Hampson v Tipperary County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 25 July 2018
• Neutral Citation: [2018] IEHC 448
• Docket Number: [2016 No. 6471 P.]
• Court: High Court
• Date: 25 July 2018

BETWEEN

BREDA HAMPSON

PLAINTIFF

AND

TIPPERARY COUNTY COUNCIL

DEFENDANT

[2018] IEHC 448

O'Hanlon J.

[2016 No. 6471 P.]

THE HIGH COURT

Tort – Personal injuries – Fall on footpath – Local authority – Claim for damages

Facts: The plaintiff claimed to have suffered injuries as a result of a fall on a footpath maintained by the defendant. The defendant denied liability in full, arguing inter alia the damage to the footpath was caused by third parties.

Held by Ms Justice O’Hanlon, that the claim would be dismissed. The Court was sceptical of elements of the plaintiff’s evidence and was persuaded that it was not reasonably foreseeable to suggest that third parties would damage the footpath. The doctrine of nonfeasance applied, and the claim was therefore struck out.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 25th day of July, 2018.

1 This case arises because of an accident which occurred on or about 17th December, 2014. The plaintiff alleged that when she reached a footpath, her foot became trapped in a large hole between two concrete kerbs, causing her to fall heavily onto the ground. The plaintiff is a homemaker and resided at the time of this accident at Clogheen in the County of Tipperary and now resides in Scotland with her family.

2 The defendant is sued in its capacity as a local and highway authority for the town of Cahir and has its offices at County Hall, Emmet Street, Clonmel in the County of Tipperary. The plaintiff claims she suffered significant loss, personal injury, and damage as a result of this accident.

3 Authorisation under s. 14 of the Personal Injuries Assessment Board Acts, 2002 and 2007, was issued by the Board on 16th June, 2016, under Claim No.: PL0120201604752. The defendant filed a full defence and pleads in particular nonfeasance as opposed to misfeasance and also pleads novus actus interveniens and/or the involvement of third parties, that is traffic striking into and mounting the footpath at the location, thereby causing the damage.

4 The important features to note with regard to the plaintiff's evidence was that while she confirmed that the accident occurred on 8th December, 2014, at 1:00pm while she was doing a message and had looked up and down the road and was crossing the road and that her right leg got stuck in the footpath opening and she went flat down on her hands and knees. She noted that there was a pipe coming out of the pavement which was broken. She had grazing of the hands and knees.

5 It is of significance that she first attended her General Practitioner about this accident as late as 29th January, 2015. She explained this by saying that she waited until the grazing on her hands had healed and started swelling before she attended Dr. Melanie O'Reilly, her G.P. at the time. Her reasoning for this was that Christmas and children and Santa intervened. She also added that cancer treatment was causing her memory loss. This witness freely admitted that she was crossing the road and she was not looking at the hole in the footpath and that she did take a chance crossing the road and she was alert and perhaps more concerned about crossing the road than falling down a hole. This court will deal with the plaintiff's evidence on the medical aspect of this case at a later point in this judgment.

The Issue of Liability

6 Mr. Michael Fogarty engineer described himself as a civil and construction forensic engineer being qualified with a degree in Mechanical Engineering in 1994 from the University of Limerick.

7 He described a PCV plastic pipe and he said the pipe could be 30 years old coming right out to the road edge of the kerb and the bottom of the pipe was still in position but that in his view vehicle wheels on the kerb had caused the kerb edges to be vulnerable and that this was the cause of the gap and that the outer edge had an inner crack over the pipe and that it was only an inch and should have a minimum covering of 4-inches.

8 This witness made the point that it was a satisfactory system because the pipe came across to the road under the kerb line and could not be seen from the road level. His opinion was that this was going to end up as something dangerous and he showed a Kilkenny eco drain showing concrete and holes (photographs 9 and 10).

9 Under cross-examination he was asked was it not a 6-inch kerb, a 4-inch pipe and a 2-inch concrete on top. He gave his opinion that there was 2-inches over the footpath but not over the kerb section and that originally concrete would have come over the pipe. It was very unusual to discharge between precast concrete kerbs with a gap of 4.5-inches and very unusual to have it discharging out at road level and that this caused the whole defect to be more obvious to someone looking downwards.

