% loss of function of the left kidney but as the plaintiff was asymptomatic no treatment was required and no serious long term ill effects are predicted. Specifically in his view there is no risk that the plaintiff will develop renal failure or secondary hypertension but he may be at increased risk of renal infection or further haematuria from minor trauma as a result of the underlying renal scarring.
Mr. Peter McLean Consultant Urologist in his report of 23rd day of August, 1999 confirms that he does not see hypertension as a long term factor. He takes the view that the plaintiff lost 11% of the functioning tissue of his left kidney.
In a more recent report of 29th April, 2004 Mr. McLean reviewed the plaintiff and confirms that from a urological standpoint he has remained asymptomatic. He found that the plaintiff’s blood pressure was normal and he does not feel that the plaintiff will have any symptomatic change in regard to his urological status as far as this accident is concerned. He does however regard a loss of 11% of normal kidney as a significant loss for a young man of the plaintiff’s age but he does not believe that it will interfere with his future health nor does he think that it will interfere with his life expectancy.
I note Mrs. Hall’s concern as regards any possible future problems with the plaintiff’s normal functioning right kidney but Mr. McLean deals with this aspect in his report of 23rd August, 1999 and I am satisfied on the basis of the content of the medical evidence that even if the plaintiff was to lose his normal right kidney he would be able to maintain a normal level of renal function with the amount of kidney he has on the left side.
I take the overall view that the plaintiff has recovered from the effects of this accident and the probabilities are that he will not suffer any adverse consequences into the future and in all the circumstances, I take the view that the appropriate figure for general damages is €40,000.
There will be judgment accordingly in the sum of €40,000.
Approved: Gilligan J.
Shakur Ahmed v Castlegrange Management Company Limited
by Guarantee and Castlegrange Square Management Company Limited by Guarantee
2018/9370 P
High Court [Approved]
9 November 2021
unreported
[2021] IEHC 704
Ms. Justice Bronagh O’Hanlon
November 09, 2021
JUDGMENT
1. The plaintiff is a bus driver and resides at Apartment 74, Castlegrange Square, Clondalkin, Dublin 22. The first named defendant has its registered office at Block 36/41, Dunboyne Business Park, County Meath. The second named defendant has its registered office at Smith Property Management Services Ltd, Block A, 37/41 Dunboyne Business Park, Dunboyne, County Meath.
2. The plaintiff’s claim is that the defendants and each of them or one or other of them, their respective servants or agents were at all material times responsible for the maintenance, repair, upkeep and safety of the common areas of the block of apartments at Castlegrange Square, Clondalkin, Dublin 22 and, in particular, the tiled surface leading from the plaintiff’s apartment as aforesaid to the stairway thereof.
3. There was no argument put forward indicating a need to sever the liability of Castlegrange Management Company Limited by Guarantee and Castlegrange Square Management Company Limited from one another, and the two companies were represented by one legal team. In the final analysis they are found to have been jointly and severally liable.
4. The plaintiff’s claim is that, on or about the 21st November, 2016, he left his apartment, being Apartment 74, at the aforesaid address, and was traversing the common area from his apartment towards the nearby stairs when, suddenly and without warning, the plaintiff was caused or permitted to lose his footing by reason of the surface underfoot being wet, slippery and icy. In consequence whereof the plaintiff fell down the entire flight of steps and suffered serious personal injuries, loss and damage.
5. The plaintiff claims that the aforesaid personal injuries, loss and damage were caused by reason of the negligence and breach of duty and breach of statutory duty and breach of contract and nuisance on the part of the defendants, its servants or agents, in or about the maintenance, upkeep and repair of the said locus and also for failing to warn the plaintiff of the dangers of the tiled floor by way of signs, guards or otherwise. Particulars of the aforesaid are pleaded extensively in the pleadings. The court was told that the plaintiff was 48 years of age at the date of the accident and his date of birth is the 19th July, 1968. The locus was described as 74 Castlegrange Square, Clondalkin in the County of the City of Dublin.
6. The court was told that, on or about the 21st November, 2016, the plaintiff left his home, being a first floor apartment which he owns, and the court was shown a photograph 2 which showed Apartment 74 as a door to the right-hand side on that photograph. Photograph 3 shows two sets of stairs. Photograph 4 shows his front door with a small mat and a light above the door and this was described as a photosensitive light. The plaintiff confirmed the above in his evidence and said that that he had been a bus driver since 2008 and that, in 2002, he bought this apartment for himself, his wife and his children. He describes his bus driving shifts as varying from very early or afternoon or, alternatively, an evening shift.
7. On the occasion of this accident, he described leaving his apartment at 5:30am approximately. On the 21st November, 2016, he was due to begin work at 6:15am and he had to drive 8 kilometres away to the bus depot.
8. The plaintiff described rain coming in on the light above his door and that that light had fused on a few occasions and that water tended to drip from the light. He said there were flagstones and that between the wall and the iron balcony there was a small gap above it where the water dripped down from that. In his evidence the plaintiff stated that the light had fused due to the rainwater around a week before the accident occurred.
9. The plaintiff said that, on his way out, he moved a distance of 3 feet when he slipped and he said he could not grip anything. He described the locus as a first floor apartment where there was another family living downstairs and that there was balcony above his balcony. He said that he fell down two flights of stairs and that, when he slipped, both feet slipped out in front of him and he fell on his elbow first and that there was no railing to hand and that, at the edge of the stairs, the nosing was aluminium. He said that those three initial steps had no nosing on the night of the accident. He said that an anti-slip device was inserted one year post-accident. His evidence to this Court was that the nosing would have been of assistance in stopping his fall.
10. Reference was made to the shoes he was wearing on the occasion by way of photographs shown to the court and showed the condition of the shoes two years post-accident. This witness describes severe pain in his left elbow which was sudden on on-set and shock failed him. He said that as he went on to drive to the Ringsend depot while bleeding and he noted that his arm was getting bigger and bigger as he made that journey. He said that he did not know that there was blood pouring down onto the floor and that when he arrived an ambulance was called by his colleagues and he was taken to St. Vincent’s Hospital where he was told to go home and rest until the following morning and to come back. His uncle came and drove him the following morning to St. Vincent’s Hospital. There was a puncture wound over his left elbow and x-rays demonstrated a displaced comminuted fracture of the left olecranon. The wound was dressed with an iodine dressing and prophylactic intravenous antibiotics were commenced and the elbow was immobilised in an above-elbow plaster back slab. These details are expanded upon in the first report of Mr. Paul Curtin, trauma and orthopaedic consultant surgeon, St. Vincent’s Hospital discussed in more detail below alongside the other two reports submitted to the court.
11. The plaintiff told the court that he spent the following two months at home in his house and he said he could not sleep on his left side and that, for the first two weeks, he had very bad shooting pain, especially for the first two weeks. The plaintiff was advised medically to avoid active contraction of his triceps for a further four weeks on the 1st December, 2016 and was permitted at that stage to engage in full active assisted range of motion. In early February the following year, he returned to his work as a driver of double-decker buses. He found the work extremely hard driving and that taking left and right turns was very difficult for at least three to four months. He said manually it was extremely hard to steer.
12. The plaintiff described having five or six pieces of metalwork inserted and that one of these plates was left in his elbow and he was advised it would be there for the rest of his life and, because of that, his elbow might stiffen up and he described his left elbow as being numb on occasion. He also indicated that he had difficulty still in fully extending his arm.
13. He said it was particularly hard to carry weights up the 26 steps to his apartment and that, prior to this accident, it was his habit to carry 20 kilogrammes on his shoulder but that he could not do that post-accident. He said for a significant time thereafter his daughter, who is a toddler, wanted to come into his lap and he said that he just was not in a position to hold her at that time and he found all of that extremely hard.
14. Sometimes when driving, he finds the site of the accident causing soreness to him and he says it is weaker than his right side. He said his arm is a little bit bent with a slight reduction in its flexibility. He said he does have a fear of suffering as a result of this accident later in life. Under cross-examination, this plaintiff said that he never has to take painkillers at this stage but he said he cannot carry more than 15 kilogrammes in his left hand. He said he was not within his house when the engineer involved in the case came to visit his house. He said he showed him the locus and told him it was icy at that time and he told him it was wet and he came out and then he slipped and it was a very cold night overnight. He said that it was particularly cold weather at the time and that the weather conditions were the same as the day before. He said that had the light been working, he might have seen something on the surface and he said that the day before he did not slip. He said the black ice was on the ground and invisible to the ground and he said that the light’s fusing had happened a few days before the water was not falling on it. With reference to the question of, given that it was his own property, who ought to have been fixing such a light, he said that he complained a couple of times to the management and he said that he thought he telephoned at least once to the management company. Under the cross examination of his evidence the plaintiff did state that he had not attended any of the Members Association meetings as he was working at the times that they were held..
15. He pointed to where he fell as being represented on the photograph with a set of keys at the exact point and he said he slipped down and his feet went “bang bang” straight down and that his left elbow hit the railings as he went down and that there were seven steps and that the stairs did not cover the full of his foot and it is his view that, had there been nosing on the first step, it would have saved him. He said he was walking in the middle and he said he was walking in a straight way forward but that, if he had been more to either side, he could have reached the railing, but from where he was, he could not. He said that the railing was far away from the point at which he fell.
16. This witness was of the view that it was up to the management company to grit and that he was paying the service charge for that.
17. Under re-examination, this witness said that he saw the water when he opened the door, he saw it wet and icy outside his door, that it was not flowing water, it was just wet. He said he confirmed that he had walked in a straight route forward, following the same route that he did every day, until he fell and that he could not reach the railings on either side. He said that there was a Polish man living in Apartment 75 underneath him and that that man helped him fix in a LED light post-accident. Reference was made to photograph 4 to clarify that there was not a light at the date of the accident, that the replacement light went in afterwards.
Medical Reports of Mr Paul Curtin:
18. The evidence handed into the court included three medical reports furnished by a doctor who had treated the plaintiff following his accident, Mr Paul Curtin MD FRCSI, a consultant orthopaedic surgeon at St. Vincent’s University Hospital. He was the surgeon who treated the plaintiff on his initial visit to the hospital on 21 November 2016 and then for follow up visits for the purposes of writing three medical reports on the plaintiff on the effect of the injury and his recovery dated on the 10th March, 2017, 25th April, 2019 and 29th March 2021.
19. The first report is based on the visit the plaintiff made to the hospital on the 21st November, 2016 and the follow up reviews that took place on the 1st December, 2016, 5th of January, 2017 and the 2nd of February, 2017. The X-rays demonstrated a displaced comminuted fracture of the left olecranon and there was a puncture above the left elbow. The wound was treated and the plaintiff underwent an open reduction internal fixation of the fracture performed by Mr Curtin. Following this the plaintiff’s arm was placed in a sling and he took prophylactic antibiotics for five days to avoid any development of infection. The follow up on the 1st December found no loss of fixation and a good level of healing.
20. The reviews in January and February also offered similar prognosis noting occasional pain in the elbow and recommending physiotherapy for the plaintiff. In the opinion section of the report Mr Curtin indicates that due to the nature of the injury including an articular surface comminution it would be unlikely that the plaintiff would ever recover the full range of motion particularly the full extension. The pain complained of is noted as being common in injuries of this type due to fixation devices being placed in a subcutaneous bone. The device was scheduled to be removed in a routine procedure in June 2017. The removal of the fixation was performed on the 6th June, 2017.
21. The Plaintiff was examined again by Mr Curtin on the 25th April, 2019 and produced a report on that same day. The plaintiff was reported to state he had difficulty lifting weights over 15kg with his left arm and stated he required both arms to lift his 3 year old daughter. While he reports pain in his shoulder but there is a full range of motion. The report’s prognosis is that the reduced range of flex in his left elbow would be permanent and there remains a possibility of developing arthritis in the future. Mr Curtin does not believe there is any likelihood that the plaintiff’s shoulder pain is in anyway related to his accident.
22. The final examination by Mr. Curtin occurred on 29th March 2021 for the purpose of preparing a medicolegal report. The report included the previous complaints and the addition of the plaintiff complaining of pain in his left elbow in cold conditions. There appears to be no long lasting effect permanently hindering the plaintiff from living his life day to day and Mr Curtin did not think the plaintiff would require any further operations going forward and should make a full recovery
Evidence of David Browne, Engineer of J Desmond Kirwan Browne Engineers
23. By agreement, the report was handed in to the court. He described an exterior sensor light at the date of the accident and that the light was not operational and he said on the plaintiff’s instruction to him the surface was icy. He referred to the temperature at Dublin Airport on the 20th November, 2016 at 11:30pm until 12:30am as being very cold with the highest temperature at 1-degree Celsius rising to 2 degrees Celsius at 12:30am. At 6:00am on the 21st November, 2016, it was 2 degrees Celsius and it was sufficiently cold for there to be ice. He referred to the flagstones as referred to by the plaintiff and said that in terms of surface they do have grip but, if covered in ice, they would be very slippy with little or no slip resistance. He said that with regard to the plaintiff having been already sliding as it were, he said that a high grip strip was added to the nosing of the steps. He referred to the goings and thread and edge into the corner and he said they tended to be shorter and that there were no fresh grips on the nosings.
24. With reference to photograph 13, the local children had removed the nosings and new ones were added after the accident. He said the short goings issue was rectified by the defendants since the accident. In his view, the plaintiff’s foot skidded on the landing and the skidding foot would have encountered nosings which would have stopped or almost stopped his skidding foot. It certainly would have slowed his momentum and he may have had a chance to mitigate his injury. He said if there were gritting was on the common areas of the estate and he said that a change was obvious after the accident, that they acted on their responsibilities and that there are generally responsible for the safety of people in the area. He made the distinction between the management company and the residents and he said the management company is a separate company with insurance. When asked what caused him to fall, he said the plaintiff had asked for services and he said the ice which was black caused him to fall and that ice was not visible on his landing and he said the plaintiff did not mention rain or water to him and did not say that it was a combination. He denied that the plaintiff had told him that the plaintiff’s feet did not leave the ground and he said that the plaintiff had skidded and there was a suggestion that one foot was in contact with the ground. He clarified that the plaintiff did not say that his feet went out from under him and said that he skidded and was unable to stop himself.
25. With reference to photograph 5, he said it was 1.1 metre to the edge of the landing with 800 millimetres where he lost his grip and he said that the skidding was less than one second motion and he would have arrested the skidding foot and that it would have slowed his momentum, it would not have prevented the fall but it would have slowed him enough at the edge of the landing to grab a handrail and he did not specifically tell the engineer that he tried to grab the rail on the landing and that he said he started sliding past but that black ice tends to be translucent. Short goings were noted with regard to the steps and he said while the goings were not directly responsible, he said it was the steps themselves and that the plaintiff slipped prior to reaching the steps. He said that the goings were short in themselves and that the steps were not defective, that the safety guidelines at time of construction obliged them to be 220 to 240 millimetres but that it is optimal to have 250 millimetres and 220 millimetres is the minimum accepted. He said that they would not be acceptable by today’s standards. Some are short goings and they are less than optimal and the optimal would be 250 millimetres although 220 millimetres is the minimum accepted. So while they are less than the optimal, they are more than the minimum requirements.
26. The evidence then was that the tiles had good slip resistant quality both when dry and when wet, anything less than 130 millimetres is considered low risk and this witness felt that the issue here was ice. Regardless of the quality of grip that the tiles provided the presence of ice would mean that the grip quality would be that of the ice. that gritting would have prevented the ice from forming and would have prevented the accident from happening. He also felt that if the plaintiff had just thought that the surface was wet he would not have expected it to have been slippy as well. The nosings and steps in front of the landing are less sheltered and it was possible that they had been affected by icy conditions if it is accepted that the conditions would be icy.
27. He accepted the plaintiff’s evidence about the lights not working on the occasion. He also indicated that it would have been a greater level of safety if the light had instead been a sensor activated one in place of one controlled by a switch. This would have increased the level of safety available to the residents.
Evidence of Mr. Bernard Walsh, Engineer
28. Evidence was heard from Mr. Bernard Walsh, engineer, who worked as a facility manager for the property through his company who had been hired as agents. He referred to the fact that the members accept or reject the budget in terms of how the money will be spent by the management company each year and that the agency’s services cover one-hour litter collection, they make 35 visits a year for the purposes of landscaping maintenance. This witness said that there was public liability insurance both for streetlights and general repairs and that it was a three-year contract. His argument was that the directors and members decide what works will be done and he referred to the next door neighbour to Apartment 74 having an external and waterproof lighting which works if fitted correctly and he also argued that there had been no complaints regarding existing lighting.
29. This witness did accept, however, that post this accident there were three or four sets of steps repaired and that repairs were made to tiles which were fitted with anti-strips at the time. He described the ambit of their work as covering 98 institutions in the greater Leinster region.
30. Under cross-examination, this witness indicated that there was no audit and it was put to him that every location ought to have an audit as to what they should be or would be doing. He was also asked whether there was a health and safety inspection and he agreed that there was no paper trail in that regard. This witness further agreed that he did not tell the defendants that they needed nosings and he did agree that the director had seen this on another development but that he thought that the view was that, in this case, it was not necessary because the tiles were slip resistant. He agreed that the goings were narrow and his company did not advise in that regard.
31. Regarding lighting, it was put to this witness as to why the company had not used halogen lighting and he said that the management company was responsible for street lighting and that he had repaired one nine or ten days before. He agreed that his company was an agent for 98 properties in this estate and that they had never considered icy conditions as an issue in the property nor had they advised on lighting or nosings or gritting save for the streets and communal areas. He agreed that while gritting could be offered it was not standard and would only been done on request. He indicated that only 10 out of the 98 managed properties had been gritted and he argued that salt gritting has no bearing when added to a wet surface nor can the salt melt ice.
32. It was put to this witness that the local authority salt roads and why would they do that if it made no difference and he responded that they did not offer it as it was not budgeted for.
Evidence of Dr. Lorcán O’Flannery Consultant Engineer of Rowan Engineering Consultants Ltd
33. This witness first inspected the premises, on his evidence, on the 20th February, 2019 and he carried out an inspection with Mr. Browne on the 15th June, 2020. He described the light referred to as having been controlled from the inside of the building and he said he was aware that there were winter conditions on the occasion of this accident and he said that when he was leaving, he could see that the area was wet. He stated that he had no reason to doubt the plaintiff’s claim that there was black ice present when the accident occurred. With regard to the tiling, he said that his company had performed the same test for slip resistant tiles and he said that he investigated the weather reports from Casement Aerodrome which was closer to Clondalkin and that he based his assessment on that.
34. He said that the locus was one with a gritty surface texture of the tiled surface and it provided excellent grip and he said that, having tested the tile surface, he found that it had a low risk of slip when dry or wet as expected. He said that gritting and salting or salt placed on a dry road means that ice does not form at all but on a wet surface, it dilutes very soon and that where it rains and then dries, the surface can freeze.
35. He said if it was glassy black ice, the difference gritting would make would be it would give it a nice rough texture but he said that local authorities seldom grit footpaths, that it is up to home owners who own part of the property, they may do so outside of their own property. It was put to this witness that here the area was controlled by the management company and they knew it was going to be icy but they decided not to provide gritting.
36. He stated that there was a duty of reasonable care that everyone has in icy conditions. He drew specific attention to the fact that the plaintiff should have been familiar with the condition of the steps. He points out that the plaintiff having been a resident for a long period of time he would be aware of the conditions of the stairs in icy and cold conditions specifically referencing the cold freezes of the winters of 2009/2010 and 2010/2011.
Submissions on the Book of Quantum:
37. Both Parties made brief submissions on the issue of the Plaintiff’s injuries in reference to the book of quantum based on the judgment of Noonan J. in McKeown v Crosby[2020] IECA 242 and the requirement of the court to have regard to the Book of Quantum per s.22 of the Civil Liability and Courts 2004.
38. The relevant section of the book of quantum is agree to be on page 42 of the book with the only difference between the two counsel being as to whether the injury would fall under the ambit of moderate or moderately severe. Counsel for the Plaintiff leaned more towards the injury being moderately severe based on the facts of the medical reports and the possibility included in same of the development of Arthritis going forward. Counsel for the defendants indicated that they believed the injuries would not reach this threshold based on the facts that there had not been multiple fractures and the plaintiff was not required to remain on painkillers would mean the case would not breach the threshold of moderately severe.
Discussion:
39. The liability is seen as strictly a question of fact by the plaintiff as his case is premised on the defendants being responsible for the maintenance and upkeep of the common area in which the slip occurred. According to him the accident was caused by the failure of the defendant to maintain the public area which it is not disputed as being a public area. The specific maintenance and care that the plaintiff believed to be required for the area was the fixing of the area above the light in order to avoid the water leaking in causing the fusing, the installation of nosing in order to stop the slippage as it occurred in this case and finally the proposition that they should have gritted the area in order to remove the threat of icing which occurred in this case.
40. The Plaintiff held out that as the area was a public area that was under the control of the management company then there would not be any duty on the part of the plaintiff to grit it himself as the defendants were the occupiers under the provisions of the Occupier’s Liability Act 1996. In response to the need for reasonable care in the icy conditions they stated that the plaintiff did act reasonably considering the early hour of the accident would mean that no one would be at the highest level of awareness at that hour of the morning and the presence of black ice would require extreme care to spot in dark conditions.
41. In response the counsel for the defendants disagreed that the above conditions were their responsibility and also that it had not been properly pleaded in the notice of motion. They stated that the reason for the accident as pleaded was that the conditions were wet, icy and slippery. If there had been black ice as the plaintiff states then the fixing of the light would have had no effect on the incident as black ice would be clear and invisible regardless of the lighting that was present over the landing. They also rely on the evidence of the engineers that the nosing would not have had much effect in avoiding the accident as the ice would likely have risen above the level of nosing added in.
Conclusion/Findings of Fact:
42. This Court finds as a fact that the incident involved black ice as the plaintiff contends. Thus any repairs carried out on the light itself would not have had a central effect of averting the accident rather than the water passing through the gap in the flagstone. The evidence given by the plaintiff was very credible and the evidence he gave is accepted on the balance of probabilities as having caused the injuries complained of and as being an accurate account of the conditions present of on the night of the accident.
43. However that the area was a public pathway that fell within the control of the defendants and the effect of gritting would have averted this accident. The court rejected that there would have been no beneficial effect to this surface. The presence of gritting would appear, on the balance of probabilities, to have averted the accident had it been carried out on the area of the accident. The defendants failed to grit the surface.
44. The goings although above acceptable minimum standards, nonetheless were not of sufficient size to hold the plaintiff’s foot.
45. The issues concerning water dripping through the light fixture were a major contributor to the causing of ice to form on the surface as indicated, given prevailing weather conditions at the time. While the lack of nosings contributed to the accident as had they been in place and in proper condition they would have assisted the plaintiff in breaking his fall. To some degree they are a contributory factor to the Ice being allowed to form in the common area.
46. It was reasonably foreseeable that an accident such as that which occurred would so occur given the combination of causative factors as set out above, causing extensive pain and suffering to the plaintiff as described. The major factors included, failure to maintain in a safe manner the common areas well lit and free from excess water which formed the black ice in manner which would have ensured the plaintiffs’ safety.
47. The injuries suffered fall within the range of moderately severe under the book of quantum’s entry on page 42. The effect of the injury could not be said to be Severe and Permanent as the plaintiff is not expected to continue to suffer pain permanently and he is not required to remain on painkillers following his treatments as per the Mr Curtin’s reports. It is also not possible to hold the injury to only fall within the moderate range due to the requirement of surgery to fix the wound and damage to the elbow. Sufficient pain and suffering was endured and it led to the requirement of two medical procedures to be performed.
48. In reference to the indorsement of claim the particular actions which the court finds the defendant to have been responsible for (a),(c),(d),(e) and (j) (namely failing to take any reasonable steps or precautions for the safety of the plaintiff, failing to provide a safe premises and in particular the common areas thereof within its remit, creating, maintaining and adopting a nuisance and a hazard and a trap for the plaintiff in that the tiles surface was exposed to the elements and became wet and slippery as a result and failing to warn the Plaintiff that the tiled floor surface was dangerous and unsafe whether by way of signs, guard or otherwise)
49. In accordance with the range included in that section of the book of quantum the court finds it appropriate in consideration of the seriousness of the injury sustained to award the plaintiff damages in the sum of €56,500 and the agreed upon special damage of €3,701.27 for a full award of €60,201.27.
Brian Crowley v Allied Irish Banks Ltd and O’Flynn, Greene, Buchan and Partners
Supreme Court
4 November 1987
[1988] I.L.R.M. 225
(Finlay CJ, Walsh, Henchy, Hederman and Barr JJ)
4 November 1987
FINLAY CJ
(Walsh, Henchy, Hederman and Barr JJ concurring) delivered his judgment on 4 November 1987 saying: This is an appeal brought by the third party against so much of the order of the High Court made on 18 December 1985 as gave judgment against the third party in favour of the defendant for contribution amounting to 30 per cent in respect of the sum of £125,000 damages which the defendant was liable to pay to the plaintiff, together with the costs of the issue.
The event out of which these proceedings arose was that the plaintiff who was then 16 years of age, on 17 April 1980, while on the defendants’ bank premises situate at Bandon in the County of Cork, which was owned and occupied by them, fell from an unprotected flat roof and injured himself.
As a result of this accident the plaintiff who was then an infant by his next friend instituted proceedings against the defendants claiming damages for personal injuries which it was alleged were due to the defendants’ negligence and breach of duty. The defendants in addition to denying their liability to the plaintiff obtained an order joining the third party and claiming contribution or full indemnity from them.
By agreement between the parties it was ordered in the High Court that the issue of liability as between the plaintiff and the defendants should be tried by a judge sitting with a jury and that the third party should be entitled to participate in those proceedings.
The same order further provided that the assessment of the damages suffered by the plaintiff should in the event of his obtaining a finding of liability against the defendants be assessed by the judge sitting without a jury and that in the same event the issue as between the defendants and the third party should be tried by the judge sitting without a jury. On the issues laid before the jury they found the defendants liable in negligence to *227 the plaintiff and also found the plaintiff guilty of contributory negligence and apportioned fault between the plaintiff and the defendants as to 91 per cent against the defendants and 9 per cent against the plaintiff.
