Kelly v Transdev Dublin Light Rail Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hanna |
| Judgment Date | 30 November 2018 |
| Neutral Citation | [2018] IEHC 693 |
| Docket Number | [RECORD NO: 2015/3422 P.] |
| Court | High Court |
| Date | 30 November 2018 |
[2018] IEHC 693
THE HIGH COURT
Hanna J.
[RECORD NO: 2015/3422 P.]
AND
Liability – Injury – Recklessness – Plaintiff seeking to establish liability on the part of the defendants for his injury – Whether the defendants were liable
Facts: The plaintiff, Mr Kelly, on 20th October, 2012, took the Luas light rail network from central Dublin out to Dundrum using the Green Line. The defendants, Transdev Dublin Light Rail Ltd and Transport Infrastructure Ireland, were the occupiers and operators of Dundrum Luas Station and of the Luas system. The plaintiff suffered an injury while attempting to access the eastern platform of the station through an unauthorised route. While attempting to clamber over a locked gate his left (non-dominant) hand made contact with a rounded protrusion on top of a steel fence. He suffered a de-gloving injury to his left ring finger when he jumped down leading, ultimately, to the amputation of that finger and a disfiguring and debilitating permanent injury to his left hand. He sought to establish liability on the part of the occupiers and operators of the station for that injury.
Held by the High Court (Hanna J) that the plaintiff’s conduct in committing a sequence of acts of admitted recklessness was to such a degree of egregiousness that even if the top of the fence had constituted a danger in some form (which it did not), the level of folly attained by the plaintiff was to such a degree as virtually to extinguish any potential fault on the part of the defendants.
Hanna J held that the plaintiff’s claim would be dismissed.
Claim dismissed.
The plaintiff was formerly a tool-maker and is currently a tattoo artist. He was born on 1st August, 1975 and is currently 43 years of age. He lives in Malahide, Co. Dublin. He is an impressive person; a confessed alcoholic who is now sober. He has faced challenges in his life, contributed to substantially by alcohol abuse. In his spare time he gives talks to schools, prisons and meetings of Alcoholics Anonymous to discourage young people from alcohol abuse and to encourage others suffering from the disease of alcoholism. He deserves commendation for this.
Around the time of this accident, the plaintiff had been homeless for some time and was living in a hostel, under the auspices of Sr. Consilio. This hostel was in Gardiner Street in Dublin and operated on the basis of a strict regime of times for meals, worship, bedtime and so forth. The establishment provided both shelter and aid to persons like the plaintiff meeting challenges such as he then did.
On the day of his accident, Saturday 20th October, 2012, the plaintiff was engaged to give a talk to fellow sufferers from alcoholism in Dundrum. To this end he took the Luas light rail network from central Dublin out to Dundrum using the Green Line. The accident, of which he complains occurred on the eastern platform of Dundrum Luas Station. The defendants are the occupiers and operators of this station and of the Luas system.
The plaintiff had never taken the Green Luas line before, although he had used the Red line on occasion. A distinguishing feature between the two which the plaintiff highlighted (he was not contradicted) was that the Red line stations and stops were at ground level and did not have ‘above road’ platforms requiring stairs and/or elevators to gain access to same. Dundrum Station did and had access by means of stairways and an elevator. The plaintiff was new to this. He suffered his injury while attempting to access the eastern platform through an unauthorised route. While attempting to clamber over a locked gate his left (non-dominant) hand made contact with a rounded protrusion on top of a steel fence. He suffered an extremely nasty de-gloving injury to his left ring finger when he jumped down leading, ultimately, to the amputation of that finger and a disfiguring and debilitating permanent injury to his left hand. He seeks to establish liability on the part of the occupiers and operators of the station for this injury.
In evidence, the plaintiff described how the regime in Sr. Consilio's establishment in Gardiner Street was strict in that if you missed your dinner at 1 o'clock, that was that. You were not fed until the next meal time. This was on his mind at all material times, although he did say he was not in the act of rushing to catch a particular train when the accident occurred.
