Stephenson v Sligo County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 08 August 2019
• Neutral Citation: [2019] IEHC 617
• Court: High Court
• Docket Number: [2016/1115 P.]
• Date: 08 August 2019

[2019] IEHC 617

THE HIGH COURT

Haughton Robert J.

[2016/1115 P.]

BETWEEN

HELEN STEPHENSON

PLAINTIFF

AND

SLIGO COUNTY COUNCIL

DEFENDANT

Personal injuries – Loss – Damage – Plaintiff claiming personal injuries, loss and damage – Whether the defendant was negligent

Facts: The plaintiff, Ms Stephenson, claimed personal injuries, loss and damage arising out of an accident on the morning of 2 March, 2014 when the plaintiff was caused to slip and fall on the access road to Aughris Pier, Co. Sligo, as a result of which she sustained a scalp injury and a displaced fracture of the left distal radius. The claim as originally pleaded asserted “negligence, nuisance and breach of duty, including statutory duty” on the part of the defendant, Sligo County Council, its servants or agents in: “a. Failing to maintain the access slipway. b. Failing to clear the slipway of hazardous material. c. Failing to clear a foreseeable slip hazard. d. The management of the slipway in all the circumstances. e. The maintenance and repair of the slipway, on all the circumstances. f. Acting in reckless disregard for the Plaintiff’s safety, g. Acting in such a manner as to cause injury to the Plaintiff. h. Acting in such a manner that caused a public nuisance resulting in [injury] to the Plaintiff. i. Failing to notify the Plaintiff of the approaching danger. j. Failing to notify the Plaintiff of the defect in the slipway. k. Acting in breach of s.4(4) of the Occupier’s Liability Act 1995. l. The Plaintiff will rely on the doctrine of res ipsa loquitor.” During the hearing the High Court acceded to an application to amend the Personal Injury Summons to include the following particular of negligence: “Failing to install any adequate draining in order to prevent a slipping hazard being created.”

Held by Haughton J that, in claiming that the defendant was negligent in failing to clean the surface of the access lane viz. by removing all the grass/weed growth, mud/sand or gravel, or any other slip hazard, the plaintiff was clearly relying on acts of nonfeasance; similarly, in alleging that the defendant should have used chemicals to clean the lane, just as it did when periodically cleaning slime off the pier/slipway, the plaintiff was pleading acts of nonfeasance. Haughton J held that the fact that the chemical cleaning happened so close to the access lane, but did not extend onto it, could not be relied on for misfeasance; the defendant had no obligation to carry out further works beyond the pier/slipway. Haughton J did not consider that the case for the use of chemicals to treat a roadway such as this was made out from an engineering or environmental perspective. Haughton J held that if the defendant was negligent it was by omission, and the defence of non-feasance must therefore succeed. Haughton J held that if the defendant by reason of its interference with the access lane had assumed a duty at some time in the past to construct drainage at the side of the laneway, the issue of causation still arose. Even with a good side drainage channel, rainwater would still fall on the surface of the lane and, in combination with the steep incline, would create some risk of slipping – and the evidence adduced failed to satisfy Haughton J that the plaintiff’s slip, which probably occurred on a section of smooth concrete surface, was caused by any defect or danger created by the defendant.

Haughton J held that the plaintiff’s action must be dismissed.

Action dismissed.

JUDGMENT of Mr. Justice Robert Haughton S.C. delivered on the 8th day of August, 2019

1 The plaintiff is a married woman who resides at Celbridge, Co. Kildare and this claim for personal injuries, loss and damage arises out of an accident on the morning of 2 March, 2014 when the plaintiff was caused to slip and fall on the access road to Aughris Pier, Co. Sligo, as a result of which she sustained a scalp injury and a displaced fracture of the left distal radius.

2 The claim as originally pleaded asserted ‘negligence, nuisance and breach of duty, including statutory duty’ on the part of the defendant its servants or agents in:-

‘a. Failing to maintain the access slipway.

b. Failing to clear the slipway of hazardous material.

c. Failing to clear a foreseeable slip hazard.

d. The management of the slipway in all the circumstances.

e. The maintenance and repair of the slipway, on all the circumstances.

f. Acting in reckless disregard for the Plaintiff's safety,

g. Acting in such a manner as to cause injury to the Plaintiff,

h. Acting in such a manner that caused a public nuisance resulting in [injury] to the Plaintiff,

i. Failing to notify the Plaintiff of the approaching danger,

j. Failing to notify the Plaintiff of the defect in the slipway,

k. Acting in breach of s.4(4) of the Occupier's Liability Act 1995.

l. The Plaintiff will rely on the doctrine of res ipsa loquitor.’