Consequent upon those findings the claim of the plaintiff against the defendant was settled by the defendant without the approval or consent of the third party for a net sum of £25,000.
The learned trial judge who had presided at the hearing of the issue between the plaintiff and the defendants on negligence then tried the issue between the defendants and the third party, having regard to evidence which had previously been given in the trial with a jury and to evidence adduced on the issue. He made a finding that the third party was guilty of negligence and was a concurrent wrongdoer with the defendants and apportioned fault as to 70 per cent against the defendants and 30 per cent against the third party.
From the evidence it is clear that the premises in question were an extended or renovated bank premises situate in the town of Bandon. At the rear thereof and relevant to the issues arising in this case, were two roofs. One was a roof giving access to the residential portion of the bank premises which was reached by a concrete stairway from the garden at the rear thereof. This roof which was clearly intended, as found by the learned trial judge, for use not only as an access to the residential portion of the premises, but also as a type of patio or outside sitting place, was surrounded by an appropriate and adequate parapet wall. The second roof, which was lower in height than the roof to which I have just referred, and immediately beyond it, contained no fence or parapet around it other than a small 4½ inch coping stone. There was no direct access to it nor does it appear on the evidence to have been designed as a roof to which access would be gained otherwise than for maintenance or repair purposes, but it was found by the learned trial judge that access could easily be obtained to it by a person ascending the stone staircase to the upper roof, who climbed over a relatively low wall and on to it. Access, it was found, could also be easily obtained to it by a person climbing over the parapet wall of the upper roof and dropping down to the lower roof.
The evidence given in the action brought by the plaintiff against the defendants on the issue of liability before the jury indicated that the plaintiff and other boys, including the son of the bank manager then in occupation of these premises were accustomed from time to time to playing games together on the lower, unprotected roof; that they had done so on at least four or five occasions prior to this unfortunate accident and that the games were of the nature of tip rugby or similar games in which four boys divided into teams of two each would seek to avoid each other and run round the roof. A score in the tip rugby game was apparently made by touching the ball to the coping stone.
That was the game which was being played on the date of this accident and it is clear from the evidence that the plaintiff in catching the ball thrown to him by one of his companions turned and fell over the coping *228 stone down to the ground. Unfortunately, he suffered extremely severe injuries.
On the evidence the jury made the following findings leading to the finding of liability by the defendants to the plaintiffs.
1. That the defendants’ servants or agents were aware that boys, including the plaintiff, were liable to play on the lower roof of their premises.
2. That the defendants’ servants or agents should have been aware that boys, including the plaintiff, were liable to play on the lower roof of their premises.
3. That the defendants’ servants or agents should have foreseen the risk of injury to such boys or any of them by falling off the roof.
4. That the defendants’ servants or agents were negligent in failing to provide and maintain proper railings on the roof.
By direction, the jury also found that the plaintiff was negligent in playing tip rugby on the roof.
As already indicated, the defendants did not appeal against these findings entered by the jury and indeed there would appear to have been evidence sufficient to substantiate all of them. The third party who had been specifically permitted to participate in the claim by the plaintiff against the defendant did not seek to appeal against them either.
The third party had been the firm of architects who designed these extensions and renovations to the bank. Evidence was given before the learned trial judge and accepted by him on this issue that good architectural practice would make it necessary to put an appropriate retaining wall or railing around a roof to which it was intended persons would have access, whether for the purpose of sitting out or standing on it or for the purpose of travelling across it, whereas no such precaution was necessary in relation to a flat roof where the only anticipated or intended use was for maintenance and repair.
The learned trial judge held, however, that the ease of access which on the plans prepared by the third party existed to the unprotected flat roof, either from the stone staircase or from the upper, protected roof, was so clear and obvious that there was a duty on the architects in preparing the plans to put railings or a parapet wall round the lower roof on the basis that even if access to it and use of it by persons otherwise than for maintenance and repair was not intended, that it was likely to happen and was a foreseeable risk.
On these facts and findings the appeal of the third party was submitted on a number of grounds.
Firstly, it was contended that applying the principles laid down by this Court in the case of Conole v The Redbank Oyster Co. Ltd [1976] IR 191 that even if one assumed that the architects were negligent in failing to provide in their plans for protection of the lower roof that the finding by the jury that the defendants, their servants or agents were aware that boys, including the plaintiff, were liable to play on this roof before the date on which the accident happened, constituted their consequential negligence as *229 a novus actus interveniens and that it was not open to the court to hold that there was any nexus between the negligence of the architects and the happening of this accident.
Secondly, it was contended in the alternative that a proper consideration of the degrees of fault as between the defendants and the third party and the plaintiff, even if the third party were properly to be held to be a concurrent wrongdoer with the defendants was such that the fault of the third party was minimal and not such as would support any finding of contribution against them.
Thirdly, it was contended that the defendants in the form of settlement reached by them with the plaintiff had failed to bar the injured party’s claim against the third party and that that was a condition precedent, having regard to the provisions of s. 22(1) of the Civil Liability Act 1961, to the defendants’ claim against the third party and that it therefore failed.
Fourthly, it was contended that the defendants had failed to discharge, on the hearing of the issue, the onus of proof upon them to establish that the settlement made by them with the plaintiff was a reasonable settlement.
Fifthly, it was contended that the refusal of the learned trial judge to permit the third party to adduce evidence on the hearing of the claim between the plaintiff and the defendant held with the jury constituted an unsatisfactory determination of the rights between the defendants and the third party.
With regard to these submissions I have come to the following conclusions.
I am satisfied that having regard to the express finding made by the jury that the defendants, their servants or agents, were aware of the fact that boys, including the plaintiff, were liable to play on this unguarded roof and to the absence of evidence (which was not tendered at any part of the hearing) that they had attempted to prevent or prohibit the plaintiff and the other boys from playing on this roof, it was not open to the learned trial judge to hold that a sufficient nexus or connection existed between any negligence or default on the part of the third party and the happening of this accident so as to constitute the third party a concurrent wrongdoer with the defendants and therefore liable to make contribution or indemnity.
It was not suggested that any part of the design required by the defendants in the reconstruction of these bank premises involved an intended use of this lower roof otherwise than such use as might occasionally be required for the purpose of maintenance or repair. Accepting as this Court must, on appeal, the finding of the learned trial judge that it had been established that access to this lower, unguarded roof was easy, certainly for a fit boy of 16 years of age, either by stepping over the wall adjoining the stone steps or by dropping down 4 or 5 feet from the parapet wall of the upper roof, there does not appear to me to have been any evidence which would indicate that the third party should reasonably have foreseen that boys would be permitted by the servants or agents of the defendants to play *230 energetic games upon this unguarded roof which so obviously carried the everpresent danger of a fall from it. The legal position with regard to the potential liability of a third party in circumstances such as these is, in my view, correctly stated in the decision of this Court in Conole v The Red
bank Oyster Co. in the judgment of Henchy J. where, dealing with the alleged liability to contribute of a firm named Fairway, who had, on the evidence constructed an unseaworthy boat, he stated as follows:
Assuming that Fairway were negligent in sending forth an unseaworthy boat, reliance on this negligence must, on the authorities, be confined to those whom Fairway ought reasonably to have foreseen as likely to be injured by it. Furthermore, the negligence must be such as to have caused a defect which was unknown to such persons. If the defect becomes patent to the person ultimately injured and he chooses to ignore it and subjects the person ultimately injured to that known risk, the person who originally put forth the article is not liable to the person injured. In such circumstances the nexus of cause and effect, in terms of the law of tort, has been sundered as far as the injured person is concerned. (at p. 196)
There can be no doubt on all the evidence in this case that the servants or agents of the defendants, prior to the happening of this accident were completely and fully aware of the danger of permitting boys to play upon this unguarded roof, and that in the words of the extract which I have just read from the judgment of Henchy J., they ignored that danger and by permitting the continuation of the playing by the boys upon the unguarded roof subjected them to the risk which caused this accident. In these circumstances, I am satisfied that the third party is entitled to succeed on the first ground argued on their behalf in this appeal.
Having reached that decision it is unnecessary for me to reach any conclusion and I express no view on issues which arose in this case concerning in particular the provisions of ss. 21, 22 and 29 of the Civil Liability Act 1961 which may fall to be decided in some other case.
I would accordingly allow this appeal, set aside the order made on the issue between the defendants and the third party and substitute therefor an order dismissing the claim of the defendant against the third party.
Jedruch -v- Tesco Ireland Ltd.
[2018] IEHC 205 (19 April 2018)
High Court
Judgment by:
Barr J.
JUDGMENT of Mr. Justice Barr delivered on the 19th day of April, 2018
Introduction
1. This action arises out of an accident which occurred at approximately 07:15hrs on 21st April, 2015, when the plaintiff slipped on the floor in the gent’s toilet at the defendant’s premises at Donabate Distribution Centre, Co. Dublin. It is the plaintiff’s case that having used the toilet in the cubicle, he went over to the wash hand basin, washed his hands and was turning to his left to dry his hands at the adjacent hot air hand dryer, when his right foot slipped backwards on the tiled surface, causing him to fall forward onto his outstretched hands. His hands slid forward across the tiled surface of the floor, until his right hand came to a halt on an AJ cover, the tiled surface of which had been broken. The plaintiff suffered fractures to his right elbow and wrist.
2. It is the plaintiff’s case that the defendant was negligent in three respects: firstly, that there was a failure to maintain the area in safe and proper condition, in particular, due to the fact that there was a large accumulation of water and dirt on the floor surface. Secondly, that the tiles used in the toilet were unsafe and dangerous for use in such an area and thirdly, that the floor area was unsafe due to the presence of the broken AJ cover.
3. The defendant denies liability on the basis that the particular toilet had been cleaned by a contract cleaner only minutes before the time of the plaintiff’s accident. The evidence of the cleaner and of her supervisor was to the effect that the gent’s toilet was clean and dry literally two to three minutes prior to the time that the plaintiff met with his accident. The defendant accepted that when the plaintiff returned to the toilet in the company of two managers, some nine/five minutes after the accident, there was a large spillage of water and dirt in the form of footprints on the floor area. The defendant accepts that the AJ cover was broken at the time of the accident, but denies that the tiles were unsafe or unsuitable for use in a toilet.
4. The defendant further pleaded that the plaintiff was guilty of contributory negligence in that he exposed himself to a risk of injury which he knew or ought to have known and failed to keep any adequate lookout. The defence also put quantum in issue.
5. There was no medical evidence called at the trial of the action. Instead, medical reports were handed in from Mr. Hannan Mullett, Consultant Shoulder and Elbow Surgeon, dated 16th September, 2015, and 9th May, 2017.
6. While liability for any special damages was not accepted, the quantum of special damages was agreed at €20,000.
The Sequence of Events on 21st April, 2015
7. Given the thrust of the defendant’s defence, which is to the effect that the particular toilet had been cleaned literally minutes prior to the plaintiff’s accident, the timing of events in relation to people entering and leaving the general toilet area, is of some importance. For that reason, I propose to deal with the sequence of timings before coming to the evidence given by the plaintiff and the other witnesses.
8. There was CCTV in the area which showed people entering and exiting the corridor on which the toilets were situated. The CCTV recording was viewed after the accident by Mr. Stewart Ridgway, a supervisor employed by the defendant at the plant. Having viewed the CCTV recording, he made notes of the timings shown thereon, at which people entered and left the toilet area. According to Mr. Ridgway, he then asked the security department to make a copy of the CCTV recording. However, they informed him that they were unable to do so. Subsequently, the original CCTV recording was lost.
9. In these circumstances, senior counsel acting for the defendant very properly did not lead any evidence in relation to the content of Mr. Ridgway’s statement when he was bringing the contract cleaner through her evidence in chief. However, in the course of cross examination, senior counsel for the plaintiff put various timings to her, as had been set out in the statement made by Mr. Ridgway. On this basis, his statement as to the timing of events shown on the CCTV recording was put to the witness. Mr. Ridgway was subsequently called to give evidence as to what he had seen when he viewed the CCTV recording. While this may be seen as being hearsay evidence, the plaintiff did not object to such evidence being led, as they accepted the timings which had been recorded by Mr. Ridgway as having been shown on the CCTV recording.
10. In these circumstances, I accept the evidence given by Mr. Ridgway that the CCTV recording showed the following:
07:00hrs The cleaner, Ms. Katarina Malouepsza, is shown entering the toilet area. She places a “Cleaning in Progress” sign across the doorway leading to the toilets.
07.15hrs Ms. Malouepsza leaves and removes the sign. Moments later, the plaintiff is shown entering the toilet.
07.16hrs The cleaning supervisor, Mr. Labude, enters the toilet.
07.17hrs Mr. Labude leaves the toilet.
07.17/07.19hrs The plaintiff is shown leaving the toilet. He immediately reports that he had fallen while in the toilet.
07.19hrs Another employee, Mr. Popiolek, is shown entering the toilet.
07.24hrs Mr. Ridgway, the plaintiff and a manager, Mr. Turnbull enter the toilet. Photographs are taken by Mr. Turnbull.
11. Mr. Ridgway stated that the reason why he could not be certain as to the time when the plaintiff actually left the toilet, was due to the fact that there was a slippage on the CCTV recording lasting two minutes from 07:17hrs to 07:19hrs.
Evidence on behalf of the Plaintiff
12. The plaintiff is 35 years of age having been born on 20th October, 1982. He is a Polish national. He worked with the defendant for eight years prior to 2015 at the defendant’s warehouse premises at Donabate, Co. Dublin.
13. On 21st April, 2015, the plaintiff was working on the 06.00hrs/14:00hrs shift. He stated that shortly after 07:00hrs, he went to use the gent’s toilet in the Goods In section of the warehouse. There was no cleaning barrier sign across the doorway. The plaintiff stated that he entered through the door and proceeded across the floor and entered the middle cubicle to the right of the toilet area, as shown in photograph No. 3 of the photographs taken by Mr. Culleton. The toilet is also shown in photograph No. 2 of the set of photographs taken by Mr. Turnbull. Those photographs had been taken at 07:24hrs on the morning of the accident.
14. The plaintiff stated that he did not notice anything about the condition of the floor surface when he entered the male toilets. Having finished in the cubicle, he proceeded straight across and washed his hands in the centre hand basin. Having washed his hands, he shook off the excess water into the hand basin. He then turned to his left, with the intention of proceeding down the hand basins to use the first electric hand dryer, which is also visible in photograph No. 3 of Mr. Culleton’s photographs.
15. The plaintiff stated that as he moved off, his right foot shot backwards and he was thrown forward onto his outstretched hands. He stated that on hitting the floor, his hands slipped forward, until his right hand came into contact with the broken tile on the AJ cover, as shown in photograph 5 of Mr. Turnbull’s photographs, at which time it came to an abrupt halt.
16. The plaintiff stated that when he had slipped onto the floor, he noticed that the floor was very wet. There was a considerable amount of water on the floor, which was still visible at the time that Mr. Turnbull took his photographs at 07:24hrs. He stated that he also noticed that the floor was quite dirty. He stated that on the day in question he had been wearing his company issue work boots, which were heavy boots with a ridged sole. The plaintiff accepted that the floor surface as shown in Mr. Turnbull’s photographs represented the condition of the floor when he had slipped on it some nine/five minutes earlier. However, he stated that he had not noticed the wet or dirt on the floor on entering the toilets. It was only after his fall that he noted the condition of the floor.
17. The plaintiff was asked about the yellow warning sign which was shown in both the Culleton and Turnbull photographs. The plaintiff stated that the yellow sign as shown in Culleton photographs 3 and 4 was permanently in that position. For that reason, he had not noticed it when he entered on the morning in question. He denied that the yellow sign was in the position as shown in Turnbull photograph 2. He stated that if it had been in that position, he would have seen it.
18. In cross examination, the plaintiff accepted that Turnbull photograph 7 showed a considerable amount of water and the presence of boot marks on the floor surface. He thought that a similar amount of water had been on the floor surface, as shown in that photograph, at the time when he fell. He accepted that the amount of water and the footprints to the left of the broken tile, was more than would be made from a splash of water from the hand basin in the course of washing one’s hands. He agreed that one could not describe the floor in that condition, as being clean or dry. It was put to the plaintiff that the cleaner employed by the defendant and her supervisor, would say that the gent’s toilet floor had been clean and dry literally minutes before his fall at 07:15hrs and 07:16hrs. The plaintiff was adamant that the water which had been on the floor as shown in Mr. Turnbull’s photographs, was the same as had been on the floor at the time of his accident. He was asked if that was so, why he had not noticed it. He stated that he could only say that he did not notice the condition of the floor prior to his fall.
19. It was put to the plaintiff that in a question and answer interview, which he had had with his manager, Mr. Karl Turnbull, on the day after the accident, he had stated as follows:-
“Q. Was the floor wet when you went in?
DJ Yes.
KT How wet was it, was it just freshly cleaned or was it wet that it had to be cleaned?
DJ It was wet that it had to be cleaned.”
20. It was put to the plaintiff that he had changed his answer prior to signing that interview, by insertion of the following:-
“Damien wants to change this, as he is not sure about the state of the floor.”
21. The plaintiff accepted that he had initially said that the floor was wet and dirty, such that it looked like it had to be cleaned, but he had changed that to say that he was not sure about the state of the floor. He stated that he was somewhat confused at that meeting. He had felt under pressure as he was being interviewed by his manager. He reiterated that when he went into the toilet, he did not notice the state of the floor, but there was water and dirt on it when he fell.
22. Evidence was given on behalf of the plaintiff by Mr. Pat Culleton, Consulting engineer. He had inspected the locus on 10th February, 2017. He made the following observations: firstly, in relation to the tiles in the toilet, he stated that these were 8 inch smooth ceramic tiles. He stated that having carried out a test in relation to the risk of slipping when the tiles were wet, the reading given was literally off the scale for such tests. His conclusions was that the tiles were “treacherous” when wet. He considered them highly unsafe and inappropriate for use in a toilet, which would be used by workers in a factory or warehouse setting.
23. He stated that the account given by the plaintiff that his foot slipped backwards, was indicative of the extremely slippery nature of the surface, similar to the type of slip that one may encounter when walking on ice. This was consistent with his finding in relation to the slipperiness of the tiles when wet. In his opinion, the tiles were unsafe and inappropriate for use at the locus. There was no reason why the defendant could not have put in slip-resistant or non-slip tiles in the toilet. Given that a toilet area is a place where there are likely to be spillages of water to a greater or lesser extent, these tiles should not have been used in such an area.
24. He stated that in a toilet or public bathroom, it is almost impossible to prevent the floor becoming wet, hence the need to use non-slip tiles. It only required a small film of water to render these smooth ceramic tiles unsafe. Accordingly, after the floor had been washed or mopped, this floor surface would have been unsafe until the tiles became completely dry, which would have taken approximately 15 minutes.
25. In cross examination, Mr. Culleton stated that these smooth ceramic tiles could be found in domestic bathrooms, but they were not suitable for use in public bathrooms, such as in pubs or other public buildings. It was put to the witness that smooth tiles were better for achieving cleanliness. He stated that this was not a locus such as a hospital which would require extreme hygiene. Where there were concrete floors throughout the warehouse, it was not good practice to have very smooth tiles in a toilet area; the defendant should have used non-slip tiles. He accepted that the condition of the floor surface as shown in Turnbull photographs 4, 5 and 6 showed that the tiles were very dirty and wet.
26. Mr. Culleton also stated that the broken tile on the AJ cover, should have been repaired. It was bad practice to have a broken tile. In this case, the plaintiff had slipped and his hands were then moving forward across the smooth tiled surface, when his right hand came into contact with the broken tile, it was caused to stop abruptly. He was of opinion that this sudden stopping movement had probably contributed to the injuries suffered by the plaintiff.
27. Mr. Culleton was of opinion that the provisions of the Safety, Health and Welfare at Work Act 2007 and the Regulations made thereunder, imposed a statutory obligation on an employer to provide a floor which would not be slippy when wet so far as practicable. As this was a place which was likely to be wet, it was practicable for the employer to reduce the slippy nature of the surface when wet, by using non-slip tiles.
Evidence on behalf of the Defendant
28. Ms. Katarina Malouepsza, was employed as a cleaner by a company called OCS, who were retained by the defendant to provide cleaning services at the Donabate Warehouse. Her shift was from 06.00 hrs to 14.00 hrs. She had to clean the toilets in each area of the warehouse on three occasions per shift. She indicated that the standard operating procedure for such cleaning operations was as follows: first, she would place a sign across the corridor leading to the male and female toilets as shown in Culleton photos 1 and 2. She would clean the male toilet first, as it was generally more dirty, given that there were more male than female employees. She thought that there were probably approximately 300 employees in total. She would start by cleaning the mirrors, the basin, the walls, followed by the urinals, the bowls and lastly the floors. She stated that she would mop outwards towards the door of the male toilet. She would then go across to the female toilet and carry out the same procedure there. However, as there were much fewer female employees, very often this toilet did not require much cleaning.
29. When she finished cleaning the female toilet, she would then clean the small driver’s toilet which was nearby. She would leave the cleaning sign across the doorway while she was doing that, as that was what she had been taught in her training and due to the fact that the floor would still be wet. When she was finished cleaning the driver’s toilet, she would check the toilet floors in the male and female toilets. She would ensure that the area was clean and ready for use. When she had finished the cleaning, she would sign the cleaning roster, which was kept in a frame attached to the door. She would enter the time onto the cleaning sheet.
30. Ms. Malouepsza stated that the cleaning operation could vary in length depending on the time of day. This was due to the fact that the toilets were usually more dirty in the early morning, as there was no cleaning carried out during the night shift. She stated that on the day of the accident, she had been asked about what cleaning she had done that day approximately one hour later, at approximately 08.00 hrs.
31. On the day of the accident she had cleaned the male toilet as normal. There were no puddles or spillages on the floor. She stated that it had taken her approximately ten to fifteen minutes to clean the toilet. If there had been an unusual spillage on the floor, she would have called her supervisor, or the site service department. She would also have closed the toilet until the spillage had been attended to. If there was a leak causing the spillage, she would report it, so that the necessary repairs could be carried out. She stated that the toilet had been in a good condition when she left that area.
32. The witness stated that the floor in the main toilet had not been in the condition which was shown in Mr. Turnbull’s photographs, when she had left the toilet. In those photos there was more dirt and more water than would normally be found on the floor surface at the end of the night shift. She stated that she would not have been doing her job properly if she left the toilet in that condition.
33. Initially in cross examination, the witness stated that she had left the toilet area and had completed the cleaning operation by 07.00 hrs, as she had signed the cleaning sheet to that effect. It was put to her that in a statement which she had made for the defendant, she had stated that she had gone into the male toilet at 07.00 hrs. Ms. Malouepsza stated that that had been a mistake on her part, because she had made her statement without seeing the time that she had entered on the cleaning sheet. The cleaning sheet had been taken away by her manager, when she made her statement. She was satisfied that she had left the male toilet at 07.00 hrs, because that was what she had written on the cleaning sheet.
34. When it was put to the witness that the CCTV had apparently shown her entering the toilets at 07.00 hrs and leaving the area and removing the cleaning sign at 07.15 hrs, she accepted that the CCTV recording must be correct. She stated that within that 15 minute period she cleaned both the male and female toilets. She spent approximately 10/13 minutes in the male toilet and the remainder of the time in the female toilet.
35. In relation to removal of the cleaning sign from the doorway, she stated that she could not recall when she removed the barrier across the doorway. Sometimes she would remove this on leaving the area and sometimes she would remove it when she checked the area to see if it was dry. She could not recall if she had checked if the area was dry that morning.
36. It was put to the witness that on the timings given on the CCTV and on her evidence in relation to the length of time that she spent in the male toilet, it appeared that she removed the sign approximately two minutes after she had cleaned the male toilet. She stated that she assumed that the floor was dry when she had removed the sign. It was possible that she had not had to wash the floor on the female toilet on that morning. It was put to her that she did not check the floors on that particular morning before removing the sign. The plaintiff stated that that was not correct that they had procedures which they had to follow and they had to check that the floors were dry. It was put to her that the plaintiff had entered the toilet at 07.15 hrs literally seconds after she had removed the sign. She accepted that that was correct. She was asked whether she was suggesting that the water and the dirt had been put onto the floor within a matter of seconds. The witness stated that she was not suggesting that. All she could say was that she had cleaned the floor on the morning in question. It was put to her that it was impossible for the degree of wetness and dirt to have accumulated in such a short period of time after she left the area and before the plaintiff entered. The witness stated that they did not know how many people had gone into the toilet prior to the photos being taken by Mr. Turnbull. There could have been a number of people in the toilet during this period.
37. It was put to the witness that the CCTV showed her supervisor, Mr. Labude entering the toilet at 07.16 hrs and leaving at 07.17 hrs, at which time he said that the floor was clean and dry, which would mean that there was only seven minutes between that time and the taking of the photographs by Mr. Turnbull in which the floor could become wet and dirty as shown in his photos. The plaintiff stated that she was glad that her supervisor stated that the floor was clean and dry when he saw it.
38. Evidence was given by Mr. Andrej Labude, the manager employed by OCS Cleaning. He stated that on the morning in question, he had inspected the male toilet at 07.16 hrs, at which time the floor was dry and clean. He stated that he did not check the cleaning sheet on the back of door, he just looked around the toilet area.
39. He stated that the condition of the floor as shown in the Turnbull photos numbers 3 and 4, was not the usual condition of the floor. If he had seen it in that condition, the toilet would have to be closed for cleaning. He was asked about the footprints which were shown in photograph 6, in respect of which he said that he would not have been happy with such condition of the floor after cleaning. He stated that normally after the night shift, the floor would be in a better condition than that shown in those photographs. He stated that Ms. Malouepsza was a good worker.
