A judge in a recent case explored the common law view on occupiers' liability when it comes to ordinary everyday dangers described as ‘usual’, and which do not attract liability. The case was appealed from the High Court.

The common law duty of an occupier to a visitor was to use reasonable care for one’s own safety.

In the case before the court, the defendant was a well-known operator of fuel-stations with convenience stores throughout Ireland. The plaintiff, who was five months pregnant, lives near the Strand Road station of the defendant. On driving to work on the morning of 26 August 2016, just after 7 am, she stopped at the station for a take-away coffee. She parked in front of the convenience store in a designated space on the garage forecourt with the intention of getting the coffee and walking across the road to sit on a park bench beside the strand to watch the sun rise over Dublin Bay.

Where she parked, there are three bays perpendicular to the store on either side of the entrance. She parked in the middle space on the right side facing the store. The space to her right was empty. The three spaces were ‘bookended’ at the right extremity by a raised pavement, described as a ‘nib pavement’ bounded by standard concrete kerbstones.

After the plaintiff got her coffee, she walked to the back of her car intending to cross the road to the strand. When she came to the nib pavement, she tripped over the kerb and fell forward onto the ground. The accident was caught on CCTV which showed the sun was very low in the sky and the plaintiff was facing it wearing sunglasses as she walked. It was clear that she did not see the raised kerb immediately before she fell.
 
The plaintiff accepted in evidence that as she lived near-by she must have visited the station before and must have been aware of the nib pavement. She said she could not take the route to the strand along the footpath in front of the store because it was blocked.

Both parties had expert forensic engineer witnesses. The plaintiff’s expert said that the plaintiff was presented with a trap situation, that is because the footpath was blocked, she had to take the route she took. He said, typically these kerbs are painted yellow or dished and in his opinion the defendant was in breach of section 3 of the Occupiers’ Liability Act, 1995.

The defendant’s expert witness had a different opinion. He said the kind of pavement the fuel station had was a common part of the vernacular of car park design. He described the kerb as ‘widely found, is common and ubiquitous.’ He agreed that some kerbs are painted but said this was rare and most kerbs were not marked. He described the parking arrangements of the defendant as ‘normal and very familiar arrangement on concrete footpaths and tarmacadam streets.’

The plaintiff stressed the point that the pavement immediately in front of the store was blocked and had this not been the case she could have taken the different route and avoided the accident.

The High Court judge found that the safe exit route was blocked by the defendant’s obstruction and amounted to negligence and breach of duty of care by the defendants towards the plaintiff.

The defendants appealed to the Court of Appeal.

The central point of the defendant’s appeal was that there was no evidence before the High Court to suggest that the pavement nib was an unusual danger of a kind that attracted liability under the 1995 Act and that the High Court judge in her conclusions failed to have regard to the fact that it was undisputed that the nib pavement was a commonplace feature to be found not only in garage forecourts but in street and car park architecture generally, both in public and private.

The Court of Appeal was satisfied that there was no true causal link between the obstruction of the footpath and the plaintiff’s accident. It pointed out that there were any number of reasons why the plaintiff took the route that she did. There was nothing to suggest that the defendant had a duty to the plaintiff to provide a footpath at all, and accordingly, whether it was blocked or not was irrelevant.

The primary difficulty with the finding of negligence is that it was arrived at without any reference to whether or not the nib pavement constituted a danger in respect of which the defendant failed to take reasonable care to ensure the plaintiff was not injured. For this, the Court of Appeal considered the common law duty of care before the 1995 Act. Judge Peart in the case of Lavin v Dublin Port Authority plc [2016] IECA 268 cited the 1959 case of Long v Saorstat Eireann 93 ILTR 137 in which Murnaghan J said in relation to the duties of an occupier:

‘The plaintiff had to establish that the defendants had failed to take reasonable care to prevent the damage from unusual danger which they knew or ought to have known.’

Peart J in considering the Lavin case said that section 3 of the 1995 Act reflects the common law principles and put it on a statutory footing.

Decision of the Court of Appeal
There was no evidence in this case that the nib pavement constituted an unusual danger. In fact, the opposite was the case. Considering the two expert witness’s evidence, the court found the defendant’s expert witness gave the clearest evidence which went largely uncontradicted. The court considered the undisputed evidence, the law and common sense in everyday life and could come to no other conclusion but to allow the appeal finding that there was no breach of the 1995 Act by the defendants.

Kandaurova v Circle K. Energy Group Ltd 2025 [IECA] 13.