10 His opinion was that the disadvantages of this system far outweighed any other advantage. He agreed that the locus the area was not exclusively residential.

Evidence of Rory O'Callaghan, Area Engineer, Tipperary County Council

11 The essential point this witness made was that he had researched this topic and had found no other works were carried out to this piping and drainage over the last 30 years. He indicated also that trucks went up on the footpath at the locus and that the kerb was damaged by cars and trucks which could not take that sort of loading and he gave his opinion that the path was designed for pedestrians, not for heavy trucks and he agreed that if you apply more than pedestrian loading to the footpath there would be problems.

Evidence of Mr. Lorcán O'Flannery

12 This witness described himself as an employee of Mr. Rohan. He said that the kerb was 6-inches high in general in the area but that here it was pushed down and that there was a 4-inch pipe with 1-inch rather than 2-inches of covering above it and that as it crosses to the little gully it is more likely 2 inches.

13 This witness did not think that it was unusual and unsatisfactory and he said whether dished or cast in a dish or cast in a pipe, it was entirely adequate for pedestrians. He described the particular pipe as having a design life of 40 years and that you would expect damage over 30 years. While the Kilkenny option of eco drainage was a better option, it just was not available 30 years ago.

14 This witness described the pipe as conspicuous especially where one steps over onto the path. This witness was shown photographic evidence and agreed that there were cars on both sides of the street and a fairly large pub with no yard at the back to pull into and while he agreed one would expect a lorry to park as close as they can further up the street, he said it would be bad driving for a truck to go as close as possible to the pub with one wheel up and one wheel down in tight parking conditions.

15 This witness took the view that footpaths are not strengthened to take vehicles parking and that a vehicle can mount any footpath and that is more likely to be in front of a pub rather than down a road.

16 This witness said that where a pipe issues out into the footpath it cannot be as strong as if there was no pipe.

Medical Evidence on Behalf of the Plaintiff

17 Joseph G. O'Beirne, Consultant Orthopaedic surgeon by report dated 1st November, 2015, confirmed the plaintiff attended the Emergency Department of South Tipperary General Hospital Clonmel on 29th January, 2015, in relation to this incident. She was found to be tender over the lateral side of the wrist and the wrist had a deceased range of motion, x-rays were taken which showed no fracture. The status of the trapezium was in doubt and the plaintiff was given a back slab and referred to the fracture clinic.

18 The plaintiff was seen first in the fracture clinic on 4th February, 2015, and although the x-rays showed no fracture, she was tender over the radial side of the wrist and the base of the thumb and she was given a below elbow cast for four weeks. On 25th March, 2015, the plaintiff was found to have tenderness specifically over the first dorsal compartment with a positive Finkelstein's test and was given a thumb Spica splint and referred to the occupational hand therapy service at University College Waterford for a splinting regime for de Quervain's syndrome and in the interim she was advised to use anti-inflammatory medication as well as the thumb Spica splint. Hand therapy was advised on 15th April, 2015, and she continued with the splint and medication.

19 The plaintiff was complaining on 13th May, 2015, of pain over the base of the thumb with tenderness over the Carpometacarpal joint (CMC joint). Some osteoarthritis of the CMC joint was seen on the x-ray and she was advised that she had two issues: one being de Quervain's syndrome, but also CMC joint arthritis at the base of the thumb and she was advised that the splinting regime could help to address both issues and she was put down for review six weeks later. This treatment was continued at review on 24th June, 2015, and on 5th August, 2015 she had ongoing pain over the base of the thumb despite a hand therapy course. She continued to have distal tenderness and physiotherapy was advised and an MRI scan ordered. It is described that if the first dorsal compartment is too tight for the two tendons to go through, the patient experiences pain at the level of the compartment during wrist movement and particularly during thumb movement, this is the essence of de Quervain's syndrome. This can occur spontaneously, during an inflammatory disease or often as a result of over usage or unaccustomed use and it can be seen occasionally following a single injury as happened in this case. The majority of patients with this condition heal spontaneously, but a minority persist. Osteoarthritis of the first carpometacarpal joint has been identified. The plaintiff has suffered pain and tenderness at that area. It is conceivable that a fall could precipitate symptoms in the...