40. In cross examination, Mr. Labude stated that he had not seen the CCTV recording. It was put to him that on his evidence and on the basis of the CCTV recording, it would appear that between the 07.17 hrs and 07.19 hrs a floor which according to him had been clean and dry, became very dirty and wet and nobody else had entered in the interim. Mr. Labude stated that he could only say that the floor was clean and dry when he had gone in to do his inspection. He stated that the plaintiff had been in the toilet area at that time. One would have to ask the plaintiff about how the floor became dirty and wet.
41. Mr. Stewart Ridgeway gave evidence in relation to his viewing of the CCTV recording, which has been outlined earlier in this judgment.
42. Mr. Ridgeway stated that after the incident had been reported by the plaintiff, he went to the toilet area with the plaintiff and Mr. Turnbull at approximately 07.24 hrs. Mr. Turnbull had taken his photographs at that time. The plaintiff had demonstrated where he had fallen, as shown in photograph number 8. The plaintiff had stated that the floor had been wet at the time of his accident. Mr. Ridgeway noted the time at which the floor had been recorded as having been cleaned, as per the cleaning sheet. In cross examination it was put to him that Ms. Malouepsza had stated in her evidence that she had left the toilet area at 07.00 hrs, but that was clearly incorrect according to the CCTV recording. The witness agreed with this. It was further put to him that the cleaning sheet indicated that she had signed out having completed the cleaning at 07.00 hrs and that that was also incorrect. The witness agreed.
43. The witness agreed that the floor area appeared quite dirty in Mr. Turnbull’s photographs. It was put to him that that dirt was probably done by more than one person. The witness stated that it was hard to know how many people it would take to make that level of dirt. He stated that he had taken a statement from the plaintiff on the morning of the accident. The plaintiff had said that the floor was very wet on entering the bathroom. He accepted what he had been told. The witness stated that he was unable to explain how the floor became that dirty. He could not state what may have gone on during the two minutes when the CCTV recording skipped between 07.17hrs and 07.19 hrs.
44. Evidence was given by Mr. Karl Turnbull, who is a section manager and on occasions an acting shift manager in the defendant’s plant at Donabate, County Dublin. He stated that Mr. Ridgeway had told him about the accident. He met Mr. Ridgeway at the toilets and took the photographs at 07.24 hrs. Photograph 1 was taken before the plaintiff walked on the floor.
45. On the following day, he took a further statement from the plaintiff in the form of a Q & A interview. When the interview had concluded and was read over to him, the plaintiff asked him to put in the amendment which was written in at the side of the page. The plaintiff then signed the statement.
46. In cross examination, Mr. Turnbull stated that the amendment to the statement related to the question: “Was the floor wet when you went in?” He did not change his subsequent answer in which he agreed with the proposition that “The floor had not been cleaned yet” at the time of his accident. Mr. Turnbull stated that he could not state whether the condition of the floor as shown in his photographs, indicated that the floor had not been cleaned prior to that time. He did agree that pools of water on the floor would not represent a high standard of cleanliness. He stated that photograph number 11 was his photograph of the cleaning sheet taken at 07.24 hrs.
47. Finally, evidence was given by Mr. Cathal Maguire, consulting engineer. He stated that the reading for the slip resistance of the tiles when wet, indicated that the tiles were slippery when wet. He stated that this would be the most common finding for tiles in use in bathrooms in Ireland. Smooth tiles were often used in such locations as they were easy to clean properly. The use of ridged tiles makes them harder to clean and more difficult to maintain looking well. A smooth ceramic tile is typical of those used in toilets and bathrooms. They need regular monitoring and cleaning to ensure that the area can be used safely.
48. In relation to the cleaning system in use in the premises, he stated that the cleaner had described cleaning the floor and leaving it clean and dry. This had been confirmed by her supervisor. In such circumstances, the floor would have been safe if it was clean and dry. The incident appears to have occurred within minutes of the cleaning operation. Cleaning three times during a shift was a good cleaning system and it seemed to have been implemented on the day of the accident.
49. In cross examination, Mr. Maguire accepted that there was no cleaning during the night shift. He accepted that there was a sizable workforce in the warehouse, although he did not know the exact number of people employed there. He agreed that the Turnbull photographs showed that there had been considerable usage of the area, due to the extensive number of footprints shown therein. Mr. Maguire agreed that the photographs suggested that people had been walking through a considerable accumulation of water on the floor. This was consistent with people walking through a puddle and leaving dirt and footprints on the floor surface. In relation to the number of people who had been in the room after the cleaner left, Mr. Maguire understood that the plaintiff and another man had been in the toilet area and that subsequent to that the plaintiff and two managers had returned to the scene. This could explain the state of the floor. The condition of the floor was certainly caused by people wearing boots and walking in the puddle.
50. In relation to the tiles, he accepted that ceramic tiles were slippery when wet. He agreed that non-slip or slip resistant tiles are used in newer buildings, but smooth tiles were still being used in buildings throughout the country. He stated that smooth tiles were perfectly safe when dry. The employers had put in a system for keeping the tiles in the toilet area clean and dry. He accepted that when wet, the tiles were slippery even with a small amount of water on them. Mr. Maguire accepted that his finding on the slip resistance test was 0.1 and that values less than 0.2 constituted a high risk of slipping. Accordingly there was a high risk of slipping, when these tiles were wet. He stated that he did not know the cost of retiling this toilet area. He accepted that it was not a large area.
51. He accepted that the tile on the AJ cover was broken. It should have been repaired. While the tiles were slippery when wet, he would not describe them as being “treacherous” when wet. He did not agree that smooth tiles could only be used safely in a domestic situation. He stated that they were commonly found in both domestic and commercial situations. He accepted that the floor surface should be dry when people were allowed to re-enter an area after cleaning.
Conclusions
52. In coming to my conclusions on the liability aspects of this case, it is appropriate to start with the areas in which there is really no dispute between the parties. Firstly, although the CCTV recording itself has been lost, the timing sequence as shown therein, as recorded by Mr. Ridgeway in his statement, was accepted by both parties. This shows the following: Ms. Malouepsza entered the general toilet area and erected the cleaning barrier in the hallway at 07.00hrs. She emerged, having completed the cleaning process and removed the cleaning barrier sign at 07.15hrs.
53. The plaintiff entered the area literally moments later, also at 07.15hrs. Mr. Labude entered the area at 07.16hrs and exited at 07.17hrs. Due to the slippage in the CCTV recording, it is not clear at what exact time the plaintiff left the toilet area, but it would appear that he did so at some time between 07.17hrs and 07.19hrs. It appears that another employee, Mr. Popiolek entered the toilet at 07.19hrs. Unfortunately, we do not know when this man left the toilet area, nor whether any other persons entered the toilet after the plaintiff had left and prior to the time that he returned there in the company of Mr. Ridgeway and Mr. Turnbull at 07.24hrs. However, given that this was early in the morning and that it was in the Goods-In area, I think it is reasonably safe to assume that a large number of persons did not enter the toilet in the five minute period between 07.19hrs and 07.24hrs.
54. The other area on which there is very little dispute is that there was considerable water and dirt in the form of boot marks and footprints on the floor surface at the time that Mr. Turnbull’s photographs were taken at 07.24hrs. All parties were agreed that that amount of water could not have been caused by the ordinary usage of the wash hand basins.
55. The defendants have resolutely defended the action on the basis that the toilet floor was in a clean and dry condition when Ms. Malouepsza concluded her cleaning of the area at 07.15hrs. They have candidly said that they cannot say how the significant amount of water and dirt came to be on the floor surface that was shown in Mr. Turnbull’s photographs. However, the defendant states that it was not due to any negligence, or want of care on the part of it, its servants or agents. The defendant does not make the case that the water was put on the floor by the plaintiff. Such an assertion was neither pleaded in its defence, nor put to the plaintiff in the course of cross examination. Having regard to the decisions in Browne v. Dunn (1893) 6 R 67 H.L. and McDonagh v. Sunday Newspapers Ltd. [2017] IESC 46, if the court was going to be invited to make such a finding against the plaintiff, such an assertion would have had to have been put to the plaintiff for comment in the a course of cross examination.
56. Even if the court was to overlook the fact that it was neither pleaded nor put to the plaintiff that he had caused the water to be on the floor surface, I do not think that such a proposition is established on the evidence. It was agreed by all parties that the quantity of water on the floor was in excess of that which could have occurred from a normal use of the wash hand basin. This leads to the inference, that if the floor was clean and dry at 07:15hrs as alleged by Ms. Malouepsza and in the absence of any leak being discovered in the area, the water could only have been put on the floor by the actions of the plaintiff. It is difficult to conceive how the plaintiff could have put this quantity of liquid onto the floor accidentally. Accordingly, it seems to me that the only inference that could be drawn is that the plaintiff deliberately placed the water on the floor so as to stage a fraudulent accident.
57. However, when one looks at the plaintiff’s conduct immediately after the accident, that is not consistent with him having engaged in any such activity. From the statement which he made to Mr. Ridgway, which appears in the defendant’s discovery at Tab 6(a), it appears that immediately after the fall, he left the area and had a drink of water. He then met a fellow employee, Mr. Anthony Wade and told him what had happened. Mr. Wade apparently told the plaintiff that he should report the accident to Mr. Ridgway, which he did. Having been seen in the first aid department, the plaintiff then returned to the toilet with Mr. Ridgway and Mr. Turnbull for the purposes of their investigation of the incident. According to the statement made by Mr. Ridgway, which appears at Tab 7 of the defendant’s discovery, the plaintiff did not seem to make any great issue about his injuries. He indicated that he would no longer be in a position to work the rest of his shift and felt that he might have to get his elbow checked “as he felt something was wrong with it”. According to Mr. Ridgway, the plaintiff wanted to make his own way home and go and see his own doctor later that day. However, management made the decision, correctly as it transpired, that the plaintiff should be seen in hospital and to this end, they sent him by taxi to Beaumont Hospital. It seems to me that if the plaintiff had engaged in setting up a fraudulent accident, the very least that he would have done was that he would have reported the matter immediately to management and would have made considerably more of his injuries and insisted that he be seen by a doctor immediately. The plaintiff did none of these things. Taking all of the evidence into account, including the evidence given by the plaintiff himself, I am satisfied that there is no basis on which it could be held that this was a fraudulent, or staged accident.
58. Having regard to the timings given in the CCTV recording and having regard to the evidence given by Ms. Malouepsza, I have come to the conclusion that her recall of events is open to question. Initially in her evidence, she stated that she had finished the cleaning operation at 07.00hrs, as she had signed the cleaning sheet to that effect. When it was put to her that in a statement which she had made for the defendant, she had stated that she had entered the toilet area at 07.00hrs, she explained that mistake as being due to the fact that she did not have sight of the cleaning record when she made her statement. I am not sure that that can be correct. She stated that she had made her statement at approximately 08.00hrs. While it is true that Mr. Turnbull’s photograph shows the last entry on the cleaning sheet as having been made by the witness at 07.00hrs, it does not appear that the sheet was actually removed at that time, as in the discovery documentation a different version of the same sheet was given, wherein the witness had made further entries on the sheet for later the same day. Thus, it appears that the sheet was not removed from the back of the door until later in the day. This means that it would have been available for the witness at the time that she made her statement. Thus, her explanation for the mistake in her statement may not be correct.
59. However, even her initial evidence in relation to the time that she concluded her cleaning of the area, which she said was based on her entry on the cleaning record, was itself shown to be incorrect by the CCTV recording, which showed her entering the area at 07.00hrs and leaving the area at 07.15hrs. Thus, one has to approach the evidence of this witness with some care.
60. In fairness to the witness, I think that she has done her best to tell the truth. I accept that she did clean the floor on the morning in question. I accept her evidence that in the 15 minute period, she probably spent approximately 10/13 minutes cleaning the male toilet and the remainder of the period cleaning the female toilet. She then left the area and removed the cleaning barrier from the doorway.
61. In the course of cross examination, she candidly stated that she did not recall at what time she removed the barrier. She stated that sometimes she would remove it on leaving the area and sometimes she would remove it when she had checked if the area was dry. She did not recall if she had checked if the area was dry on that particular morning. When it was put to her that the cleaning sign appeared to have been removed approximately 2 minutes after the floor of the male toilet had been cleaned, she stated that she had assumed that the floor was dry when she removed the sign.
62. I am satisfied on the basis of the CCTV recording, as reported by Mr. Ridgeway and on the basis of the answers given by the cleaner, that on the balance of probability she did wash or mop down the male toilet area, but removed the cleaning sign from the doorway when the floor itself was still wet from the cleaning process. This would explain the considerable amount of water which was on the floor surface at the time of the plaintiff’s fall and at the time of the photographs taken by Mr. Turnbull.
63. The existence of the boot marks or footprints on the floor surface as shown in Mr. Turnbull’s photographs supports this conclusion. If the footprints had been caused during the night shift, when the area was not subject to any cleaning, they would have been removed if the area had been properly cleaned by Ms. Malouepsza between 07.00hrs and 07.13hrs. It seems to me that the fact that the footprints are clearly visible in Mr. Turnbull’s photos, is more consistent with there being water recently applied to the floor surface and persons wearing boots walking on the wet floor in the period immediately preceding the time when Mr. Turnbull took his photographs. I accept the evidence of Mr. Maguire that given that the plaintiff and another man had been in the toilet after the cleaning process had been carried out and that the plaintiff and two managers from the defendant company had been in the toilet at the time that Mr. Turnbull took his photographs, the presence of the footprints is probably more explicable by the fact that the footprints were caused by these people walking on the wet floor subsequent to the cleaning operating having been carried out by Ms. Malouepsza.
64. The position of the yellow warning sign as shown in Turnbull photo 2, can only be explained in one of two ways. Either it was taken out from its usual position, which was beside the bin and tucked in at the end of the washbasins as shown in Culleton photos 3 and 4, by the cleaner at the end of the cleaning process, or it was pulled out and put in situ by Mr. Turnbull, or Mr. Ridgeway. Neither of them stated that they had done so. While the plaintiff himself denied that the sign had been in that position when he entered the bathroom, I am satisfied that on the balance of probabilities it probably was in the position as shown in Mr. Turnbull’s photograph at the time of his accident. This implies that the floor had been moped and left in a wet condition by the cleaner, who had left the yellow sign out in that position. As it does not appear that she returned to the area after having cleaned the driver’s toilet, to check that the floor area was dry, this would explain the presence of the sign in that position at the time of the inspection by Mr. Turnbull and Mr. Ridgeway. This supports the proposition that the floor had been left in a wet condition by the cleaner.
65. I did not find the evidence of Mr. Labude to be convincing. On the CCTV recording it would appear that his inspection of the male and female toilets was perfunctory at best, lasting less than 1 minute. I am not satisfied on the basis of such an inspection that one can make the finding that not only had the floor been cleaned, but more importantly, that it was dry at the time that he left the area at 07.16hrs.
66. In the circumstances, I am satisfied that this floor was in a dangerous and unsafe condition due to the presence of a considerable quantity of water on the floor surface following the cleaning process, which was present at the time that the plaintiff met with his accident. Unfortunately Ms. Malouepsza washed the floor, but removed the cleaning barrier before it was dry. This meant that the floor was left in an unsafe and dangerous condition. As such, the defendant must bear liability for the injuries sustained by the plaintiff.
67. I am further satisfied on the evidence of Mr. Culleton that the use of smooth ceramic tiles in a toilet, which is used by a large number of employees, there being a total of three hundred employees in the warehouse, was unsafe and dangerous, given the high risk of slipping on these tiles when wet. Had the defendant taken reasonable care for the safety of its employees, it would have used slip-resistant or non-slip tiles in the toilet area. While the owners or occupiers of a hotel premises, may not like using such tiles in a bathroom area, due to the fact that it is harder to clean these tiles and keep them looking well, such considerations do not apply in a factory or warehouse. It seems to me that there is no good reason why an occupier would not use slip-resistant or nonslip tiles in a bathroom which is going to be frequented by a large number of people. Accordingly, I find that the defendant was negligent in the choice of tiles that it used at this locus.
68. Furthermore, I am satisfied that given the broken condition of the tile on the AJ cover and given that the plaintiff’s right hand came into contact with this tile, that the existence of such broken tile contributed to the causation of his injuries. The defendant was negligent in failing to repair and/or replace the broken tile on the AJ cover.
69. In relation to the issue of contributory negligence, the presence of liquid on a tiled surface, is particularly difficult to see. It is for that very reason that in shopping centres and bathrooms to which the public have access, cleaners always use warning signs both during and after the cleaning process, so that persons using the area may be aware of the dangerous condition of the floor surface. However, the presence of such a sign does not absolve the defendant of all liability, nor does it imply that a plaintiff must use the area at his peril. While I am satisfied that the yellow warning sign was in the position as shown in Turnbull photograph 2, I am satisfied that due to the fact that such sign was permanently in the toilet area, the efficacy of the sign was largely diluted. If a sign is permanently in an area, it really serves no purpose at all to warn persons commonly using that area. Accordingly, I do not find the plaintiff guilty of contributory negligence in this case.
Conclusions on Quantum
70. The plaintiff in this case did not try to exaggerate his injuries in any way. Initial x-rays at Beaumont Hospital revealed an undisplaced fracture of the radial head of the right elbow. That was treated by analgesia, a sling and early mobilisation. The plaintiff also complained of right wrist pain. An MRA scan performed on 22nd May, 2015 revealed an un-united fracture at the basis of the hamate bone with associated bone oedema. There was also osteochondrial damage, involving the lunate bone with early proximal cyst formation. The plaintiff had suffered a previous injury to his lunate bone in 2011, when he had caught his wrist in the door of a car causing a fracture of the lunate bone. However, he had managed to return to his pre-accident employment subsequent to that injury.
71. After this accident, the plaintiff, who is right hand dominant, was out of work for a period of 44 weeks. He received an image guided injection to his wrist, which helped his symptoms. When reviewed on 3rd May, 2017, some two years and one month post-accident, he had some discomfort in the elbow, but it was not limiting. He was able to enjoy running, cycling and tennis. On examination there was a full range of movement of the elbow and wrist. He had minor discomfort over the hook of the hamate on the volar aspect.
72. Mr. Mullet, consultant orthopaedic surgeon, is of the opinion that the prognosis for the plaintiff’s elbow injury is good. There was no increased risk of arthritis. He noted that the plaintiff had suffered a previous injury to the lunate bone. At the time of this accident he suffered an injury to the hamate bone. He is of the opinion that this was separate to the previous injury to the lunate. The plaintiff’s symptoms are currently manageable. He did not recommend any further treatment. He expected that the plaintiff would have some ongoing discomfort in relation to the hamate injury when dressing and when doing press-ups. However, the long term prognosis was good.
73. The plaintiff stated that in relation to his hobbies of cycling and badminton, he had not been able to play or pursue these after the accident, but he was able to do them at the present time. His main problem was in relation to his wrist. At present, he experiences intermittent numbness when holding certain objects. He still had some issues with his wrist. The injection which he had received in December 2015 had been helpful. He had been able to return to work approximately one month later. He confirmed that he was not seeing any doctor in relation to his injuries at the present time.
74. In reaching an assessment of the appropriate level of general damages in this case, the court has been assisted by the guidelines set down by the Court of Appeal in Nolan v. Wirenski [2016] IECA 56 and Shannon v. O’Sullivan [2016] IECA 93 and in particular to the criteria set down by Irvine J. at paras. 43 and 44 thereof. The court has also had regard to the dicta of the Court of Appeal in Fogarty v. Cox [2017] IECA 309. In the light of these judgments, this Court has had to somewhat recalibrate its approach to the assessment of general damages in personal injury cases.
75. Having regard to the evidence of the plaintiff in relation to his injuries down to the present time, which I accept, and having regard to the medical reports furnished by Mr. Mullett, I award the plaintiff the sum of €45,000 for general damages. To this must be added the agreed sum for special damages of €20,000, given an overall award in favour of the plaintiff in the sum of €65,000.
Desmond v Dunnes Stores Unlimited Company
(Unapproved)
[2020] IECA 125 (06 May 2020)
THE COURT OF APPEAL
JUDGMENT of Ms Justice Faherty dated the 6th day of May 2020
1. This is an appeal by the defendant/appellant (hereinafter “the defendant” for ease of reference) of the order and ex tempore judgment of the High Court (O’Regan J.) dated 1 July 2019 whereby the plaintiff was awarded the sum of €102,000 and costs in respect of injuries sustained in a fall on the defendant’s premises.
2. By notice of appeal dated 8 July 2019, the defendant appeals the finding of liability, claiming the trial judge erred in law and in fact and/or on mixed questions of law and fact “in respect of the finding that the Defendant was negligent having regard to the evidence.” Quantum is not appealed. The defendant seeks an order vacating the order of the High Court and that this Court dismiss the plaintiff’s claim with costs.
Background
3. On 21 August 2017, the plaintiff, then aged 83, was present on the defendant’s retail premises at Bishops Court, Bishopstown Shopping Centre, Cork. She slipped and fell having stepped on a spillage on the floor of one of the aisles of the defendant’s premises. The within proceedings were instituted on 13 February 2019 alleging, inter alia, negligence and breach of the Occupiers Liability Act 1995. The primary injury complained of was a fractured right hip which required a right bipolar hemiarthroplasty. A full defence was delivered.
The evidence given at trial
4. Evidence was given by the plaintiff on Day 2 of the trial. She testified that having been in the drapery section of the defendant’s premises her intention was to proceed to the grocery section. She was carrying a shopping basket, a small paper bag and a handbag. She was wearing flat shoes. On route to the grocery section, she described walking on the left-hand side of the aisle which had goods such as baby food on its left side and razor blades on the right-hand side. The plaintiff testified that her intention in traversing the aisle was to turn left towards the grocery section. She stated that she suddenly slipped and fell forward heavily to the right and onto the floor. After falling, she was assisted by other persons present, one of whom removed her right shoe and wiped some substance from the heel. The plaintiff stated that a strip of clear liquid on the floor had been pointed out to her. She first thought it was water but later wondered if it was shampoo. She recounted how a member of staff produced a wheelchair and brought her to his car and drove her to the VHI clinic in Mahon, remaining with her until she was x-rayed.
5. In cross-examination, the plaintiff was unsure of the dimensions of the substance on the floor but stated that it was clear liquid and may have been a yard long and a foot to one and a half feet wide.
6. After the plaintiff’s evidence, counsel for the defendant accepted that there was “something on the floor”.
7. The trial judge had the benefit of CCTV footage of the period prior to the fall, the fall itself and its immediate aftermath. This one-hour footage consisted of a succession of stills captured at roughly one second intervals. The footage captured a member of the defendant’s cleaning staff, Ms Marie Barrett, at or near the locus of the plaintiff’s fall on five occasions in the hour leading up to the fall which occurred at 13:03:52. In the hour prior to the plaintiff’s fall dozens of people passed through the aisle without incident.
8. Called by the plaintiff, Mr. Martin Foy, engineer, testified that his review of the CCTV footage showed that:
· There appeared to be stacking of shelves of baby food for almost twenty-five/ thirty minutes from approximately 12:03. He described staff walking with cardboard boxes along the aisle. Mr. Foy stated that this footage accorded with a statement made by Ms. Jacqueline Hayes, a staff member of the defendant, on 23 August 2017 where she described starting work at 12 noon on the day of the accident which involved delivering baby food to shelves, cleaning the shelves and the grey surround. She did not notice any spillage on the shop floor at the time. According to her statement, Ms. Hayes was the person who cleaned up the spillage. Her statement describes it as “a small thickish spillage …purple”. Her later statement of 23 November 2017 described it as a “small purple jelly type liquid on [the] floor”. Ms. Hayes was not called as a witness in the action.
· Another staff member, Ms. Marie Barrett, traversed the aisle five times, at 12:10, 12:14, 12:28, 12:40 and 12:58. She was pushing a sweeping brush. Of those traverses, Ms. Barrett “hit the spot” of the spillage with her brush at 12:10 and 12:28. At 12.40 the end of the brush was just to the right of the accident locus. At 12:58, Ms. Barrett was much more to the right of the aisle and distant from the spot at which the plaintiff fell.
· Ms. Barrett seemed to be simply pushing the brush in front of her and looking straight ahead. There was no indication of any active look out by her or of looking either side or looking down at that floor or doing a close inspection. It did not seem to Mr. Foy that there was any close inspection going on or any indication of such inspection in the area. Mr. Foy pointed out that for the system to be safe there had to be good inspection of each aisle where the cleaner passes through.
· On the one occasion Ms. Barrett was seen to look sideways, it proved to be her looking down a cross-aisle, which was not at the aisle where she was then engaged upon her duties.
· Between Ms. Barrett’s last passage on the aisle (12:58) and the accident there is no evidence of a spillage occurring.
9. Mr. Foy testified that the floor in question, while typical of supermarket floors, was a type which, if there was some substance (be it moisture or jelly-like) on it, could become very slippery very easily. He stated that traversing the deleterious matter with a dry brush would spread the matter along the floor. While some of it might adhere to the brush some would be smeared along the floor, leaving it slippery and unsafe. He opined that brushing would not remove the danger.
10. He accepted that if the aisle is “properly checked every fifteen minutes that is a reasonable system”. He opined however that it was necessary to see a spillage before cleaning it – the aisle needed to be properly checked over its whole width – not just one brush width of it. For this purpose, the cleaner needed to be properly trained both as to checking and cleaning. Mr. Foy emphasised the necessity for a thorough check, with adequate time to do such a check when passing through the aisle. He testified that insofar as training documents had been discovered, no such document contained the substantive content of the training afforded cleaning staff. Albeit that there was instruction how to clean up a spillage there was no evidence of instruction as to actively checking the floor, no evidence that Ms. Barrett got any training in active lookout for spillages, in how an inspection should be conducted or how the fifteen-minute circuit should be conducted. He stated that “she didn’t have any training as to what to do or what not to do.” Mr Foy also opined that training should be refreshed at no more than three-year intervals. However, records indicated that five and a half years had elapsed from Ms. Barrett’s last recorded training.
