Monahan v Dunnes Stores and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 15 February 2013
• Neutral Citation: [2013] IEHC 79
• Docket Number: [No. 7130 P./2009]
• Court: High Court
• Date: 15 February 2013

[2013] IEHC 79

THE HIGH COURT

[No. 7130 P./2009]

Monahan v Dunnes Stores & Dunnes Stores (ILAC Centre) Ltd

EILEEN MONAHAN

PLAINTIFF

AND

DUNNES STORES AND DUNNES STORES (ILAC CENTRE) LIMITED

DEFENDANTS

CIVIL LIABILITY (AMDT) ACT 1964 S2

CIVIL LIABILITY (AMDT) ACT 1964 S2(A)

GREENE v HUGHES HAULAGE LTD 1997 3 IR 109 1998 1 ILRM 34 1998/20/7609 1997 IEHC 110

DENNEHY v NORDIC COLD STORAGE LTD UNREP HIGH COURT HAMILTON 8.5.1991 (EX TEMPORE)

CIVIL LIABILITY ACT 1961 S50

CIVIL LIABILITY ACT 1961 S2

TORT LAW

Negligence

Employer's liability - Oil spillage - Slip and fall - Whether defendant liable - Whether contributory negligence - Assessment of quantum - Whether payments made by defendant to plaintiff to be deducted from special damages - Greene v Hughes Haulage Ltd [1997] 3 IR 109 applied - Civil Liability (Amendment) Act 1964 (No 17), s 2 - Claim allowed (2009/7130P - Irvine J - 15/2/2013) [2013] IEHC 79

Monahan v Dunnes Stores

Facts The plaintiff was employed by the defendant and had suffered a “slip and fall” at work. It appeared that a number of bottles of olive oil had fallen from a display causing a hazardous floor. The plaintiff claimed that the defendant was negligent in its management of the spillage in that it had failed to warn her of its presence or protect her from inadvertently walking into the area. On behalf of the defendant it was asserted that it had acted with reasonable care for the plaintiff”s safety and had immediately cordoned off the area in question. It was also contended that the plaintiff was guilty of contributory negligence in failing to heed two oral warnings and a hand signal allegedly given to her not to enter the area in question. Issues arose as to what extent payments made to the plaintiff under an employees” scheme could be deducted from any award of special damages. On behalf of the defendant it was submitted that monies which it had paid to the plaintiff under the income continuance plan should be deducted from the plaintiff”s loss of earnings claim.

Held by Irvine J in finding in favour of the plaintiff: The spillage occurred in what was essentially a drapery store and the index of suspicion that a member of staff might have as to the possible presence of a spillage would be very low. The court was satisfied that the plaintiff had not received any warnings when approaching the area in question. The court did not accept the evidence of the defendant regarding warning signs and the nature and extent of the cordon that was supposedly erected. The defendant had failed to act with reasonable care for the plaintiff”s safety. A sum of €50,000 would be awarded in respect of general damages to date and a sum of €20,000 into the future. The court could see no reason not to apply the judgment of Geoghegan J. in Greene v. Hughes Haulage [1998] 1 ILRM 34 regarding payments made to the plaintiff under the income continuous plan.

Ms. Justice Irvine

1 The plaintiff was born in October 1958 and lives with her elderly and somewhat dependent mother in Glasnevin, Dublin. She commenced her employment with Dunnes Stores after she completed her Leaving Certificate and was appointed a department manager in 1985.

2 The within proceedings relate to an incident that took place on the defendant's premises at the Ilac Centre on 1^st September, 2006, sometime between 5pm and 6.30pm. It is agreed that Mr. Pat Tully, who was the manager of the defendant's store, was assisting Ms. Elaine Hayes with a display of large and rather unstable Christmas gift bottles of olive oil which were on a tiered table when he destabilised the display causing anything between six and ten bottles to come crashing to the ground creating a hazard from broken glass and a spillage of oil that covered an area of approximately 6x10ft.

