Greene v Dunnes Stores

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 27 March 2019
• Neutral Citation: [2019] IECA 115
• Docket Number: Record No. 2017/000228
• Court: Court of Appeal (Ireland)
• Date: 27 March 2019

BETWEEN/

LAURA GREENE

PLAINTIFF/RESPONDENT

- AND -

DUNNES STORES

DEFENDANT/APPELLANT

[2019] IECA 115

Record No. 2017/000228

THE COURT OF APPEAL

Personal injury – Damages – Costs – Appellant seeking to appeal from a judgment of the High Court – Whether the trial judge applied the proper legal test in assessing liability

Facts: The defendant/appellant, Dunnes Stores, appealed to the Court of Appeal from a judgment of the High Court delivered ex tempore on the 2nd May, 2017 wherein Hanna J found in favour of the plaintiff/respondent, Ms Greene, in a personal injury action and awarded her damages and costs.

Held by McGovern J that the trial judge failed to engage with the issue as to whether or not the appellant had fulfilled its common law and statutory duty to the respondent and in so doing failed to apply the proper legal test in assessing liability.

McGovern J held that he would therefore allow the appeal. As the trial judge should have dismissed the claim on the basis of the evidence and the correct application of the law, McGovern J held that he would not direct a re-trial.

Appeal allowed.

JUDGMENT of Mr. Justice McGovern delivered on the 27th day of March 2019

1 This is an appeal from a judgment of Hanna J. delivered ex tempore on the 2nd May, 2017 wherein he found in favour of the plaintiff in a personal injury action and awarded her damages and costs.

2 At all material times the respondent was employed by the appellant at its shop premises in Rathmines, Dublin.

3 The respondent was employed as a checkout operator at the appellant's supermarket. On the 20th September, 2011. At approximately 5.30 p.m. she left her checkout position to exchange two bottles of a beverage which had been selected in error by a customer. As she entered the beverage aisle her foot went from under her and she fell backwards onto some shelves and thereafter to the ground. She suffered injuries to her right arm, shoulder and elbow.

4 It appears that the respondent slipped as a result of stepping on a wrapper of the type which would have been wrapped around a roll of refuse bags for sale.

5 The respondent said that these refuse bags are not sold individually but come in a roll containing a number of bags. She gave evidence that when carrying out cleaning duties supervisors would take the bags off the shelves and would take the wrappers off them and throw them in the bag. She said ‘they used to use the bags to empty the bins underneath the checkouts into the rubbish when we were cleaning up in the afternoon’. She did not know where the wrapper on which she slipped came from.

6 Mr. Tony Tate, a security manager employed by the appellant, was working in the store on the day of the accident but he did not witness it. He gave evidence that his duties involved walking the floor of the store both in a security capacity and a hygiene capacity. He said that he would do this every fifteen minutes and it would normally take about five minutes to walk around the whole store. He stated that five minutes before the accident he had walked through the area where it occurred and there was nothing on the floor. He handed into court a floor cleaning inspection record signed by him in support of his evidence. While he was cross examined by counsel for the plaintiff, he was not challenged on this point.

7 The respondent was the only witness to give evidence in support of her claim. Specifically, she did not call any evidence from an engineer. However, the appellant called Mr. Donal Terry, an engineer, who informed the court that the wrapping on which the respondent slipped was conspicuous and would have been seen by a person keeping a proper lookout. He also described the cleaning and inspection system operated by the appellant as ‘first class’. He was not challenged on those two issues. He readily accepted that the presence of the wrapper on the floor did constitute a hazard.

8 In giving his judgment the trial judge stated:-

‘Firstly, with regard to the possible cause: I am satisfied that the probable cause of its presence was its use by a member of the defendant's staff, probably the cleaning staff, who would, as was a practice accepted and acknowledged, use a roll of plastic sacks or bags to carry out cleaning functions. And it seems to me that the most likely source of this wrapping was a member of the defendant's staff who having utilised the plastic sacks in the course of his or her employment then discarded it out of place, as it were, in the drinks section because this is not the sort of thing that one would expect to find there, one would expect presumably to find it in the homeware section. It is possible that this may have been a case of Homer nodding as far as Mr. Tate is concerned in carrying out his inspection but I think it is safer at this stage to find as a matter of fact, and as a matter of probability in this case that it had been discarded wrongly by a member of staff carrying out their duties at a time at which Mr. Tate was not in a position to identify it, or any other member of staff. It should not have been put there by a member of staff and having been put there it created a hazard. And the person responsible for this is the person who threw or discarded this particular piece of wrapping. And that fault finds its way therefore vicariously in the direction of the defendant, they (sic) must bear the responsibility for the hazard which was created by this discarded wrapper there being no issue but that this caused a hazard. And in those circumstances the plaintiff was in the same position as anybody else lawfully using this aisle, she was entitled to walk up and down the aisle safely and not be exposed to a hazard or danger of a slipping hazard on that aisle.’ (Transcript 2nd May, 2017, pp 49-50)

Discussion

9 In assessing the judgment delivered in the High Court, this court cannot supplant the trial judge's findings of fact with its own views. See Hay v....