11. Mr. Foy testified that following Ms. Barrett’s final passage through the aisle, the CCTV footage showed only three others in the area where the plaintiff fell. This trio consisted of two women (with a trolley) and a child. One of this group is seen traversing the spot where the plaintiff fell. The CCTV footage did not show these customers spilling anything. The only other person in the area post 12:58 captured by the CCTV was a man (a manager with the defendant) who is seen passing through the aisle to the right of where the plaintiff fell.
12. Ms. Barrett gave evidence on behalf of the defendant. She testified that on the day of the accident she had taken over a colleague’s shift from 12:00 to 13:00 and was operating the cleaning system for one hour before the plaintiff’s accident. She stated that when operating the cleaning system, she was looking around to make sure there is nothing on the floor. The type of spillage she might encounter would be yoghurts, milk, oil, washing powder, shampoo and shower gel. When pushing the brush, she was not cleaning. The brush was only utilized if she detected a spillage that she could clean up herself with the brush or the kitchen-sized paper roll attached to the brush. She stated that she was keeping a proper look out with her eyes. If she had come across a spillage she would have cleaned it up herself or else contacted another member of staff for assistance depending on the nature of the spillage.
13. She testified that it was her responsibility to ensure that there was nothing on the floor so that no one would fall. Her task was to ensure every customer in the shop was safe.
14. In cross-examination, she accepted that, save if there was a spillage, one round of her route was just like every other, by and large the same route in the same supermarket store for the seven years she had been doing the task, from an hour a day to the whole day. She testified that the work was boring, and the system was designed to produce boredom. She accepted that that it was difficult to maintain concentration and that her mind would wander especially in a low-risk aisle such as that where the plaintiff’s accident occurred, where a spillage was not expected.
15. Ms. Barrett did not recall the detail of the training she had received in 2012. She accepted that the training records for February 2012 recorded job-specific training only and that there was no evidence that the question of vigilance and look out was addressed, much less emphasised. She refuted any suggestion that the use of the words “inspection” and “inspecting” in the training documents meant that the training she received failed to emphasise the importance of keeping a look out.
16. A statement prepared by Ms. Barrett on the day of the plaintiff’s accident records that she had been informed that there had been an accident “at the cosmetics aisle” and that it happened at around 1:00 o’clock. The statement records Ms. Barrett having been there two minutes previously and that she “didn’t see anything to cause [the] accident”. Under cross-examination she acknowledged that she had not said anything in her statement about keeping a look out.
17. Ms. Barrett made a further statement on 23 November 2017 wherein she states as follows:
“I remember passing there about 5 mins [prior] to the accident. While on my route at that time the floor was clean and dry and free from any [hazard] that could have caused a slip or trip or a fall accident”.
18. In evidence, she acknowledged that her memory on the day of the accident was likely to be a more accurate account than the statement made some three months later on 23 November 2017.
19. Ms. Barrett acknowledged that on both the CCTV stills and footage she is seen on all but one occasion looking straight ahead. She agreed that there was nothing on the CCTV to suggest that she was actively looking around, positively searching or looking for debris on the floor.
20. The testimony of Mr. Pat O’Connell, engineer, called by the defendant, echoed Mr. Foy’s evidence that the system of cleaning and inspection in place on the day was appropriate as far as the frequency of inspections was concerned. He also accepted that it was important for a cleaner to be actively looking and vigilant. He disagreed, however, with Mr. Foy’s view that the implementation of the defendant’s cleaning system was inadequate on the basis that Ms. Barrett appeared in the CCTV footage to be only looking straight ahead. He explained that an active look out can be maintained by an operative who looks straight ahead since an area of excess of nine feet wide, which was the width of the relevant aisle, was capable of being scanned by an individual albeit that that person was looking straight ahead. He went on to state:
“The key factor would appear to me is her presence in the aisle, Judge, the fact that she is in the aisle. Her function there is to inspect, to scan, to observe and whether she is to the right-hand side, the centre or to the left certainly she should be in a position to scan that type of dimension regardless of where she is positioned, centrally or to the left or right.”
21. Mr. O’Connell did not place any significance on the fact that in her final passage (12:58), the CCTV footage showed Ms. Barrett on the side of the aisle opposite to where the plaintiff would ultimately fall. He accepted that there was “no doubt certainly that the brush doesn’t pass through the relevant area at the time.” He also observed that a manager passed by the locus thirteen minutes before the plaintiff’s fall albeit that the manager was not inspecting the area at the time. Mr. O’Connell formed the view, based on the CCTV footage, that the defendant had “an appropriate system in operation”. He stated that the central issue was that Ms. Barrett had been in the aisle and that she was in fact patrolling the aisle.
22. Mr. O’Connell was questioned by the trial judge about the movements of Ms. Barrett’s head while engaged in her duties on the day in question. He accepted that the reality was that there was only one occasion on the CCTV footage where any movement of Ms. Barrett’s head was seen, which had no connection to her tasks in the aisle in question. Responding to the trial judge’s query about his evidence that a person could scan for an hour without moving their head, Mr. O’Connell accepted that this would be difficult to maintain over an hour and that if Ms. Barrett was working on the right-hand side of the aisle it would be difficult for her to scan a range of eighteen feet which she would have to do in order to inspect the left-hand side of the aisle. Even he would find it difficult to scan that width over the course of an hour.
23. Cross-examined by counsel for the plaintiff, Mr. O’Connell accepted that small spillages can be difficult to spot. He agreed that the important issue was vigilance. It was put to him that adopting a system which requires a person to look further ahead without moving one’s head was not the most effective way of doing the job in hand. Mr. O’Connell responded that Ms. Barrett may have had her own system and that he did not know what her system was. He accepted that there was no record of Ms. Barrett having had any training emphasising the question of vigilance and look out.
The trial judge’s decision
24. The trial judge commenced her judgment by stating that once it was established that there was some contaminant on the floor, the burden shifted to the defendant to establish that they had taken reasonable care in all the circumstances. She noted that the one-hour CCTV footage disclosed that Ms. Barrett had passed through the aisle on which the plaintiff had fallen on five occasions “which [was] somewhat more than the average of four different occasions in a given hour”. She noted that “CCTV is not like a video” in that it does not show continuous motion and that the present case was one in respect of which the CCTV did not capture what occurred to cause contamination to be on the floor of the defendant’s premises.
25. The trial judge was satisfied, however, that the plaintiff did fall on the contamination that was on the floor and, citing Mullen v. Quinnsworth [1990] 1 I.R. 59, was satisfied that the onus then shifted to the defendant “to establish that their system of care at the time was sufficient so that liability doesn’t attach to them”.
26. She went on to state:
“Mr. Holland [counsel for the plaintiff] urged on me that it is clear that the, the contamination occurred because of Ms. Hayes working. I don’t’ know how the contamination occurred and I can’t say that it is clear that it was Ms. Hayes’ cleaning occasioned the contamination?”
27. The trial judge next noted Ms. Barrett’s evidence that her job was a boring task and that her mind could wander over the course of an hour “even more if one was doing this job on a regular basis.” She noted the agreed engineering evidence that a fifteen-minute cleaning circuit was enough to discharge the onus on the defendant but added that “a diligent look out for spillages was also necessary”. The trial judge then went on to state:
“There were a number, there was one trolley with two women and children and one gentleman that appeared to pass this aisle between the 12.58 spillage and the 13.03 accident. Having reconsidered the photographs, and in fact looking at the CCTV, I am not at all satisfied that it was the fact that these people passed caused the spillage. In other words, I am not satisfied that Dunnes has demonstrated that the spillage was not there during the course of the passage at 12.58. I confess, as is the case with all parties involved, it is not clear when the spillage occurred. I think it is on balance likely to have occurred during the period 12.40 to 12.58 because of the volume of customers which passed at that time, because Ms. Hayes was cleaning the shelf and but I am not satisfied that the contamination was not there during the passage at 12.58. I am not satisfied that Dunnes have established that their system is sufficiently robust enough to discharge the onus on them that they have a system that, although not required to insure, did protect customers by establishing that it was reasonably safe in the circumstances. Having looked at that CCTV footage it does seem to me that the width of the brush does identify particularly the area which the operative was looking at. There was a lot to do with the fact that Ms. Barrett was not looking around her but Mr. O’Connell, on behalf of the Defendants, did indicate that he could do a sweep of nine feet, which is the width of the aisle, without moving his head, and I accept that, although on questioning him I asked could he do this continuously for a full hour period and he wasn’t so sure about that, and nor am I? I am not convinced that it would be possible to sustain a sweep of the full nine feet continuously for an hour, furthermore when one considers that the sweeper passage occurred at different areas depending on the sweep, as it were. In other words the operative moved down towards the right-hand side, then the centre, then the left-hand side, so that would enlarge the area for which the vigilant enquiry as to whether or not there was any spillage requiring being taken care of had been thrown up? So numerically I do believe that the spillage occurred prior to 12.58 as opposed to thereafter and for, I am satisfied that Dunnes have not discharged that it occurred after 12.58. The significance of that, of course, is that Dunnes would then have established that they had taken reasonable care if the spillage had occurred after 12.58. If it occurred before that, the onus is not, in my view discharged by Dunnes.
Insofar as training is concerned, it is clear that the training that was given to Ms. Barrett was in relation to once a spillage was identified, the cordoning off of the area and the immediate clean up of the area. There doesn’t seem to have been any concentration whatsoever on how vigilant the passage through the particular aisle should be and I think this is a lapse insofar as training is concerned.
Retraining; I’m not so sure a picture was made in that regard also on behalf of the Plaintiff that that should have been updated more regularly than between 2012 and 2017? Certainly it might have been helpful but I am not satisfied that there was the nature of the negligence that can be attached to Dunnes?
I am not satisfied that the, given that we do not know the length of the store for which this operative was obliged to vigilantly supervise, as it were, for the floor or not an insurance basis but on a reasonable basis, as we do not know that amount, that length nor can we see that the area which was covered by her; namely to the right, the centre and to the left, would facilitate a sweep every turn that she passed down the aisle, I am satisfied that the Defendants have not discharged the onus on them and therefore I am satisfied that liability for this unfortunate incident rested with the Defendant.
28. As regards the size of the spillage, the trial judge had this to say:
“…I would say insofar as the extent of the area that was covered I do not accept the Plaintiff’s evidence in relation to that it was a yard long and a few feet wide, and I would stress in that regard that the Plaintiff did indicate that she was in shock, and I have absolutely no doubt but at the time following the fall the most significant detail from the Plaintiff’s point of view was not the measurement of the area in which she fell, and I think it is likely understandable that she would not know that fact.”
Analysis and Discussion
29. The starting point for this Court’s consideration of the appeal is that there are several matters not in dispute in this case. Firstly, it is accepted by the defendant that the plaintiff fell in its supermarket premises and that the cause of her fall was a spillage present on the floor of the aisle where she fell. It is not in dispute that whenever it occurred, the spillage must have come from a container on the defendant’s shelves or from a container being carried by an employee or a customer in the store. It is accepted that the plaintiff was not the cause of the spillage. It is also accepted that the spillage must have occurred in a split second not captured by the CCTV footage.
30. As made clear at the outset of his oral submissions, counsel for the defendant accepts that once it was established on balance of probability that a spillage was present on the defendant’s premises and that the plaintiff fell on the spillage then the onus shifted to the defendant to prove on balance of probability that the system of cleaning in operation on the day was reasonable in all the circumstances. This acknowledgment reflects the principle set out in Mullen v. Quinnsworth Ltd., encapsulated in the following quote from the judgment of Griffin J.:
“A customer in a supermarket cannot reasonably be expected to look down at his or her feet while walking along an aisle in a supermarket-the customer cannot be expected to look down at his or her feet while walking along an aisle in a supermarket-the customer cannot be selecting goods from the shelves as he or she walks along, and watch the floor at the same time…
In my opinion if there is such a slippery substance on the floor, as in the present case, and a customer steps on it and falls, the maxim res ipsa loquitur applies-the circumstances of the accident raise a sufficient presumption of negligence on the part of the occupier of the premises.
…
In the instant case, the floor was under the management of the defendant, or its servants, and the accident was such as, in the ordinary course of things, would not happen if the floors were kept free from spillages of this nature. The onus is therefore on the defendant to show that the accident was not due to any want of care on its part.
…
The onus is therefore on the defendant of establishing that, in all the circumstances, it took reasonable car to see that the premises were reasonably safe for the plaintiff.” (at pp. 62-63)
31. While acknowledging that the onus was on it to establish that it had an adequate system in place and that the system operated adequately on the day of the plaintiff’s accident, the defendant argues that there are several unsatisfactory factors in the trial judge’s judgment such that this Court should conclude that had the evidence in the case been properly considered or analysed by the trial judge it should have led her to the conclusion that the onus on the defendant had been discharged. It is submitted that the trial judge erred in law or in fact or on a mixed question of law and fact in finding that the system of cleaning operated by the defendant was not reasonable in all of the circumstances. The nub of the appeal is that the trial judge held against the defendant on a basis that was far from clear and which was not grounded on the evidence.
32. Counsel for the defendant fairly concedes that to succeed in the appeal he must establish that the spillage occurred after 12:58. He further agrees that if he fails to demonstrate a basis for interfering with the trial judge’s findings the appeal cannot succeed.
33. Before turning to the substance of the defendant’s arguments and the plaintiff’s responses thereto, it is apposite at this juncture to give mention to the role of an appellate court in reviewing findings of fact and the inferences drawn by the trial judge from such findings. The law in this regard is well established in Hay v. O’Grady [1992] 1 I.R. 210. The principles identified by the Hay v. O’Grady can be summarised as follows:
· An appellate court does not proceed by way of a full rehearing of a case.
· Unlike the trial judge, an appellate court does not enjoy the opportunity of seeing and hearing witnesses or of observing the manner in which evidence is given and the demeanour of those giving it.
· In general, an appellate court is bound by and proceeds on the findings of fact of a trial judge which are supported by credible evidence, however voluminous and, apparently, weighty the testimony against them. Accordingly, the fact that there is contrary evidence does not alter the position.
· An appellate court should be slow to substitute its own inferences of fact where such depends upon oral evidence, and a different inference has been drawn by the trial judge.
· The fact that there is some evidence before a trial judge which may lead to a different conclusion does not alter the fundamental principle.
· In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
· A finding of the credibility, or not, of a witness is a primary finding of fact.
34. In Doyle v. Banville [2012] 1 I.R. 505, the Supreme Court, applying Hay v. O’Grady, reiterated that issues of fact and the inferences to be drawn from the facts as found should not be disturbed by an appellate court if there was evidence to support such findings. At para. 14 of the judgment, Clarke J. (as he then was) stated that “part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts”. Doyle v. Banville is also authority for the proposition that an appellate court can review an inference of fact drawn by a trial judge where such inference did not depend on oral evidence or the assessment of witnesses. For the purposes of this appeal, the defendant invites this Court to draw inferences based on the CCTV footage shown to the Court. I will return to this submission in due course.
35. The defendant also requests that this Court assess the argument that the trial judge failed to conduct the required analysis of the evidence, or state why she preferred a particular version of events, and rejected the version proffered by the defendant, by reference to Keegan v. Sligo County Council [2019] IECA 245, where McGovern J. opined:
“25. Effectively, the outcome of the case turned on the account [given] by the respondent as to how the accident occurred. If the account had been deemed implausible or unreliable by the trial judge [then] it is likely that the action would have been dismissed. In those circumstances the trial judge ought to have conducted an analysis of the evidence and stated why he accepted a particular version of the accident as given by the respondent and rejected the thesis postulated by the appellant that the account was entirely implausible.
26. To reach such a conclusion is not to call into question the law as well established in Hay v O’Grady [1992]1 I.R. 210. While an appellate court cannot substitute its view of the evidence for that of the trial judge this does not absolve the trial judge from carrying out a proper analysis of the evidence where there are issues in controversy so that it is possible to see why he preferred or accepted one account or one piece of evidence over the other.
…
37. This court is not entitled to substitute its view on the facts for that of the trial judge and Hay v. O’Grady still remains the law. But in my view there are a number of matters which have been referred to in this judgment which make the trial unsatisfactory and which can only be put right by a re-trial on the liability issue. In particular, the failure of the trial judge to engage in a meaningful way with the conflicting accounts of the accident given by the respondent before reaching his conclusions on liability fell short of what was required. There was no proper analysis of the conflicting evidence which would point to the reason why he was satisfied, on the balance of probability, that the incident happened in the manner as described in para. 10 of the judgment.”
36. This appeal will be considered against the backdrop of the case law cited above.
37. In the defendant’s submission, the outcome of the within appeal turns on the question of what the evidence shows as to when the spillage occurred.
38. It is urged on the Court that the trial judge erred in finding that the defendant had not discharged the onus on it to establish that the spillage occurred after 12:58 and erred in finding that the spillage was likely to have occurred during the period 12:40 to 12:58. Although not specifically spelled out by the trial judge, the implication of the latter finding is that the spillage was on the floor by the time of Ms Barrett’s final passage along the aisle at 12.58 and that she failed to observe the spillage.
39. A review of the CCTV footage by this Court of the period 12:40 to 12:58 showed Ms. Hayes (at 12:40) undertaking a stock take and cleaning of the shelves on the aisle on which the plaintiff fell. The footage shows her coming and going in this regard pushing a trolley of stock. This footage also shows Ms. Barrett passing at 12.40 on what was her penultimate circuit on the day in question. Moreover, customers were passing through the aisle, some with trolleys. The footage shows Ms. Barrett coming through the aisle again at 12:58 (her final circuit) on the side of the aisle opposite to where the plaintiff ultimately fell. This footage, and more, was available to the trial judge.
40. The defendant complains that it was never specifically put to Ms. Barrett in cross-examination, or by the trial judge, that she had failed to observe the spillage. It is accepted, however, that Ms. Barrett was cross-examined as to where she was at relevant times proximate to where the plaintiff fell. Counsel submits that one would have expected that either counsel for the plaintiff or the trial judge, on the basis of fair procedures if nothing else, would have put it to Ms. Barret that the contaminant was on the floor in the period 12.40 to 12.58 and that she missed it. The plaintiff submits that there is no merit in the argument that it had not been put to Ms. Barrett that she had missed the spillage. I agree. Counsel does not have to ask a question in cross-examination merely to confirm what is already clear from a witness’s evidence. Implicit in Ms. Barrett’s direct examination is that she never saw a spillage. During cross-examination the possibility of Ms. Barrett failing to have noticed a spillage was raised, due to her concessions that her mind could wander, outlined at para. 14 of this judgment. Thus, even if counsel for the plaintiff did not explicitly put it to Ms. Barrett that she failed to observe a spillage, her evidence of having kept a lookout with her eyes and that if she had come across a spillage she would have done something about it was, to borrow from McKechnie J. in McDonagh v. Sunday Newspapers Ltd. [2017] IESC 46, [2018 2 I.R. 1, “put in issue in a manner or way, whatever that might be, which conveys to all parties and the relevant witnesses that such evidence is being challenged”.
41. It is the defendant’s contention that there was no basis for the trial judge to hold that the volume of customers in the period 12:40 to 12:58 caused the spillage. The trial judge’s reliance on the volume of customers that passed through the aisle between 12:40 and 12:58 in finding the defendant had not discharged the onus on it was discounted by counsel on the basis that volume was “a relative concept”. The defendant also contends that there was no basis for attributing the spillage to Ms. Hayes in circumstances where earlier in her judgment the trial judge had discounted Ms. Hayes as the cause of the spillage. Notwithstanding the defendant’s argument, I am not persuaded that the trial judge’s earlier reference, to wit, “I can’t say that it is clear that it was Ms. Hayes’ cleaning occasioned the contamination?” precluded her later finding that “on balance” the spillage was likely to have occurred between 12:40 and 12:58 because of the volume of customers passing through at that time together with the fact that Ms. Hayes was engaged in cleaning duties in the same timeframe.
42. At 13:01 two customers, one of whom appears to be a lady in high heels, enter the aisle. They are pushing a trolley in which a child sits. Counsel for the defendant submits that this footage has particular importance for the purposes of the within appeal as it shows the lady going in and out of the area at which the plaintiff was to fall at 13:03. The CCTV footage at 13:03 shows the plaintiff right foot making contact with, and the plaintiff clearly falling, on the floor tile which the lady with the high heels had traversed some two minutes previously. It is contended that the footage showing the lady with high heels directly traversing, without incident, the exact tile where the plaintiff fell is particularly significant. It is alleged that this is so in the context of the evidence given by the plaintiff that the spillage was a yard long and approximately one to one and a half feet wide. Counsel contends that the inference which should have been drawn by the trial judge from the combination of the footage of the lady with high heels thrice traversing the area the plaintiff fell and the plaintiff’s evidence of the extent of the spillage was that had the spillage been on the floor at 13:01, the lady with the high heels would have encountered it and fallen. Accordingly, it is posited that in circumstances where this customer did not fall, the trial judge should have drawn the robust inference that the spillage was not on the floor at 13.01 and that it occurred between 13:01 and 13:03.
43. It is submitted that the most definitive evidence (as was before the trial judge) that the spillage was not on the floor at 12:58 are the movements of the customers at 13:01 who walk in and out of the accident locus area without incident. It is contended that this evidence was not engaged with by the trial judge, in breach of the principles set out in Doyle v. Banville and Keegan v. Sligo County Council. The defendant asserts that in such circumstance, there is a sufficient basis for this Court to interfere with the trial judge’s findings, within the parameters set out in Hay v O’Grady, and to find that the present case is one that does not demonstrate the defendant’s failure to discharge the requisite onus.
44. The defendant complains that the trial judge appeared to immediately discount the evidence of what was occurring on the aisle at 13:01 in circumstances where this footage should have led to the inference that the spillage could not have been there at 13:01. Insofar as the trial judge drew inferences regarding the period 12:40 and 12:58, it is the defendant’s contention that she did so without any evidential basis for such inference.
45. It is alleged that a further unsatisfactory factor of the judgment was the trial judge’s assessment of the size of the spillage. The defendant contends that the only evidence led in this regard (the plaintiff’s) was discounted by the trial judge without adequate explanation as to why it was being discounted and in circumstances where she gave no indication in her judgment as to what size the spillage must have been. Counsel submits that the plaintiff’s evidence, when considered in the context of the CCTV footage of the lady in high heels traversing the accident locus without incident, should properly have led the trial judge to infer that the spillage was not on the floor at 13:01.
46. Counsel stresses that it was not the defendant’s case in the court below (or on appeal) that the lady with the high heels, or the group she was with, caused the spillage. While acknowledging that that argument might be inferred from the defendant’s written appeal submissions to this Court, that was not the case made by the defendant in the court below, nor the case now being made.
47. It is also the defendant’s contention that this Court is in as good a position as the trial judge to draw whatever inferences it sees from the CCTV footage. It is in this regard that counsel urges on the Court that the trial judge drew inferences from the CCTV footage between 12:40 and 12:58 for which there was no factual basis and where there was in fact CCTV evidence in support of the defendant’s contention that the spillage must have occurred in the period after 13:01.
48. The plaintiff contends (as she did in the High Court) that the defendant did not discharge that onus on it to establish that the substance on which the plaintiff fell came onto the floor after Ms. Barret’s last passage through the aisle at 12:58. The defendant does not make the case in this Court that the customers in the proximity of the accident locus at 13:01 caused the spillage, rather, it is contended that the spillage must have occurred after that time. Counsel for the plaintiff, however, submits that what can be taken from the CCTV footage is that in the period between the customer at 13:01 traversing and re-traversing the area where the plaintiff fell and the plaintiff falling at 13:03 no other person entered the area. Yet the spillage was there when the plaintiff fell. Counsel argues that the mere fact a customer had minutes earlier walked over the spot where the plaintiff fell without incident is not proof that the spillage was not on the floor. This is in circumstances where a trap or hazard can exist without necessarily every person who encounters the hazard being caused to slip and fall. It is submitted that the fact that the lady at 13:01 did not fall could be attributed to a number of factors such as her speed, her weight or height, her balance and indeed the shoes she was wearing. Counsel points out that the only people who pass over the accident locus from 13:01 onwards are the lady with the high heel at 13:01 and the plaintiff at 13:03. No one has suggested that the plaintiff was the cause of the spillage and the defendant does not attribute the spillage to the customers (including the lady in high heels) visible at the accident locus at 13:01.
49. As conceded by the defendant in the court below, it is not for the plaintiff to prove when the substance came onto the floor: once the substance is present it is for the defendant to prove the duration of its presence. At the end of the day, this appeal turns on whether the trial judge’s finding that the defendant had not discharged the onus on it that the spillage occurred after 12:58 should be set aside by this Court.
50. Before considering whether there is any basis to interfere with the trial judge’s conclusions it is necessary first to consider the defence submission that the trial judge failed to engage with the premise put forward by the defence that the proper inference to be drawn from the CCTV footage of the customer at 13:01 crossing and re-crossing without incident the spot where the plaintiff fell was that the spillage could only have occurred after this time.
51. The submission made to the trial judge by counsel for the defendant, in relevant part, was in the following terms:
“Now, nobody can point to when this particular spillage occurred. I accept it is not Mr. Holland’s [the plaintiff’s counsel] obligation to say when it occurred but…and [Mr. Foy] accepted dozens of people passed this aisle, Judge, in the time the CCTV, the CCTV footage ran for an hour. Nobody else fell, Judge. There are a number of people who passed at or close to this spot within what I say is reasonable even if it is only at 12:40 rather than 12:58. But at 12:50 clearly a person walks right close to it. At 13:01 this lady goes in to the right-hand side to pick the blue container off the aisle, whatever that might be, and walks at or on this spot, Judge, and nobody else falls or has any difficulty and the accident happened at 13:03. And what I say, Judge, is it is a matter for the Court but here is a situation where the aisle is fall-free for an hour. It is inspected five times during that hour. Dozens of people passing through it, people passing directly on these stills on this or at, or within a tile of this spillage, Judge, and nobody sees anything. At 13:01 there is movement and a particular reason, I am not suggesting anything happened, but there is activity in this area and right close to this area, Judge, and at 13:03 the fall occurs. No system in the world could pick up any incident of this nature if it occurs at 13:01.
