Desmond v Dunnes Stores Unlimied Company
| Jurisdiction | Ireland |
| Judge | Ms Justice Faherty |
| Judgment Date | 06 May 2020 |
| Neutral Citation | [2020] IECA 125 |
| Docket Number | Appeal Number: 2019/324 |
| Court | Court of Appeal (Ireland) |
| Date | 06 May 2020 |
[2020] IECA 125
Donnelly J.
Faherty J.
Collins J.
Appeal Number: 2019/324
THE COURT OF APPEAL
Injury – Liability – Evidence – Appellant seeking to appeal from the order and ex tempore judgment of the High Court – Whether the High Court judgment contained a sufficient analysis of the evidence
Facts: The defendant/appellant, Dunnes Stores Unlimited Company, appealed to the Court of Appeal from the order and ex tempore judgment of the High Court (O’Regan J) dated 1 July 2019 whereby the plaintiff/respondent, Ms Desmond, was awarded the sum of €102,000 and costs in respect of injuries sustained in a fall on the defendant’s premises. By notice of appeal dated 8 July 2019, the defendant appealed the finding of liability, claiming the trial judge erred in law and in fact and/or on mixed questions of law and fact “in respect of the finding that the Defendant was negligent having regard to the evidence”. Quantum was not appealed. The defendant sought an order vacating the order of the High Court and that the Court of Appeal dismiss the plaintiff’s claim with costs.
Held by Faherty J that, while the trial judge’s analysis may not have been as detailed or forensically comprehensive as one would have liked, she did not offend the principle that the broad case on both sides had to be analysed. Faherty J was satisfied that the judgment contained a sufficient analysis of the evidence before the trial judge which led her to conclude as she did.
Faherty J held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal by the defendant/appellant (hereinafter “the defendant” for ease of reference) of the order and ex tempore judgment of the High Court (O'Regan J.) dated 1 July 2019 whereby the plaintiff was awarded the sum of €102,000 and costs in respect of injuries sustained in a fall on the defendant's premises.
By notice of appeal dated 8 July 2019, the defendant appeals the finding of liability, claiming the trial judge erred in law and in fact and/or on mixed questions of law and fact “in respect of the finding that the Defendant was negligent having regard to the evidence.” Quantum is not appealed. The defendant seeks an order vacating the order of the High Court and that this Court dismiss the plaintiff's claim with costs.
On 21 August 2017, the plaintiff, then aged 83, was present on the defendant's retail premises at Bishops Court, Bishopstown Shopping Centre, Cork. She slipped and fell having stepped on a spillage on the floor of one of the aisles of the defendant's premises. The within proceedings were instituted on 13 February 2019 alleging, inter alia, negligence and breach of the Occupiers Liability Act 1995. The primary injury complained of was a fractured right hip which required a right bipolar hemiarthroplasty. A full defence was delivered.
Evidence was given by the plaintiff on Day 2 of the trial. She testified that having been in the drapery section of the defendant's premises her intention was to proceed to the grocery section. She was carrying a shopping basket, a small paper bag and a handbag. She was wearing flat shoes. On route to the grocery section, she described walking on the left-hand side of the aisle which had goods such as baby food on its left side and razor blades on the right-hand side. The plaintiff testified that her intention in traversing the aisle was to turn left towards the grocery section. She stated that she suddenly slipped and fell forward heavily to the right and onto the floor. After falling, she was assisted by other persons present, one of whom removed her right shoe and wiped some substance from the heel. The plaintiff stated that a strip of clear liquid on the floor had been pointed out to her. She first thought it was water but later wondered if it was shampoo. She recounted how a member of staff produced a wheelchair and brought her to his car and drove her to the VHI clinic in Mahon, remaining with her until she was x-rayed.
5. In cross-examination, the plaintiff was unsure of the dimensions of the substance on the floor but stated that it was clear liquid and may have been a yard long and a foot to one and a half feet wide.
After the plaintiff's evidence, counsel for the defendant accepted that there was “something on the floor”.
The trial judge had the benefit of CCTV footage of the period prior to the fall, the fall itself and its immediate aftermath. This one-hour footage consisted of a succession of stills captured at roughly one second intervals. The footage captured a member of the defendant's cleaning staff, Ms Marie Barrett, at or near the locus of the plaintiff's fall on five occasions in the hour leading up to the fall which occurred at 13:03:52. In the hour prior to the plaintiff's fall dozens of people passed through the aisle without incident.
