O'Mahoney -v- Hanlon & anor,  IEHC 657 (2018)
|Docket Number:||2014 3651 P|
|Party Name:||O'Mahoney, Hanlon & anor|
THE HIGH COURT[2014 No. 3651 P]
NICOLA McCARTHY HANLON
WATERFORD AND WEXFORD EDUCATION AND TRAINING BOARDDEFENDANTS
JUDGMENT of Mr Justice David Keane delivered on the 23rd November 2018
At just after 2 p.m. on 23 April 2012, an accident occurred on the grounds of the Dungarvan Adult Education Centre at Wolfe Tone Street in Dungarvan. That premises is owned or controlled by the second defendant Waterford and Wexford Education and Training Board (‘the board’), formerly Waterford County Vocational Education Committee. The plaintiff Vincent O’Mahoney, who was employed by the board as a caretaker, was riding a bicycle that collided with a car that was being driven by the first defendant Nicola McCarthy Hanlon, a literacy coordinator at the Centre. Mr O’Mahoney seeks damages from either or both of the defendants for the personal injuries that he suffered as a result of that collision.
In the personal injuries summons that issued on behalf of Mr O’Mahoney on 7 April 2014, he alleges, in essence, that the accident was caused by the negligence of Ms McCarthy in the care, control or driving of her vehicle, or by the board’s negligence, breach of statutory duty, or breach of his employment contract with it, in failing to ensure his safety while on its premises.
As a result of the collision between his bicycle and Ms McCarthy’s car, Mr O’Mahoney lost his balance and fell to the ground, landing heavily on his left shoulder. The injury was painful and he was later diagnosed with a tendon rotator cuff tear. He received prescription painkillers and, later, two injections of a corticosteroid and local anaesthetic. A little over two months after the accident, Mr O’Mahoney had surgery on his shoulder, after which he was required to keep his left arm in a sling for six weeks. Fortunately, he is right hand dominant. Later, he received physiotherapy and did exercises at home as directed. He returned to work approximately six months after his surgery (or eight months after the accident), from which work he has since retired. Happily, his operation was a success. He is mostly pain-free, although he suffers inflammation of his shoulder from time to time, for which he takes prescribed anti-inflammatory medication. He is physically in a position to do most things that he could before the accident, though doing heavy work above shoulder height can still cause problems with inflammation.
The locus in quo
The board maintains a small campus of buildings in Dungarvan, to the south of O’Connell Street and the west of Wolfe Tone Street, adjacent to the junction between those two roads. The Adult Education Centre is at the north end of that campus and the Adult Learning Centre is at the south end. In between are a number of smaller buildings used for various purposes including a Men’s Shed and an after-school club.
The main entrance to the campus is at the north end of Wolfe Tone Street, a short distance back from the T-junction at which Wolfe Tone Street meets O’Connell Street. That entrance is designed to facilitate vehicular and pedestrian entry and exit. On driving through it, a private access road with a bitumen surface lies straight ahead to the east, running parallel with O’Connell Street just to its north. That private access road has the Adult Education Centre to its right and a row of car-parking spaces, running along the northern boundary of the campus, to its left. Another branch of that private access road lies to the south, from a point just inside the main entrance to the campus, running broadly parallel with Wolfe Tone Street just to its west. That private access road has the Adult Education Centre to its left and a row of car-parking spaces, running along the western boundary of the campus, to its right.
There is a second entrance to the campus, further south on Wolfe Tone Street. It is accessed through a wrought-iron gate, set in a pedestrian gateway, adjacent to the public footpath there. There is no dropped kerb between the road and the pavement anywhere in the vicinity of that gateway and nothing to suggest that it was designed, or intended, for anything other than pedestrian access.
A bitumen-surfaced pedestrian pathway, approximately 1.37m wide, runs east from the pedestrian gateway a distance of approximately 9.7m, before ending at a T-junction with the branch of the private access road that runs south from the main entrance. The pathway is edged with concrete kerbs and flanked on the right (to the south) by a grass lawn and on the left (to the north) by a tall hedgerow . To the north of the hedgerow is the bottom of the row of car parking spaces that runs along the western boundary of the campus. At the T-junction where the pathway meets the private access road, that road has veered a little to the southeast, with the result that the T-junction is not strictly perpendicular and the kerb to the right (or south) of the pathway extends further to the east than the kerb to the left (or north) of the pathway, before turning in each direction to follow the contour of the private access road (northwest to the north and southeast to the south).
A rectangular box of cross-hatched yellow lines, measuring 3.4m by 3m, had been painted onto the southward branch of the private access road, just before the point where it is met by the pedestrian pathway. The purpose of that yellow box is to warn motor vehicle drivers not to obstruct access to the Adult Learning Centre...
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