There is no activity in this hour that Mr. Holland can point to that suggests any other basis for anybody picking anything off the aisle close by which may or may not have occurred leading to a spillage prior to somebody walking over that area, Judge. In other words there is activity walking on this aisle at the spot or very close to it on enumerable occasions during this hour and nobody else has any difficulty. Either this spillage is so minute, Judge, or it wasn’t there and it is a matter for the Court to determine when it may or may not have happened. And the significance of this issue at 13:01 is this, Judge, if this is when the spillage occurs, no system in the world could have picked it up. I say this was a reasonable system in place and the effect of it was reasonable.”
52. It will be recalled that the trial judge (having reconsidered the stills photographs and the CCTV footage) was not satisfied that the two customers with children (including the lady in high heels) and the man who passed through the isle between 12:58 and 13:03 caused the spillage. Counsel for the defendant argues before this Court that it was never the defendant’s case in the court below that these individuals caused the spillage. I do not accept that that case was not made to the trial judge. The defendant’s submissions to the court below clearly invite the trial judge to have regard to “movement” and “activity” in the accident locus at 13:01 and to find that if the spillage occurred at 13:01 then the defendant’s system could not be faulted. While I accept that the trial judge erred in not engaging specifically with the defendant’s other invitation, namely, to draw the inference that the CCTV footage of the lady at 13:01 passing and re-passing (without incident) the same spot where the plaintiff fell showed that there was nothing on the ground by 13:01, for the reasons set out below, I do not believe that this frailty is a sufficient basis for this Court to interfere with the trial judge’s findings.
53. The defendant bore the burden of establishing that the spillage was not there prior to 12:58. To aid her conclusions on this issue the trial judge had, in the first instance, the benefit of the CCTV footage which preceded the plaintiff’s fall at 13:03 and which showed dozens of people (as acknowledged by the defendant) passing to and from the aisle over the course of an hour. Moreover, there was no specific CCTV footage from which the trial judge could infer that the spillage occurred either prior to 12:58 or thereafter.
54. The onus was on the defendant to satisfy the trial judge that the appropriate inference to be drawn was that the spillage occurred after 12:58. If the plaintiff did not cause the spillage and where there is no evidence that the lady or other customers at 13:01 did so, then, to my mind, the trial judge’s finding that the defendant failed to establish that the spillage was not on the floor of the aisle at the time of Ms. Barrett’s final passage through the aisle at 12:58 cannot be disturbed once there was a credible evidential basis for this finding. The essential question is whether there was a credible evidential basis for the inferences drawn by the trial judge.
55. The trial judge found on balance that the spillage was likely to have occurred between 12:40 and 12:58 by the combination of the volume of customers passing through the aisle between 12:40 and 12:58 and the fact of Ms. Hayes’ cleaning of a shelf. I have already addressed the issue raised by the defendant with regard to Ms. Hayes. That a volume of customers passed through the aisle, including between 12:40 and 12:58, is not in dispute. Counsel for the defendant suggests that the trial judge’s reference to the volume of customers was unclear in the sense that one could not be sure whether she was saying there were many or few customers passing through the aisle between 12:40 and 12:58. To my mind, the import of the trial judge’s finding is that there were people on the aisle in sufficient numbers to raise the inference that the spillage occurred in this timeframe.
56. The trial judge also had the CCTV evidence of Ms. Barrett looking straight ahead for almost the entirety of her hour shift and Ms. Barrett’s concession that her mind could wander doing the job she did. While the trial judge accepted Mr. O’Connell’s evidence that Ms. Barrett while looking straight ahead would still be capable of doing a sweep of nine feet (the width of the supermarket aisle in question) without moving her head she also had Mr. O’Connell’s concession that it would be difficult to sustain such a sweep for an hour, all the more so, as stated by the trial judge, “ when one considers that the sweeper passage occurred at different areas depending on the sweep as it were. In other words the operative moved down towards the right-hand side, then the centre, then the left-hand side, so that would enlarge the area for which the vigilant enquiry as to whether or not was any spillage requiring being taken care of had been thrown up…” Furthermore, the trial judge had before her the CCTV footage which showed that at 12:58, Ms. Barrett’s passage through the aisle was on the side distant from the accident locus.
57. The trial judge also emphasised the absence in the training afforded to Ms. Barrett of “any concentration whatsoever on how vigilant the passage through the aisle should be”. It was not suggested to this Court that the trial judge misread the documentary evidence in this regard. Furthermore, she had the evidence of Mr Foy and Mr. O’Connell of the importance of vigilance.
58. Unlike this Court, the trial judge also had the benefit of seeing and hearing Ms. Barrett. Thus, the trial judge’s view was not just formed by the CCTV evidence but by the evidence of Ms. Barrett and the impression left by her evidence, together with the engineering evidence and the concessions made by Mr. O’Connell. It is clear from the judgment that the trial judge took account of Ms. Barrett’s admissions that the job was boring, that her attention tended to wander, that it was difficult to keep up concentration and that it was a job that was done hundreds perhaps thousands of times over seven years. Implicit in the judgment is the trial judge’s lack of confidence in Ms. Barrett’s testimony that she was in fact keeping a look out. To my mind, all of the foregoing factors constitute a credible basis upon which the trial judge could draw the inferences she did and to find that she was not satisfied that the contamination was not on the floor between 12:40 and 12:58 – a conclusion reflective of where the onus of proof lay.
59. In other words, it was not shown by the defendant to the satisfaction of the trial judge that the more probable scenario was that the substance came onto the floor of the aisle post 12:58. On this basis, therefore, the trial judge was correct to find that the plaintiff must succeed in her action. The fact that there was some evidence before the trial judge from which it might have been inferred that had the spillage been there at 13:01 the lady in high heels would have slipped on it or at least noticed it does not alter the position. The decision of the trial judge was one open to her on the evidence. I accept the plaintiff’s submission that on Hay v. O’Grady principles, the inferences drawn by the trial judge should not be set aside by this Court.
60. Much was made by counsel for the defendant of the fact that beyond discounting the plaintiff’s evidence as to the size of the spillage the trial judge did not go on to make any finding as to the size of the spillage. It is also argued that the trial judge wrongly rejected the plaintiff’s evidence in circumstances where when challenged on her testimony that the spillage was a yard long and a foot to one and a half feet wide she did not resile from that testimony.
61. On Day 2 of the trial, the following exchange took place between the plaintiff and counsel for the defendant:
“Q. Do you think, Mrs. Desmond, you had had a terrible fall. Do you think that you could have been confused in relation to the size of it or the colour of it?
A. Well, I do know I was very shocked. I was very shocked. But it looked, it looked clear. I think it was possibly a clear liquid.”
62. While the plaintiff does not there respond to the defence suggestion that she was mistaken about the size of the spillage I do not believe that that failure impeded the trial judge in finding that the plaintiff may have been mistaken about its dimensions. This is in circumstances where the trial judge was aware that the defendant itself queried the plaintiff’s evidence, both in its cross-examination of the plaintiff and of Mr. Foy. It was suggested to Mr. Foy that the spillage could “hardly” have been a yard long and a foot wide. Moreover, the trial judge clearly had regard to the plaintiff’s state of shock in the immediate aftermath of the accident as a basis for discounting her evidence as to the size of the spillage, a not unreasonable surmise by the trial judge in my view.
63. Counsel for the plaintiff, in his submissions to this Court, drew attention to a photograph of the locus taken in the aftermath of the plaintiff’s fall which he said did not suggest widely spread deleterious matter on the floor prior to the plaintiff’s fall. The description afforded to the spillage is that of a “dry scuff mark found in accident location”. I offer no view on the photographic evidence in circumstances where the trial judge did not allude to the discovery in the case. It is also submitted that the plaintiff was looking at the spillage in the aftermath of the accident in circumstances where, presumably, the act of falling and slipping would have caused the contaminant to spread out. I find this a not unreasonable observation.
64. Contrary to the defendant’s submission, I do not find the present case to be one where the trial judge fell into error in the sense contemplated by McGovern J. in Keegan v. Sligo County Council. The case is not one where the trial judge failed to engage in a meaningful way with “the conflicting accounts of the accident given by the [plaintiff/respondent]” as was found to be the case in Keegan. In the instant case, there were no conflicting accounts of the accident, either from the plaintiff or as between the plaintiff and the defendant. The circumstances of the accident were not in issue. Nor indeed that it fell to the defendant to establish that it had a reasonable cleaning system in place on the day in question once it was accepted (as it was) that the defendant bore that onus. That was not established to the satisfaction of the trial judge. In my view, on the evidence before her, this was a conclusion open to the trial judge, as was her finding that the defendant had not established that the spillage was not on the floor at 12:58.
65. While the defendant invited this Court (in reliance on Doyle v. Banville) to draw the inference (from the CCTV footage) that the spillage came onto the aisle floor of its premises post Ms. Barrett’s final circuit (in circumstances where it was not in dispute that if the spillage occurred after 12:58 the defendant would be found to have discharged the onus on it that it had a reasonable system in operation on the day of the accident), such an exercise does not arise in this case given my finding that the inferences drawn by the trial judge cannot be disturbed having regard to the principles set out in Hay v. O’Grady and in circumstances where it has not been established that the trial judge committed a material error or significant error in reaching her conclusions on the facts.
66. As stated by Clarke J. in Doyle v. Banville:
“…the obligation of the trial judge is to analyse the broad case made on both sides. To borrow a phrase from a different area of jurisprudence, it is no function of this court (nor is it appropriate for parties appealing to the court) to engage in a rummaging through the undergrowth of the evidence tendered or arguments made in the trial court to find some tangential piece of evidence or argument which, it might be argued, was not adequately addressed in the court’s ruling. The obligation of the court is simply to address, in whatever terms may be appropriate on the facts and issues of the case in question, the competing arguments of both sides.” (at para. 11)
67. While the trial judge’s analysis may not have been as detailed or forensically comprehensive as one would have liked, in my view she did not offend the principle that the broad case on both sides had to be analysed. I am satisfied that the judgment contains a sufficient analysis of the evidence before the trial judge which led her to conclude as she did.
68. In all the circumstances, I would dismiss the appeal.
69. As this judgment is to be delivered electronically, it is necessary to add that Donnelly J. and Collins J. agree with the judgment.
Donnelly J.
I have had the opportunity to read the judgment delivered by Faherty J. and I agree with the conclusions reached therein.
Collins J.
I have had the opportunity to read the judgment delivered by Faherty J. and I agree with the conclusions reached therein.
Appeal dismissed
Dignam v Eircom Ltd. & anor
[2018] IEHC 731 (18 December 2018)
JUDGMENT of Mr. Justice Barr delivered on the 18th day of December, 2018
Introduction
1. This action arises out of an accident which occurred on 29th July, 2014, at approximately 10:00hrs on Lower Baggot Street, Dublin. The plaintiff, who was at that time engaged in the refurbishment of the Shelbourne Hotel, had gone to a hardware shop in the vicinity of Pembroke Street for the purpose of obtaining an article for use in the course of his work as a French polisher. While walking on the left hand footpath, going in the direction of St. Stephen’s Green, the plaintiff was caused to stumble when his right foot went into a hole adjacent to a cover over a chamber, which was the property of the first defendant.
2. The plaintiff did not fall to the ground, but stumbled forward causing a wrenching injury to his right knee. The plaintiff composed himself by leaning against the window of an adjacent shop. He then went into the shop to purchase some coffee. The shop owner advised him to take a photograph of the locus. The plaintiff returned to the locus and took a photograph of it on his mobile phone.
3. The plaintiff is 40 years of age, having been born on 27th January, 1978. He has had a varied and very successful sporting career. He won nine senior county championships with his club, Rathnew GFC. He also won one Leinster title with the club. He has represented Ireland in Australian Rules Football. He also played senior rugby with Clontarf RFC and also played with Wicklow RFC and Arklow RFC.
4. Possibly as a result of his extensive sporting career, he had developed pain and discomfort in his knee for approximately twelve months prior to the accident. He had attended with his GP who had referred him for an MRI scan on 24th October, 2013. As will be seen, the plaintiff’s surgeon, Prof. O’Donnell, is of the view that the surgery and other treatment which the plaintiff has undergone since the accident, would have been required in any event, given the findings on the pre-accident MRI scan and the level of his pre-accident symptomology, however, he is of the view that the accident brought forward the necessity for such treatment by a factor of approximately fifteen years. There were also some psychiatric aspects to his injuries. These will be dealt with later in the judgment.
5. The plaintiff has sued the first defendant, being the utility company responsible for the chamber and cover, adjacent to which the hole existed. The plaintiff has also sued the second defendant, being the Roads’ Authority for the relevant area.
Liability
6. The court was greatly assisted by a number of photographs of the locus. In particular, the photograph taken by the plaintiff in the immediate aftermath of the accident, which was appended as photograph No. 6 in the report furnished by the plaintiff’s engineer, Mr. Alan Conlon. There were also a number of photographs of the locus taken some months later in September 2014, by Ms. Moore, a representative of the second defendant, which showed the condition of the locus at that time. The court also had the benefit of photographs taken by Mr. Conlon at the time of his inspection of the locus on 15th April, 2016. Finally, the court had the benefit of photographs taken by a representative of the first defendant, Mr. Malone on 15th November, 2018.
7. It was common case that the cover that was shown in the plaintiff’s photograph and in Ms. Moore’s photographs had originally been placed in situ by the Department of Post and Telegraphs. That entity was a predecessor in title to Telecom Éireann, which subsequently became Eircom and more recently it became Eir.
8. It appears that there were, at the time of the accident, two covers laid end to end, which covered a single chamber. The hole in question was on the shop side of the chamber that was nearest to St. Stephen’s Green. It is clear from the photograph taken by the plaintiff, that portion of the surround immediately adjacent to the frame of the P&T cover had broken away exposing a hole in the public footpath. The plaintiff instructed his engineer that he estimated that the hole was up to 50mm deep. The engineer estimated from the photograph taken by the plaintiff that the hole was approximately 125mm wide x 200mm long.
9. It is clear from the photographs taken by Ms. Moore in September 2014, that the locus had further deteriorated in the months following the plaintiff’s accident. In particular, it would appear that further chunks of the concrete surround had broken away, thereby enlarging the hole.
10. It was common case that the two covers, which covered a single chamber, had been designed in such a way that they could be lifted to enable works to be carried out by servants or agents of the first defendant to the chamber below. The chamber itself was constructed by a hole being dug and then blocks being inserted to form the walls of the chamber. The blocks would be brought up to just below the level of the footpath. A layer of wet cement would be placed on top of the blocks. Into the wet cement, a frame would be placed, into which the cover itself would sit. The main feature securing the frame was the wet cement into which it was placed. However, additional support was provided by the surround of concrete mix, which was placed into the gap between the frame and the surrounding concrete paving slabs.
11. It was clear from the photographs taken by the plaintiff and by Ms. Moore that the hole in question had been caused when the concrete mix which surrounded the P&T cover had cracked and ultimately broken away. From the plaintiff’s photograph No. 6, it is clear that the hole in which he stumbled, was caused by portion of the surround on the shop side of the P&T cover becoming dislodged and removed. That hole had become bigger by the dislodgment and removal of further portions of the surround by the time that Ms. Moore took her photographs in September 2014.
12. The only expert evidence called in the case was that given by Mr. Alan Conlon, Consulting Engineer, who was called on behalf of the plaintiff. He stated that the defect in the locus, as shown in the plaintiff’s photograph No. 6, was caused due to the fact that an inadequate concrete mix had been used to fill in the gap between the P&T cover and the adjacent paving slabs. As a result of the inadequate nature of that concrete mix, it had become cracked with wear and tear and portion of it had ultimately become broken away prior to the time of the plaintiff’s accident. Further portions had become broken away by the time that the subsequent photographs were taken.
13. The essential dispute in the case revolved around the question of which of the defendants was responsible for the concrete surround around the chamber cover. Mr. David Flanagan gave evidence on behalf of the first defendant. He had been employed by them since 1972, until his retirement in 2011. Initially, he had been a technician in the engineering department. He subsequently rose to the position of supervisor and in that capacity, had management of contracts concerning works carried out to the footpaths in the areas of Dublin City, Bray and Wicklow. In that capacity, he oversaw the completion of contracts, inspected the works that had been carried out and liaised with Dublin City Council. He held that position until in or about 2001, when he switched to the accident investigation section of the first defendant.
14. Mr. Flanagan stated that the utility known as the Post and Telegraphs ceased to operate in 1984. On that basis, he was of the opinion that the cover which was shown in the plaintiff’s photograph No. 6, had been placed in situ before 1984/1985. After that time, all the covers placed on chambers would have had the Telecom Éireann logo, followed by the Eircom logo and more recently, the Eir logo. The significance of this was that in the 1980s, the procedure was that the P&T would carry out the works, such as the insertion of a chamber as in this case. The P&T workers would put in the chamber and the frame and the cover for the chamber. The surround around the frame holding the chamber cover, would be temporarily back filled with tarmacadam. Mr. Flanagan would then issue a reinstatement order, at which time, the second defendant would attend on site and carry out an inspection. They would then proceed to do the permanent reinstatement of the area around the cover. They would subsequently bill the P&T for those works.
15. However, in the late 1980s/early 1990s, there were a lot of road works going on in Dublin City. The system was changed at that time, whereby it was agreed that the Eircom contractors could do the reinstatement of the area surrounding the chamber cover. Following which, the second defendant would inspect the locus and if they were satisfied with the quality of the work done, they would take the locus in charge. Subsequently, in 2002/2003, there were discussions leading to the 2005 Regulations, which imposed an obligation on the utility company to take responsibility for an area measuring 300mm around the chamber. That obligation was repeated in the Directions for the Control and Management of Roadworks in Dublin City at para. 5.16, which was issued in June 2010.
16. In cross examination, Mr. Flanagan conceded that he did not have any documentation to establish when exactly the chamber had been constructed, or when the cover had been placed on it. Nor could he say if the first defendant had done any works at the locus since the 1980s. He accepted that as a consequence of the P&T having authority to carry out works to the public footpath in the form of the wayleave which was originally provided under the Telegraphs Act, that there was an ongoing obligation on them to inspect, maintain and repair the works which they had done. He stated that if the company was made aware that a particular locus had become dangerous, or if one of their work crews saw that a particular area had become dangerous due to wear and tear, they would carry out repairs thereto. However, they did not have any system for carrying out periodic inspections of the various chambers owned by them throughout Dublin City.
17. Mr. Flanagan further accepted that the construction of the collar around the chamber cover was an integral part of the chamber itself. While the primary method of securing the frame for the cover, was the fact that it was embedded in wet cement on the top of the blocks, he accepted that the surround also had a function in keeping the frame secure. If the surround or collar was not put in place, the frame itself would tend to move with ordinary wear and tear and use of the footpath.
Conclusions on Liability
18. I am satisfied that the concrete surround between the frame holding the chamber cover and the surrounding paving slabs, was an integral part of the construction of the chamber itself. I am satisfied that this surround serves a function to provide additional security for the frame. If it was not there, not only would there be a hole in the footpath surrounding the frame holding the cover of the chamber, but the frame itself would then move and become dislodged with ordinary wear and tear. Accordingly, it can be seen as being an integral part of the construction of the chamber itself.
19. I accept the evidence given by Mr. Conlon that in this case, the concrete mix which was used to fill in the gap between the frame for the chamber cover and the surrounding paving slabs was clearly inadequate. As a result, it became cracked. This can be clearly seen from the photograph taken by the plaintiff on the day of the accident. The portion of the concrete surround nearest to the shops had become extensively cracked and portion had actually become broken away. The concrete surround on the other side of the frame which was on the road side thereof, was also cracked and was in the process of breaking away. This was further exemplified by the photographs taken by Ms. Moore in September 2014, which revealed a further deterioration at the locus. I accept the evidence of Mr. Conlon that that was due to ordinary wear and tear on the footpath, occurring on top of an inadequate concreate mix which had been used as the surround for the chamber cover.
20. Mr. Flanagan’s evidence was based solely on the fact that the cover as shown in the plaintiff’s photograph had a P&T logo. Based on that, he put forward the proposition that it must have been put in situ prior to 1984, which was at a time when the agreement between the first defendant and Dublin City Council was that the former would only do temporary reinstatement works around the chamber cover and that the second defendant as the Roads’ Authority would carry out the main reinstatement of the area. However, he did not have any documentary evidence to support that proposition. Nor was he able to give evidence as to whether any works had subsequently been carried out by the first defendant at the locus since the 1980s. He also candidly accepted that there was a continuing obligation on the first defendant to inspect, maintain and, if necessary, repair, their structures, such as chambers holding wires and other apparatus, on an ongoing basis.
21. Based on the photographs in this case, together with the evidence of Mr. Conlon, I am not satisfied that the inadequate surround had been placed in situ by the second defendant, rather than by the first defendant, or its contractors at some time subsequent to the 1980s. It seems to me that it is an integral part of the chamber, as it serves a function to secure the frame into which the cover was placed. It was clearly inadequate to deal with ordinary wear and tear on the footpath. As a result, portion of the surround became broken away, thereby creating a substantial danger on the footpath. In the circumstances, liability for the accident must rest with the first defendant.
22. Given that this was a relatively small hole, I do not think that there was any negligence on the part of the plaintiff in failing to observe same when he was returning to his place of work on the morning in question.
Quantum
23. The plaintiff experienced severe pain in his right knee, which became progressively worse in the days and weeks following the accident. He attended with his GP and was prescribed analgesia and attended for physiotherapy treatment. When he failed to make improvement, he was referred to Prof. Turlough O’Donnell, Consultant Orthopaedic Surgeon, at the Beacon Hospital. He was seen on 23rd October, 2014, at which time Prof. O’Donnell felt that the plaintiff’s symptoms were consistent with a tear of the medial meniscus. This was confirmed by an arthroscopy which was carried out shortly thereafter. It also demonstrated significant grade 3 – 4 focal articular wear of the medial femoral condyle.
24. When reviewed on 15th January, 2015, the plaintiff had a full range of motion of the knee, but was struggling with anteromedial pain. On 30th January, 2015, the plaintiff underwent a Focal Articular Surface Replacement (FASR). Thereafter, he had 20 – 25 sessions of physiotherapy, 15 – 20 specialist visits and had approximately three injections to the knee for tendinopathy. One of those was carried out under sedation. The plaintiff also had further surgery on the knee by way of excision of a loose fragment of scar tissue/cartilage, and small ganglion. A further arthroscopy on 22nd November, 2016, demonstrated that the previous FASR implant was well fixed, was undamaged and was in good position. The plaintiff was noted to have progressive wear of the medial compartment of the knee, specifically the medial tibial plateau, as well as having a small tear of the medial meniscus, which was debrided.
25. When reviewed on 3rd February, 2017, the plaintiff continued to complain of anteromedial right knee pain which was present on a daily basis. This adversely affected him in carrying out his work as a French polisher. He experienced pain at night. He had a sensation of instability in the knee. His exercise tolerance was limited. Examination revealed a full range of motion of the knee, which was stable. He was tender to palpate the medial compartment of the knee. Radiological evaluation of the knee revealed Ahlback Grade 1 arthritis of both medial compartments.
26. More recently, prior to September 2017, the plaintiff underwent revision of a resurfacing implant of the medial femoral condyle of the knee to a Unicompartmental Knee Replacement (UKR). He also underwent a manipulation under anaesthesia as a day case for mild arthrofibrosis following the surgery.
27. Prof. O’Donnell is of the view that based on the radiological findings, it is not possible to attribute the plaintiff’s condition to the accident, particularly given the existence of discomfort in the knee prior to the accident. However, the doctor is of the view that the accident changed the temporal relationship of the symptoms and the condition. The plaintiff would ultimately have developed symptoms typical of medial compartment osteoarthritis of the knee, although the likelihood is that he would have been in his early to mid 50s before that would have happened. The findings on the MRI from 24th October, 2013, were consistent with the symptoms Mr. Dignam was complaining of that ultimately resulted in him undergoing surgery.
28. Prof. O’Donnell is of the view that had the plaintiff avoided the accident, he would not have undergone the surgery which he has done to date, although he would have done so at some stage in the longer term. In essence, he is of the view that the surgery has been brought forward by something in the order of fifteen years.
29. In terms of a prognosis, he noted in September 2017, that the plaintiff was doing well and was on course with his rehabilitation, which was expected to take a further six months from that time. The doctor expects the plaintiff to return to full activities socially and professionally. He also expects the plaintiff to return to golfing, cycling, swimming and gym work. However, he has been advised to avoid running in all circumstances. Given his age, and physical activity profile, there is a chance that he will require a total knee replacement in the future. The risk thereof as reported in the literature is 1% per annum. However, the risk may be higher in the plaintiff’s case.
30. The plaintiff also suffered psychiatric sequelae as a result of the injury he suffered in the accident and the treatment that he had to undergo and the resultant disability. This manifested itself in two ways: firstly, he developed depression and secondly, there was a recurrence of pre-existing Obsessive Compulsive Disorder, from which the plaintiff had suffered since his teens, but which had been quiescent for the five years prior to the accident. The court had the benefit of a report from Dr. Denis Murphy, Consultant Psychiatrist. He advised the plaintiff of various treatment options and agreed that the plaintiff would discuss those further with his general practitioner. Dr. Murphy stated that it was difficult to give a definitive prognosis. Much would depend on the outcome of his injury, but it was usual to anticipate a positive response to treatment.
31. The plaintiff was very frank in relation to his injuries and resultant disablement. He stated that he was now able to play golf, playing off a handicap of eleven at present. However, he requires the use of a buggy to get around the course. He stated that he felt that he was now 90% back to his pre-accident condition. He stated that he had found the injuries difficult, due to the fact that he was 36 years of age at the time of the accident, and was still playing sport at a competitive level.
