Louise Allen (plaintiff) v Trabolgan Holiday Centre Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 30 April 2010
• Neutral Citation: [2010] IEHC 129
• Docket Number: [No. 5290 P/2009]
• Court: High Court
• Date: 30 April 2010

[2010] IEHC 129

THE HIGH COURT

[No. 5290 P/2009]

Allen v Trabolgan Holiday Centre Ltd

BETWEEN

LOUISE ALLEN

PLAINTIFF

AND

TRABOLGAN HOLIDAY CENTRE LIMITED

DEFENDANT

OCCUPIERS LIABILITY ACT 1995 S3

OCCUPIERS LIABILITY ACT 1995 S1(1)

HOGAN v STEELE & CO LTD 2000 4 IR 587 2001 2 ILRM 321 2000/10/3967

TORT

Occupier's liability

Negligence - Duty of care toward visitor - Contributory negligence - Personal injuries - Muddy path with child carried on back - Whether behaviour foreseeable in family resort - Appropriate footwear - Special damages - Hogan v Steele & Co Ltd [2000] 4 IR 587 followed - Claim allowed but with 25% contributory negligence (2009/5290P - Charleton J - 30/4/2010) [2010] IEHC 129

Allen v Trabolgan Holiday Centre Ltd

Facts The plaintiff claimed that on 20 August 2008, she slipped on a muddy and unpaved footpath at the defendant's holiday centre. At that time the plaintiff was a paying guest on holiday. The defendant claimed that the accident was the plaintiff's own fault and that her version as to where she slipped was to be doubted. It was also pleaded that the plaintiff could not demonstrate any want of care as she showed neither a danger on the premises nor any want of such care as was reasonable in the circumstances to avoid her being injured by that danger. The plaintiff suffered a very severe ankle injury as a result of the accident, which necessitated an operation whereby a metal plate and screws were inserted into her ankle.

Held by Charleton J. in awarding judgment for the plaintiff in the sum of €47,924.25: That as a matter of probability, some but not all, of the plaintiff's evidence could be accepted. The plaintiff's evidence regarding the footwear she was wearing at the time of the accident was not accepted. The theory that the plaintiff slipped on wet grass and not on the path was not backed up by the evidence but was based on speculation. It was undoubtedly the case that there was a danger on the property. The accumulation of mud and wet on the designated path was a clear danger to any visitor that might wander along that path. Furthermore, there was a failure to take such care as was reasonable in all the circumstances to ensure that the plaintiff did not suffer by reason of that danger.

The plaintiff made clear contribution towards the accident, partly by not wearing appropriate footwear and her damages were reduced by 25

Mr. Justice Charleton

1 The Occupiers' Liability Act1995, codifies responsibility in tort by the occupiers of premises towards entrants. There are three categories; visitors, trespassers and recreational users. As with previous common law as to the liability of occupiers for injury caused to those on premises which they control, the obligations under the legislation are limited to the static condition of the land and buildings. Harm alleged to arise out of action taking place on the premises, be that a sporting event like show jumping, or the cutting down of trees for timber, are adjudged under ordinary negligence rules.

2 Under s. 3 of the Act the occupier owes a common duty of care towards a visitor. This duty is defined as an obligation to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. As to that duty, it is clear that merely establishing that an accident occurred on premises is not enough. The plaintiff must show that a danger existed by reason of the static condition of the premises; that in consequence of it he/she suffered injury or damage; and that the occupier did not take such care as was reasonable in the circumstances to avoid the occurrence. The duty of care so defined is at a markedly higher level than that which applies to recreational visitors, such as those exploring the countryside or historical sites, or to trespassers. A visitor is defined in s. 1(1) of the Act as a person who enters as of right, for instance a fire fighter; or someone paying to go to the theatre would be an examples of that; who is in the premises on the invitation, or with the permission of, the occupier, this would extend to both the customer of a shop and a guest coming to a private house for a meal; and those who come to a place for a recreation without charge and who are a family member, or someone invited, or are there for social reasons.

Facts

3 On the 20^th August, 2008, Louise Allen, the plaintiff, claims that she slipped on a muddy and unpaved footpath at Trabolgan Holiday Centre. She was there as a paying guest on holiday, so she is a visitor and the defendant is the occupier. The defendant does not deny that she slipped, as that is obvious. Rather, the defence is that the accident was her own fault and that her version as to where she slipped is to be doubted. It is pleaded that Ms. Allen cannot demonstrate any want of care as she shows neither a danger on the premises nor any want of such care as was reasonable in the circumstances to avoid her being injured by that danger. While everyone accepts that she slipped and fell, an issue has arisen as to whether she was wearing appropriate footwear and as to whether the accident took place on the footpath leading back to her holiday chalet or on the grass immediately beside it.

4 I find myself in a position where, as a matter of probability, I feel I can accept some, but not all, of the plaintiff's evidence and that of her sister-in-law. In looking at whether I can accept some of her evidence, having rejected a piece of her evidence and that of her sister-in-law, I have carefully considered demeanour. In my judgment, the portion of the evidence of Ms. Allen and her sister-in-law which I do accept has not been undermined by the single fact which I feel constrained to hold against her. Further, the theory that she slipped on wet grass and not on the path is not backed up by evidence but is based on speculation. No one saw that happening and because when Trabolgan Holiday Centre employees came on the scene they did not ask her what had happened. This is not surprising as she was in agony.

5 Ms. Allen is a young woman who comes from Dunlavin in County Wicklow. She works in Clondalkin as a credit controller and has established an exemplary record of diligence. She has always been interested in Gaelic football. Prior to this accident, she had discontinued her playing career but was involved in coaching at a high level. She is now involved in management and some coaching by direction, as opposed to by example. This is because of the accident. When it happened, she, accompanied by her brother and her sister-in-law Gina Allen, and niece and nephew aged three years and six years, were taking a holiday break. It was a wet August. While Trabolgan was good choice, as it has many indoor activities, the outside ground was soaked. By the time photographs came to be taken on behalf of the defendant the day after the accident, the weather had changed, with brilliant sunshine in the place of the misty rainy conditions that prevailed for most of the previous day.

6 At about 18.00hrs, together with her sister-in-law and niece and nephew, Louise Allen went from her holiday chalet to the central area of the holiday complex. There they booked for a family meal a bit later on in the evening. Then, the two adults and two children returned along the designated paths to their chalet in order to change for the meal. Both women were wearing jeans. Gina Allen has told me, and I accept, that she was nervous of her jeans trailing on the path where the accident occurred, because it was muddy. I regard it as probable that a similar consideration applied to Louise Allen. They went along tarmacademed paths and then took a designated path up a slight incline through some trees towards their chalet. The path was narrow and not covered in any...