Ryan v Tipperary County Council
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bronagh O'Hanlon |
| Judgment Date | 17 May 2019 |
| Neutral Citation | [2019] IEHC 345 |
| Docket Number | [2016 No. 4546 P.] |
| Court | High Court |
| Date | 17 May 2019 |
[2019] IEHC 345
THE HIGH COURT
O'Hanlon J.
[2016 No. 4546 P.]
Personal injury – Negligence – Damages – Plaintiff seeking damages – Whether the defendant was negligent
Facts: The plaintiff, Mrs Ryan, on or about the 4th January, 2014, was cycling her bicycle in the laneway at or near St. Bernadette’s Terrace, Clonmel in the County of Tipperary when she was caused to fall heavily to the ground by a dangerous and defective section of the laneway, as a result of which, the plaintiff claimed to have suffered severe personal injuries, loss, damage, inconvenience and expense. The plaintiff sued the defendant, Tipperary County Council, a local authority. The plaintiff’s complaint was that a contractor to the local authority laid tar in the laneway, but that other works were completed from start to finish for a particular network of laneways in that area. There was a gradient down from a red garage door in number 4 down to the archway and a gulley trap with a bode/sunken area of tarmacadam and pebbles. The plaintiff’s contention was that the surface of the lane was left as if it were like marbles on top of a skating rink.
Held by the High Court (O'Hanlon J) that the design of construction of the lane caused a nuisance and that the negligent reinstatement which was never completed fully caused the accident. O’Hanlon J held that the plaintiff, her husband and engineer had given credible evidence and that Mr Ryan’s evidence was not contradicted. The defence engineer did not answer the points made by the plaintiff’s engineer and the court found that the stones and the debris on the surface of the lane was a nuisance and a danger to the public and to the plaintiff. The court found that the gully scoping on the surface and dishing effect were factors which led to the accident. O’Hanlon J held that it was reasonably foreseeable that if the gully and tarmacadam surface were constructed in such a way as to lead to a slope with dishing that the resulting accumulation would cause a trap for the public and for the plaintiff.
O'Hanlon J held that the court would award €65,000 in general damages plus €1,680 in special damages giving a total of €66,080.
Damages awarded.
The plaintiff is a housewife and resides at 13 St. Bernadette's Terrace, Clonmel in the County of Tipperary.
The plaintiff has sued the defendant, a local authority having its offices at Civic Offices, Nenagh in the County of Tipperary with responsibility for the construction, upkeep, and maintenance of the public roadways and laneways in Clonmel, County of Tipperary.
The plaintiff obtained authorisation under s.14 of the Personal Injuries Assessment Board Acts, 2003 and 2007 on the 10th day of February, 2016 bearing authorisation number PL1223201469580.
On or about the 4th day of January, 2014 the plaintiff was cycling her bicycle in the laneway at or near St. Bernadette's Terrace, Clonmel in the County of Tipperary when she was caused to fall heavily to the ground by a dangerous and defective section of the laneway, as a result of which the said accident, the plaintiff claims to have suffered severe personal injuries, loss, damage, inconvenience and expense.
The plaintiff gave evidence that she was born in December 1957 and is now aged 61 years of age, and that she has lived at number 13 St. Bernadette's Terrace for the last 17 years.
She described herself as having been an active person prior to the accident and had two Jack Russell dogs at that time whom she walked. She also used her bicycle and went into town which was a 20-minute journey bicycle. The plaintiff described how her bicycle skidded on the pebbles in the laneway which is between numbers 5 & 6, St. Bernadette's Terrace, which was shown to the court in photograph number 3 and the plaintiff contended that there was a large number of pebbles on the surface of the laneway. The contention was that the local authority, its servants and/or agents in the form of contractors laid a stripe of tar as far as the arch and then stopped. The plaintiff described how when she hit the ground she was trapped and could not move and that two girls picked her up. She described skidding under the archway where the lane meets the arch.