32. This is a very difficult case in which to assess general damages. The plaintiff has undergone significant operative treatment to his knee. However, it is Prof. O’Donnell’s opinion that the plaintiff would have required such surgery in any event, due to the wear and tear on his knee caused by his long sporting career. What the accident has done is that it has effectively brought forward the necessity for that treatment by a factor of approximately fifteen years. There is no indication that the plaintiff’s ongoing knee condition, or his prognosis post surgery, has been in any way adversely affected by the surgery being brought forward. Nevertheless, the court is entitled to take into account that but for the accident, the plaintiff would have been operating at a reasonable level for at least another fifteen years or so. I accept the plaintiff’s evidence that in 2013, he was working and playing sport as normal, although he did have knee pain, but it was of a different type than that post-accident.
33. In addition, the court has had regard to the psychiatric sequelae suffered by the plaintiff as detailed in his evidence and in the medical report furnished by Dr. Murphy. Taking all of these factors into account, I award the plaintiff the sum of €50,000 for general damages. To this must be added, the agreed figure for loss of earnings of €1,936.02.
34. The only other item of special damages is the sum of approximately €36,000 in respect of medical expenses, being the costs of the various operations to date. These have been discharged by the plaintiff’s private health insurer. It seems to me that in light of the report furnished by Prof. O’Donnell, wherein he is of opinion that the plaintiff would have had to have undergone this surgery in any event, the cost thereof would have had to be borne by the plaintiff, either from his own resources, or through private medical insurance, or by availing of such treatment as a public patient. In other words, the accident did not cause the plaintiff to incur any additional expenses by having this surgery, he was going to need it at some time in the future. All the accident did was to bring forward the necessity for such treatment by a factor of fifteen years. Accordingly, I do not think that the cost of the surgical treatment is recoverable from the first named defendant.
35. In light of the findings made on liability, I award the plaintiff judgment against the first defendant in the sum of €51,936.02. I dismiss the plaintiff’s case against the second defendant.
Terence (Otherwise Terry) Morgan v Electricity Supply Board
2018/340 (WLIE 1)
Court of Appeal [Unapproved]
5 February 2021
unreported
[2021] IECA 29/1
Mr. Justice Maurice Collins
February 05, 2021
JUDGMENT
1. I fully agree with the judgment given by Noonan J and with the order that he proposes.
2. In my view, this appeal raises a number of significant issues and for that reason I would like to add some observations of my own. For that purpose, I gratefully adopt Noonan J’s detailed account of the circumstances giving rise to the claim here and of the course of the proceedings in the High Court.
The Civil Liability and Courts Act 2004
3. The Plaintiff’s action here was a “ personal injuries action ” within the meaning of the Civil Liability and Courts Act 2004 ( “the 2004 Act ”) and was therefore subject to the provisions of Part 2 of that Act.
4. Part 2 contains important provisions regarding pleadings in personal injuries actions. Focusing on those applicable to pleadings by a plaintiff, section 10(2) sets out various matters which a personal injuries summons shall specify, including:
“ (f) full particulars of the acts of the defendant constituting the .. wrong and the circumstances relating to the commission of the said wrong ”
“(g) full particulars of each instance of negligence by the defendant.”
5. The need for clarity and specificity is further reinforced by section 13(1)(a), which provides as follows:
“(1) All pleadings in a personal injuries action shall—
(a) in the case of a pleading served by the plaintiff, contain full and detailed particulars of the claim of which the action consists and of each allegation, assertion or plea comprising that claim”
6. Corresponding obligations are imposed on defendants by sections 12 and 13(1)(b) of the 2004 Act. I considered the effect of those sections in Crean v Harty[2020] IECA 364 and in the course of my judgment noted that “the provisions of sections 10-13 of the Act are clearly intended to ensure that parties (including defendants) plead with greater precision and particularity so that, in advance of trial, the actual issues between the parties will be clearly identified.” (at para 23)
7. A “ very significant innovation ” in Part 2 (so I characterised it in Crean v Harty) is the requirement in section 14 that pleadings be verified on affidavit. A plaintiff is required to verify “ any pleading containing assertions or allegations” or any “ further information ” provided to the defendant: section 14(1). A corresponding obligation is imposed on defendants by section 14(2). The importance of the requirement for verification was highlighted by Noonan J in his recent judgment in Naghten (A minor) v Cool Running Events Ltd[2021] IECA 17, with which I agreed. As Noonan J states at para 52 of that judgment, “ .. the days of making allegations in pleadings without a factual or evidential basis, if they ever existed, have long since passed.” That certainly ought to be the case having regard to the requirements of section 14.
8. The intended effect of section 14 would be greatly undermined if parties were permitted to continue to plead claims in wholly generic terms. Thus – unsurprisingly – the provisions of Part 2 relating to pleadings, and the requirement for verification introduced by section 14, operate coherently. Plaintiffs (and defendants) are required to state clearly and specifically what their claim (or defence) is and identify the basis for it in their pleadings and must then verify that claim (or that defence) on affidavit. Where further particulars are furnished, such must also be verified on affidavit. Unless pleadings are clear and meaningful, the value of section 14 verifying affidavits will be significantly diluted.
The Pleadings here
9. The Personal Injuries Summons here might, in many respects, be held up as an example of the type of pleading that Part 2 of the 2004 Act was intended to consign to history. The majority of the particulars of wrongdoing are in boilerplate form, expressed in such generic terms as to be utterly uninformative. Thus, for instance, it is said, without more, that the ESB failed to provide a safe place of work for the Plaintiff. It is also said the ESB was in breach of the Safety, Health and Welfare at Work Act, 2005. No clue is given as to what provision of that Act the ESB was said to be in breach of or what act or omission on its part constituted such breach. The position is the same as regards the plea that the ESB was in breach of the Safety, Health and Welfare and Work (General Application Regulations) 2007.1 The Summons is wholly silent as to which of the 175 Regulations and 10 Schedules contained in those Regulations is said to have been breached by the ESB. The plea that the ESB was in breach of section 3 of the Occupiers Liability Act 1995 might, on its face, appear more concrete. However, the “ common duty of care ” imposed by section 3 (which concerns the duty of care of occupiers to visitors to their premises, including employees) is necessarily expressed in very general terms and recourse to its terms provides no enlightenment whatever as to the nature of Mr Morgan’s actual complaint against the ESB here.
10. The only claim that is pleaded with tolerable clarity and specificity in the Summons is that to be gathered from a reading of paragraph 9, in conjunction with the particulars (i) and (j), referred to by Noonan J at para 18 of his judgment. The net effect of those pleas (which could readily have been stated more clearly and simply) is that the Plaintiff was alleging that he had slipped and fallen while going down the stairway because of the presence of water on the steps, which had leaked in through the skylight over the stairs and “ contaminated ” it. That is the only claim disclosed by the Personal Injuries Summons that is pleaded in a form resembling that mandated by the 2004 Act.
11. I do not mean to be unduly harsh on the pleader here. From a practical point of view, one can readily understand why a pleader might wish to avoid committing themselves unduly to any particular theory of liability and instead seek to plead in a manner that covers all the bases lest something further should emerge at trial. Indeed, that was conventionally seen as part of the art of pleading. However, that mode of pleading is not, in my view, permissible since the enactment of the 2004 Act. A plaintiff is required to plead specifically and cannot properly rely on the pleading equivalent of the Trojan Horse, which can as needed spring open at trial and disgorge a host of new and/or reformulated claims.
12. It is difficult to avoid the impression that, despite the fact that Part 2 of the 2004 Act has been in force for more than 15 years, the extent of the changes that it makes in the area of personal injuries pleading may not always be fully recognised or reflected in practice. Personal injuries claims are required to be pleaded in a manner which states clearly and precisely what act or omission of the defendant is alleged to have caused the injuries at issue and why it is said that such act or omission was wrongful. The reflexive instinct of practitioners to plead broadly and generally has to be curbed.
13. In any event, as Noonan J notes, shortly before hearing of the action the Plaintiff delivered a further particular of negligence alleging a failure to maintain the staircase “thereby permitting the nosing on the steps of same to become worn and disintegrating so as to constitute a danger to persons using the said staircase.”
14. Thus, on the Plaintiff’s pleaded case, he was alleging that he slipped on the stairs due (1) to the presence of water resulting from a leak in the skylight overhead (due, it was said, to the ESB’s failure to maintain the skylight) and/or (2) the condition of the nosing on the steps of the stair (arising from the ESB’s failure to maintain the stairs). That was the only case being made by the Plaintiff and, unless permitted to amend his pleadings and/or to deliver further particulars of negligence, that was the only case that he could properly advance at trial and that was the only case that the ESB was required to meet.
15. This is consistent with the terms of the report of Mr Osborne (the Plaintiff’s Engineer) which was provided to the ESB in advance of the trial. That report stated that “ the factors contributing to and causing this accident were the leaking skylight and the worn and disintegrating nosings.” While Mr Osborne took the trouble to note a possible breach of fire regulations by the ESB which could not on any view have any bearing on Mr Morgan’s claim (an allegation unfortunately repeated at trial and recorded in the Judgment), his report made no complaint about the training afforded to his client and did not suggest any alternative cause that might account for the alleged presence of “ copious amount of wet ” on the stairs at the time of the accident or address any question of the ESB’s liability if any “ wet ” on the stairs was from a source other than the skylight.2
The Judgment of the High Court
16. The Judge’s findings are set out at para 81 and following of her Judgment. Noonan J has referred in detail to these findings.
17. The claim here was vigorously disputed by the ESB. The Judge heard evidence and argument over a number of days. There were significant conflicts in that evidence, not least as to circumstances and cause of Mr Morgan’s accident and whether it was attributable to a leak from the skylight. Mr Morgan had, of course, given evidence. Mr Osborne also gave evidence on his behalf. A number of employees of the ESB gave evidence, as well as a consultant engineer, Mr Duggan, and a flooring specialist, Mr Wafer.
18. The Judge had to assess this evidence and make relevant findings of fact. The Judge’s findings here are fully set out by Noonan J in his judgment. The key passage is the following:
“85 … while this Court is not able to resolve the conflicts on the evidence as to exactly how wetness came to be on the surface of the area where the plaintiff slipped and fell, nonetheless the court views the plaintiff in the overall scheme of things to have been both consistent and credible. On the balance of probabilities, wetness caused the plaintiff to slip and fall. It is not possible for the Court to resolve the conflict as to whether it was wetness which came from a skylight or whether it was someone who had spilled something or caused the wetness at the locus of the accident.”
The reference in this passage to the Judge’s view of the credibility of the Plaintiff is not the only such reference in the Judgment. At para 81, the Judge states that the Plaintiff “ came across as a very credible witness ” and at para 88 and 89 she stated as follows:
“88. The Court prefers the evidence of the plaintiff, and of his engineer Mr. Osborne, to the evidence adduced by the defendant. He was a very credible witness.
89. As a result of the difficulties the plaintiff has suffered it appears to this Court he continues to receive treatment in respect of this injury and has ongoing pain. He came across as completely reasonable and I prefer his evidence to that adduced by, or on behalf of the defendant.”
19. The decision of the Supreme Court in Hay v O’ Grady[1992] 1 IR 210 was, naturally, relied on by Mr Morgan to submit that these findings, as well as the further findings made by the Judge regarding the condition of the nosing on the stairs and the ESB’s failure to provide appropriate training to Mr Morgan as to how to carry packages safely down a stair, were effectively beyond the review of this Court.
20. In my view, there are a number of fundamental difficulties about this submission. A key aspect of Hay v O’ Grady is its emphasis on “ the importance of a clear statement …. by the trial judge of his findings of fact, the inferences to be drawn, and the conclusion that follows.” (per McCarthy J, at 218). This aspect of Hay v O’ Grady was further developed by the Supreme Court in Doyle v Banville[2012] IESC 25, [2018] 1 IR 505. The Supreme Court’s decision in Donegal Investment Group plc v Danbywiske[2017] IESC 14, [2017] 2 ILRM 1 is also relevant in this context addressing as it does the application of the principles in Hay v O’ Grady and Doyle v Banville to expert evidence and to findings made by a trial judge on the basis of such evidence. My judgment in McDonald v Conroy[2020] IECA 239 contains a detailed discussion of these authorities. In brief summary, however, it is clear that:
“ Any party to any litigation is entitled to a sufficient ruling or judgment so as to enable that party to know why the party concerned won or lost. ……. To that end it is important that the judgment engages with the key elements of the case made by both sides and explains why one or other side is preferred.” ( per Clarke J in Doyle v Banville, at para 10)
In cases where there is conflict in the expert evidence heard by the trial court, the trial judge should at least “ indicate in brief terms the reason why the views of one expert was preferred”: per Clarke J in Donegal Investment Group plc v Danbywiske, at para 7.4.
21. Here, the Judgment makes it clear that the Judge found the Plaintiff to be a credible witness and preferred his evidence (and, it seems, the evidence of Mr Osborne) “ to the evidence adduced by the defendant” but provides no reasons for such findings. The credibility of a witness is a matter of fact – a point made by Hardiman J for the Supreme Court in McCaughey v Anglo Irish Bank Resolution Corporation[2013] IESC 17, at page 49 and subsequently emphasised by that Court in Leopardstown Club Limited v Templeville Developments Limited[2017] IESC 50, [2017] 3 IR 707, per Denham CJ at paras 39 and 80 and per McMenamin J at para 105. Nonetheless, where there is a material conflict of evidence, it can hardly be “ sufficient for the [trial] court simply to declare that it accepts the evidence of the plaintiff” – or, I would add, the evidence of any other witness – “ or that it is satisfied that he is a truthful witness without saying why that is the case”: per Irvine J (as she then was) in Nolan v Wirenski[2016] IECA 56, [2016] 1 IR 461, at para 48. Such an approach would be wholly at odds with Doyle v Banville and indeed with Hay v O’Grady itself. A finding of credibility, whether in respect of a witness’s evidence generally, or some specific evidence given by them, ought generally to be the product of analysis and reasoning that is capable of explanation in a judgment. That does not mean that a lengthy or discursive analysis is necessary. The degree of explanation appropriate will depend on the nature, extent and significance of the relevant evidential conflict. Furthermore, there may be circumstances where a court must make its assessment based only on impression and demeanour but such circumstances will be rare. As regards expert evidence, it is difficult to conceive of any circumstance in which it might be sufficient to resolve conflicts of evidence on the basis of a bare statement that the court “ preferred ” the evidence of expert A to the evidence of expert B. Of course, as Clarke CJ emphasised in Danbywiske, the choice “ may not require a great deal of explanation in a judgment”. Again, the context will be key.
22. Here, the Judgment simply fails to give any indication as to why the Judge preferred the evidence of the Plaintiff to the evidence of the ESB’s witnesses. Equally, it does not explain – even in the briefest of terms – why the Judge preferred the evidence of Mr Osborne to the evidence of Mr Duggan, Mr Wafer and the other witnesses who gave evidence for the ESB (whose evidence is set out in detail by Noonan J). As Noonan J explains, there were significant conflicts between these witnesses which were critical to the proper determination of the Plaintiff’s claim. In these circumstances, the absence of any explanation for the Judge’s stated preference for the evidence of the Plaintiff and Mr Osborne is, in my view, a fundamental difficulty with the Judgment.
23. However, that is not by any means the only difficulty that this aspect of the Judgment presents. As the Court observed in argument, there appears to be a stark conflict or contradiction between the Judge’s apparently unqualified acceptance of the evidence of the Plaintiff and his engineer on the one hand and, on the other, her conclusion that there were conflicts of evidence as to the source of the “ wetness ” on the stairs that could not be resolved by the High Court. If accepted, the evidence of Mr Morgan and Mr Osborne appeared to point inexorably to the conclusion that the Plaintiff had slipped on “ wet ” the source of which was the skylight overhead. Indeed Mr Osborne had been so sure that this was the case that he had not considered it necessary to undertake what might be regarded as fairly basic investigatory steps. Unlike Mr Duggan, he had not conducted any slip resistance testing. He also had not run a plumb line down from the skylight to the stairs to identify where any “ wet ” entering through it might land. He had not gone on to the roof and poured water on the skylight to see whether it penetrated into the stairwell. Mr Osborne had “ immediately connected the wetness with the stains ” that were visible around the skylight (and which the evidence established had resulted from a leak that had occurred in 1995 or earlier) and that was, it seems, an adequate foundation for his evidence as far as he was concerned.3
24. If the Judge accepted Mr Osborne’s evidence, as her Judgment suggests she did, it is very difficult indeed to understand why she felt unable to conclude that any “ wet ” on the stairs had come from the skylight. In reality, it seems clear that the Plaintiff’s evidence (including that of Mr Osborne) did not, in fact, persuade the Judge that the accident happened in the manner, and for the reasons, alleged by him.
25. There is a third, and even more significant, difficulty with the Judge’s analysis. Though it does not say so in terms, the inescapable inference from para 85 of the Judgment is that the Judge considered that the issue of “ exactly how wetness came to be on the surface of the area where the plaintiff slipped and fell” was not one which it was necessary for her to resolve because the liability of the ESB was not dependent on its resolution. That, in my respectful opinion, was plainly not the case.
26. In the first place, as I have explained, the claim made by the Plaintiff was based on an assertion that he had slipped on “ wet ” which was on the stairs as a result of a leaking skylight. That was the case that the Plaintiff was making and in order to determine whether he was entitled to succeed on liability, the Court had to resolve that issue. If the Plaintiff failed to establish that case – as in fact he failed— his claim failed.
27. Second, the Judge’s analysis assumes that, regardless of how any “ wet ” came to be on the stairs, its presence there established negligence and/or breach of duty on the part of the ESB. Before this Court, Mr Kilfeather SC for Mr Morgan suggested that the “supermarket cases ” provided support for the approach taken in the High Court. If there was water or other liquid on the stairs – as the Judge found – there was effectively an onus on the ESB to establish that it was not due to any negligence on its part and the Judge was entitled to conclude on the evidence that it had failed to establish that. Attractively as this argument was put, it cannot be accepted. In the first place, if that was the basis for the Judge’s conclusion, it was incumbent on her to articulate it. The Judgment is, however, entirely silent on the issue of negligence. In any event, the Plaintiff had not made that case. If he had wanted to do so, it had to be pleaded so as to give the ESB a reasonable opportunity to meet it at trial. Not alone was it not pleaded (or addressed in Mr Osborne’s report) no such case was agitated during the High Court hearing, as Mr Kilfeather fairly acknowledged. In any event, I would not accept that the so-called “supermarket cases” necessarily have any application in the circumstances here. The factors that, in Mullen v Quinnsworth Ltd[1990] 1 IR 59, led the Supreme Court to apply the doctrine of res ipsa loquitur in the context of a slip and fall in a supermarket, do not necessarily apply here. Given that that was not and is not an issue in the proceedings, it is neither necessary nor appropriate to say anything more about it.
28. In his judgment, Noonan J discusses in detail the evidence given in the High Court regarding the issues of the condition of the nosing and the Plaintiff’s training and the findings made by the Judge on those issues. I agree entirely with his analysis and have nothing to add to it.
29. It follows that, in agreement with Noonan J, I am of the view that the Judge’s finding of liability here is unsustainable and cannot be allowed to stand and this appeal must therefore be allowed.
