O'Shaughnessy v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 20 December 2017
• Neutral Citation: [2017] IEHC 774
• Docket Number: [2009 No. 4133 P.]
• Court: High Court
• Date: 20 December 2017

[2017] IEHC 774

THE HIGH COURT

Barr J.

[2009 No. 4133 P.]

BETWEEN

JAMES WILLIAM O'SHAUGHNESSY

PLAINTIFF

AND

DUBLIN CITY COUNCIL, IRISH RAIL THE RAILWAY PROCUREMENT AGENCY

AND

VEOLIA TRANSPORT IRELAND LIMITED

DEFENDANTS

Damages & Restitution - Personal Injuries - Quantum of special damages - Road accident - Pre-existing conditions - Trip and fall - Contributory negligence

Facts: The plaintiff filed a claim for damages against the third and fourth named defendants for sustaining injury as a result of the trip and fall to the ground. The plaintiff contended that it was due to the third and fourth named defendant for whom the nuisance had been created on the public highway in letting the piece of stone which led to the fall of the plaintiff.

Mr. Justice Barr awarded damages to the plaintiff for pain and suffering and loss of amenity upto the date of the present judgment. The Court held that it was satisfied with the evidence given by the plaintiff and found that the accident occurred in the manner alleged by the plaintiff. The Court found that that the third and fourth named defendants are liable to the plaintiff for the injuries sustained. The Court also awarded damages to the plaintiff for pain and suffering into the future. The Court took into account the impact of the subject accident on the plaintiff's physical and psychological well being. The plaintiff had been entitled to a joint and several judgements against all the defendants.

JUDGMENT of Mr. Justice Barr delivered on the 20th day of December, 2017

Introduction

1 This action arises out of an accident which occurred at approximately 01:00 hours on 4th November, 2007, at Cullenswood Road, Ranelagh, Dublin. The plaintiff had left his flat at No. 6A Oakley Road, Ranelagh, for the purpose of purchasing some cigarettes. Although it was late in the night, he thought that the Spar shop at the triangle in Ranelagh, might have been open. On the night in question, he had his neighbour's dog, which was a small terrier, on a lead walking in front of him.

2 The plaintiff came out of his flat and turned left onto Oakley Road. He proceeded to the end of the road and then turned right onto Cullenswood Road, where he walked along the right hand footpath going towards the triangle in Ranelagh village.

3 It is the plaintiff's case that while walking under the Luas bridge, he was caused to trip and fall to the ground, when his right foot came into contact with portion of a stone block, which was projecting from the right hand side of the Luas bridge at ground level. The offending piece of stone is shown in photographs Nos. 3, 4 and 5 which were taken by Mr. Alan Conlan, Engineer, on 5th December, 2007.

4 The defendants were jointly represented at the trial of the action. Each of the defendants denied liability for the accident and also put quantum in issue. The defence also contained a plea of contributory negligence to the effect that the plaintiff was the author of his own misfortune, he had failed to maintain any or any proper lookout, had failed to look at the footpath upon which he was walking, had failed to observe the presence of the stone on the footpath in front of him and had exposed himself to a risk of injury or damage of which he knew, or ought to have known. Thus, all matters were in issue between the parties.

Summary of the Evidence

5 The plaintiff is sixty-one years of age. He had spent most of his working life in Britain, working as a plumber. He returned to Ireland in or about 1994, when his mother became ill. He had worked for various construction firms on and off during the years that followed. He was ultimately made redundant by a company called Tenec in 2001. He had not worked in the interval between that time and the time of the accident.

6 The plaintiff stated that on the night in question, which was a Saturday night, going into the early hours of Sunday morning, he had spent the day in his flat watching television with his friend, Mr. Noel Nugent, who also resided there. The plaintiff stated that he had gone out during the day to purchase cigarettes and some cans of beer. He explained that on that particular evening, he and Mr. Nugent had a neighbour's dog staying with them, as the neighbour would often leave his dog with them, as he was elderly and did not like walking the dog at night.

