Keane v Donegal County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 08 July 2022
• Neutral Citation: [2022] IEHC 431
• Court: High Court
• Docket Number: [2019/6847/P]

Between

Geraldine Keane

Plaintiff

and

Donegal County Council

Defendant

[2022] IEHC 431

[2019/6847/P]

THE HIGH COURT

Personal injuries – Liability – Quantum – Plaintiff seeking damages – Whether the defendant was liable

Facts: The plaintiff, Ms Keane, on 27 July 2018, crossed the main street of Dungloe in County Donegal diagonally and when she reached the other side of the road she stepped onto a raised kerb which she believed was flush with the pavement. However, unknown to her there was a double step coming down from the raised kerb to the pavement. She fell to her right and sustained a significant injury to her right elbow. She pleaded in her Personal Injuries Summons that this was due to the negligence, breach of duty and breach of statutory duty on the part of the defendant, Donegal County Council, its servants or agents in or about the design, construction, makeup, maintenance, upkeep, warnings and/or inspection and/or the provision of the footpaths and roadways at the said locus of the accident. She subsequently adduced further particulars of negligence in which she claimed that the defendant had designed and constructed a highly unorthodox arrangement between the roadway, kerb and pavement, requiring a pedestrian moving from the roadway to the pavement to step up on a raised kerb and then to step down to an initial lower level on the pavement and then to make a further step down to a still lower level of pavement and thereby gave rise to foreseeable hazard for such pedestrians. She accused the defendant of having created an unusual feature and having failed to give any or any adequate warning or notice of the existence of it, and effectively having concealed its existence. She accused the defendant of having failed to take any steps by way of barrier or otherwise to prevent persons moving from the roadway onto the pavement in that location, having created hazardous features and having failed to provide any or any adequate means such as handrails to identify the features and assist pedestrians in negotiating them safely. The Council denied all allegations and claimed that the plaintiff was responsible for the accident by not keeping a reasonable lookout as she crossed the road and that the arrangement of a raised kerb followed by two steps was readily apparent to anybody keeping a reasonable lookout.

Held by the High Court (Bolger J) that, having considered the evidence, the plaintiff was unaware of the two step drop when she was crossing the road because it was not made obvious to her from her angle of travel. Bolger J held that the two step drop was an unusual arrangement. She was satisfied that by the standards of the time, the construction of the two step drop without installations in place to alert pedestrians of the danger, was unsafe and not adequate for the purpose of accommodating pedestrian traffic crossing the roadway towards the footpath. She was satisfied that the defendant put the two step arrangement in place in 1995 and in doing so without including anything to alert pedestrians of its existence, they did it in a way as to create a danger and were therefore liable. Taking account of the defendant’s failure to put an alert in place and the plaintiff’s failure to keep a more careful lookout, Bolger J assessed liability in the case as 50/50 between the plaintiff and the defendant.

Bolger J assessed general damages for pain and suffering to date and into the future at €90,000. She noted that some of the special damages claimed were agreed in the amount of €7,482. She measured a figure of €20,000 for the future costs of paying for assistance with the chores that cause the plaintiff pain. Taking account of the plaintiff’s contributory negligence at 50%, Bolger J held that the plaintiff was entitled to an order in the amount of €58,741. As the plaintiff had succeeded in her proceedings Bolger J’s indicative view on costs in accordance with s. 169 of the Legal Services Regulatory Act 2015 was that she was entitled to her costs. It seemed to Bolger J that given the level of damages the plaintiff had secured those costs should be on the High Court scale.

Damages awarded to plaintiff.

