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PERSONAL INJURIES
What Constitutes an ‘Unusual Danger’ in Slip and Trip Accidents
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.
A Circuit Court appeal was heard in the High Court where the underlying proceedings were taken pursuant to section 62 of the Registration of Title Act, 1964 (as amended by the Land and Conveyancing Law Reform Act, 2013). The plaintiff in the case had sought an order for possession in respect of a charge on registered land. The Circuit Court judge granted the order for possession. The defendant, a lay litigant, appealed the order to the High Court. There was an alleged change in the ownership of both the registered charge and the underlying debt secured upon the charge to the plaintiff in these proceedings, namely, Pepper Finance Corporation (Ireland) Ltd. The transferee (Pepper) made a substitution application to the High Court in March 2023 by way of an ex parte application. The application was made pursuant to Order 17, rule 4 of the Rules of the Superior Courts. The original plaintiff was KBC Ireland plc. The standard practice in granting these ex parte orders is a provision that the defendant is informed, in writing that (a) a copy of the affidavit and exhibits grounding the substitution application be made available upon request (b) that an application may be made to court to set aside the order (c) that the defendant has an entitlement to contest the transfer of the loan and/or any security involved to Pepper at the hearing of the action. The form of the order made by the court is that Pepper has effectively stepped into the shoes of the original plaintiff KBC Ireland plc. The first issue the judge had to consider was whether the substitution order made in favour of Pepper was correct. The judge referred to a judgment of the Court of Appeal in Irish Bank Resolution Corp. v Halpin [2014] IECA 3. Here the view of the Court of Appeal was that rather than Pepper stepping into the shoes of KBC Ireland plc, the appropriate order is that the transferee is joined to the appeal as a second plaintiff. The decision in Halpin has been followed in Permanent TSB Plc v Morrissey [2017] IEHC 18 in the context of an appeal from the Circuit Court. Therefore, in adopting the Halpin case, there was an issue before the court as to whether the order made in the present appeal was correct in that it released the original plaintiff (KBC) from the case. Pepper’s counsel attempted to make a distinction between an appeal from the Circuit Court to the High Court, and an appeal from the High Court to the Court of Appeal. However, the presiding judge felt he did not have to rule on this, nor the grounds of appeal from the appellant on the competing considerations as he felt that there was a significant point of law to be decided upon and which was one that should be decided by the Court of Appeal. As it stood, the court was bound by the judgment of Halpin though counsel for Pepper tried to distinguish Halpin from the present case and this stating the court was not bound by Halpin. The judge thus adjourned the appeal proceedings to allow the preliminary jurisdictional issue to be determined by the higher court. Pepper Finance Corporation DAC v Tracey O’Reilly High Court [2024] IEHC (ex tempore)
The plaintiff’s claim arose from an incident where he maintained that his wheelchair was stopped at a road junction when it was struck by the defendant’s taxi shortly before midnight on the night of 7th May 2017. He took his case to the Circuit Court for pain in his shoulder and arm, and a graze to his hip. The plaintiff claimed that four days after the accident he went to his GP, then a second time the following month and he continued to receive treatment from the wheelchair association physiotherapist. He claimed that the defendant’s taxi struck his wheelchair on the right-hand side, and he tumbled out of the chair onto the middle of the road. He told the court he only had particular recollection of the incident through ‘flashbacks.’ He said his self-esteem took a blow when he was no longer able to compete at an elite level of his sport because of his shoulder injury. The legal teams for both sides disputed whether the plaintiff was on the incorrect side of the road when using his wheelchair. On the night of the accident, the plaintiff had dinner at home and then went to a pub between 5:30 pm and 6:30 to watch a football match and have a few drinks. He remained in the pub until close to midnight. He admitted that he ‘probably drank a pint an hour.’ On being challenged on his state due to alcohol, he answered, ‘I was not drunk…I was not sober’. A Garda, who was at the scene, said the plaintiff was very intoxicated. He said the plaintiff verbally abused him and the ambulance staff who were trying to assist him. The garda also said that the plaintiff would not give a description of what had happened. The plaintiff’s explanation for this was that he must have been disoriented and confused after the accident. He said he had a pain in his head. The hospital staff had to be alerted as well as security staff because of the plaintiff’s aggressive and abusive condition. Counsel for the defendant asserted that the plaintiff was ‘stocious drunk’. The defendant stated in evidence that his taxi was stopped at the junction and that the wheelchair ran into the taxi, with the point of impact being the front registration plate. The plaintiff also gave the wrong address for the accident, so an engineer consulted for the plaintiff examined the wrong junction in 2017, then several years later examined the correct junction. The judge dismissed the plaintiff’s case ruling that there was no liability against the taxi driver for the accident and he was satisfied that the taxi vehicle was stationary. The evidence of the plaintiff could not be relied upon. Costs were awarded against the plaintiff. Hegarty v O’Halloran Cork Circuit Court (His Hon Judge Sheehan) 15 January 2025.
