Helen Powerv Waterford City and County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 23 July 2020
• Neutral Citation: [2020] IECA 196
• Date: 23 July 2020
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2019/125

BETWEEN/

HELEN POWER

PLAINTIFF/RESPONDENT

- AND -

WATERFORD CITY AND COUNTY COUNCIL

DEFENDANT/APPELLANT

[2020] IECA 196

Whelan J.

Faherty J.

Binchy J.

Appeal No. 2019/125

High Court Record No. 2016/6285 P

THE COURT OF APPEAL

Injury – Damages – Liability – Respondent seeking damages – Whether the appellant was liable

Facts: The respondent, Ms Power, on 15th July, 2015, sustained an injury in a fall on the public roadway known as the Promenade, Tramore, Co. Waterford. The injury comprised a fracture of her left hip from which, in due course, she made a substantial, if not a full recovery. The respondent claimed that she was caused to trip and fall by reason of the manner of construction and layout of speed bumps/speed cushions on the public roadway. Proceedings came on for hearing in the High Court before O’Hanlon J, sitting in Waterford, and were heard over a two-day period between 7th and 8th March, 2019. O’Hanlon J delivered an ex tempore decision on 8th March, 2019. The trial judge held that the speed bumps constituted a trip hazard, and that the respondent was caused to trip and fall because of the positioning and shape of the speed bumps, which were located immediately beside a pedestrian crossing. She held that it was reasonably foreseeable that the respondent would trip, in the manner described by her in her evidence. Accordingly, O’Hanlon J found for the respondent and made an award in her favour in the sum of €62,500, made up of general damages of €60,000 and special damages of €2,500. The appellant, Waterford City and County Council, appealed to the Court of Appeal against that award on liability only.

Held by Binchy J that in making the choice to walk on the Promenade rather than the footpath, the respondent exposed herself to certain dangers that do not present themselves on a footpath. Binchy J held that this choice, coupled with the respondent’s failure to look where she was going as she walked across the speed bumps, was the cause of the accident, and not the location of the speed bumps or the parking arrangements in their vicinity. For those reasons, it was Binchy J’s view that the appeal should be allowed and the respondent’s claim against the appellant dismissed.

Binchy J held that, as regards the costs of the appeal, subject to consideration of any submissions that the respondent may wish to make, the appropriate order was that costs should follow the event, and that the appellant should be entitled to recover from the respondent the costs incurred by it both in this appeal, and in the proceedings in the court below, when taxed and ascertained.

Appeal allowed.

JUDGMENT of Mr. Justice Binchy delivered on the 23rd day of July 2020

1 On 15th July, 2015, the respondent sustained an injury in a fall on the public roadway known as the Promenade, Tramore, Co. Waterford. The injury comprised a fracture of her left hip from which, in due course, she made a substantial, if not a full recovery. The respondent claims that she was caused to trip and fall by reason of the manner of construction and layout of speed bumps/speed cushions on the public roadway. The proceedings came on for hearing in the High Court before O'Hanlon J., sitting in Waterford, and were heard over a two-day period between 7th and 8th March, 2019. O'Hanlon J. delivered an ex tempore decision on 8th March, 2019. While I address the decision of the trial judge in more detail below, in summary she held that the speed bumps constituted a trip hazard, and that the respondent was caused to trip and fall because of the positioning and shape of the speed bumps, which were located immediately beside a pedestrian crossing. She held that it was reasonably foreseeable that the respondent would trip, in the manner described by her in her evidence. Accordingly, O'Hanlon J. found for the respondent and made an award in her favour in the sum of €62,500, made up of general damages of €60,000 and special damages of €2,500.

2 It is against that award that the appellant has brought this appeal, which is an appeal on liability only. The appellant accepts that the accident occurred in the manner alleged, that the respondent sustained a fractured hip as a consequence, and that the award of the trial judge in respect of those injuries is within the range (if at the upper end thereof) appropriate for such injuries. The appellant, too, accepts the correctness of the quantum of the award.

