Keegan v Sligo County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 10 October 2019
• Neutral Citation: [2019] IECA 245
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2018/9
• Date: 10 October 2019

[2019] IECA 245

THE COURT OF APPEAL

CIVIL

Peart J.

McGovern J.

Baker J.

Record No. 2018/9

BETWEEN

THOMAS KEEGAN

PLAINTIFF/RESPONDENT

- AND -

SLIGO COUNTY COUNCIL

DEFENDANT/APPELLANT

Personal injury – Liability – Quantum – Appellant seeking to appeal from a decision in a personal injury action where liability and quantum were both in issue – Whether the trial judge erred in law and in fact in not finding the respondent guilty of contributory negligence

Facts: The defendant/appellant, Sligo County Council, appealed to the Court of Appeal from a decision of Barr J delivered on the 30th November, 2017 in a personal injury action where liability and quantum were both in issue. The claim arose from a slip and fall accident that occurred on the 18th November, 2013. The trial judge determined the liability issue in favour of the plaintiff/respondent, Mr Keegan, and awarded general damages of €50,000 to date and €55,000 into the future and the agreed special damages making in all a total of €105,650. He declined to make any finding of contributory negligence. The issue of quantum was not pursued with any great vigour. The thrust of the oral submissions made at the hearing of the appeal by both parties concerned the issue of liability. The appellant set out its principal grounds of appeal in the following terms: (i) Whether the respondent’s house is unfit for human habitation so as to trigger liability under Siney v Dublin Corporation [1980] I.R. 400 and Burke v Dublin Corporation [1991] 1 I.R. 341? (ii) Whether the trial judge took the correct approach in deciding to impose liability under the Occupiers Liability Act 1996? (iii) Whether the trial judge erred in law in his approach to the evidence of the mechanism of the accident as described by the respondent and erred in fact in his finding as to that evidence? (iv) Whether the trial judge erred in law in declining to make a finding as to prior complaints? (v) Whether the trial judge erred in law in his treatment of the effect of alcohol on the ability of the respondent to take reasonable care for his own safety? (vi) Whether the trial judge erred in law and in fact in not finding the respondent guilty of contributory negligence?

Held by Allen J that there were a number of matters which made the trial unsatisfactory and which could only be put right by a re-trial on the liability issue; in particular, the failure of the trial judge to engage in a meaningful way with the conflicting accounts of the accident given by the respondent before reaching his conclusions on liability fell short of what was required. Allen J held that there was no proper analysis of the conflicting evidence which would point to the reason why the trial judge was satisfied, on the balance of probability, that the incident happened in the manner as described in para. 10 of the judgment. Allen J held that the trial judge was also in error in failing to properly examine and analyse the evidence before ruling out contributory negligence by failing to address the question as to whether the respondent had taken reasonable care for his own safety as required under the 1996 Act. Allen J held that the trial judge was also erred in law in holding, at para. 71 of his judgment, that the onus was on the appellant to call medical evidence to show that the accident could not have occurred in the manner claimed by the respondent. Allen J held that the trial judge’s finding that the respondent’s house was not reasonably fit for habitation was one which could have far reaching consequences for the appellant. Allen J held that the trial judge erred in making such a finding in circumstances where it had not been pleaded thereby giving rise to a situation where the appellant had to deal with the matter on an ad hoc basis during the course of the trial; this gave rise to an entirely unsatisfactory situation. Allen J held that it was not for the court to express its view on the issue in circumstances where it should not have been dealt with by the trial judge.

McGovern J held that the trial of the liability issue was unsatisfactory and that he would allow the appeal. He directed that the issue of liability be remitted back to the High Court for a re-hearing.

Appeal allowed.

JUDGMENT of Mr. Justice McGovern delivered on the 10th day of October 2019

1 This is an appeal from a decision of Barr J. delivered on the 30th November, 2017 in a personal injury action where liability and quantum were both in issue.

2 The claim arose from a slip and fall accident that occurred on the 18th November, 2013 while the respondent was returning to his home at Cranmore, Sligo. He was a tenant of the house which was let by the appellant, the housing authority for the relevant area. The respondent had resided at the premises for approximately nine years prior to the accident.

