Long v Tipperary County Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 10 June 2024
• Neutral Citation: [2024] IEHC 405
• Docket Number: RECORD NUMBER 2020 7676 P

Between

Breda Long

Plaintiff

and

Tipperary County Council

Defendant

[2024] IEHC 405

RECORD NUMBER 2020 7676 P

HIGH COURT

PERSONAL INJURIES

EX TEMPORE JUDGMENT of Ms. Justice Nuala Jackson delivered on the 10 ^th of June 2024

INTRODUCTION

1 There is no doubt that the Plaintiff in this matter suffered serious and persistent personal injuries arising from the events of the 16 ^th November 2018. I found the Plaintiff to be a most honest witness and her account of the events of that date was clear, albeit that she was undoubtedly in very considerable pain in the immediate aftermath of her fall and I have no doubt that her focus at that time was, understandably, upon pain management and absorbing the shock and distress which must have accompanied her fall. It is clear that the Plaintiff was walking family pets on a stretch of footpath which was well known to her when she was caused to slip or trip, falling out into the road. She sustained injury to her right shoulder, left wrist and to her head, resulting in her removal to hospital by ambulance and her treatment necessitated a five day in-patient stay in hospital together with ongoing treatment thereafter.

2 Fortunately, her head injury was not serious although it did result in scarring. Her injury to her wrist has largely resolved. Her shoulder injury has proved to be more persistent and continues to this day. She demonstrated to me the current restriction in movement of her right shoulder and it would appear that full resolution of this injury is unlikely. There can be no doubt that the Plaintiff was properly attired for these activities, her evidence being that she was wearing runners. The issue for me, however, all of the above evidence being largely uncontradicted, is what caused the Plaintiff to fall and is such cause such as renders the Defendant liable, in law, to compensate the Plaintiff for the sequelae thereof?

THE EVIDENCE

3 It is regrettable that the evidence in relation to the cause of the fall is much less satisfactory and much less clear than the evidence relating to the event itself. It is undoubtedly the case that there were leaves on the footpath. It is my clear view from the evidence that the leaves in question were wet (a likelihood in the context of a November afternoon in Ireland). However, the issue is whether the presence of the leaves on the pavement upon which the Plaintiff slipped is something for which the Defendant is liable?

4 The evidence of the Plaintiff was that there was “a slope on the footpath, that it sloped into a depression. The photographic evidence showed that there had been works to the pavement since the date of the accident which works the Defendant's Counsel informed me had been carried out in or about 2019. Therefore, the only evidence in relation to the condition and design of the footpath at the date of the accident is derived from a Google photograph from 2009. It is common case that the condition and construction of the footpath at the time of the events the subject of these proceedings was most likely very similar to that shown in this photograph. This supports the Plaintiff's evidence of there being a slope on the footpath as there was a dishing of the pavement around the point of the fall in ease of moving from the footpath to the road for wheelchairs, buggies and the like. The Plaintiff stated that there were leaves at the edge of the footpath and that there was mud under the leaves and she slipped on this detritus. The Plaintiff's case is very clearly pleaded, Particulars of Negligence stating at Paragraph 4(e) that:

“(e) Provided for a sloped surface on the footpath and/or failed to properly design and/or repair the footpath thereby allowing water and leaves to accumulate and present a danger to pedestrians;”

The Plaintiff gave evidence of the presence of leaves and that she was familiar with the area in question and that she had seen leaves previously at the locus of the accident. Under cross-examination, the Plaintiff stated that whatever caused her to fall was on the footpath. She indicated that she slipped on wet leaves and on whatever was under these leaves. It was robustly put to her that this evidence varied from the contemporaneous note of her conversation with ambulance personnel. This note indicated that the Plaintiff said that she had “tripped over the kerb”. She acknowledged that this was different to her evidence but she said that she had tripped over the kerb because she slipped on leaves. I do not form the view that much turns on this evidence. Clearly, the Plaintiff was in considerable pain, distress and discomfort. I believe that it is perfectly plausible that she would inform the paramedics in these circumstances that she had tripped without going into the further detail of what caused her to slip. Therefore, I accept that the Plaintiff tripped and fell off the pavement due to slipping on leaves and associated detritus.

5 The Plaintiff called as a witness a retired member of An Garda Siochana who resided locally and had come upon the scene shortly after the fall; the Plaintiff was lying partly on the road and partly on the footpath at the time he arrived. Being a local resident, the witness was extremely familiar with the locus. In his evidence, he referenced the poor physical state of the footpath, referencing pitting and cracks and plaster and concrete being missing. He indicated that the surface of the footpath was wet on the date in question and that leaves do gather at that point. His evidence is that he noticed leaves on the footpath and kerb, where they meet the road. He said that he did not notice anything under the leaves. His evidence was that he had previously observed leaves at this place and this was regular in wintertime when conditions were damp.

6 The expert engineering evidence called by the Plaintiff was most useful and honest. His evidence was that the Plaintiff told him she had slipped on leaves on the footpath. He referenced the fact that leaves break down when wet. He referenced the dropping/dishing of the kerb and stated that this was a common feature in ease of road crossing. He stated that there was sloping from the fence at the interior of the footpath to the road. There would be a camber in the road itself causing the road to fall to either side to allow water to run off the road surface. He very fairly indicated that he could not measure how the road was at the time because it was now completely different in structure due to the subsequent works. However, he opined that there could be a design fault in relation to the design of the road and the design of the footpath which, together, could lead to ponding as a result of a low point at the outside edge of the footpath where it dropped. His evidence was that you could have ponding of water which over time would lead to a build up of silt in the area which would become slippery in wet weather. It is important to note, however, that there was no evidence from the Plaintiff or the contemporaneous witness of any water ponding in the area. There was no evidence of silt having been created at the edge of the road as a result of such ponding or of silt having progressed onto the footpath. Mr. Morgan, the engineer, indicated that this ponding and silt build up could have occurred and if it did that it could have been due to a design fault of the combination of the road and the footpath. Importantly, his evidence was not that this had occurred but merely that it was a possibility. It is important to remember that the third party witness's evidence was that he did not notice anything under the leaves. I am of the view that ponding of the...