JUDGMENT of Ms. Justice Bolger delivered on the 8 ^th day of July, 2022

Introduction

1 . The plaintiff is a civil servant who resides at Castlerea in County Roscommon. On 27 July 2018 she was visiting her sister who lives in Dungloe in County Donegal. The plaintiff had gone into a gift shop and having come out, decided to cross the road in order to attend an art exhibition taking place at the Daniel O'Donnell Centre. She crossed the main street of Dungloe diagonally and when she reached the other side of the road she stepped onto a raised kerb which she believed was flush with the pavement. However, unknown to her there was a double step coming down from the raised kerb to the pavement. She fell to her right and sustained a significant injury to her right elbow. She pleads in her Personal Injuries Summons that this was due to the negligence, breach of duty and breach of statutory duty on the part of the defendant, its servants or agents in or about the design, construction, makeup, maintenance, upkeep, warnings and/or inspection and/or the provision of the footpaths and roadways at the said locus of the accident. She subsequently adduced further particulars of negligence in which she claimed that the defendant had designed and constructed a highly unorthodox arrangement between the roadway, kerb and pavement, requiring a pedestrian moving from the roadway to the pavement to step up on a raised kerb and then to step down to an initial lower level on the pavement and then to make a further step down to a still lower level of pavement and thereby gave rise to foreseeable hazard for such pedestrians. She accuses the defendant of having created an unusual feature and having failed to give any or any adequate warning or notice of the existence of it, and effectively having concealed its existence. She accuses the defendant of having failed to take any steps by way of barrier or otherwise to prevent persons moving from the roadway onto the pavement in that location, having created hazardous features and having failed to provide any or any adequate means such as handrails to identify the features and assist pedestrians in negotiating them safely.

2 . The Council deny all allegations and claims that the plaintiff was responsible for the accident by not keeping a reasonable lookout as she crossed the road and that the arrangement of a raised kerb followed by two steps was readily apparent to anybody keeping a reasonable lookout.

3 . I set out below the relevant evidence given by the plaintiff, the engineers and the medical witnesses. I then set out my discussion and then my decision firstly on liability and then on quantum.

A. Liability

The plaintiff's evidence

4 . The plaintiff identified on her engineer's photo number 3 where she fell as she was crossing the road. She said she did not notice the two step drop as she was crossing the road and when she stepped up on the kerb she thought she would be on a level footpath. On cross examination the plaintiff was less clear about the location of the accident and having originally identified it as having taken place near a grid in the road which she said she remembered, she then suggested it may have taken place in front of a chamber on the footpath or possibly further down from it. All those identified locations were within the same stretch of footpath where there was a two step drop from the kerb to the footpath. The plaintiff said that she could not see the difference in height between the kerb and the footpath when she was crossing the road and that had she seen it, she would have moved to the right of the kerb to a dished kerb area in order to get onto the pavement safely.

Evidence of the plaintiff's engineer

5 . Dr. Mark Jordan, forensic engineer, confirmed that there was no pedestrian crossing available to the plaintiff at the area she wished to cross the road although there is a pedestrian crossing some 200 metres further up the hill. He described the locus of the accident as having created an illusion of a pavement flush with the kerb by, inter alia, the manner in which the pavement sloped in both directions. He explained that the plaintiff expected what would ordinarily apply, i.e. a kerb as an abutment for the pavement, but that what she encountered was a two-step drop. Photographs taken from her angle of travel showed the pavement appearing level with the kerb whereas photographs taken from the opposite angle gave a clear indication of the drop. He described the arrangement as highly unusual and unsafe for a pedestrian but that had the arrangement been made up of a kerb followed by one step, that the plaintiff's foot would have dropped and she could have regained balance i.e. she would have had a good possibility of recovery. However, the two steps meant that her loss of balance was irrecoverable and her chances of recovery evaporated.

6 . Dr. Jordan suggested that the difference in level between the two sides of the road could have been addressed by paving the pavement on the lower side rather than by the two step drop that the defendant put in place. He also suggested that the problems, as he perceived them, caused by the two step drop could have been alleviated by the provision of a handrail, the erection of barriers or the provision of warning signs all of which would require a pedestrian to look down and thereby be alerted them to the hazard created by the two step drop. A handrail could be fitted easily by way of a surface mount which would take less than one hour to install. Barriers would not be required all the way down the street because of the existence of other features which meant that the illusion of a flush pavement did not occur elsewhere.

7 . The defendant had produced...