3 The accident occurred at around 5 p.m. as the respondent was about to enter his hall door. He had been at a funeral during the afternoon and between 1 p.m. - 5 p.m. admits to having consumed approximately four or five pints of Guinness having visited three different pubs in that period. As he went to open the hall door, he claims that his left foot slipped on the tiles which were wet as a result of the weather conditions on that day. The porch faced in a south-westerly direction and was therefore open to the prevailing wind in the area. The respondent gave evidence that the tiled surface of the porch would frequently get wet.

4 In the High Court the trial judge heard evidence from consulting engineers that the tiles provided good slip resistance when dry but presented a moderate risk when wet. It appears from the evidence in the High Court that the tiles were of a standard type that was provided in such locations at the time when they were laid.

5 The plaintiff suffered a pilon fracture to his left ankle which required surgical fixation. He was unemployed at the time of the accident and the special damages were agreed in a sum of €650.

6 Having heard the evidence, the trial judge determined the liability issue in favour of the respondent and awarded general damages of €50,000 to date and €55,000 into the future and the agreed special damages making in all a total of €105,650. He declined to make any finding of contributory negligence.

7 Although the appeal in this case was in respect of liability and quantum, the issue of quantum was not pursued with any great vigour. The thrust of the oral submissions made at the hearing of the appeal by both parties concerned the issue of liability.

Liability and related issues

8 The appellant sets out its principal grounds of appeal in the following terms:-

(i) Whether the respondent's house is unfit for human habitation so as to trigger liability under Siney v. Dublin Corporation [1980] I.R. 400 and Burke v. Dublin Corporation [1991] 1 I.R. 341?

(ii) Whether the trial judge took the correct approach in deciding to impose liability under the Occupiers Liability Act 1996?

(iii) Whether the trial judge erred in law in his approach to the evidence of the mechanism of the accident as described by the respondent and erred in fact in his finding as to that evidence?

(iv) Whether the trial judge erred in law in declining to make a finding as to prior complaints?

(v) Whether the trial judge erred in law in his treatment of the effect of alcohol on the ability of the respondent to take reasonable care for his own safety?

(vi) Whether the trial judge erred in law and in fact in not finding the respondent guilty of contributory negligence?

Unfit for human habitation

9 The trial judge held that the use of the particular ceramic tiles in the porch of the respondent's house rendered that house “unfit for human habitation”. In respect of this finding the appellant has concerns on a number of grounds. In the first place, it claims that this point was not pleaded as part of the respondent's claim. Secondly, it says that such a finding has significant and serious implications for the appellant in a way which transcends this particular case. The respondent argues that when the case came on for hearing the point was raised in submissions and was not objected to by the appellant.

10 It seems to me that this is an issue which gives rise to a number of legal questions of some complexity, including the legal relationship between the respondent and appellant For example, is the respondent to be considered a “visitor” in the usual sense or is this case one where there is more than one “occupier” of the premises as understood under the Occupiers Liability Act 1995 having regard to the fact that the respondent had resided in the house for approximately nine years prior to the accident? What is the meaning of “unfit for human habitation” within the meaning of the Housing Act 1966?

11 In my view, it is not at all satisfactory that a finding of the trial judge on an issue of such importance should be made where it has not been pleaded by the respondent and arose in circumstances which required the appellant to deal with it on an ad hoc basis in the course of the trial. I do not think it matters whether or not the appellant engaged with the issue at the trial. While the particulars of negligence in the personal injuries summons included a plea of “failing to comply with the provisions of the Occupiers Liability Act 1995 and the Housing Acts 1966” the respondent did not furnish further particulars of same although asked to do so in a notice for particulars dated the 26th August, 2016. Both the Siney and Burke cases involve claims regarding the interior condition of dwellings. This appeal however concerns an external surface on the porch where one enters the dwelling. Under the Housing Act 1966 a housing authority has a duty to inspect houses in their functional area and ascertain the extent to which they are in any respect unfit or unsuitable for human habitation. The second...