Lavin v Dublin Airport Authority Plc

• Jurisdiction: Ireland
• Judge: MR JUSTICE MICHAEL PEART
• Judgment Date: 11 October 2016
• Neutral Citation: [2016] IECA 268
• Date: 11 October 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 261

BETWEEN:

ELIZABETH LAVIN

PLAINTIFF/RESPONDENT

- AND -

DUBLIN AIRPORT AUTHORITY PLC.

DEFENDANT/APPELLANT

[2016] IECA 268

Peart J.

Peart J.

Hogan J.

White J.

Neutral Citation Number: [2016] IECA 261

Appeal No. 2015 No. 261

THE COURT OF APPEAL

(CIVIL)

Negligence – Liability – Duty of care – Respondent seeking liability for negligence and an award of damages for personal injuries – Whether duty of care under s. 3 of the Occupiers Liability Act 1995 was breached

Facts: The respondent, Ms Lavin, on the 2nd November 2011, received an injury to her head and other soft tissue injuries, when she lost her balance and fell while being transported upwards on a large escalator from the check-in area on the ground floor to the departures area on the first floor at Terminal 2 in Dublin Airport. The appellant, Dublin Airport Authority Plc, was the "occupier" of Terminal 2 for the purpose of s. 3 of the Occupiers Liability Act 1995. A finding of liability for negligence and an award of damages for personal injuries in the sum of €60,000 was made in favour of the respondent by Hanna J on the 30th April 2015 following a two day hearing in the High Court. In addition, he made a finding of contributory negligence against the respondent to the extent of one third, resulting in an award of damages in her favour of €40,000. The trial judge had concluded that there was a breach of the duty of care under s. 3 of the 1995 Act owed by the authority as occupier of the terminal to the respondent who was its "visitor" on the date of the accident. The appellant appealed to the Court of Appeal against that judgment. The core issue in the appeal was the scope of the duty of care under s. 3 and whether in this case that duty was breached.

Held by Peart J that the trial judge erred in concluding that the respondent was a person to whom the escalator was a danger (given that no fault was found with it by the engineers) and that inadequate signage breached the appellant's duty to take reasonable care to ensure that she did not suffer injury. Peart J held that the trial judge erred in considering the failure on the part of the respondent to seek advice only in the context of contributory negligence rather as part of the consideration of whether or not the appellant occupier had taken reasonable steps in all the circumstances to protect the respondent in discharge of the common duty of care under s. 3 of the 1995 Act. Peart J held that the occupier was entitled to expect that if she did not wish to use the escalator she would ask one of the clearly visible airport staff who were in position for the very purpose of giving advice and directions if sought. In Peart J's view the appellant complied with its common duty if care under s. 3.

Peart J held that the appeal must be allowed, the order made in the High Court vacated and the claim dismissed.

Appeal allowed.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 11TH DAY OF OCTOBER 2016:

1 This is an appeal by the defendant authority against a finding of liability for negligence and an award of damages for personal injuries in the sum of €60,000 made in favour of the plaintiff by Mr. Justice Hanna on the 30th April 2015 following a two day hearing in the High Court. In addition, he made a finding of contributory negligence against the plaintiff to the extent of one third, resulting in an award of damages in her favour of €40,000. The core issue in this appeal is the scope of the duty of care under s. 3 of the Occupiers Liability Act, 1995 owed by the authority as occupier of the terminal to the plaintiff who was its 'visitor' on the date of this accident, and whether in this case that duty was breached. The trial judge concluded that there was a breach of that duty to the plaintiff. I regret that I cannot agree for reasons which I hope to make clear.

2 Section 3 of the Act of 1995 provides:-

'3(1) An occupier of a premises owes a duty of care ('the common duty of care') towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.