The Evidence

Evidence of respondent

3 The respondent gave evidence that she lives on the outskirts of Tramore, approximately four and half kilometres from the accident locus. She has lived in Tramore for twenty-eight years. For about fifteen or sixteen years she and her family have hosted Spanish students during the summer. On the occasion of the accident, the respondent was accompanied by one such student. It was her intention to go to a particular café to get an ice cream. The area around the Promenade and the café was very busy. The respondent parked her vehicle in a designated parking space, perpendicular to the footpath, and on the same side of the road as the café. No expert evidence was led as to the distance from the respondent's car to the café but the respondent herself said it was less than 50 yards. The café is located almost adjacent to a pedestrian crossing which traverses the Promenade, and which was, at the time, parallel to and in close proximity to the speed bumps, of which there were four, two on each side of the road.

4 The respondent said that she instructed the student, named Alex, to go to the shop window at the café. She said that the area was very busy, and there were people walking everywhere including, she said, “all over the roads”. Alex walked from the car to the footpath and went in the direction towards the café. The respondent considered that the footpath was so busy as to be at full capacity, and decided to walk along the roadway. She was asked by her counsel why she did not use the footpath, as Alex did, to which she replied:-

“Well I could have I suppose but the way I look at it I would have a better chance of getting a seat if I stayed out here, I had a better view. There was too many people around.”

5 The respondent described walking along the Promenade until she came to the speed bumps, and she then walked onto the second speed bump i.e. the second from the footpath. She said that she was looking to see if there was a table available, in the café, and then her toe got stuck “in the middle”. She was asked to explain this, and she said she thought that the speed bump was continuous. It appears from her evidence that she was caused to trip when she lost her balance in the gap between two speed bumps, either because she stubbed her foot on the edge of the first speed bump, i.e. the speed bump closest to the footpath, in the course of stepping off the second speed bump, or because of the change in levels as she stepped from the second speed bump into the gap between the two speed bumps. The respondent acknowledged that she was aware of the existence of the speed bumps having travelled over them many times (including twice before she parked her car, just before the accident) but she claims that she thought that the first and second speed bumps were a single continuous bump, and therefore that there would be no gap between them, and, therefore, no lip or raised surface on which to catch her foot or otherwise lose her balance.

6 The respondent also claimed that her view of the scene as she approached the speed bumps was obscured by reason of a car being parked beside them. She therefore was prevented from seeing that there were in fact two separate speed bumps on this side of the road, and not a single continuous bump. In cross examination it was put to her that the proximity of parked cars to the bump was irrelevant, because she had walked past all those cars by the time she walked on to the second speed bump and then turned right towards the footpath. She agreed that she walked past the cars which were on her right, but she did not notice that there were two separate speed bumps.

7 Under cross examination, the respondent also acknowledged that each speed bump was delineated by thick white lines. It was put to her that she should have used the footpath, or alternatively an outer passageway between the footpath and the road (which is for use by visually impaired pedestrians) and also that she failed to look where she was going as she walked from one speed bump to the next. In reply, the respondent said that, to use the footpath, she would have had to “beat” her way through the crowd, as it was so busy in the area at the time. There were many others walking on the road, rather than the footpath, for the same reason.

8 It was expressly put to the respondent that the pedestrian crossing had nothing to do with the accident, because she did not use it, and nor was she intending to use it. She confirmed that this was so.

Evidence of Mr. Flahavan (engineer)

9 Mr. Flahavan is a consulting engineer and was called to give evidence on behalf of the respondent. He informed the court that the purpose of the speed bumps was to slow down traffic approaching the pedestrian crossing. He explained the advantages and disadvantages of speed bumps/cushions over a single continuous speed bump. Speed bumps have the advantage that buses and public service vehicles, such as ambulances, can straddle the bumps. They have the disadvantage that motor cyclists rarely slow down at them. He said that the Department of the Environment Traffic Signs Manual specifies that there should be zig zag lines for sixteen metres approaching a pedestrian crossing (on either side), and parking should be prohibited on those lines. There were no such zig zag lines at all at this crossing. He also referred to the Department of Transport guidelines in the United Kingdom (the “U.K. guidelines”) which recommend...