This case concerned an alleged breach by the Child and Family Agency in releasing personal data which the plaintiff claimed was negligent on their part and a breach of their duty in regard to highly sensitive information concerning the plaintiff. This confidential information was circulated to a third party without the consent of the plaintiff. The sensitive information related to abuse suffered by the plaintiff during her childhood. The defendant accepted that a personal data breach had occurred. They conceded that sensitive information was released to the person, the subject of the abuse allegations, and other family members of the plaintiff. The plaintiff claimed that the breach caused damage to her relationship with her family and that she suffered upset and distress as a result. As the defendant accepted that they were responsible for the breach, the court only had to decide on what damages should be awarded. The judge was guided by the decision of Kaminski v Ballymaguire Foods where €2,000 was awarded for non-material loss. In that case, the plaintiff’s personal data, captured via CCTV, was used without the consent of the plaintiff for workplace training. The judge in applying Kaminski, held that given the private and sensitive nature of the childhood sexual abuse allegations, the data breach was sufficiently serious to justify awarding compensation and thus awarded €7,500 to the plaintiff. The court accepted the plaintiff’s evidence and noted that the defendant provided no evidence regarding any steps taken to mitigate the damage caused to the plaintiff. However, the defendant had apologised to the plaintiff, several months after the personal data breach occurred. The fact that the agency took no steps to mitigate the damage to the plaintiff, undoubtedly had a negative effect on their case. M.H. v Child and Family Agency, Circuit Court [2023] IECC 11 ex tempore
James Prior, a twelve-year-old sued the HSE through his mother for the care he received after his birth. It was claimed that he suffered difficulties because of the care and management by the hospital. It was submitted to the court that he had missed many milestones in his life. He did not smile until he was three months old and did not walk until he was three. His claim was that there was a failure by the hospital to exercise reasonable care in and around his management and treatment in the neonatal period. He was born in Mullingar Regional Hospital in 2012 but was transferred to a Dublin hospital when he became unwell. The court heard that a cranial ultrasound on the day after his birth was clear, but five days later it showed difficulties with the baby’s brain cells. Emergency measures should have been taken it was submitted. The transfer of the baby to the Dublin hospital was a two-hour journey by ambulance. In the case heard in the High Court, the HSE denied all of the claims. The case was settled by mediation between the parties and the matter came before the High Court to approve the settlement. The terms reflected a 25% reduction on the full value sought to account for the litigation risk in the case. The matter will come before the court again in the future to assess James’s loss of earnings and future care needs. The amount agreed between the parties in mediation and approved of by the court was €1,500,000. James Prior (Suing by His Mother, Tracey Carroll) v HSE High Court (Coffey J) 11 December 2024.
