Dignam -v- Eircom Ltd. & anor,  IEHC 731 (2018)
|Docket Number:||2015 6890 P|
|Party Name:||Dignam, Eircom Ltd. & anor|
THE HIGH COURT[2015 No. 6890 P.]
RICHARD DIGNAM PLAINTIFFAND
EIRCOM LIMITED AND DUBLIN CITY COUNCIL DEFENDANTS
JUDGMENT of Mr. Justice Barr delivered on the 18th day of December, 2018
This action arises out of an accident which occurred on 29th July, 2014, at approximately 10:00hrs on Lower Baggot Street, Dublin. The plaintiff, who was at that time engaged in the refurbishment of the Shelbourne Hotel, had gone to a hardware shop in the vicinity of Pembroke Street for the purpose of obtaining an article for use in the course of his work as a French polisher. While walking on the left hand footpath, going in the direction of St. Stephen’s Green, the plaintiff was caused to stumble when his right foot went into a hole adjacent to a cover over a chamber, which was the property of the first defendant.
The plaintiff did not fall to the ground, but stumbled forward causing a wrenching injury to his right knee. The plaintiff composed himself by leaning against the window of an adjacent shop. He then went into the shop to purchase some coffee. The shop owner advised him to take a photograph of the locus. The plaintiff returned to the locus and took a photograph of it on his mobile phone.
The plaintiff is 40 years of age, having been born on 27th January, 1978. He has had a varied and very successful sporting career. He won nine senior county championships with his club, Rathnew GFC. He also won one Leinster title with the club. He has represented Ireland in Australian Rules Football. He also played senior rugby with Clontarf RFC and also played with Wicklow RFC and Arklow RFC.
Possibly as a result of his extensive sporting career, he had developed pain and discomfort in his knee for approximately twelve months prior to the accident. He had attended with his GP who had referred him for an MRI scan on 24th October, 2013. As will be seen, the plaintiff’s surgeon, Prof. O’Donnell, is of the view that the surgery and other treatment which the plaintiff has undergone since the accident, would have been required in any event, given the findings on the pre-accident MRI scan and the level of his pre-accident symptomology, however, he is of the view that the accident brought forward the necessity for such treatment by a factor of approximately fifteen years. There were also some psychiatric aspects to his injuries. These will be dealt with later in the judgment.
The plaintiff has sued the first defendant, being the utility company responsible for the chamber and cover, adjacent to which the hole existed. The plaintiff has also sued the second defendant, being the Roads’ Authority for the relevant area.
The court was greatly assisted by a number of photographs of the locus. In particular, the photograph taken by the plaintiff in the immediate aftermath of the accident, which was appended as photograph No. 6 in the report furnished by the plaintiff’s engineer, Mr. Alan Conlon. There were also a number of photographs of the locus taken some months later in September 2014, by Ms. Moore, a representative of the second defendant, which showed the condition of the locus at that time. The court also had the benefit of photographs taken by Mr. Conlon at the time of his inspection of the locus on 15th April, 2016. Finally, the court had the benefit of photographs taken by a representative of the first defendant, Mr. Malone on 15th November, 2018.
It was common case that the cover that was shown in the plaintiff’s photograph and in Ms. Moore’s photographs had originally been placed in situ by the Department of Post and Telegraphs. That entity was a predecessor in title to Telecom Éireann, which subsequently became Eircom and more recently it became Eir.
It appears that there were, at the time of the accident, two covers laid end to end, which covered a single chamber. The hole in question was on the shop side of the chamber that was nearest to St. Stephen’s Green. It is clear from the photograph taken by the plaintiff, that portion of the surround immediately adjacent to the frame of the P&T cover had broken away exposing a hole in the public footpath. The plaintiff instructed his engineer that he estimated that the hole was up to 50mm deep. The engineer estimated from the photograph taken by the plaintiff that the hole was approximately 125mm wide x 200mm long.
It is clear from the photographs taken by Ms. Moore in September 2014, that the locus had further deteriorated in the months following the plaintiff’s accident. In particular, it would appear that further chunks of the concrete surround had broken away, thereby enlarging the hole.
It was common case that the two covers, which covered a single chamber, had been designed in such a way that they could be lifted to enable works to be carried out by servants or agents of the first defendant to the chamber below. The chamber itself was...
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