White v Doherty & Anor
[2019] IECA 295 (27 November 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA295.html
⇓Baker J.Costello J.Donnelly J.THE COURT OF APPEALCIVILNeutral Citation Number: [2019] IECA 295Record Number: 2014/1317BETWEEN/PHILOMENA WHITEPLAINTIFF/APPELLANT- AND –WILLIAM DOHERTY AND S & K CAREY LIMITEDDEFENDANTS/RESPONDENTSJUDGMENT of the Court delivered on the 27th day of November 2019, by Ms. JusticeDonnellyIntroduction1. The plaintiff/appellant, (“Mrs. White”), then aged 73 years, suffered a serious injury toher left arm when she tripped and fell on the 3rd May, 2010 at Woodstown Caravan Park(“the park”), County Waterford. Mrs. White and her husband had a mobile home in thesaid caravan park for approximately forty-six years. The trial judge accepted in full Mrs.White’s evidence as to how her accident occurred. The trial judge rejected her claim fordamages and held that there was no breach of the common duty of care owed by therespondents as occupiers of the park under s. 3 of the Occupiers Liability Act, 1995 (“the1995 Act”). It is against that finding that Mrs. White appeals.2. Mrs. White had walked from her mobile home to the toilet/shower block at about 6pm onthe May Bank Holiday in 2010. Her own mobile home was five or six homes back on theleft hand side of the park as one faced the toilet block. She walked up close to the mobilehomes on the left side. At some point between the last two mobile homes her toe stuck insomething, she lost her balance and as she described it, paddled through the air. As theground was sloping away from her she could not stop herself falling. Mrs. White was notexactly sure where she hit the toilet block but thought it may have been in the centre ofthe wall and recalls sitting up with her back against the wall after she fell.3. At the trial Mrs. White’s claim in negligence revolved around the state of the ground in thevicinity of the toilet block. She claimed it was uneven with protruding stones. Of relevancewas that in or about the winter of 2007/2008, the defendants/respondents (hereinafter“the respondents”) purchased the park for a sum of €860,000. The respondents increasedthe licence fee to €2,500 from the year 2008 from an initial fee of €500. While there wasan issue at the trial as to whether the increased fee was for the landscaping of the park orsimply to pay for the purchase price, the claim in contract was not pursued at the trial. Nodocumentary evidence as to the terms of the licence was given at trial.Page 2 ⇓4. At the hearing of the appeal, counsel on behalf of Mrs. White submitted that there werevarious concerns about the credibility of the respondents’ case. For example, the mainwitness for the respondents, Mr. Carey, had given evidence about the reason for theincrease in the fee, which reason was at odds with that put to Mrs. White in cross-examination by the respondents’ counsel. It was submitted that these were issues ofcredibility that ought to have been taken into account in the consideration of the overallquestion of negligence.5. In the winter of 2008/2009, the respondents had installed a sewerage system andrunning water to each of the mobile homes. The respondents initially gave incorrectinstructions to their engineer that the water had been cut off to the toilet block at thetime of the accident. It was, however, no longer in regular use for mobile home ownersbecause they each had their own toilet provided. Mrs. White’s evidence was that she hadprobably not used the toilet block since she had been provided with her own toilet in hercaravan at least one year prior to the accident. She had a particular reason for using thetoilet block rather than the toilet in her own mobile home on the day of the accident; areason accepted by the trial judge.The Trial Judge’s Findings6. The trial judge accepted that the sewerage and water pipes had been installed inapproximately a three-foot trench which was then back-filled. After that top soil wasspread in the park. This was not sieved top soil and there were stones in it, which the trialjudge accepted was required for drainage. The trial judge held there was grass on therelevant areas. The evidence is that the respondents cut the grass and there does notappear to be a problem with stones protruding through the soil when cutting the grass.7. In her judgment, the trial judge found that: -“the relevant area to the plaintiff’s fall was an uneven, grassy area withindentations of field like quality, not a smooth lawn, and a probability of somestones embedded in the grass and in some patches close to the toilet block wherethe grass was worn there may have been some small, loose stones.”8. The trial judge also accepted the evidence of Mr. Carey on behalf of the respondents, thatduring the year the grass becomes thinner and patchier. There had been evidence thatchildren play soccer in front of the toilet block as they use the wall as a goal and thatsome of the loose, patchier areas in the photographs may result from that activity.9. Ultimately, on the issue of whether there was a breach of the common duty of care setout in s.3 of the 1995 Act, the trial judge found as follows: -“There is a dispute between the two consulting engineers as experts as to whetherthe stony and indented ground constituted what they termed a “hazard”, and Icannot accept the evidence of Mr. Hart on behalf of the plaintiff that the nature ofthe ground in this caravan park can be considered to be a hazard within the normalmeaning of that term. It is common case that the defendants cut the grass in thePage 3 ⇓caravan park, and, as I have already indicated, that it was an indented field withsome stones.”10. The trial judge went on to say that even if it could be considered to constitute a dangerwithin the meaning of the 1995 Act, it did not appear to her that the defendants asoccupiers could be considered to be in breach of the duty of care in maintaining such anindented ground having regard to the care which Mrs. White must be expected to takewhile walking on such indented ground. The trial judge therefore dismissed Mrs. White’sclaim.11. Of some note was that Mrs. White’s engineer, Mr. Hart, had visited the site in November2010, which was approximately six months after the accident at the request of theplaintiff’s family. This was not a formal inspection, but he had taken certain photographs,referred to as photographs number 10 and 11 in his book of photographs. By the time hisformal inspection took place, the scene had changed and further works had been done toprovide a somewhat different entrance towards the toilets. This Court was provided withthe book of photographs. Unfortunately, photographs number 10 and 11 are close ups ofground that did not in themselves self-identify the location of the ground being depictedtherein. The trial judge stated: -“Mr. Hart’s recollection is that they are in the approximate area of where theaccident occurred, but the area was identified for him by Mr. White not Mrs. Whiteand the evidence is Mr. White was not present when Mrs. White fell.”12. The trial judge went on to say:“[I]t seems to me that [the] evidence is too vague to be of any assistance to thecourt or to be accepted as demonstrating the type of ground where the accidentoccurred.”The Appeal13. Although neither the grounds of appeal nor Mrs White’s written submissions containedany specific reference to photographs 10 or 11, these became significant at the hearing ofthe appeal. It appears that at the trial, Mr. Hart, circled an area in photograph 8 which hesaid was the area photographs 10 and 11 depicted. That original exhibit was not availableto this Court. Photograph 8 depicts an area in front of part of the toilet block, which basedon the evidence Mrs. White gave at trial, appears to have been the general area whereshe tripped.14. For the purposes of understanding this judgment, it is necessary to say that photograph10 shows a close-up of an almost bare area of ground with sandy soil and containingseveral stones thereon with one reasonably large stone protruding from the ground. It isnot clear how far the stone protrudes from the ground however and it appears that noevidence was given at the trial as to that. There are small tufts of grass apparent inphotograph 10 and while it is clear that these tufts are not cut short, it is difficult toestimate their height. Photograph number 11 also shows a close-up area of a piece ofground in which there is some bare soil but also areas of growing grass. There are aPage 4 ⇓number of stones in the ground but again it depicts one reasonably large stoneprotruding. Again, it is unclear how far this stone protrudes from the ground. It isapparent that grass, although not cut short, extends above the height of the stone. Thesephotographs were taken in November and the accident occurred in early May. It is thuslikely that they do not reflect the condition of the grass at the date of the accident,though this is not a finding made by the trial judge.15. Counsel for Mrs. White submitted at the hearing of the appeal that the weight of theevidence was such, that these stones were present in what was agreed as the generalarea of the accident. They were protrusions of stone in a caravan park. Counsel for Mrs.White submitted that protrusions of this sort should not have been on what was acceptedas the appropriate path that Mrs. White took to the toilet block. It was submitted that byreferring to a hazard rather than a danger, the trial judge had imposed too high astandard. It was also submitted that in respect of the common duty of care, the fact thatthis was a commercial caravan park was relevant as to whether the duty of care had beenbreached.16. Counsel for the respondents submitted that there had been no error in law or in fact bythe trial judge. As regards issue of the evidence, this Court had to take into account thedecision of the Supreme Court in Hay v. O’Grady [1992] 1 I.R. 210.The Role of the Appellate Court17. In Hay v. O’Grady, McCarthy J. set out the role of an appellate court on the hearing of anappeal as follows: -“1. An appellate Court does not enjoy the opportunity of seeing and hearing thewitnesses as does the trial Judge who hears the substance of the evidence but,also, observes the manner in which it is given and the demeanour of those giving it.The arid pages of a transcript seldom reflect the atmosphere of a trial.2. If the findings of fact made by the trial Judge are supported by credible evidence,this Court is bound by those findings, however voluminous and, apparently, weightythe testimony against them. The truth is not the monopoly of any majority.3. Inferences of fact are drawn in most trials; it is said that an appellate Court is in asgood a position as the trial Judge to draw inferences of fact. (See the Judgment ofHolmes L.J. in the SS. Gairloch (1899) 2 I.R. 1, 18, cited by O’Higgins C.J. in thePeople .v. Madden ( 1977 I.R.) 336 at 339). I do not accept that this is alwaysnecessarily so. It may be that the demeanour of a witness in giving evidence will,itself, lead to an appropriate inference which an appellate Court would not draw. Inmy judgment, an appellate Court should be slow to substitute its own inference offact where such depends upon oral evidence of recollection of fact and a differentinference has been drawn by the trial Judge. In the drawing of inferences fromcircumstantial evidence, an appellate tribunal is in as good a position as the trialJudge.Page 5 ⇓4. A further issue arises as to the conclusion of law to be drawn from the combinationof primary fact and proper inference – in a case of this kind, was there negligence?I leave aside the question of any special circumstance applying as a test ofnegligence in the particular case. If, on the facts found and either on the inferencesdrawn by the trial Judge or on the inferences drawn by the appellate Court inaccordance with the principles set out above, it is established to the satisfaction ofthe appellate Court that the conclusion of the trial Judge as to whether or not therewas negligence on the part of the individual charged was erroneous, the order willbe varied accordingly.5. These views emphasise the importance of a clear statement, as was made in thiscase, by the trial Judge of his findings of primary fact, the inferences to be drawn,and the conclusion that follows.”The Finding of Fact18. In my view, a number of issues arise on this appeal, the first of which is whether thefindings of fact made by the trial judge were supported by credible evidence? If so, thisCourt is bound by those findings, however voluminous and apparently weighty thetestimony against them. This Court may in limited circumstances be in as good a positionas a trial judge to draw inferences of fact. It is important to note, however, that if it isestablished that the conclusion of law reached on the basis of the primary facts andproper inference drawn by the trial judge is erroneous in law then the appellate courtmust vary the order.19. The trial judge accepted that photographs 10 and 11 showed larger stones imbedded inthe ground but stated that the evidence was too vague to be of any assistance to her orto be accepted as demonstrating the type of ground where the accident occurred. It isnecessary to consider if that finding of fact is a finding correctly made on the evidence atthe hearing and/or if it is open to review by this Court.20. The trial judge referred to Mr. Hart’s recollection that this was in the approximate area ofwhere the accident occurred, but the area was identified for him by Mr. White not Mrs.White. It is correct to say that Mr. Hart’s evidence was that Mr. White had indicated tohim the general area where Mrs White fell. Mr. Hart gave evidence that “photograph No. 6was indicated as the general area where Mrs. White lost her footing. There was noparticular area referred to, just that general area.” Mr. White had earlier given evidencethat he did not see his wife fall and that she was brought into one of the other caravansafterwards. In her evidence Mrs. White was asked to indicate by reference to thephotographs where she fell. She made reference to photograph number 5 and said byreference to the photograph that the middle of the wall of the toilet block was roughlywhere she fell.21. Photograph number 5 shows almost the entirety of the toilet block, the front of which hasa solid wall on the left hand side and then an inset area with pillars to the right.Photograph number 6 shows a close up area of the bare patch in front of the wall. Itdepicts only part of the solid wall and part of the open inset area on the right. It does notPage 6 ⇓depict the left hand side of the solid wall. That can be deduced from the dark patch on thewall in photograph number 5 and 6. It is therefore clear that photograph number 6 isfocussed much more to the right hand side of the wall than the middle of the wall.22. For those reasons, while the trial judge may not have set out completely accurately thechain of evidence that demonstrated the location of the ground depicted in photographs10 and 11, there is certainly evidence to support her contention that the evidence ofwhere Mrs. White fell was very vague. No one had given evidence that identified theground in photographs 10 and 11 as being the location of the accident.23. The trial judge also indicated that the evidence was too vague to be of assistance indemonstrating the type of ground where the accident occurred. In so holding, the trialjudge was pointing out that all the photographs demonstrated was that in a certain areathere were two particular stones of some reasonable size. In other words, she did notaccept them as evidence that the entire area in front of the wall consisted of sandy soilwith reasonably large stones embedded therein. This is consistent with her earlier findingthat the toilet block area, being an uneven grassy area, has a probability of some stonesembedded in it.24. In the circumstances, the essential finding of fact made by the trial judge, namely thatthe evidence was too vague to be of assistance or to be accepted as demonstrating thetype of ground where the accident occurred is supported by the evidence on thetranscript. As there is support in the evidence for her conclusion on this finding of fact, Iam of the view that this Court, as an appellate court, must accept the finding. It mustalso be noted that in the present case, there is no other evidence to show that the groundwas embedded with protruding rocks/stones, indeed the evidence is to the contrary; thiswas an area where a push lawn mower was capable of cutting the grass.25. In all of those circumstances, the finding of fact that the plaintiff fell in an uneven grassyarea with indentations of field-like quality, not a smooth lawn, and a probability of somestones embedded in the grass where there may have also been some small loose stones,must stand. The stones to which she referred as embedded in the grass were not thelarger stones depicted in photographs 10 and 11 but the stones in the unsieved topsoilwhich were required for drainage. It is on that basis that this Court must assess whetheras a matter of law there was negligence on the part of the respondents leading to Mrs.White’s injuries.The Findings of Law26. Section 3 of the 1995 Act provides as follows: -“(1) An occupier of premises owes a duty of care (“the common duty of care”) towards avisitor thereto except in so far as the occupier extends, restricts, modifies orexcludes that duty in accordance with section 5.(2) In this section “the common duty of care” means a duty to take such care as isreasonable in all the circumstances (having regard to the care which a visitor mayPage 7 ⇓reasonably be expected to take for his or her own safety and, if the visitor is on thepremises in the company of another person, the extent of the supervision andcontrol the latter person may reasonably be expected to exercise over the visitor’sactivities) to ensure that a visitor to the premises does not suffer injury or damageby reason of any danger existing thereon.”27. Counsel for Mrs. White criticised the trial judge’s assessment of the word “hazard” andsuggested that the trial judge was applying an incorrect test. This submission can berejected promptly. It was accepted that the common duty of care under the 1995 Act wasthe same as the ordinary duty of care at common law. At the hearing, both engineersused the word “hazard” in addressing the question of the presence of stones, whetherlarge or small, in the caravan park. In submissions to the trial judge, counsel for Mrs.White referred to the stones as having created “a trip hazard” and that these were as amatter of probability the cause of the plaintiff’s accident. In the manner in which the trialjudge referred to “hazard”, it is apparent that she was reflecting the language that hadbeen used in evidence and in submissions in the case before her. Furthermore, havingdecided that the stones did not amount to a hazard, she then went on to say that even ifthere was a danger by virtue of the stones there was no breach of the duty of care. Inthose circumstances it is clear she too was using hazard interchangeably with danger.Finally, counsel has not demonstrated how or what would be the difference between ahazard and danger in a legal sense.28. The question of whether these stones amounted to a hazard or a danger is a matter oflaw to which this Court is entitled to reach a conclusion based on the finding of fact. Thequestion of what amounts to a tripping hazard or a danger must depend on the particularcircumstances. At the trial, no evidence was given as to how far a loose stone mightprotrude from the ground before it could be called a tripping hazard. There wascontradictory evidence from the engineers as to whether loose stones or protrudingstones in this instance would amount to a tripping hazard, particularly in the context ofthis being a caravan park. It does not appear to have been the plaintiff’s case at trial orindeed on appeal, that the same smooth core surface should be available all over thecaravan park and therefore no protrusions of any kind could be allowed. Indeed, given themanner in which the caravans are spread throughout the caravan park, if a smooth coresurface was required each caravan would have to have a dedicated path to a toilet blockor indeed to any entry or exit from the park.29. The decision in Lavin v. Dublin Airport Authority plc [2016] IECA 268 is instructive as towhat constitutes a danger. The Court of Appeal found that not every risk which exists ona premises will constitute a danger for the purposes of the 1995 Act. The Court of Appealheld that the common law distinction between an unusual danger and a usual danger wasimportant even in the context of s. 3 of the 1995 Act. In the case of a usual danger,examples of which were a fixed staircase and an escalator, absent some unusual defect ordanger being present and in respect of which the visitor ought to be warned andprotected, the occupier will not be liable if the visitor loses her step and falls. As Peart J.Page 8 ⇓stated: “[i]n other words provided that reasonable care has been taken by the occupierno liability will exist.”30. Counsel for Mrs. White submitted that in considering this as a “field” the trial judge haderred as a matter of law. It was a caravan park operated for commercial value by therespondents. It therefore required different consideration. Different consideration as towhat amounts to a danger or hazard in a commercial caravan park when compared with awild meadow or tilled field may well be appropriate. On the other hand, as a matter ofcommon sense, a caravan park exists in an area of natural beauty or wilderness anddifferent consideration may apply when compared with a pathway to a toilet in an urbanor suburban setting. The question of what constitutes a hazard or danger in the particularcircumstances must take those factors into account.31. The Court of Appeal in Lavin v. Dublin Airport Authority plc held as followed with respectto s. 3 of the 1995 Act:“The section has not expanded the duty of care at common law previously imposedupon an occupier of a premises in favour of an invitee (now a visitor). Rather, itreflects the common law principles, and has put [it] on a statutory footing. In thewords of Charleton J. in Allen v. Trabolgan Holiday Centre Limited [2010] IEHC 129‘The Occupiers’ Liability Act 1995 codifies responsibility in tort by the occupiers ofpremises towards entrants’. He went on to state in relation to the common duty ofcare owed:‘As to that duty it is clear that merely establishing that an accident occurredon premises is not enough. The plaintiff must show that a danger existed byreason of the static condition of the premises; that in consequence of ithe/she suffered injury or damage; that the occupier did not take such care asis reasonable in the circumstances to avoid the occurrence.’”32. Initially, counsel for Mrs. White sought to argue that the trial judge was not entitled totake into account for the purposes of s.3 and assessing the common duty of care “thecare which the visitor may reasonably be expected to take for his own safety”. Counselfor Mrs. White argued that that was only relevant to the issue of contributory negligence.In the course of the hearing, this was conceded not to be correct in law. In assessingwhether there has been a failure on the part of the occupier to take reasonable care, acourt must have regard to the care which the visitor may reasonably be expected to takefor his or her own safety. A statement of the law to this effect is to be found at para. 60of the Lavin v. Dublin Airport Authority plc decision.33. On the facts of the present case as found by the trial judge, there is no basis forconsidering that the evidence demonstrates that the ground consisted of an unusualdanger over and above the type of uneven surface one might expect in a caravan park.Although this was a commercial caravan park where there had been works carried outprior to the accident, the surface which remained was more in keeping with thenaturalistic settings which one expects to find at a caravan park. They are usually foundPage 9 ⇓in areas of natural beauty and, while not areas of wilderness, no visitor would expectpristine surfaces. A certain unevenness of the surface is to be expected.34. It is also a factor that every individual using the caravan park would be expected to takecare as regard any tripping hazard that might exist by virtue of loose or embeddedstones. The findings of the trial judge were that these stones were part of the topsoil andthey did not prevent the cutting of the grass. In the absence of a finding by the trial judgethat these loose or embedded stones had constituted an unusual danger by virtue of theirsize or the fact that they had recently been imported into the area it cannot be said as amatter of law that there has been breach of the common duty of care. On the contrary,the trial judge had found that the stones had not presented any problem with the cuttingof the grass in the area. Having regard to the evidence as to the nature and condition ofthe area in which the respondent fell as found by the trial judge, it cannot be said that, asa matter of law, the trial judge erred in her conclusion that the respondents had notbreached the common duty of care.35. For the above reasons, I dismiss the appeal.
Result: Dismiss appeal
Fagan v Dunnes Stores
[2017] IEHC 430
JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 28th day of June, 2017
1. This is an action for damages for personal injuries and loss arising as a result of an accident which occurred on 29th April, 2014, when the Plaintiff slipped and fell in a vestibule to the grocery section of the Defendant’s supermarket premises at Cornelscourt Co. Dublin. A defence was delivered by the Defendant which put the Plaintiff of full proof of his claim and alleged contributory negligence on his part. Subject to that, special damages were agreed between the parties in the sum of €6,672.46.
2. The Plaintiff was born on 12th October, 1960. He is an electrician by trade; however, since 2011 he had been employed by the Defendant as a hygiene operative. At the commencement of his employment he received induction training and subsequently accident prevention training in accordance with the Defendant’s shop floor cleaning policy; his training records were discovered and made available to the Court. At the time of the accident the Plaintiff was assigned to the grocery department; he worked shift hours.
Accident locus
3. Substantial structural and internal layout works have been carried out to the department store since the accident which included removal of the vestibule which measured 2.35 metres in depth by 4.53 metres in width and which separated grocery and retail from the goods inwards department. Access and egress was by way of two sets of double doors one set on either side opposing one another.
4. The Plaintiff was provided with cleaning equipment which was kept in a locker located to the left hand side of the vestibule as one entered from the grocery and retail department and where a bin into which the Plaintiff deposited any rubbish encountered while carrying out his inspection and cleaning duties was also located.
5. It was a cleaning system requirement that the Plaintiff had to complete a cleaning/inspection form at the customer services desk by recording and initialling the start and finish time of each cleaning circuit undertaken by him in the grocery department approximately every fifteen minutes. His training incorporated what was described as the ‘view as you go inspection system’ which involved keeping an eye out for deleterious substances on the floor and the utilisation of a cleaning protocol if such were encountered.
6. Although the Defendant considered that the Plaintiff’s area of responsibility included the vestibule no express instruction to that effect was ever given to him, nevertheless, the Plaintiff fairly accepted that as part of the ‘view as you go inspection system’ he would be keeping an eye on the floor in general and if he had seen any liquid or other deleterious matter on the vestibule floor he would have dealt with it.
7. Both parties retained engineers. At the time of the accident the vestibule floor was constructed of concrete to which red paint or a red resin had been applied; photographs of the floor taken by the Defendant’s engineer before the alteration works in connection with a different incident (which did not involve a slip and fall) showed the red coloured material to be in a worn condition consistent with heavy use. The Plaintiff estimated that on any given shift he alone could be in and out of the area 50 to 60 times.
8. As a consequence of the removal of the floor prior to the engineering inspections relating to this accident it was not possible for the engineers to carry out slip resistance tests, however, they were broadly in agreement that a concrete surface in general provides good slip resistance, even when wet.
9. The Defendant maintains CCTV surveillance of its premises and footage from a camera located in the grocery retail section near the entrance to the vestibule material to the accident was retained and viewed by the parties and their engineers. The footage does not show the interior of the vestibule, but does show the Plaintiff, other employees of the Defendant and merchandisers entering and leaving the grocery department through the double doors of the vestibule use of which is restricted to the Defendant’s staff and suppliers. The vast majority of goods for sale in the grocery department passed through the vestibule; glass panels had been inserted into the sets of double doors to facilitate visibility of those utilising it and coming in the opposite direction.
The Accident
10. The Plaintiff’s evidence was that he had been in the vestibule numerous times between 8am, when he started his shift, and the time when the accident occurred shortly after 10 am. His recollection was that in the ten minutes or so prior to the accident he had been in and out of the vestibule 5 or 6 times; his evidence was corroborated by the CCTV footage.
11. At 10:10:19 he was seen to emerge from the vestibule through the double doors and into the grocery retail department carrying his cleaning equipment and proceeding about his business until he is ultimately seen to return through the double doors at 10:11:18. His evidence was that as soon as he did so he slipped and fell heavily on his back, landing entirely within the vestibule area.
12. He did not see what had caused him to slip and wasn’t sure what had happened but he was aware of being in a lot of pain. He also recalled his clothes were wet to such an extent that he thought he had soiled himself and recalled being attended to by members of the staff as well as by ambulance crew who had been called to assist at the scene.
13. Between 10 am and 11 minutes past 10 the CCTV footage records 36 traffic movements by individuals some with and some without goods and with some pushing or pulling trolleys. In the final minute immediately before the accident which occurred at just after 10.11.18, there were seven journeys through the vestibule by members of staff or merchandisers, the last of which occurred as the Plaintiff entered and another employee or a merchandiser is seen to emerge.
14. The Plaintiff’s evidence was that before he left the vestibule, a minute before the accident, he did not see anything on the floor but if there had been he would most certainly have dealt with it. Of the seven journeys during the last minute a cage and an empty stock trolley are seen being taken into the vestibule and a loaded stock trolley and vegetable crate are seen being taken out.
15. There was no evidence that in the 10 minutes and in particular the final minute before the accident that any employee or merchandiser, other than the Plaintiff, had encountered any difficulty while traversing the vestibule floor. The evidence of the Defendant’s engineer, Mr. Terry, was that if the Plaintiff’s clothes were wet to the extent described then that would be indicative of an extensive area of spillage; the description given by the Plaintiff of what happened to him once he went into the vestibule was a classic description of a slip and fall consistent with something slippery being on the ground. Having regard to the nature of the concrete floor surface he considered it unlikely, for reasons given, that the substance on which he stepped would have been a liquid such as milk, water or juice rather it had to be viscous such as vegitable oil. Under cross-examination he agreed that, apart from something like vegetable oil, a squashed fruit, a vegetable or spilt yoghurt could also cause such a slip.
Conclusions with regard to the accident circumstances
16. That the Plaintiff slipped and fell on the floor of the vestibule is not in controversy. As already stated, both engineers were in agreement that in general concrete, even when wet, provides good slip resistance. I accept the Plaintiff’s evidence that when he went through the double doors into the vestibule he slipped in the way and manner described, that he landed heavily on his back and that his clothes were wet to the extent that he thought he had soiled himself.
17. I accept the evidence of Mr. Terry that the Plaintiff’s description was consistent with stepping onto a slippery substance which, having regard to the nature of the floor surface, had to be viscous and that as a matter of probability, having regard the his clothes being wet as described, that he stepped onto a viscous liquid rather than a crushed piece of fruit, vegetable or yoghurt. Pertinent to these conclusions I pause to observe that the accident report form records the Plaintiff’s accident as one involving a slip and quite properly it was not suggested to him that it was attributable to some other cause.
18. Further to the foregoing it seems to me to be highly likely, and the Court so finds, that the liquid on which the plaintiff slipped was deposited on the floor in the minute subsequent to the Plaintiff’s final exit from the vestibule before the accident and most likely in the moments before he re-entered. I accept his evidence that the floor of the vestibule was most likely clean when he left since had there been an extensive viscous spillage on the floor sufficient to wet the clothes of anyone who was unfortunate enough to stand and slip on it I consider it unlikely that so many people would have been able to pass and re-pass without difficulty in the minutes before the accident as captured on the CCTV footage.
Liability
19. This is an action brought by the Plaintiff against the Defendant in negligence and for breach of statutory duty; the thrust of the allegations is that the Defendant failed to provide a safe system and place of work and was thus guilty of negligence as well as being in breach of the Safety, Health and Welfare at Work Act 2005 and the (General Application) Regulations 2007.
The Law
20. Put at its simplest the duty which an employer owes is to take reasonable care for the employee’s safety in all the circumstances of the case. This case, in common with every claim by an employee against an employer, is concerned with the duty of care as between the particular employer and the particular employee. By way of example, age, knowledge, experience, expertise, physical or mental disability, training, information and instructions are all factors which may be taken into consideration in the determination of the duty of care owed in the particular circumstances of any given case. See McSweeney v. McCarthy (18th January, 2000, Supreme Court).
21. The provision of competent co-employees, proper appliances and work equipment together with a safe system and place of work are the categories most commonly involved in the assessment of the duty of care and whether or not there has been a breach of that duty. There is no controversy between the parties as to the law applicable to the circumstances of this case.
22. In brief, the Plaintiff’s case is that there was a failure on the part of the Defendant to provide a safe system and place of work as particularised in the pleadings. Specifically, the Defendant was responsible for causing or permitting the deleterious liquid to be deposited on the floor of vestibule and in failing to give any warning; there was an inadequate system of inspection, cleaning and/or removal of the danger in question. The floor of the vestibule should have been specifically incorporated into a designated cleaning area to which an employee/employees ought to have been assigned. Furthermore, it was not sufficient that the Defendant considered the Plaintiff to be responsible in circumstances where the vestibule had not been incorporated into the grocery area of the department store to which the Plaintiff had been assigned. There was no evidence that the vestibule had been incorporated into any other area or that another employee had been assigned with responsibility to inspect maintain or look after it.
23. The essence of the Defendant’s case was that the Plaintiff had been properly trained in what was a safe system of work; the area to which he had been assigned included a space where his cleaning materials and utensils were kept together with the bin into which he was required to dispose of any rubbish or substances found on and removed by him from the floor of the store; he was responsible to keep an eye out for spillages and his failure to see or clean up the spillage in the vestibule amounted to a want of care on his part. It was submitted that to find the Defendant guilty of negligence in circumstances where it was likely that the spillage had occurred within a minute of the Plaintiff leaving the vestibule would amount to finding that the Defendant was an insurer in all circumstances for the safety of the Plaintiff on the premises; that is not the law. In the event that the Court were to find that there was a deficiency in the Defendant’s system of work, that which the Plaintiff contended ought to have been in place, would not have prevented the accident.
Conclusion on Liability
24. While no risk assessment particular to the vestibule had been carried out there was no evidence led of any complaint of a slip or fall or of circumstances which might have given rise to a slip or fall or of such an accident there and as to the absence of which I accept the evidence of Mr. Finglas, who had been employed as the Defendant’s grocery store manager for approximately ten years. In my view, this is significant in the context of the high volume of traffic through the vestibule since it bears out the opinion of the Defendant’s engineer, which I accept, that a high volume of traffic over the concrete floor of the vestibule is not to be equated with a high risk of a slip and fall accident.
25. Insofar as the failure to carry out a risk assessment of the vestibule, to incorporate the vestibule into the grocery department and to so instruct the Plaintiff and other hygiene officers amounts to a breach of duty of care and breach of statutory duty, I am not satisfied that such was causative of the accident.
26. Accepting his evidence as to the average number of times he would visit the vestibule in a shift, that he did not see anything on the floor before he left the vestibule for the last time before the accident, that had he done so he would have dealt with it in accordance with his training and in circumstances where the spillage most likely occurred within a minute of the Plaintiff leaving the vestibule, to find the Defendant guilty of negligence and in breach of statutory duty would, in my judgment, be tantamount to finding that the Defendant was an insurer for the Plaintiff’s safety and thus strictly liable; that is not the law.
27. Having due regard to the reasons given and the findings made, the Court is not satisfied that the Plaintiff has discharged the onus of proof required by law to establish his case on the balance of probabilities, accordingly, it is unnecessary to consider the issue of contributory negligence raised in the Defence nor does an assessment of damages in respect of the Plaintiff’s injuries arise. However, for the sake of completeness suffice is to say that had it been necessary to do so, and though the medical reports were agreed, I found the Plaintiff to be a poor historian concerning his injuries.
28. Under cross examination he accepted that in March, 2016 at a meeting with his employer to explore a possible return to work that he probably gave information concerning his medical status which was inconsistent with advice which he had by then received from his consultant orthopaedic surgeon, Mr. Morris, and to whom, I am also satisfied, notwithstanding his evidence to the contrary, he did not disclose neurological problems for which had been extensively investigated in 2010. In the event, although there was disagreement as to the degree, it was accepted by both parties at the end of the trial that the Plaintiff’s injuries were of a soft tissue nature only.
29. Having due regard to the conclusions reached in relation to the issue of liability the Plaintiff’s claim must be dismissed. And the Court will so order.
Smith v Coras Iompair Eireann
29/11/1990 Suprem Court Griffin J
The facts
On the 14th May 1981 the plaintiff was severely injured, losing both legs, when he was in collision with a train on the railway of CIE near Con Colbert Road, Inchicore. At the time he was aged 20. The accident occurred between 9.30 pm and 10.00 pm when it was dusk.
Between Con Colbert Road and the railway there is a field and the boundary between the field and the railway is a stone wall which is overgrown with ivy and bushes. The average height of the wall is approximately 4′ but in places it increases to about 6′. In one place there is a dip in the wall where it is approximately 2′ 4″ high, where the wall apparently became broken down at some stage. On the railway side of the wall there is an embankment, the top of which is approximately 15′ to 16′ above the level of the railway. The embankment is covered with brambles and briars and there is a steep decline from the top to the railway level. At that point the grass and briars have been beaten down and there is what might be called a rough path down the embankment. When one is descending the embankment, to the left is in the direction of Heuston Station, and to the right is in the direction of Ballyfermot. At that point there is a view of several hundred yards in each direction.