An interesting case came before the High Court where a plaintiff sought permission to amend his statement of claim. The plaintiff, a lay litigant, was suing a receiver and vulture fund for the alleged wrongful repossession and sale of his business premises after he fell into arrears with the mortgage on the building. The plaintiff issued a plenary summons in November 2020. The statement of claim was delivered in July 2021. This was followed by the discovery procedure in which there were delays and in April the plaintiff proposed to amend the statement of claim by email to the defendants. The defendants opposed the amendment, and the matter came before the High Court for decision. During the hearing, the defendant agreed with the plaintiff on some items which could be readily amended. The plaintiff relied on Rossmore Properties Ltd v ESB [2014] IEHC 159 to allow him to make the amendments. The Rossmore case emphasised that amendments to pleadings should generally be allowed unless they caused real prejudice. The plaintiff claimed that the amendments were essential to his case and that there was no causal connection between the alleged delay or content in his proposed amended statement of claim and the prejudice asserted by the defendants in respect of any alleged missing documentation. The plaintiff further alleged that any lapses attached to the defendants' failure to comply with their obligation to keep in safe custody all documents required for litigation prior to initiating any legal actions and until conclusion of such actions. The defendants complained that some documents sought by the plaintiff were no longer available by the originating bank (PTSB) and the plaintiff’s request for documents that went back to 2002 prejudiced them. The vulture found had requested such documents from the bank but these were no longer available. The plaintiff claimed the defendants were negligent in failing to keep all relevant documentation safe. The defendants also objected on the grounds that many of the amendments sought contradicted the Statement of Claim already filed. The judge cited the provision in the Rules of Court: Order 28, rule 1 of the Rules of the Superior Courts 1986, as amended (“RSC 1986”) provides for the amendment of a Statement of Claim, as follows: “The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.” The judge then examined the applicable principles as found by the Court of Appeal 15 in Stafford v Rice [2022] IECA 47 and applied by the High Court in McDonald v Conroy [2024] IEHC 69. The principles for an amendment to a Statement of Claim were established by the Stafford case and overruled the findings of the Rossmore case. The grounds set out by the plaintiff did not comply with the principles of the Stafford case. Accordingly, the judge allowed the changes that had been agreed between the parties but rejected all other amendments sought by the plaintiff. Kelly v Fennell and Link Services Ltd High Court (Bradley J) 28 January 2025.
A tenant pensioner was ordered to pay her landlord €6,000 for arrears of rent in a case before the Residential Tenancies Board. The tribunal heard how both sides were let down by the Housing Assistance Payments (HAP) scheme which took 15 months to process the claim before any payments were made. When the payments did come they were not backdated. The landlord said the HAP process had broken down after the tenant had moved into the property in 2022. She said that the tenant would do ‘the best she could’ with the rent but the mortgage on the property had since been sold to a vulture fund which put her under pressure as the vulture fund was looking to repossess the house to sell it. The rent was up to date since the HAP payment came into play but there were pre-HAP arrears of €6,369.50 outstanding. The tenant told the tribunal that she did not expect the HAP process to be so long and in order to pay the rent she had to sell personal items for the initial period of the tenancy. She said the forms for HAP were sent to the wrong address and she had to get documents translated concerning her German pension. The tenant did not dispute that arrears were due. Regarding rent payments made, she paid in cash and did not keep a record of the amount she paid. The tribunal said evidence given by both sides was not entirely satisfactorily and observed that the record keeping was poor which did not help. They made an award of €6,000 in favour of the landlord. Roettger v Sheehan Residential Tenancies Board (TR0824-007861) 9 January 2025.
The law has provided for a no will situation under the Succession Act, 1965. In this case where a loved one has died without a Will, contact your solicitor who will bring you through the process. Under the Act, the Rules of Intestacy applies, these are necessary in order for the assets of the deceased to be fairly and properly distributed. A Will made invalidly will be treated as no Will and the Rules of Intestacy will apply. Also, if there is a legal challenge to the Will in court, the Will could be held to be invalid and the statutory provisions on intestacy will apply. What Are the Rules of Intestacy? If the deceased person is survived by: (a) Spouse/civil partner but no children. Here the spouse/civil partner get all the property/assets, known as the ‘estate.’ (b) Spouse/civil partner and children – spouse/civil partner gets two-thirds of the estate, the remaining one-third of the estate is divided equally between children (if a child has already died his/her children take the share of the pre-deceased parent equally between them) (c) Parents, no spouse/civil partner and no children – estate divided equally to both parents or entirely to one parent if only one survives. (d) Children and no spouse/civil partner – the estate is divided equally between deceased’s children (as above) (e) Brothers and sisters only – the estate is divided equally between the deceased’s siblings. The children of a pre-deceased sibling are entitled to receive that sibling’s share of the estate in equal shares. (f) Nieces and nephews only – the estate is divided equally between those surviving the deceased. (g) Other relatives – divided equally between nearest equal relationship. In this case, lineal is preferred over non-linear descendants or ascendants. (h) No relatives – the state (Ireland) If any of these situations arise, contact your solicitor.
