Boland v Dublin City Council and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 05 April 2011
• Neutral Citation: [2011] IEHC 176
• Docket Number: Record Number: No. 9118P./2009
• Date: 05 April 2011
• Court: High Court

[2011] IEHC 176

THE HIGH COURT

Record Number: No. 9118P./2009

Boland v Dublin City Council & Ors

Between:

Kevin Boland

Plaintiff

And

Dublin City Council

Bord Gais Eireann

Enterprised Managed Services Limited

Defendants

TORT

Duty of care

Road works - Plastic barriers - Plaintiff claim caught foot in barrier on ground - Plea plaintiff attempted to jump barrier - Defence witness evidence plaintiff ran and attempted jump barrier - Conflict over time of accident - Whether locus of accident closed off by barriers - Signage to warn public of works - Injury suffered required significant direct force to elbow - Injury consistent with fall from height - Fabricated loss of earnings claim affected overall credibility - Whether plaintiff gave false account of incident - Claim dismissed (2009/9118P - Peart J - 5/4/2011) [2011] IEHC 176

Boland v Dublin City Council

Facts: The plaintiff claimed to have injured his foot on barriers relating to road works being carried out. The defendants' contended that the plaintiff was the author of his own misfortunes. The defendants had called a witness to the accident and a dispute arose as to the precise time of the accident. The question also arose as to the claim for loss of earnings by the plaintiff and his claim to have been a window fitter in the absence of records to so corroborate this.

Held by Peart J. that the fact that the plaintiff had fabricated an aspect of his claim had to infest his overall credibility in relation to his truthfulness. The claim for a loss of earnings was a fabricated claim and his earnings were not appropriately corroborated nor was his claim of employment. He had also given a false account of the incident. He had attempted to jump a barrier and in doing so had injured himself. It would be a monstrous injustice to find in favour of the plaintiff.

Reporter: E.F.

Judgment of

Mr Justice Michael Peart

1 The plaintiff is now aged 20, but when he was aged 17 years he sustained a serious injury to his right arm on the 14^th May 2008 when he fell on Lower Sheriff Street, Dublin at a location where certain road works were being undertaken by the defendants. The plaintiff says that he fell while walking through an area where there were some heavy plastic barriers lying on the ground. These are a type of heavy barrier frequently erected in order to cordon off the area in which works are being carried out, so that members of the public are prevented from entering upon the area. They are designed so that can be attached together in order to form a fence around the area. The plaintiff has stated that the barrier he caught his foot in as he walked through the area was not attached to any other but was one of a few such barriers which were simply lying on the ground and which he had to negotiate his way through, there being no way round them.

2 The circumstances in which this injury occurred are hotly disputed by the defendants. The defendants have pleaded that the plaintiff was the author of his own misfortune, and, contrary to how he has pleaded that this injury occurred, that he had on the occasion in question attempted to jump over a barrier which was erected and attached to another barrier at the time, and that in so attempting to jump over the barrier he caught his foot on the barrier, causing him to fall heavily, thereby causing this injury.

3 The defendants called a witness who, unknown to the plaintiff, actually saw this incident occur. He was seated in a JCB which he was operating at the site that day. In response the plaintiff has stated that the incident witnessed by this witness must be a different one which must have, occurred earlier on the same day. The plaintiff states that his injury was sustained at about 3.30pm, whereas the witness has stated that what he saw happen occurred during lunch hour and he puts sometime between 1pm and 2pm but probably about 1.30pm. He cannot be certain of the precise time, except that it was during the break for lunch.

4 Given the complete conflict in the evidence, I will set it out in some detail.

5 The plaintiff has stated that a few days before this incident his brother had given him a job as a window fitter at a wage of €500 per week, expected to last for at least one year. This accounts for the fact that on this date he was walking down Lower Sheriff Street at about 3.30pm on his way home from work, having first been dropped in O'Connell Street and from where he walked via Talbot Street in the company of a friend of his, Gerard Meehan, who was also so employed.

6 He says that having walked down Talbot Street he crossed over from the North Star Hotel to the small traffic island in Amiens Street at the entrance to Lower Sheriff Street and then walked down diagonally from the island to the pavement running down Lower Sheriff Street and to the left of an area where works were being carried out by the defendants. He says that this was the way indicated for pedestrians to walk. He says that having walked under a bridge and exited from beneath it, he came to some of these plastic barriers which were lying on the pavement, and that in order to get by them he had no choice but to walk over them, and that in doing so he caught his foot, causing him to fall heavily.

7 He states that this occurred at about 3.30pm, and he says that it must have been that time since he had knocked off work at about 2.45 pm, and was driven back to O'Connell Street by a Gerard Cashin, arriving there at about 3.15pm.

8 He said that as he passed under the bridge there was a JCB parked to his left and which he went by. He then got to his feet, but his arm was badly injured, and he described his elbow as being "like jelly". He also said that he looked about the location to see if there was anybody who could help him, but saw nobody either at the works site itself or in a security box there. He and his friend who was with him, Gerard Meehan, walked on to his home, and he states that his friend rang his girlfriend who had a car and Gerard Meehan drove him to the Mater Hospital. Hospital records show that he arrived at Accident and Emergency at 16.10hrs that same day.

9 There is no doubt that he sustained a serious fracture to his elbow. He required surgery so that a metal plate could be inserted, and a cast applied. His recovery was not uneventful as his arm became infected at Christmas 2008, and further hospitalisation was required. There are further sequelae pleaded, namely that this incident has caused him to suffer from depression and that it exacerbated an addiction to alcohol and to drugs, and that his arm is under-strength now to the extent that he can no longer do work that requires heavy lifting and he can no longer work as a window fitter.

10 Prior to the days prior to this injury he had been drawing unemployment benefit, and at the present time he receives disability benefit on the grounds of depression. There is no prospect of him gaining employment in the short-term at least.

11 He completely denies that he was the person who the defendant's witness, Thomas Carroll, had observed during lunch-hour attempting to jump over one of these barriers, and falling heavily to the ground and holding his right arm in the immediate aftermath thereof. He says that he could not have attempted to jump this barrier given the sort of boots he was wearing for his work that day. He also denied that he was wrong in his description of the route he took down Lower Sheriff Street and the point at which he crossed over to the other side of the road before attempting to jump this barrier.

12 The plaintiff's friend, Gerard Meehan gave evidence also. He is a neighbour and friend of the plaintiff, and says that he was working with the plaintiff on this day and came back into O'Connell Street with him after work ended. He confirmed that they knocked off work at 2.30-2.45pm and got a lift back to O'Connell Street with Derek Cashin, and that they crossed over to Lower Sheriff Street and proceeded to walk down the pavement on the left hand side of the road to the left of the area where works were being carried out.

13 He says also that they walked under the arch shown in the photographs and that he saw a number of barriers lying on the ground ahead of them. He managed to get through them by stepping over them, but that having done so he suddenly heard a scream behind him and saw that the plaintiff had fallen to the ground. He denied that this area had been blocked off by barriers and stated that the pavement down which they walked was open and had not been closed off by barriers.

14 He denied that the plaintiff had tried to jump over the barriers because they were on the ground and not erected, though when cross-examined he confirmed that he had not actually seen the plaintiff fall as he was ahead of him. He helped the plaintiff to his feet, and stated that they had looked around to see if there was anybody at the site but found nobody, and stated that there was...