7 At approximately 01:00 hours the plaintiff put the dog on a lead and proceeded out to go to the Spar shop in Ranelagh village to purchase some more cigarettes. He left his flat on Oakley Road and turned left and walked down the road to the junction with Cullenswood Road, where he turned right and proceeded towards the triangle in Ranelagh village. The plaintiff indicated that by reference to photograph No. 13, of the photographs taken by Mr. Conlan, he had come down Oakley Road which was to the left of the junction, where the blue house could be seen. He then turned right and started to walk towards the camera. He proceeded down the road and went under the Luas bridge, as shown in photograph No. 8. He stated that the dog was walking some 4/6ft in front of him, tight against the wall. He was following directly behind the dog and was also very close to the wall. As he was going under the Luas bridge going in the direction of the triangle, as shown in photograph No. 2, the wall itself jutted out at the far-end of the bridge. As he came to the very end of that section, his right foot caught on a piece of stone, which was protruding from the wall, causing him to trip and fall forwards onto the ground. He turned to his right as he was falling and landed on his right shoulder.

8 The plaintiff stated that he tripped on the piece of stone which was jutting out from the bottom section of the wall as shown in photograph No. 3, and in closer view in photographs 4 and 5.

9 The plaintiff stated that he was lying on the ground for a few moments. He was in shock and also in severe pain. However, after a few moments, he was able to get himself sitting up. He had managed to keep hold of the lead, so the dog had not escaped. While he was sitting on the ground, a female garda, who had been walking on the far side of the street, saw him and came across. She enquired if he was alright. He assured her that he was all right and told her that he would just rest there for a few moments before proceeding on. The female garda then proceeded on her way. The plaintiff stated that he was unable to get himself into a standing position, so he shuffled on his backside along the pavement to a doorway, or entrance, which was shown beneath the 'For Sale' sign in photograph No. 8. He was hoping that by using the aid of the wall, he might be able to stand up. However, he was not able to do so.

10 After some time, the female garda returned. The plaintiff asked her to help him up and she did so. She then escorted him back to his flat on Oakley Road. She used his key to open the front door and left him sitting in the sitting room. The plaintiff was unable to sleep that night due to pain in his right shoulder. His arm became very swollen and sore. Later that day, he went to the Accident and Emergency Department of the Mater Hospital. That was on Sunday 4th November, 2007. They told him to return on the following day to the fracture clinic. When he returned on 5th November, 2007, his arm was placed in a collar and cuff. He was instructed to return a week later. When he did so, he was seen by a Dr. Sinnott, who referred him to the care of Mr. Darragh Hynes, Consultant Orthopaedic Surgeon.

11 X-rays revealed that the plaintiff had a comminuted fracture of the right shoulder. Having examined the plaintiff and reviewed the x-rays, Mr. Hynes admitted the plaintiff to hospital on 13th November, 2007. Two days later, the plaintiff was brought to theatre, where open reduction and internal fixation was carried out to the shoulder. However, due to the grossly comminuted nature of the fracture, it was not possible to insert any screws into the shoulder itself. Post-operatively, the plaintiff's wound healed. The fracture went on to make a satisfactory, though incomplete, union.

12 The plaintiff had physiotherapy treatment, where he was shown movements of the shoulder joint and was given a home exercise program and was also told to squeeze a rubber ball, so as to increase strength in his arm and shoulder. He stated that he followed this program, until he realised that he was not getting any better, at which stage, he stopped doing the exercises. In terms of pain, he stated that while the pain had been severe during the initial stages, it had pretty much settled after 2008.

13 The plaintiff returned to the U.K. in February 2008. He currently lives there in sheltered accommodation, which has been provided to him by the local authority, on the basis that he has a permanent disability. Having assessed his needs, they installed a wet-room in the house. He is currently on Disability Allowance and Employment Support Allowance from the U.K. government.

14 The plaintiff stated that although he does not have much pain on an ongoing basis, he does require injections from his G.P. from time to time when his shoulder is stiff and sore. He remains quite disabled in the ordinary aspects of his life. He states that he is unable to use his right arm and hand. He had been right hand dominant. Now he is obliged to do everything using his left hand. He finds this difficult and is a lot slower doing ordinary tasks. It affects him when washing and toileting. The toilet seat has been raised and he has rails in the bathroom and shower. He is unable to tie his shoelaces and requires the assistance of a neighbour to do this for him. He has to shave with his left hand. When eating, he uses a fork in this left hand. He does not do much cooking, as he tends to put ready meals into the microwave. He is able to dress himself, but...