In February 2019, the plaintiff was injured from a terrifying fall and lengthy skid from his motorbike on a slip road driving onto the M1 motorway. Liability for the accident was attributed to an unknown driver of a car who could not be traced, so the defendant was the Motor Insurers Bureau of Ireland. The case came before the High Court for assessment of damages only as special damages had been agreed between the parties at €8,000. On the day of the accident, the plaintiff was leaving his home at approximately 6:30 a.m. to travel to his work in Sandyford, Co. Dublin. This was a journey the plaintiff was well familiar with. He came down the slipway at the Balbriggan interchange to enter the M1 when an erratic motorist cut in front of him without warning causing him to brake suddenly. The motorist then also braked, causing the plaintiff to brake again and ultimately fall from his motorbike with an approximately 200m skid along the roadway amongst heavy traffic. He said he came to a stop on his back with his head in a ditch and felt immediate pain in his left arm. He described that he “knew something was up” and, on taking off his protective biking gear could see his hand “hanging off at the end of his wrist.” He also had an injury to his left ankle. The plaintiff was taken to hospital by ambulance where he was x-rayed revealing the extent of his injuries. These were: (a) his left wrist revealed a comminuted intra-articular fracture with depressed intra-articular fragments (b) his left ankle revealed no obvious fracture and of his lumbar sacral spine, no acute injury. Notwithstanding the absence of a fracture, the plaintiff outlined how very painful and debilitating his ankle was in the aftermath of the incident. The plaintiff accepted that the injuries had substantially resolved themselves after about six months though he remains in some residual pain five years since the accident if required to stand for long periods. In the course of the operation the plaintiff experienced an allergic reaction to a prophylactic antibiotic he had been given, Teicoplanin, and required resuscitation. This was understandably traumatic for the plaintiff to hear when he later woke up from his anaesthetic. He had an uneventful post-op recovery, but he is left with a 10cm longitudinal surgical scar extending up from his wrist. During the plaintiff’s four-day in hospital, he was concerned about developing MRSA as another patient close to him had caught the disease. When the plaintiff was discharged from hospital his arm was in a splint and sling for approximately six weeks. He required a support on his ankle and his movements and general activities of daily life were restricted. He required intensive physiotherapy and was prescribed home exercises thereafter, which he carried and continues to carry out, to get movement into his wrist. The plaintiff accepted that he had not engaged with further professional assistance in this regard. The plaintiff indicated that he would have taken time off work if that had been possible but as he is self-employed, the simple fact of life was that if he did not work, he did not get paid and there was no other income coming into the family. He therefore returned to work within a week of the accident. However, to travel to work then took an hour and a half as it required a car journey, with his wife available to drive, followed by a bus and then a Luas. While at work the plaintiff had difficulties operating the keyboard and mouse on his computer. Later he tended to work from home. His social activities in sports were impacted by his injuries. Given the extent of the plaintiff’s injuries and the later intrusion these made on his professional and home life the court, in assessing damages, took into account the psychological Injuries that resulted from his ordeal. • Scar: The 10cm scar was deemed noticeable but not significantly burdensome to the plaintiff. If it had been the primary injury, it would merit €20,000, but its contribution as an additional injury was valued lower. • Ankle Injury: Falling into the “minor” category of the Guidelines, it would have been valued at €2,500 as a standalone injury. • Psychological Effects: Though no formal psychological injury was diagnosed, the plaintiff’s sleep disturbance, flashbacks, and fear following the accident were acknowledged. These were valued at €5,500. A combined award of €21,000 for these injuries after applying a discount of 25% for their cumulative effect. General damages were awarded at €66,000 and the agreed special damages of €8,000 brought the total award to €74,000 with costs. Crum -v- Motor Insurers Bureau Ireland [2023] IEHC 656 (ex tempore).
