Carroll v Phelan and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 18 April 2023
• Neutral Citation: [2023] IECA 91
• Docket Number: Record Number: 2022/260
• Court: Court of Appeal (Ireland)

Between/

Liza Carroll

Plaintiff/Respondent

and

Michael Phelan, Tadgh O'Connor and Bernard Fitzpatrick and Iontaobhas Corparaideach Chumann Luthchleas Gael Cuideachta Faoi Theorainn Rathaiochta

Defendants/Appellants

[2023] IECA 91

Noonan J.

Faherty J.

Binchy J.

Record Number: 2022/260

High Court Record Number: 2019/5356P

THE COURT OF APPEAL

Liability – Negligence – Foreseeability – Appellants appealing against the apportionment of liability – Whether the trial judge was entitled to find that the appellants were in breach of their obligations under s. 3 of the Occupiers Liability Act 1995

Facts: The defendants/appellants, Mr Phelan, Mr O’Connor, Mr Fitzpatrick and Iontaobhas Corparaideach Chumann Luthchleas Gael Cuideachta Faoi Theorainn Rathaiochta, appealed to the Court of Appeal from the judgment and order of the High Court (Phelan J) sitting in Waterford on the 20th October, 2022. There was a slip and fall accident at premises owned and occupied by the appellants and in the appeal, liability only was in issue. There was no appeal against the quantum of general damages assessed by the High Court in the sum of €90,000 together with agreed special damages of €4,000. Liability was apportioned by the High Court on a 50/50 basis which resulted in a net decree in favour of the plaintiff of €47,000 together with costs on the Circuit Court scale and a certificate for senior counsel. At issue was whether the trial judge was entitled to find that the appellants were in breach of their obligations under s. 3 of the Occupiers Liability Act 1995. The appellants placed particular reliance on the judgments of the Court of Appeal in Byrne v Ardenheath [2017] IECA 293 and Lavin v Dublin Airport Authority [2016] IECA 261. The appellants also placed reliance on the fact that the precise mechanism of the accident was something that the appellants could not have foreseen and they could not therefore be liable.

Held by Noonan J that the facts of the cases relied on by the appellants were very remote from the circumstances of the appeal. Noonan J found that there was no dispute but that the surface of the benches was used by many people for a long period of time for standing on, walking along and stepping over; that was uncontroversial as was the fact that the cladding was entirely unsuitable for those activities, a fact readily and fairly conceded by the appellants’ expert. Noonan J therefore could not see on what basis it could be said that the judge was not entitled to conclude that the slippery, and clearly dangerous underfoot, surface amounted to an unusual danger, albeit that she did not use that precise language; she simply held that its presence in the circumstances represented clear negligence on the part of the appellants, which in reality amounted to the same thing. Noonan J held that the law in relation to reasonable foreseeability does not require that the precise circumstances and mechanism of every accident must be actually anticipated by a defendant; what is required is that the defendant should be able to foresee the type or class of damage that may ensue as a result of the defendant’s negligence. It could not in Noonan J’s view be gainsaid that the risk of somebody falling as a result of their foot or feet slipping on the surface of the benches was plainly foreseeable. Noonan J held that the failure on the part of the plaintiff/respondent, Ms Carroll, to watch her footing as she stepped over the first bench or alternatively to take the alternative route through the pedestrian entrance were properly regarded by the trial judge as matters going to her contributory negligence, but not to the extent of absolving the appellants entirely from the consequences of their negligence. It seemed to Noonan J that the judge was perfectly entitled to apportion liability on the basis that she did. Noonan J was satisfied that the judge got the balance right in doing so. In that respect, Noonan J noted that there was no cross-appeal by the respondent.

Noonan J dismissed the appeal.

Appeal dismissed.

UNAPPROVED

EX TEMPORE JUDGMENT of Mr. Justice Noonan delivered on the 18th day of April, 2023

1 . The appeal before the court today is from the judgment and order of the High Court (Phelan J.) sitting in Waterford on the 20 ^th October, 2022. This is a slip and fall accident at premises owned and occupied by the defendants and in the appeal, liability only is in issue. There is no appeal against the quantum of general damages assessed by the High Court in the sum of €90,000 together with agreed special damages of €4,000. Liability was apportioned by the High Court on a 50/50 basis which resulted in a net decree in favour of the plaintiff of €47,000 together with costs on the Circuit Court scale and a certificate for senior counsel.

2 . The plaintiff was born on the 12 ^th December, 1975 and is a long time camogie player. On the 4 ^th December, 2017 at about 9am, the plaintiff attended at Roscrea GAA pitch to assist in the training of junior camogie players.

3 . There is no real dispute about the facts. The plaintiff was on the pitch with the young players and another coach, Ms. Siobhán Ryan. The pitch is surrounded by a wall in which there is a pedestrian entrance. Behind the wall from the plaintiff's perspective is the car park. On the pitch side of the wall, there are five rows of fairly basic concrete seating. Each row comprises essentially a low cement wall without gaps staggered at different heights to facilitate spectator viewing of the pitch. The front row is about 10 inches high and 9 inches wide. The other rows are sequentially higher but the same width. On top of each row is placed what was described in evidence as a galvanised metal sheet covered in plastic wrapped over the top of each row and painted in the club's colours of red and white.

4 . As the training was about to start, the plaintiff heard a car coming into the carpark and moved from the pitch towards the wall in order to see who was arriving, intending to get sufficiently close to the wall to see over it by stepping over several rows of seating. She accepted in evidence that she could alternatively have gone slightly further, only a matter of a few yards, past the rows of seating to the pedestrian access through the wall and looked out there.

5 . The plaintiff was togged out for the training wearing studded hurling boots and as she approached the first row of seating, she went to step over it, leading with her left foot. As her foot went over the seating, it would appear that the rear lip or edge of her boot caught on the galvanised and slippery surface with the result that her left foot shot out and she was pitched violently forward hitting the second row with her chest and the third with her face. As a result, she suffered serious facial injuries.

6 . The case was heard with commendable efficiency by all concerned in about two hours. Evidence for the plaintiff was given by the plaintiff herself, Ms. Ryan and a consulting engineer, Mr. Peter Flynn, the medical reports having been agreed. For the defendant, evidence was given by Mr. Tom Hayes, consulting engineer and Mr. Tadgh O'Connor, a local GAA representative. The plaintiff's evidence, which was not contradicted, was that it was common for people to climb over the seats, to stand on them and walk on them. This happened frequently over a long number of years.

7 . When the seating was installed originally, it comprised bare concrete and the metal/plastic cladding had been installed some ten to fifteen years before the plaintiff's accident. Mr. Flynn's evidence was that the metal surface of the seating was smooth with a plastic coating and had little or no resistance to slip, especially if wet or frosty. Mr. Flynn said that if the original concrete surface had been there without the cladding, it would have provided more slip resistance and in that event the...