3 It became apparent at opening and in the course of the plaintiff's evidence that she slipped and fell not on Aughris Pier as such, but rather on a steep access lane running from the tarred public road down to the pier.

4 During the hearing the court acceded to an application to amend the Personal Injury Summons to include the following particular of negligence:-

‘Failing to install any adequate draining in order to prevent a slipping hazard being created.’

5 The purpose of this amendment was to permit the plaintiff to adduce evidence and argue that the accident was caused by misfeasance on the part of the defendant as a roads authority.

6 The court heard evidence at Sligo High Court on 2 and 3 May 2019, and further engineering evidence at the High Court sitting in Dublin on 29 May, 2019. Thereafter the parties lodged written legal submissions, and the court heard legal argument on 30 July, 2019.

Findings of Fact

7 The plaintiff was born on 14 October 1960, and works as an administrator in fashion retail. She and her husband Ron Stephenson were on a short visit to Sligo for the weekend and had arrived the previous day. They were staying in the Beach Bar, a B&B run by Mr. Darren McDermott situated not far from Aughris Pier. After breakfast the plaintiff and her husband went for a walk and headed for Aughris Pier. It took them ten or fifteen minutes to reach the access road to the pier.

8 At this point it is necessary to recount the largely uncontested evidence describing the access lane and pier, which also featured on the many photographs produced by each side's engineers. Both lane and pier are shown on an historic 25’ OSI map (1888 – 1913). It was not disputed that the pier, slipway and access route were constructed in the Victorian era, sometime post 1829, and probably built by the Grand Jury of Sligo and funded pursuant to ss. 67 and 68 of the Grand Jury (Ireland) Act 1856.

9 The lane is the only means by which pedestrians or vehicles can access Aughris Pier from the land. It is approximately 59 metres from the asphalt approach road to the concrete surface of the pier/slipway. It is a steep lane – such that there are warning signs erected on the approach – an image with a car being driven over a pier, with ‘cautious dangerous pier ahead’. The lane is straight, and for the most part it is about 5 metres wide. Approaching from the top, the first section from the asphalt road consists of 3.2 metres of roughened concrete, followed by a 23.7 metre long section of cobbled stones with a downhill gradient of 15.2%. These cobblestones were probably part of the original access lane surface installed at the time the pier was built. Beyond these there is a 32 metre section consisting of a combination of weathered concrete, gravel and rock outcrops with downhill gradients of 13.9% - 15.4%. The sides of the access lane become increasingly precipitous the further one walks. As you descend, on the left side there is a stone wall, extending about 16.25 metres adjacent to the cobblestone. Where this ends there is a steep grass bank on the left, the lower parts of which have natural vegetation that encroach onto the laneway surface. This gives way to a rock face at some 36 metres down the access road. The rock face commences at a height of some 2 metres, and is topped by grass, but at 38 metres down is fully exposed from the top to ground level, and this exposed rock face, which is near vertical, runs on below the lane and backs onto the concrete apron forming the harbour. The precise condition of the access route below the cobbled area as far as the pier in critical areas was a matter of some controversy, the evidence on which is considered later in this judgment. Where the lane reaches the pier it opens out onto a concrete apron access ramp some 10.7 metres wide, which leads onto a concrete slipway, both of which are cast in panels with a tamped surface finish. The pier wall extends on the left or western side, sheltering the slipway.

The Plaintiff's Evidence

10 I found the plaintiff to be a truthful witness, but she had poor recollection as to precisely where the accident happened. She was wearing a heeled walking shoe/boot. She described how her husband went ahead of her down the access ramp and – ‘[…] I followed him down and as I went down, I think it was like midway, I started to lose my footing and I put my hand out to the wall to try and save myself and then I went down and I smashed my head and after that then it was just […] Ron came up to me and he picked me up from the ground because I was still in shock and he helped me back […]’.

11 She further described how she ‘felt myself starting to slip and I thought I could save myself by putting my hand on the wall.’ [Day 1, p. 19.] When asked did she recall what caused her to fall she stated ‘just that it was slippy’. She confirmed that there was no one on the access ramp other than herself and her husband. She sustained a laceration to the back part of her head which later required seven staples, and she...