He described how he was going to address an Alcoholics Anonymous meeting on the morning of Saturday 20th October, 2012. Having arrived at the Luas station in Dundrum he was met by a representative of the organisation who took him to a motor car and drove him to address the meeting, a journey which took about five minutes.
Dundrum Luas station has two platforms facing east and west respectively. Travelling from town one would arrive on the east platform which is bound, although not in parallel, by Taney Road. The pedestrian access (and pick up point for the plaintiff) is on Taney Drive. The eastern platform is accessed by a laneway and stairway off Main Street in Dundrum. In addition, there is also a lift or elevator on Main Street. Dundrum Town Centre is located approximately 500 metres up Main Street, in a southerly direction. This is the starting point for Mr. Kelly's journey leading to the injury which he suffered.
After the meeting he was dropped back to the Dundrum Centre where he had coffee with a person or persons involved in the meeting. He declined the offer of a trip to see a soccer match and was directed towards the Luas station. He was pointed down the road and he could observe the bridge in the distance as he proceeded along Main Street in Dundrum. As he neared the bridge, a laneway to his right provided access to the pedestrian stairway to the station. There were two signposts pointing to the Luas station, both intended for the benefit of pedestrians. The first of these was at the laneway opposite a corner shop and pointing at an oblique angle towards the steps at the end of a laneway. The other pedestrian sign was near the base of the steps. As the plaintiff approached the Main Street pedestrian sign, he claims his view of it was obscured by two posters apparently advocating support for a referendum which was taking place at the time. These were on a lamp standard positioned just over four metres or approximately fifteen feet in front of the pedestrian sign. The plaintiff took photographs of the locus in quo approximately one week later and assured us (he was not contradicted) that the posters were in exactly the same position as they were when he wandered towards and past them the previous week. Two of the photographs are taken from central positions on the footpath at diminishing distances approaching the posters. These, as presumably they are intended to do, demonstrate that the posters appeared to obscure the Main Street Luas sign as one directly approached the lamp standard. However, it would seem that the sign would have been visible as one passed the lamp standard. Indeed, as one would have been walking at some distance to the right of the lamppost to pass it (possibly even to the left) the Main Street pedestrian sign would have become apparent before one came immediately abreast of the lamppost. Therefore, assuming a normal walking pace, the plaintiff would have had not less than three seconds and, probably, a little more time in which to observe this first sign.
This sign directing pedestrians towards the Luas station was a standard directional pedestrian sign with a tapering, indicative end and was 20 cm in height and 70 cm in length. It was positioned on a pole at a height of approximately 2.5 metres from the ground. This directed pedestrians up the laneway towards the stairway where another, identical sign pointed them up the stairway towards the Luas station.
The plaintiff says that he missed both signs. He claims his view of the Main Street sign was obscured by the campaign posters (at a preliminary stage he threatened proceedings against the Fine Gael Party who were responsible for the posters on the lamppost). He could not dispute the fact that as he approached and had to go around the lamppost, the pedestrian sign was there for him to see. He says that he did look up to his right up the laneway. There were a number of vans there on that Saturday morning (this was around 12 o'clock) and several workmen. He says that these obscured his view of the other pedestrian sign. In addition, there was a tree in the vicinity of the sign which has since been felled either by storm or design and that this contributed to his inability to observe the second pedestrian sign. Again, his photographs taken approximately one week after the incident seek to demonstrate this. The material photograph is not of much help since it is taken in poor light and from a central position on the laneway. It does show a number of vans. Of itself, it is not reliable to support the proposition that the pedestrian sign was not visible to the intending passenger. However, part of the structure of the Luas station was visible to him.
He proceeded onwards to the lift which was in the vicinity of the railway bridge. He pressed the button but found that nothing was stirring after about 30 seconds and he assumed that it was out of order. This lift was located some 55 metres further along Main Street and around 20 metres from the junction of Main Street and Taney Road, in Dundrum. No issue arises from its state of functioning.
The plaintiff then walked under the railway bridge. This is a long span bridge over Taney crossroads. Underneath the bridge, there is a concrete abutment sloping upwards at an angle of approximately 45...
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