On the side of the railway opposite to the embankment there is a sheer wall 14′ high, through the gap herein before referred to and down the embankment and along the railway lines. The plaintiff and Anthony Killeen gave chase, and they also ran down the embankment and ran along the “passageway” between the embankment and the left line facing Heuston Station, Anthony Killeen being in front. Whilst running, the plaintiff tripped and fell – Anthony Killeen placed this fall as “when they got down near the bridge”. The plaintiff picked himself up and continued the pursuit. The two youths they were chasing had a long lead on them, and one went up the embankment close to the bridge and out onto the road. He was followed by Anthony Killeen. The other ran under the bridge and the plaintiff followed him. Under the bridge the plaintiff ran out onto the tracks and his recollection is that he was in the “passageway” between the left tracks and the middle tracks. When he was under the bridge he saw a train, which was lighted, coming from the opposite direction. The train was coming on his right, but he did not know if it was coming on the middle line or on the line to the right-hand side. He continued to run, and had got from 20 to 30 yards beyond the bridge when he tripped and fell. At that time the front of the train had gone past him, and although he does not recollect colliding with the train, there is no doubt that a collision took place.
In evidence he described his objective in trying to catch the youth he was following as being “to beat him up”. He described his running at the time he tripped and fell as running “flat out”, and, (Q 341) “I was running as fast as I could go”. He did not seeIabove that a plateau some few yards wide, again covered in brambles and briars, and a further wall 14′ high, above that a plateau some yards wide, again covered in brambles and briars, and a further wall 4′ high surmounted by galvanized iron, 3’6″ approximately in height, the latter being the boundary fence of Woodfield Cottages which lie between the railway line and Sarsfield Road, Inchicore. There are two bridges over the railway joining Con Colbert Road with Sarsfield Road – from the place where the dip is in the wall to the bridge in the direction of Heuston Station is approximately 250 yards; the bridge on the Ballyfermot side was stated to be much further away.
On the railway there were three sets of tracks. The rails on each set were a uniform 5 ‘8″ apart. Facing Heuston Station, the distance between the left-hand track and the embankment is approximately 6’. The distance between each of the other two sets of tracks is approximately 6’6″. The areas between the tracks were referred to in evidence by the engineer as “passageways”, but they are in fact areas to provide clearance for trains. The width of a train is not stated, but it is considerably wider than 5 ‘8″, and a portion of trains on each of the lines will therefore overhang the intermediate area. Mr O’Neill, the engineer who gave evidence on behalf of the plaintiff, described the “passageways” to the side of and between the lines as being “made of ballast broken stones – stones which are very coarse, with sharp corners”. In places the stones vary in size, and the sleepers and the ballast around them can be at a similar or different level. In direct examination he said that, if the surface is flat, it is adequate for walking but is not a good surface for running, but in cross-examination he conceded that it was not a good surface for walking. The surface is shown in photographs number 5 and 7 of the black and white photographs and number 8 of the coloured photographs produced on behalf of the plaintiff. The lines are mounted on sleepers 2’8½” apart. The photographs show the sleepers to be wider than the tracks, and to project into the “passageways” for some
distance.
On the evening of the accident the plaintiff, and a companion Anthony Killeen, went to the field adjoining Con Colbert Road between 9.30 and 10.00 pm to see a mare belonging to the plaintiff in that field. The mare was in foal and they saw two youths approximately 15 to 16 years old, one of whom was riding the mare and the other running along side. They ran down the field towards the youths, who ran away, going anything in front of him, as he was looking at the fellow he was chasing and his entire concentration was on him.
Within approximately 5 minutes of the occurrence of the accident, Anthony Killeen came back to the railway line, and found the plaintiff close to the embankment on the left-hand side as one faces Heuston Station. More or less opposite where the plaintiff was lying he found lengths of railway track in the space between the tracks i.e. in what has been referred to a the “passageway”.
They were lying lengthwise, but were not quite parallel with the railway lines. As will later appear the learned trial judge found that, on the probabilities the plaintiff tripped and fell over a length of railway line.
At the trial there was evidence that some local inhabitants from time to time used the part of the embankment down which the plaintiff ran as a short-cut to reach a public house and some shops in Sarsfield Road so as to avoid having to go around by either bridge. This involved walking down the embankment, crossing the tracks at that place, turning right and proceeding a short distance – described as “a stone’s throw”, in the direction of Ballyfermot. At one point some blocks were missing from the wall, and access to Sarsfield Road was gained by scaling the wall, using the holes left by the missing blocks as a hand hold and foot hold, getting up onto the plateau, scaling the 7’6″ high wall and galvanized sheeting, and dropping from the top of the galvanized sheeting to the ground at the other side. The learned trial judge was apparently sceptical in relation to this evidence, but the plaintiff relied upon it as evidence that it showed tolerance on the part of CIE, the occupiers, of those who used that way as a short-cut. The plaintiff had been down on the railway on one previous occasion, but had never used the short-cut to which reference had been made in the evidence.
The law
In this case, the question to be addressed is what, if any, duty was owed in the circumstances of this case to the plaintiff? Since the decisions of this court in Purtill v Athlone UDC [1968] IR 205 and McNamara v ESB [1975] IR 1, regardless of the fact that the plaintiff may have been an intruder, he will be entitled to succeed against the occupier provided that he passes the test of proximity and foreseeability.
In Purtill s case Walsh J said at page 212:
“When the danger is reasonably foreseeable, the duty to take care to avoid injury to those who are proximate, when their proximity is known, is not abrogated because the other party is a trespasser. The duty to those in proximity is not based on any implied term of an invitation or a licence, or upon any warranty for safety which might be thought to be inherent in any such invitation or licence. Rather is it based upon the duty that one man has to those in proximity to him to take reasonable care that they are not injured by his acts. What amounts to sufficient care must vary necessarily with the circumstances, the nature of the danger, and the age and knowledge of the person likely to be injured.”
I do not think that Walsh J there intended or purported to enumerate all the circumstances that were to be considered. Those mentioned by him were the appropriate ones in that case. To those he enumerated should be added the time and place (which would include the nature of the surface of which use is being made) and the persons who
may be expected to be exposed to danger – see Lavery J in Donovan v Landy s Ltd
[1963] IR 441 at 445; and the presence and conduct of the person coming onto the premises – see Henchy Jin McNamara v ESB [1975] IR 1 at 24. In O’Keeffe v Irish Motor Inns [1978] IR 85, O’Higgins CJ said at p 94:
“Irrespective of the capacity in which a person is on another’s land, regard must be had to the actual circumstances and to what in those circumstances is known by or can reasonably be expected from the occupier as to such person’s presence or actions. If the presence of persons on one’s property without permission is habitual and well known, it may well be negligence if one acts in disregard of that fact. It is a question of foreseeability and regard must be had to all the circumstances including, of course, the time and the actual place where the person is at the time of the accident or injury. Indeed the test of reasonable foreseeability is, in my view, sufficiently flexible to cover. all such cases where a person is injured on another’s land.
Accordingly, in my view in the circumstances of this case regard must be had to what the defendants would expect or could have reasonably foreseen in relation to the presence and conduct of the plaintiff at the time and place of the accident.”
In this court, as in the High Court, the plaintiff relied on what was said by this court in Foley v Musgrave Cash and Carry Ltd (unrep judgment delivered the 20th of December 1985) [p 164 – eds], in which a customer in the defendant’s premises was injured when she fell over a trolley. In that case her proximity was known, and it was pointed out that, as a customer in a supermarket, she could not reasonably be expected to look down at her feet while walking along an aisle looking at the shelves displaying the goods on sale in the premises.
In the present case the circumstances were entirely different. There was no evidence that CIE was aware that persons used the railway as a short-cut. However, on the assumption that it tolerated the crossing of the line near Woodfield Cottages for the purpose of use as a short-cut, was it reasonably foreseeable to CIE that any adult would go onto the railway line, not for the purpose of taking a short-cut to Inchicore, but for the purpose which the plaintiff stated in evidence, and would act and conduct himself in the manner in which the plaintiff did on the evening of the accident? To determine the answer to this question, all the circumstances prevailing must be taken into account. These would include the time at which and the state of the light when the events took place, the nature of the surface on which he was running, the speed at which he ran, the fact that having fallen once he got up and started again, and that although he saw a train approaching in close proximity to him he continued to run as fast as he could when all he need have done was to pull up or step to his left in which case he would be in no danger. In considering the question of foreseeability it needs to be stressed, as was stated by Henchy J in McNamara v ESB at p 24, that the existence of, or failure to observe, a duty of care should not be determined with the hindsight derived from the accident but in the light of the circumstances, actual and potential, that ought to have been present to the mind of a reasonably conscientious occupier of property before the event took place.
In my opinion it would be perverse to hold that CIE could or should reasonably have foreseen that any adult would have conducted himself as the plaintiff did in this case on the evening of the accident. In the circumstances of this case, CIE owed no duty to the plaintiff, and Egan J was correct in dismissing this action. I would accordingly dismiss this appeal.
McGeoghan v Kelly, McBrierty and McInern
2018/470
Court of Appeal [Unapproved]
21 April 2021
unreported
[2021] IECA 123
Mr. Justice Noonan
April 21, 2021
JUDGMENT
1. The first appellant is the owner of a licenced premises known as McLaughlin’s Bar, Dunkineely, County Donegal. The second and third appellants had, at the material time, taken a one year lease of the premises from the first appellant. I shall for convenience refer to the appellants as the defendants. This personal injuries action arises out of an unfortunate accident that befell the respondent (the plaintiff) on the 6th August, 2012 at about 2.30am on a Sunday night/Monday morning.
2. The plaintiff attended a bingo session locally earlier in the evening and arrived at the bar sometime after 11pm. The bar was very busy that evening. She had a few drinks in company with her husband who left ahead of her to get a taxi. As it was well after closing time, the entrance door into the bar was closed and the plaintiff had to leave by a separate door opening onto Main Street which also served as the hall door for the adjoining residence. The plaintiff was alone as she entered the corridor to the outside which she claimed was dark.
3. The door was secured by what was described as a Union snib lock of a typical kind. She opened the lock with her right hand and as the door opened slightly, she placed her left hand around the leading edge of the door intending to draw it towards her. Before she could do so however, the door suddenly slammed shut catching the little finger of her left hand between the door and its jamb. As a result, she suffered a severe crushing injury to the finger which ultimately resulted in the amputation of the tip.
4. The High Court (Meenan J.) found in favour of the plaintiff. The negligence identified by the trial judge on the part of the defendants was a failure to ensure that a door closer that was fitted to the door was functioning correctly so as to prevent the door slamming. He awarded general damages in the sum of €75,000 but subject to a deduction of 25% for contributory negligence on the part of the plaintiff.
The Case Pleaded by the Plaintiff
5. A personal injuries summons was issued by the plaintiff on the 13th June, 2013, about ten months after the accident. It is of some significance to note that the summons was issued in advance of a joint engineering inspection taking place. The plaintiff’s evidence at the trial was that there was, in fact, no door closer fitted to the door in question. That was reflected in the summons that pleaded that there were no measures to prevent violent and sudden slamming of the door.
6. In her particulars of negligence, the plaintiff pleaded at item (d) that there was a failure to ensure that there was an appropriate mechanism on the door to prevent sudden and violent slamming and (l), a failure to apply a device which would prevent the door from violently slamming. Paragraph (n) pleaded that there was a failure to warn the plaintiff that the door was prone to violent slamming but no evidence was led by either side at the trial which supported this latter allegation. Accordingly, the sole and only case pleaded by the plaintiff was in substance that there was no closer on the door.
7. A joint engineering inspection took place on the 18th September, 2013, three months after the summons containing the pleas I have identified was issued. The inspection was attended by the plaintiff with her consulting engineer, Ms. Anne Kelly, and by Mr. Tom O’Brien, the consulting engineer on behalf of the defendants. In his report following this inspection, Mr. O’Brien noted that the door was fixed with a closing/damping device of standard type with two adjustments that allowed for variation in the swing speed and the latch speed at its final stage of closure. Mr. O’Brien noted that the door was inclined to stick as it closed because the underside was catching against the top surface of the doorstep and once past this restriction, the door closed freely and quickly taking between .45 and .55 seconds for the final phase of closure. Accordingly, the damping effect was negligible at that time.
8. The case took a somewhat protracted course to come to trial but was eventually listed for hearing at the Sligo sessions of the High Court which commenced on Monday 29th October, 2018 for a period of two weeks.
9. Before the case came on for trial, the plaintiff’s original engineer, Ms. Kelly, had retired and it would seem that very shortly prior to the Sligo sessions, a new engineer was instructed, Mr. Vincent McBride. A second joint engineering inspection took place on the 8th October, 2018 again attended by the plaintiff, this time with Mr. McBride and Mr. O’Brien. Both engineers again assessed the operation of the door closer, again noting that there were two phases. The door opened to a maximum of 80 degrees and took about two seconds to close from 80 degrees to 20 degrees when the second damping phase slowed it further.
10. To cover the last 20 degrees required 5.3 seconds which was, give or take, approximately ten times longer than had been the case five years earlier when it was assessed in 2013. As at the previous inspection, Mr. O’Brien also noted that the door had a handle just below the snib lock. Of note at the second joint inspection, the plaintiff alleged that on the night of the accident, there was no handle fitted to the door nor was there a closer on the door. These allegations were not made by the plaintiff at the first engineering inspection. Another contentious issue was the lighting in the hallway/corridor leading to the door. There was a ceiling light present but the plaintiff alleged that this was not on at the time of her accident and thus the corridor was in near darkness.
11. Mr. McBride prepared his report which is dated the 11th October, 2018 shortly after the inspection. At the conclusion of his report, he expressed the view that patrons should be escorted off the premises particularly if the corridor were to be left unlit, as the plaintiff alleged. Mr. McBride’s report appears to have led to further particulars of negligence being delivered by the plaintiff on the 31st October, 2018, two days before the trial commenced and these were, (r) failing to ensure that the plaintiff was escorted safely off the premises after hours, (s) causing, allowing and/or permitting the plaintiff off the premises without any adequate lighting or any adequate supervision after hours and (t), failing to light the exit area properly or at all.
Hearing before the High Court
12. The hearing commenced on the 2nd November, 2018 with counsel for the plaintiff opening the case to the trial judge. Counsel indicated that the plaintiff had to leave via a very dimly lit corridor totally unsupervised and there was no one to let her out. In the course of the opening, counsel said (at Transcript Day 1, page 6-7): –
“Her evidence, Judge, will be that she opened the snib above the handle, which may or may not have been there on the day in question, and she put her left hand inside the door to open it when suddenly the door closed and caught her finger. It is a little bit unclear what caused the door to close. But the plaintiff’s case, Judge, is that she should have been let out of the premises safely. There should have been somebody there to supervisor (sic) and let her out in circumstances where the defendants’ bar was profiting from serving drink after hours. But the plaintiff had to make her own way out into the dark on to the street and the injury befell her.”
13. Counsel went on to refer to the fact that the engineering photographs showed a closer on the door which the plaintiff didn’t recall being present, a matter which the defendants would dispute. Counsel went on to say however that this was irrelevant.
14. During the course of the evidence, it was common case between both sides that an external force had to act on the door to cause it to slam on the plaintiff’s finger. The source of that force was never identified nor was it at any stage suggested that the closer had caused the door to slam. However, in the course of his evidence, Mr. McBride said that if the door closer was operating properly, the door would not slam shut.
15. He referred to the original timings for the door closing measured by the engineers in 2013 and said that these would indicate that the door closer was not in effect working because it had not been properly adjusted. Although the defendants each denied in evidence that they had in fact adjusted the door closer between the two inspections taking place, it was clear from the results of the inspections that somebody had in fact adjusted it. The first defendant indicated in evidence that he had installed the door closer for safety reasons and when asked what the safety reason was, he said it was to prevent the door from slamming. He denied however that the door had a tendency to slam. In fact, all the doors in the pub had closers.
16. Thus there were three issues of fact in dispute between the parties. The plaintiff both pleaded and claimed in evidence that there was no closer on the door on the night in question. She also said in evidence that there was no handle on the door and thirdly, she claimed that there was no light on in the corridor. In his ex tempore judgment delivered on the 6th November, 2018, the trial judge found against the plaintiff on each of these issues of fact. He found as a fact that there was both a handle and a closer on the door. He preferred the evidence of the barman on duty, who said that the light was switched on, otherwise he would not have seen the blood present on the door as a result of the accident, to that of the plaintiff.
17. He also referred to the differential in the door closing speeds on the first and second joint engineering inspections and said: –
“The fact that there can be such a difference indicates to me that the closer is required to be maintained. The evidence from the second and third defendant is clear that there was no such maintenance carried out in the relevant period. In my view the probable cause of the accident was that the closer was not functioning correctly, and thus not doing what it was designed to do, i.e. ensure the door closed safely. Therefore, I find that there was negligence on the part of the defendants.”
18. He went on to say that for completeness, he found that there was no duty on the defendants on the evening in question to escort the plaintiff off the premises.
Discussion
19. The primary ground of appeal advanced by the defendants is that there was no evidence as to what caused the door to slam and in the absence of such evidence, the trial judge was not entitled to find that the defendants had been negligent. The plaintiff cross-appeals against the finding of contributory negligence on the basis that the finding by the trial judge that there was no duty on the defendants to escort the plaintiff off the premises was erroneous. It is further pleaded that the judge was wrong to conclude that the light in the hall must have been on.
20. I am satisfied that there was more than ample credible evidence to entitle the trial judge to find the facts that he did. As Hay v O’Grady[1992] 1 I.R. 210 makes clear, this court cannot interfere with such findings of fact once such credible evidence exists. It is also true to say that if the door closer had been working properly on the night in question, the accident may not have happened. The trial judge extrapolated from that that the probable cause of the accident was the failure of the door closer to function properly. On one level that is so. However, it does not necessarily follow that because the taking of a particular step might have avoided an accident, the failure to take that step must be viewed as negligent.
21. It is important to note that the case the defendants came to court to meet was the case defined in the pleadings and the S.I. 391 of 1998 disclosure. The purpose of pleadings is of course to define the issues between the parties at trial. The introduction of S.I. 391 of 1998 was intended to consign to history the notion of trial by ambush. This is particularly important in the context of experts, the substance of whose evidence must be notified to the other side in advance.
22. The case pleaded by the plaintiff here was that there was no closer on the door and there should have been. That pleaded case never changed despite the fact that two days before the trial, further particulars were introduced to suggest that there was a second aspect to the defendants’ negligence, namely a failure to escort the plaintiff off the premises. However, at the trial, no evidence of any kind, expert or otherwise, was led to suggest that the defendants had a duty, be it under the Occupier’s Liability Act, 1995, at common law, or otherwise, to equip the door in question with a closing device.
23. The fact that the actual closer in this case was or was not working cannot be in any sense material unless there was a duty to have it there in the first place. The plaintiff’s expert did not purport to suggest that there was any such duty. On the contrary, it was made clear by counsel for the plaintiff in opening the case, quite properly, that the presence or absence of the door closer was irrelevant because the plaintiff’s case, and her only case, was that she should have been escorted off the premises.
24. It is perfectly understandable that counsel should have approached the case in this way because the case that was originally pleaded, before expert evidence was available, to the effect that there ought to have been a closer on the door, could not be stood up. Equally, there was nothing in the plaintiff’s expert report disclosed to the defendants to suggest, first, that there was a failure to maintain the door closer and second, that such failure was causative of the accident.
25. It seems to me therefore inescapable that the trial judge found the defendants liable on a case never actually either pleaded or made by the plaintiff. It was instead something that, almost incidentally, arose from the evidence. It is of course trite to say that the pleadings define the issues between the parties but in a case such as the present, it is important that sight not be lost of that fundamental tenet of our law. Although this remains true for all classes of litigation, it is particularly important in the context of personal injuries litigation since the passing of the Civil Liability and Courts Act, 2004 and in particular sections 10-13 of that Act.
26. The importance of this legislation in the context of pleading in personal injuries actions was considered by this court in Morgan v ESB[2021] IECA 29 where Collins J. observed: –
“6. …I considered the effect of those sections [10—13] in Crean v Harty[2020] IECA 364 and in the course of my judgment noted that “the provisions of sections 10—13 of the Act are clearly intended to ensure that parties (including defendants) plead with greater precision and particularity so that, in advance of trial, the actual issues between the parties will be clearly identified.” (at para 23).
7. A “ very significant innovation ” in Part 2 (so I characterised it in Crean v Harty) is the requirement in section 14 that pleadings be verified on affidavit. A plaintiff is required to verify “ any pleading containing assertions or allegations ” or any “ further information ” provided to the defendant: section 14(1). A corresponding obligation is imposed on defendants by section 14(2). The importance of the requirement for verification was highlighted by Noonan J in his recent judgment in Naghten (A minor) v Cool Running Events Ltd[2021] IECA 17, with which I agreed. As Noonan J states at para 52 of that judgment, “.. the days of making allegations in pleadings without a factual or evidential basis, if they ever existed, have long since passed.” That certainly ought to be the case having regard to the requirements of section 14.
8. The intended effect of section 14 would be greatly undermined if parties were permitted to continue to plead claims in wholly generic terms. Thus – unsurprisingly – the provisions of Part 2 relating to pleadings, and the requirement for verification introduced by section 14, operate coherently. Plaintiffs (and defendants) are required to state clearly and specifically what their claim (or defence) is and identify the basis for it in their pleadings and must then verify that claim (or that defence) on affidavit. Where further particulars are furnished, such must also be verified on affidavit. Unless pleadings are clear and meaningful, the value of section 14 verifying affidavits will be significantly diluted.”
27. The pleading of formulaic and generic particulars of negligence in personal injuries litigation, while familiar to all practitioners in that area, is undoubtedly significantly impacted by the operation of the 2004 Act, as Collins J. explained in the same judgment: –
“11. … From a practical point of view, one can readily understand why a pleader might wish to avoid committing themselves unduly to any particular theory of liability and instead seek to plead in a manner that covers all the bases lest something further should emerge at trial. Indeed, that was conventionally seen as part of the art of pleading. However, that mode of pleading is not, in my view, permissible since the enactment of the 2004 Act. A plaintiff is required to plead specifically and cannot properly rely on the pleading equivalent of the Trojan Horse, which can as needed spring open at trial and disgorge a host of new and/or reformulated claims.
12. It is difficult to avoid the impression that, despite the fact that Part 2 of the 2004 Act has been in force for more than 15 years, the extent of the changes that it makes in the area of personal injuries pleading may not always be fully recognised or reflected in practice. Personal injuries claims are required to be pleaded in a manner which states clearly and precisely what act or omission of the defendant is alleged to have caused the injuries at issue and why it is said that such act or omission was wrongful. The reflexive instinct of practitioners to plead broadly and generally has to be curbed.”
28. Whilst it was perhaps understandable that the trial judge concluded that the probable cause of the accident was the door closer not functioning correctly, in legal terms it was not the proximate cause or indeed a cause at all. The cause was never established. There was absolutely no evidence before the High Court of any requirement or obligation on the defendants to have a door closer on this or any other door in their premises. That being so, the fact that there was actually such a door closer, albeit one that was not working properly, was entirely immaterial to the defendants’ liability or, as counsel for the plaintiff conceded in opening, was “irrelevant”.
29. The essential basis upon which the trial judge held the defendants to be negligent was not one that was ever pleaded or made by the plaintiff, but simply one that fortuitously emerged in the course of the evidence. The provisions of the 2004 Act to which I have referred, and more generally the requirement for pleadings to define issues, would be robbed of any meaningful effect if courts were at large to determine the outcome of litigation on such a basis. Far from the parties being confined to the issues defined by the pleadings, claims would fall to be decided on an inquisitorial rather than adversarial basis.
30. As for the contention that the defendants had an obligation to escort the plaintiff off the premises, that seems to emerge from a suggestion by Mr. McBride in his report to that effect, clearly predicated on the plaintiff’s instructions to him that there was no light on in the corridor. The trial judge having found as a fact that there was a light on, it seems to me that the suggestion of any alleged need for supervision fell away, as the judge rightly held. Indeed, Mr. McBride properly resiled from this suggestion in his evidence. At Transcript Day 1, p. 51, the following exchange occurred during his direct evidence: –
“Q. Mr. McBride, in relation to supervision, have you any observations in relation to the desirability or otherwise of supervision for somebody leaving a premises along this corridor at this time of night?
A. Well I think with respect, primarily I think the question of supervision is possibly one for the Court to adjudicate on. I’m not an expert in supervision. All I would say, Judge, is that one would expect, if one has to go out into a hallway to exit which is removed from the bar, that there would be some, it would be reasonably lit and that people could see what they’re doing and so forth. I don’t want to venture into the realm of whether one should be escorted from pubs or not because it’s not my sphere of expertise.”
31. Confronted with that evidence, it is easy to understand how the trial judge felt constrained to find that there was no duty on the defendants to escort the plaintiff off the premises, particularly as he had already found that the light was on. It seems to me therefore, that there is no basis for the plaintiff’s contention as a ground of cross-appeal that there was such a duty.
32. I am therefore satisfied that the plaintiff failed to establish that there was any negligence on the part of the defendants and her claim ought to have been dismissed. Accordingly, I would allow the appeal, dismiss the cross-appeal and set aside the order of the High Court.
33. As the defendants have been entirely successful, my provisional view is that they are entitled to the costs of the appeal and the proceedings in the High Court. If the plaintiff wishes to contend for an alternative form of costs order, she will have liberty to apply to the Court of Appeal Office within 14 days for a brief supplemental hearing on costs, and in default of such application, an order in the proposed terms will be made.
34. As this judgment is delivered electronically, Whelan and Binchy JJ. have indicated their agreement with it.