Griffin v Bellway Ltd
 IEHC 294
THE HIGH COURT
[2016 No. 541 P]
Tort – Damages & Restitution – Slip and fall – Contributory negligence – Personal injuries – Onus of proof – Breach of statutory duty
This is an action brought by the Plaintiff for damages for personal injuries and loss arising as a result of an accident which occurred in the early hours of the 8th December, 2013, when the Plaintiff fell while dancing with other patrons in the Defendant's licensed premises known as the "The Laurels", Main Street, Clondalkin, County Dublin. The Defence delivered puts the Plaintiff on full proof of her claim and incorporates a plea of contributory negligence.
The accident was recorded on CCTV. Footage from the camera for a half hour period, commencing at 2.30 am, was retained and admitted into evidence; the relevant portions have been viewed by the parties and by the Court. The time recorded for the accident is 2.44 am when the Plaintiff is seen to fall heavily onto the floor in a backwards motion. A pillar positioned between the camera and the Plaintiff obscures a clear view of her at the moment when she started to fall; consequently, the mechanism for the fall, whether by slipping, tripping, loosing balance or otherwise is not visualised.
First and foremost, amongst the controversies between the parties is the cause of the Plaintiff's fall. Her case she is that she slipped and fell due to the presence of liquid on the floor, a claim hotly contested by the Defendant who contends that the floor was dry and that the fall was attributable to other factors which provide a more likely explanation for what happened.
The Plaintiff was born on the 5th October, 1970. It was not in dispute that she sustained a serious injury to her left ankle which involved a fracture of the distal shaft of the tibia with minimal displacement and a severely comminuted fracture of the distal shaft of the fibula; the fractures required open reduction and internal fixation surgery with bone grafting. This was performed on the 9th December, 2013, by Mr Hamid Khan, Consultant Trauma and Orthopaedic Surgeon.
Post operatively the fractures were managed in a full cast non-weight bearing until the 31st January, 2014, when she was reviewed. At review the full cast was removed, an air cast boot was applied and toe touch weight bearing was permitted with gradual progression to partial weight bearing over a period of approximately six weeks until April 2014 when full weight bearing was tolerated.
The Plaintiff is a social worker by occupation currently employed by Tusla but at the time of the accident she was employed by the Peter McVerry Trust which she joined in 2012, an employment she particularly enjoyed given a special interest in addiction issues and working with the homeless. A significant part of her duties involved the inspection of Trust properties, many of which were multi story old buildings with corresponding flights of stairs.
The Plaintiff lives in a bungalow. Due to the seriousness of her injuries she had a prolonged period of rehabilitation. On return to work she was accommodated by assignment to administrative duties which she managed without difficulty until she attempted to recommence full duties. She found that she was unable to cope with using flights of stairs as doing so aggravated the underlying condition in her injured ankle, a continuing problem which ultimately compelled her to resign her position with the Trust. Thereafter she sought out and ultimately secured employment with Tusla which accommodates the functional limitations imposed by her injuries.
Prior to the accident the Plaintiff enjoyed a very active sporting life which included marathons and running for charity. Although she has returned to the gym for rehabilitation purposes and her desire to remain physically fit, she has been unable to return to running and is limited in the type of exercises which she can carry out in the gym. The Plaintiff is very conscious of the post operative scarring and persisting swelling in her left ankle which is stiff in the morning when requires to be mobilised. She walks for exercise but this activity, which she loves, provokes pain in the injured ankle.
Due to ongoing sequelae, the Plaintiff was referred for further management of the injuries to Mr. Brendan J. O'Daly, Consultant Trauma and Orthopaedic Surgeon, who carried out medical examinations on her and prepared reports for these proceedings in which he sets out the history of the injury, the medical diagnosis made, the treatment offered and prognosis for the future; he also gave evidence at the trial.
The Plaintiff's symptoms have several causes; metalwork which was used to fix the fractures at the time of the original operation is the source of anteromedial tibial pain, the other is peroneal tendonitis which was secondary to the comminuted fracture of the distal fibula. Mr. O'Daly anticipated that removal of the plate would result in a partial amelioration of the anteriomedial symptoms; some benefit might also be derived from removal of her fibular plate. An osteotomy may improve the peroneal symptoms.
Notwithstanding these treatments, if carried out, he expected that the Plaintiff would continue to experience pain in the region of her peroneal tendons and that she is at a long-term risk of developing post traumatic osteoarthritis because the fibula was badly comminuted and was abutting the syndesmosis joint.
Using the Webber classification and having regard to the severity and the location of the comminution, Mr. O'Daly categorised the injury as a Webber B fracture. Although he would attempt to achieve correct anatomical positioning of the fibula during remedial surgery it did not necessarily follow that the normal axial rotation of the joint would be obtained.
I accept the evidence of Mr. O'Daly that while some reduction of symptoms is anticipated following the remedial surgery which he has offered, the Plaintiff is unlikely to experience a full resolution of her symptoms and in the long term she will remain at risk of developing post traumatic osteoarthritis in the injured ankle from which, in my view, it follows that the injuries may properly be categorised as serious and permanent.
There is one final observation which I wish to make which may be of some significance in relation to the controversy concerning the cause of the fall. In evidence Mr. O'Daly said that the injuries sustained by the Plaintiff were consistent and were generally associated with a high energy impact.
The entitlement of the Plaintiff to recover damages for her injuries and loss is dependant on the outcome of the issues on liability. At the outset, it may safely be stated on any view of the evidence that the Defendant permitted patrons to bring glasses of drink onto the floor of the premises where patrons were dancing. That this practice occurred both before, at and after the time of the accident is consistent with the admitted absence of a policy to prevent it.
In these circumstances, there was a foreseeable risk that drink would be spilt by patrons crossing or, as the Plaintiff was, dancing on the floor with drink in hand, a risk which was heightened where patrons were permitted to dance in proximity to one another. This practice was clearly evident to the Defendant's staff, charged as they were, with the responsibility to carry out inspections, to keep an orderly house and to maintain the surface of the floor in such a way that it was reasonably safe for use by those lawfully on the premises, employees and patrons alike.
The Court is satisfied on the evidence that there was provision made for dealing with and cleaning up any spillages that might have occurred in this manner or otherwise; the Defendant's bar and supervisory staff were under a duty to keep a lookout for and to deal with anything on the floor as might likely cause a person to fall whether by tripping or slipping. That there was supervision and inspection of the relevant portion of the premises in the period immediately before and after the accident is evident from the retained video footage.
The question of whether the Defendant's system of supervision, inspection and cleaning was sufficient to satisfy the common law and statutory duty to take reasonable care to ensure that the premises was reasonably safe for use by the Plaintiff arises and only falls to be considered in circumstances where the accident giving rise to the injuries and loss arose as a result of a danger or hazard, created or permitted by the Defendant its servants or agents.
On the pleadings and in the evidence given by and on her behalf, the hazard or danger identified was the presence of liquid on the floor which rendered it unsafe and on which the Plaintiff slipped, a state of affairs caused or created by the Defendant in permitting drink to be brought on to and/or to be consumed on a floor the surface of which provided inadequate slip resistance.
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