Byrne v Ardenheath Company Ltd

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Irvine
Judgment Date09 November 2017
Neutral Citation[2017] IECA 293
Date09 November 2017
Docket NumberNeutral Citation Number: [2017] IECA 293 Record No. 2016/152

[2017] IECA 293

THE COURT OF APPEAL

Irvine J.

Ryan P.

Irvine J.

Whelan J.

Neutral Citation Number: [2017] IECA 293

Record No. 2016/152

BETWEEN/
LOUISE BYRNE
PLAINTIFF / RESPONDENT
- AND –
ARDENHEATH COMPANY LIMITED

AND

ARDENHEATH MANAGEMENT COMPANY LIMITED
DEFENDANTS / APPELLANTS

Tort – Negligence – Personal injury – Fall by plaintiff on property controlled by defendants – Appeal against award – Occupiers’ Liability Act 1995 s 3

Facts: The plaintiff had fallen on a grassy bank in a car park controlled by the defendants and suffered a serious ankle break. She began a claim against the defendants in negligence, and the High Court had awarded a sum of damages, albeit reduced by 40% in respect of the plaintiff’s contributory negligence. The defendants now appealed on both liability and quantum.

Held by Ms Justice Irvine, that the appeal would be allowed. The High Court judge had fallen into error by finding a design fault in the car park layout as this was not supported by the evidence. Further, the judge had erred by concluding the defendants had failed to comply with the relevant provisions of the Occupiers’ Liability Act 1995. Hay v O’Grady [1992] 1 IR 210 and Shannon v O’Sullivan [2016] IECA 93 considered.

A visitor such as the plaintiff who, in unsuitable footwear, descended a grassy bank which was wet when an alternative exit was feasible, could not be said to have taken sufficient reasonable care. On that basis, the appeal would be allowed.

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 31o.

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...

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