The plaintiff's complaint was that a contractor to the local authority laid tar in the laneway, but that other works was completed from start to finish for a particular network of laneways in that area. There was a gradient down from a red garage door in number 4 down to the archway and a gulley trap with a bode/sunken area of tarmacadam and pebbles. The plaintiff's contention was that the surface of the lane was left as if it were like marbles on top of a skating rink. The plaintiff was brought by her husband to hospital in Clonmel and she was discharged 3 days later. A senior radiologist then noticed a fracture on her lumbar spine. She was given an anaesthetic patch to her back and transferred to Waterford Hospital where she was found to have a wedged compression fracture of the 2nd vertebra. The plaintiff had to wear a spinal brace for which she was fitted while in Waterford Hospital and she wore this brace post-accident for a 12 week period.
The plaintiff suffered pain in her lower back and left leg down to her foot and was found to have osteoporosis. Her mobility was quite restricted and as a result of the injury she is obliged to sleep downstairs.
The plaintiff finds herself on a waiting list for the epidural treatment which she hopes might help but as a result of difficulties suffered by her she could not exercise and has therefore put on a lot of weight and is on tablet medication at present. The plaintiff was obliged to desist from walking as a hobby for a period of time. The plaintiff is not able to carry out household tasks such as hoovering which her husband now does instead and she cannot sit for very long because of the pain. The plaintiff suffers from pain in the back and has had to also desist from cycling for the present.
Under cross-examination the plaintiff confirms that she owns her own house. She thought that she was safe but was not expecting this accident to happen as she had learnt to ride a bicycle when she young and she had never fallen before from a bicycle.
The plaintiff said she was not expecting to fall at the locus. The plaintiff confirmed that there had been potholes along the lane which had been filled in. The plaintiff confirmed that she was claiming special damages in the sum of €1,680 which were not agreed.
Evidence was heard from Mr. James Ryan husband of the plaintiff. This witness confirmed that most of the houses at the locus are privately owned through tenant purchase schemes. This witness confirmed that there had been potholes on the laneway and that nothing had happened to fix these potholes until 2014 at the time of the local elections when Mr. Ryan contacted a Council member, Siobhan Ambrose. Mr Ryan had attended the County Council offices to complain about the defective gate at the locus and about the pot holes there. Consequentially the County Council put grit into the holes in the laneway. This witness confirmed that a Mr. Cooney a local contractor had been undertaking work at the time for the Tipperary Council and that this man did do work on the laneway. He identified two laneways on either side of William O'Brien Street which had received a full tarmacadam completed works in mid-2005. This witness told the Court that he thought that the workers would be coming back to finish their laneway. This witness under cross-examination indicated that a good tarmacadam job had been done up to the end of the archway but that they had then left the scene.
Mr. Jack O'Reilly an engineer from O'Reilly's Engineers gave evidence of his inspection of the locus on the 15th of September, 2014 and that the plaintiff's husband was there and his wife subsequently confirmed the details to him. Mr O'Reilly described this as a service laneway originally a local authority complex which was now a mature area.
This witness said that there was 85 yards beyond the archway down the laneway and as shown at the right hand side of photograph 2, which was produced to the Court, there was a back gate into the plaintiff's residence. This witness described grit and crushed stone and gravel and a grate under the arch with loose pebbles over a macadam surface. This witness described how the tarmacadam ends exactly at the end of the laneway at the end of the strip of cream paint and that it is not smooth and he described (as shown in photograph 5) a joint line showing the commencement of a sinking effect with dishing overall 3 inches from the surface of the gulley to the surface of the macadam. He described this dishing as being there to provide for run-off water from the second patch to the drainage of the gulley and he said that there were two lines of varying concentration of pebbles. This witness said that the source of the pebbles could only be from the laneway that they are washed down and trapped in. In the opinion of this witness, it is a space 90 yards long and if it had been continued in terms of its surfacing there would have been no problem. The witness said that there was therefore a reasonably foreseeable dishing which was catching material running off the dish and that in his opinion this was a design issue.
With reference to photographs 4 and 5 the plaintiff's engineer on looking left to right at the photographs referred to infilling which had been done on the right hand side. The witness noted that the archway was 9 feet high and he said that this arch exacerbated pebbles which can't get out and this witness said that tar should have had...
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