Called by the plaintiff, Mr. Martin Foy, engineer, testified that his review of the CCTV footage showed that:
• There appeared to be stacking of shelves of baby food for almost twenty-five/thirty minutes from approximately 12:03. He described staff walking with cardboard boxes along the aisle. Mr. Foy stated that this footage accorded with a statement made by Ms. Jacqueline Hayes, a staff member of the defendant, on 23 August 2017 where she described starting work at 12 noon on the day of the accident which involved delivering baby food to shelves, cleaning the shelves and the grey surround. She did not notice any spillage on the shop floor at the time. According to her statement, Ms. Hayes was the person who cleaned up the spillage. Her statement describes it as “a small thickish spillage … purple”. Her later statement of 23 November 2017 described it as a “small purple jelly type liquid on [the] floor”. Ms. Hayes was not called as a witness in the action.
• Another staff member, Ms. Marie Barrett, traversed the aisle five times, at 12:10, 12:14, 12:28, 12:40 and 12:58. She was pushing a sweeping brush. Of those traverses, Ms. Barrett “hit the spot” of the spillage with her brush at 12:10 and 12:28. At 12.40 the end of the brush was just to the right of the accident locus. At 12:58, Ms. Barrett was much more to the right of the aisle and distant from the spot at which the plaintiff fell.
• Ms. Barrett seemed to be simply pushing the brush in front of her and looking straight ahead. There was no indication of any active look out by her or of looking either side or looking down at that floor or doing a close inspection. It did not seem to Mr. Foy that there was any close inspection going on or any indication of such inspection in the area. Mr. Foy pointed out that for the system to be safe there had to be good inspection of each aisle where the cleaner passes through.
• On the one occasion Ms. Barrett was seen to look sideways, it proved to be her looking down a cross-aisle, which was not at the aisle where she was then engaged upon her duties.
• Between Ms. Barrett's last passage on the aisle (12:58) and the accident there is no evidence of a spillage occurring.
Mr. Foy testified that the floor in question, while typical of supermarket floors, was a type which, if there was some substance (be it moisture or jelly-like) on it, could become very slippery very easily. He stated that traversing the deleterious matter with a dry brush would spread the matter along the floor. While some of it might adhere to the brush some would be smeared along the floor, leaving it slippery and unsafe. He opined that brushing would not remove the danger.
10. He accepted that if the aisle is “properly checked every fifteen minutes that is a reasonable system”. He opined however that it was necessary to see a spillage before cleaning it - the aisle needed to be properly checked over its whole width - not just one brush width of it. For this purpose, the cleaner needed to be properly trained both as to checking and cleaning. Mr. Foy emphasised the necessity for a thorough check, with adequate time to do such a check when passing through the aisle. He testified that insofar as training documents had been discovered, no such document contained the substantive content of the training afforded cleaning staff. Albeit that there was instruction how to clean up a spillage there was no evidence of instruction as to actively checking the floor, no evidence that Ms. Barrett got any training in active lookout for spillages, in how an inspection should be conducted or how the fifteen-minute circuit should be conducted. He stated that “she didn't have any training as to what to do or what not to do.” Mr Foy also opined that training should be refreshed at no more than three-year intervals. However, records indicated that five and a half years had elapsed from Ms. Barrett's last recorded training.
Mr. Foy testified that following Ms. Barrett's final passage through the aisle, the CCTV footage showed only three others in the area where the plaintiff fell. This trio consisted of two women (with a trolley) and a child. One of this group is seen traversing the spot where the plaintiff fell. The CCTV footage did not show these customers spilling anything. The only other person in the area post 12:58 captured by the CCTV was a man (a manager with the defendant) who is seen passing through the aisle to the right of where the plaintiff fell.
Ms. Barrett gave evidence on behalf of the defendant. She testified that on the day of the accident she had taken over a colleague's shift from 12:00 to 13:00 and was operating the cleaning system for one hour before the plaintiff's accident. She stated that when operating the cleaning system, she was looking around to make sure there is nothing on the floor. The type of spillage she might encounter...
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