Ahmed v Castlegrange Management Company Ltd by Guarantee
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 23 November 2022 |
| Neutral Citation | [2022] IECA 269 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2022/51 |
and
[2022] IECA 269
Whelan J.
Noonan J.
Allen J.
Record Number: 2022/51
High Court Record Number: 2018/9370P
THE COURT OF APPEAL
JUDGMENT of Mr. Justice Noonan delivered on the 23rd day of November, 2022
. The appellants (the defendants) bring this appeal from the judgment of the High Court finding them liable for injuries suffered by the respondent (the plaintiff) when he slipped and fell on ice on the landing outside his apartment. The plaintiff owns and has lived at Apartment 74, Castlegrange Square, Clondalkin since 2002. He was born on 19 September 1968 and is a bus driver by occupation. The Castlegrange apartment complex comprises some 78 apartments. The defendants are in substance the management company of the apartment complex and as such are the owners and occupiers of the common areas. All apartment owners, including the plaintiff, are members of the management company and the plaintiff was also at the material time a member of its residents' committee.
. The plaintiff's apartment is a two storey or duplex apartment with a balcony upstairs which overhangs his front door. When the plaintiff comes out his front door, which is at first floor level, he emerges into the open air onto an external landing, in front of which is a set of steps leading to ground level.
. On the morning of 21 November 2016, the plaintiff left his apartment at about 5.30 a.m. to go to work which started at 6.15 a.m. It was a very cold morning, as had been the previous morning. It was dark and the external light over the plaintiff's front door was not working because it had “blown” apparently as a result of water ingress. As the plaintiff came out the door and proceeded to take the small number of steps to cross the landing to the stairs, he slipped on what he claims was black ice on the tiled surface of the landing and fell down the first flight of stairs. In the course of his fall, he suffered an injury to his left elbow consisting of a displaced comminuted fracture of the left olecranon.
. The plaintiff claims that he was caused to fall by reason of the negligence and breach of duty of the defendants. In particular, he alleges that they failed to comply with their obligations under ss.3 and 4 of the Occupiers Liability Act, 1995.
. In his personal injuries summons dated 25 October 2018, the plaintiff pleads that he was caused and permitted to lose his footing by reason of the surface underfoot being “wet, slippery and icy”. The particulars of negligence are entirely generic and give little, if any, assistance in identifying what precisely it is the defendants are said to have done or failed to do that caused the plaintiff's accident. The closest the summons comes to identifying any concrete particular of negligence is in suggesting that the defendants failed to provide matting or other material which would have reduced the risk of slipping. There is a complaint that the plaintiff ought to have been warned by signage that the floor was slippery.
. The particulars of negligence were supplemented on 18 February 2020 by a notice alleging that the defendants had failed to provide and maintain an adequate system of cleaning. This notice appears to have been an attempt to retrospectively justify a request for voluntary discovery of the defendants' records of the cleaning system on the day of the plaintiff's accident, which had been refused on the basis that there was no complaint in the personal injuries summons in relation to the cleaning system.
. It is notable that it was not until June 2020 that the plaintiff's solicitors obtained a report from a consulting engineer, Mr. David Browne. In his report, Mr. Browne makes a number of criticisms of the defendants. He suggested that had the landing been gritted the day before the accident, it would have prevented ice forming. He had no criticism of the tiles on the landing in themselves. He also suggested that no, or no adequate, nosing strips were present on the steps which might have arrested the plaintiff's skidding motions towards the stairs and “may” have allowed him to grab the handrail and prevent his fall.
. The report also says that if the external light had been in operation, the plaintiff may have been alerted to the presence of ice. These three issues became the issues relied upon by the plaintiff when the case was opened before the High Court. Although this report was available to the plaintiff for over a year before the case came on for hearing, no additional particulars of negligence were at any stage delivered until the morning of the trial, when a single additional particular of “failing to provide appropriate lighting in the area” was furnished.
. The plaintiff said that the landing was icy but also wet as it had been raining earlier. He agreed that he was aware it was very cold overnight and it might be “slippy”. Under cross examination, the plaintiff agreed that if water got into the light over the hall door, it had come down from his own balcony. He agreed that the light was his responsibility. In answer to his own counsel on re-examination, the plaintiff said:
“Q. On that day when did you first see water?
A. I opened the door and I saw it was wet and it was icy but when you see that it is watery, that doesn't mean that it was flowing with water. Just wet, that is all.”
. In his oral evidence, Mr. Browne was asked about the issue of gritting the common areas and said that had this been done the day before, which was also extremely wintery, then the ice and frost would not have been present on the morning of the accident. He was then asked:
“Q. Now, it was said to the plaintiff that that is an unreasonable suggestion that the area should be gritted, notwithstanding that the weather was bad the day before. What is your view about that?
A. As I say, Judge, it would appear that the management company are responsible for the safety of the area so any system whereby, any appropriate system, would include gritting of common areas that they are responsible for in such weather conditions.”
. On the issue of the nosings, Mr. Browne agreed under cross-examination that the presence of the nosings would not have prevented the fall but might have slowed the plaintiff as he proceeded beyond the edge such that he may have had an opportunity to grab the handrail and thus “may have mitigated his injuries.”
. Evidence was given on behalf of the defendants by Mr. Bernard Walsh, who was described as the facilities and maintenance manager of Smith Property Management who, as the name implies, are a property management company engaged by the defendants in relation to the Castlegrange complex. Mr. Walsh confirmed that there are 78 apartments in the development and that Smith Property Management look after about 98 different developments in the greater Leinster region.
. In relation to gritting, he was asked the following in direct examination:
“Q. And do you provide gritting services if requested to do so?
A. Yes, if requested to do so we can, we can organise a contractor to do that.
Q. Of the 98 or so that you manage, how many have gritting services?
A. None have gritting services to footpaths or steps. Some, I would say maybe 10 or 11 may have gritting services just to the roads.”
. The judge set out the background and the facts and summarised the evidence of each of the witnesses. At para. 17, she noted the plaintiff's evidence regarding what he saw when he opened the door:
“17. Under re-examination, this witness said that he saw the water when he opened the door, he saw it [sic] wet and icy outside his door, that it was not flowing water, it was just wet.”
. In the final segment of her judgment, under the heading “Conclusions/Findings of Fact”, the judge makes a number of findings including that the incident involved black ice as the plaintiff had contended. She found the evidence giving by the plaintiff to be “very credible” and she accepted it. At para. 43, she said as follows:
“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.”
. Although the judge did not say so in terms, it would appear from this passage that she held that the defendants had a duty to grit the landing where the plaintiff fell. The judge went on to find as follows:
...“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.
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