3 The plaintiff claims that the defendant was negligent in its management of the aforementioned spillage in that it failed to warn her of its presence or protect her from inadvertently walking into the area and that as a result she fell heavily as she approached Mr. Tully to speak to him prior to clocking out of work that evening. The defendant on the other hand maintains that it acted with reasonable care for the plaintiff's safety. It asserts that it immediately set about cordoning off the area and erecting warning signs which it maintains were sufficient to protect both its staff and members of public from injury assuming that they were acting with due care for their own safety. In addition to its denial of negligence, the defendant maintains that the plaintiff was guilty of contributory negligence in failing to heed two oral warnings and a hand signal allegedly given to her by Mr. Tully before she entered the area which she ought, in any event, to have noted had been cordoned off.

4 This is a case which very much depends on the view I take, firstly, as to the extent and nature of any cordon or warning signs that may have been erected prior to the plaintiff's fall and secondly as to what happened in the fifteen or so seconds prior thereto, matters about which there was significant dispute.

5 The plaintiff states that she came out from a storeroom, which is towards the rear of the premises, to speak to Mr. Tully who she then spotted in the distance. She maintains that she zigzagged or weaved her way through the display stands and garment rails moving at all times in his direction. As she approached Mr. Tully she stated that she saw that he was at a display table with his back to her. He appeared to be wrapping cling film around a display table. She did not notice the presence of any warning signs or barriers. Furthermore, there was nothing impeding her approach and she noticed nothing unusual about the area that might have alerted her to the fact that she was approaching an area of danger. She called out to Mr. Tully to get his attention as she approached but he did not hear her. Then, just as she reached him, she slipped and fell heavily to the ground.

6 Under cross examination, the plaintiff denied at any stage receiving one or more oral warnings from Mr. Tully telling her to stay away. She also denied that he put up his arm to indicate to her that she should not continue walking towards him.

7 Mr. Tully stated that the collapse of the display of the oil bottles caused a great commotion in the store and that Mr. Capper arrived on the scene almost immediately. He said that he asked a member of staff to get a bucket and mop and he told the court that Mr. Capper immediately went off to get tension barriers and warning signs. Mr. Tully maintained that before the plaintiff's fall, the area of the spillage had virtually been cordoned off using a combination of four or five moveable clothing rails, four or so tension barriers and five yellow plastic warning signs which had been hinged together.

8 As to the plaintiff's approach, Mr. Tully stated he noticed her when she was about 8ft from the area in which he had placed a number of tension barriers. He said that he told her to stop where she was. When she kept walking he said that he warned her a second time while simultaneously putting his hand out to demonstrate that she should stay exactly where she was. Mr. Tully maintained that regardless of these clear warnings, the plaintiff squeezed through the uprights of two tension barriers which had been placed side by side and slipped almost immediately. He said that he put out his hand to try to save her but was unsuccessful. He also maintained that by the time she fell she had told him that she intended leaving the floor to get a glass of water and had also mentioned something about stock relevant to the night shift.

9 Mr. Capper told the court that when he became aware of the spillage he immediately went to the small storeroom at the front of the store where warning signs and tension barriers are kept. He stated that he brought two yellow A-frame plastic warning signs to the locus and three tension poles. The three poles were placed in position and joined together using two straps making one continuous barrier. This barrier was placed immediately beside approximately four rails of clothes which he said had been positioned in a U-shape formation so as to try to create a cordon of sorts around the spillage. There was a gap in the cordon and he placed the two A-frame yellow warning signs side by side in this area. It was intended that this gap would be used by those involved in the clean up operation as they would need to be able to access the area of the spillage. Mr. Capper said he saw the plaintiff when she was about 12ft away and that he heard Mr. Tully warn her twice not to come into the area. He also said he saw him gesticulate with his hand that she was to stop where she was. Mr Capper said that the plaintiff ignored these warnings and made her way through the cordon entering the area of the spillage between the yellow warning signs and the tension barrier, at which stage she immediately slipped.

10 The onus of proof is on the plaintiff in this case to establish that the defendant was negligent in failing to protect her from the spillage which it had created on the floor of its premises on 1^st December, 2006. The extent of the defendant's duty of care, I believe, must be one which is proportionate to the risk generated by the spillage and as to the foreseeability of potential injury. In this regard, I think the following matters are material:-

(i) The spillage occurred in what is essentially a drapery store. No fluid or liquids are normally sold in the store. The decorative gift bottles of olive oil were only on the defendant's premises as part of its Christmas wears. Accordingly, I think that the index of suspicion that a member of staff might have as to the possible presence of a spillage of oil on the floor would be very low indeed and that any...