(2) In this section 'the common duty of care' means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision the latter person may reasonably be expected to exercise over the visitor's activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.' [emphasis added]

Factual Background

3 On the 2nd November 2011 the plaintiff, then aged 64, received a nasty injury to her head and other soft tissue injuries, when she lost her balance and fell while being transported upwards on a large escalator from the check-in area on the ground floor to the departures area on the first floor at Terminal 2 in Dublin Airport. She was intending to take a flight to the UK for a family funeral, and was accompanied by her sister in law, (aged 81 at the time), and her niece, who was much younger. The defendant is the 'occupier' of Terminal 2 for the purpose of the section.

4 Terminal 2 is a new state of the art airport terminal which had been operational for about a year prior to the plaintiff's fall. She was unfamiliar with its geography and features, not having previously visited it. Neither had she ever used an escalator in all her 64 years. However, her niece had used that terminal previously.

5 The facts are not controversial, though it must be said that the plaintiff's account of how her fall occurred which she gave to her consulting engineer, Conor Murphy, when they visited the terminal together on the 12th May 2013 for the purposes of his preparing an expert report was clearly incorrect given what is to be seen on the very clear CCTV footage of the incident. His report records that she told him that she had entered upon the escalator, placed her carry-on suitcase in front of her and ascended with her left hand gripping the handrail on her left hand side. The CCTV footage however clearly shows her entering upon the escalator with her carry-on bag placed first of all on the step immediately behind her, and then immediately thereafter on the step on which she was standing and to the right of her own feet. But her left hand is not gripping the handrail. She is in fact holding in that hand what seems to be the print-out of her boarding card. In other words she is seen not to be holding onto the handrail at all.

6 Her account of the incident to Mr Murphy did not explain what caused her to lose her balance and fall down the escalator, whereas the CCTV footage makes clear that she turned around to adjust her carry-on bag in some way, and in doing so she fell over and down the escalator. Fortunately, a member of the public saw what happened and quickly pressed the emergency button which brought the escalator to an abrupt halt. In addition, airport staff was on hand within seconds and they were able to render immediate assistance to her.

7 In her personal injury summons which issued on the 8th October 2013, some four months after the CCTV footage was made available to the plaintiff's side, she makes no mention of her carry-on bag, or whether or not she was holding onto the handrail. She pleads simply that while present on the premises as a lawful invitee ' she was caused to fall straight down on her face as she was travelling up the said escalator which was moving and thereby sustained personal injuries... etc.' [emphasis added]

8 As for what is alleged to have caused her to fall one must look to the particulars of negligence as set out in the summons. These allegations are spread over some twenty five separate paragraphs (if one excludes the usual formulaic and, in most cases including this one, meaningless final plea of res ipsa loquitor) with each paragraph specifying a separate basis on which she alleges that the defendant was negligent. I mention the quantity of these allegations of negligence because despite their prolixity none makes any explicit mention of the only allegation of negligence on which this case was actually opened in the High Court and on which it proceeded, and on which the judge ultimately found against the defendant, despite the fact that by the time this summons was issued the CCTV footage had been provided by the defendant, and the plaintiff's engineer had provided his first report following a joint inspection of the locus on the 12th May 2013.

9 That sole basis for the finding of negligence against the defendant authority is that it failed to bring to the plaintiff's attention by adequate signage within the terminal the fact that she could reach the departures area by means other than the escalator, namely by using one of the lifts provided or the stairs.

10 As it happens, there are three substantial lifts immediately adjacent to the escalator, which are clearly visible, as one would expect in a modern airport terminal. In fact not only are the lift doors large and clearly visible on the ground floor as one would expect, but as the lifts themselves ascend and descend they are visible since they are behind a feature blue transparent glass wall. However, the plaintiff said in her evidence that she did not know of their existence, and that had she known there was a lift she would have taken it, because she was apprehensive and nervous about using the escalator never having been on one before.

11 However, there is no evidence that she ever brought that nervousness and apprehension to the attention of her niece or her sister in law, both of whom are seen on the CCTV footage confidently making their way to the escalator with the plaintiff following close behind. There is no evidence that she gave any thought...