Kelly Hannon v Tipperary County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 24 June 2021 |
| Neutral Citation | [2021] IEHC 514 |
| Docket Number | [RECORD NO. 2016/00471] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 514
[RECORD NO. 2016/00471]
[RECORD NO. 2017/00039]
THE HIGH COURT
CIRCUIT APPEALS
JUDGMENT of Mr. Justice Twomey delivered on the 24th day of June, 2021
This is a trip and fall case by a lady, who is the sixth member of the same family to make a trip and fall claim against the defendant (“Tipperary County Council”) over a short period of time. It was claimed on behalf of Tipperary County Council during the course of the hearing that there was a 1 in 26 million chance of so many members of the same family entitled to compensation for injury as a result of a slip and fall in such a short period of time. This case raises three issues that may be of more general application to personal injuries claims and which could therefore potentially assist in easing the current and future backlog in personal injuries claims.
While the evidence referenced above from the actuary, who is an expert in probability, was relevant, it is clear, as noted below, that it was not determinative in the claims in this case being dismissed by this Court (as they were in the Circuit Court by His Honour Judge Teehan). This is because it is this Court's view that trip and fall claims such as this one, might not be taken if the first question a lawyer was to ask their clients is:
The second issue this case considers is the importance of the direction by the Supreme Court to all other courts (in Rosbeg Partners v. LK Shields Solicitors) that ‘ Courts must … bring appropriate scepticism’ (emphasis added) to all stages of litigation and thus to, inter alia, personal injury claims for damages. In this regard, the credibility of plaintiffs is an important factor in many personal injury claims, since there is often no independent evidence of what occurred and in many cases the claim is for soft tissue injuries (as in this case), where there is an almost total reliance on the plaintiff having given an honest account of their injuries to the doctors involved.
The third issue is the fact that this case is an example of an unmeritorious claim which appears to have been brought by impecunious plaintiffs, and thus it is likely to have cost Tipperary County Council much more to win the case than to settle or ‘buy-off’ the claim, not just once but on the double, i.e. in the Circuit Court and the High Court. Nonetheless, it seems clear that such an approach is likely to discourage such claims (and thereby ease the backlog in the courts), since such plaintiffs will find it more difficult to persuade lawyers to spend their valuable time on ‘nuisance claims’ with little chance of success, if there is little prospect of a ‘buy-off’ of the claim.
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• were you looking where you were going when you fell, and,
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• if so, should you not have seen the alleged hazard?
This judgment deals with two separate cases, as two separate trip and fall claims by two sisters were instituted, in which they claim to have fallen over two separate shores in the same council estate in Tipperary Town, although as noted below, this Court decided to hear the two cases together, despite objections from counsel for the two plaintiffs.
The first case is a trip and fall claim where the plaintiff, Ms. Kelly Hannon, claims that on 17th August, 2015 she suffered soft tissue injuries when she got her right foot caught in an uncovered shore when she was walking on the footpath in the council estate in which she has lived for her entire life, namely Greenane Drive, Tipperary Town.
It was heard at the same time as an almost identical claim by her sister, Ms. Sarah Hannon, in relation to a trip and fall claim, where Ms. Sarah Hannon claims she suffered soft tissue injuries when she caught her right foot on a uncovered shore on 7th June, 2016, which appears to be about 30 metres from the shore in which her sister tripped, in the same council estate, where Ms. Sarah Hannon also lives.
The defendant was represented in the two cases by the same legal team and it did not provide any engineering evidence. The two plaintiffs were represented by the same solicitors firm and evidence for both plaintiffs was provided by the same engineer. However, that firm instructed two different barristers for each of the plaintiffs.
As there was a similarity between these two trip and falls and as the same legal teams were involved (save that there was a different barrister engaged for each of the plaintiffs), and since the accidents occurred in the same location, and as the same engineer was giving evidence in relation to the uncovered shores in the estate and since the two plaintiffs are sisters, the defendant sought to have the two cases heard together.
In addition, in the context of that application, the Court was informed that the sisters were part of a family that had made six claims against Tipperary County Council relating to trip and falls in Tipperary Town most of which were around the Greenane estate.
However, counsel for Ms. Kelly Hannon and counsel for Ms. Sarah Hannon both objected to the application to have the cases heard together as they claimed they were two completely separate accidents and there was no basis to link the two claims.
This Court rejected this application as it felt, inter alia, that court resources would be saved by dealing with both cases together.
A much more forceful objection was made by counsel for Ms. Kelly Hannon and by counsel for Ms. Sarah Hannon to the use of expert actuarial evidence by Tipperary County Council which indicated that there was a 1 in 26 million chance of so many members of the same family making trip and fall claims in a short space of time.
Both counsel claimed that permitting this evidence amounted, in effect, to an allegation of fraud against the two plaintiffs, and as fraud had not been pleaded in this case by Tipperary County Council, it was not open to the defendant to introduce this evidence.
This application was rejected by this Court on the grounds that the task of this Court in every civil case, including personal injuries claims, is to decide what happened on a particular date in the past, on the balance of probabilities.
It follows that anything which may be of assistance to the Court in this task, including statistics regarding probabilities, is perfectly admissible as evidence. Furthermore, the fact that a defendant claims that a plaintiff's recollection of an accident is incorrect, or to put the matter another way, that on the balance of probabilities the incident did not occur as claimed by the plaintiff, does not, per se, amount to an allegation of fraud.
The shore in which Ms. Kelly Hannon allegedly tripped was without a cover and has dimensions of 250 mm x 250 mm. It is positioned between the exterior of the pathway and the road. It does not have a cover as it appears to have been removed, which the engineer advised is a common occurrence in this estate.
It is clear that two people can comfortably walk on the footpath without coming close to the shore which should be obvious to anybody keeping a lookout. More to the point, for Ms. Kelly Hannon to have caught her right foot in the shore, considering the direction in which she was travelling, she would have to have been walking, not on the footpath, but with her left foot on the road and with her right foot on the footpath, a most unusual way in which to walk, when there is plenty of room on the footpath for two people.
This manner of walking would require extra care and, in her evidence, Ms. Kelly Hannon stated that she was not looking in front of her as she walked, as she was talking to her sister who was accompanying her at the time.
The law regarding looking where one is going is clear — a person who is walking in this country, whether on private property or property owned by a State body, such as a local authority, has a duty to look where they are going — see the judgment of Binchy J. in the Court of Appeal decision in Power v. Waterford City and County Council [2020] IECA 196 at para. 33 et seq. Indeed, this is also obvious from the similar legal principle that a person is expected to take reasonable care for her own safety — see the judgment of Peart J. in the Court of Appeal decision in Lavin v. Dublin Airport Authority [2016] IECA 268 at para. 52.
If a person falls, as a result of not looking where they are going or not taking reasonable care for their own safety, they have only themselves to blame and not the local authority or some other defendant.
It is this Court's view therefore that trip and fall claims such as the claims in this case would not be taken if the first question a lawyer was to ask her client is: were you looking where you were going, and if so, should you not have seen the alleged hazard?
It is always important to remember that when a court is expressly or implicitly critical of the fact that a claim has been made in litigation, the criticism is directed at the parties, whether a plaintiff or a defendant. No criticism is being made of the solicitors or barristers since they are only acting on the instructions of their clients who decided to pursue the claims or allegations in questions.
Just as it is not the role of the lawyer to determine whether their client is guilty in criminal matters, so too it is not for a...
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