The ‘inherent jurisdiction’ of the High Court is an interesting relief that owes its origin to the Common Law, but in Ireland, it is enshrined in our constitution. Article 34.3.1° provides: ‘The courts of first instance shall include a high court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal’. In October 2023, the High Court issued a Practice Direction (these are procedures to be followed when bringing proceedings before a court) aimed at people who lacked capacity. The Practice Direction in full is available on the Courts website at HC123 - Inherent Jurisdiction (Capacity) Applications but in short states that: 1. This Practice Direction is intended to apply to all applications made pursuant to the inherent jurisdiction of the High Court for the detention and treatment of people who lack or are alleged to lack capacity. These applications will appear in the Inherent Jurisdiction (Capacity) List. 2. This Practice Direction will come into operation on 2 October 2023 and is issued in accordance with the general authority of the President of the High Court and sections 11(12) and (13) of the Civil Law (Miscellaneous Provisions) Act 2020, insofar as it relates to remote (or hybrid) hearings. (Courts Website) An example of the exercise of this doctrine came before the High Court recently. The case involved a woman who lacked capacity due to anorexia nervosa. Her case was before the High Court’s ‘ inherent jurisdiction ’ list. In this list, orders are sought to vindicate the constitutional rights of people who cannot make decisions in their own interest due to a lack of capacity. In this case, a High Court judge had previously made orders to the Mater Hospital for the woman’s detention and treatment at the Mater after hearing her body mass index (BMI) was falling dramatically and that her condition was that she was close to death. The orders had been sought by the Mater Hospital, but it transpired that only one doctor was aware of the orders. When this doctor went on a week’s leave, the woman was assessed as medically stable and ready for transfer to another medical facility. This amounted to a breach of the orders that had been made and was deemed an ‘illegal movement.’ This transfer had a detrimental effect on the woman as she had become nervous and ‘crucially’ her BMI level was affected. The judge noted that the hospital only noticed the move of the woman after it had occurred. The judge was very critical of the hospital for allowing this to happen and deemed it a breach of the orders that had been made for the treatment and care of the woman. The judge accepted an undertaking by the CEO of the Mater Hospital ensuring that no breach of a court order will ever occur again in relation to someone who falls under the inherent jurisdiction of the High Court.
Former presidential candidate, Peter Casey, issued defamatory proceedings for the untrue and defamatory postings on Facebook. The defamatory postings were made in April 2023 to 2,000 followers of the person who put up the post. Casey ran in the local elections. He said in his election literature that he had been an activist for years and stood up against ‘draconian lockdowns 4G and 5G, austerity and undocumented and uncontrolled immigration’. When the Ukraine war broke out, Casey decided to convert a bed and breakfast he owned in Buncrana, into accommodation for women and children fleeing the war in Ukraine. The defamatory post claimed that workers at Casey’s building were ‘moving unvetted people around like cattle and then warehousing them in office cubicles for profit is akin to human trafficking and inhumane.’ After a fire occurred on the property, the defendant posted a picture of damage to the property complaining that the matter had not been reported in the mainstream media. . Mr. Justice David Nolan considered the statements made by the defendant and ruled that they were untrue and defamatory stating that they were ‘very stressful, hurtful and upsetting’ to Mr. Casey and his family. Judge Nolan determined that the words posted were untrue and, by their natural and ordinary meaning, were defamatory to Mr. Casey’s reputation. He consequently awarded €120,000 in general damages and €20,000 in aggravated damages. The judge noted that the defamatory posts remained online for nine months after the court ordered their removal in November last year. He considered this as a breach of the court order and contempt. Peter Casey v Kim McMenamin High Court (Mr. Justice David Nolan) 13 December 2024 [2024] IEHC 705
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