Stokes v South Dublin County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 07 April 2017
• Neutral Citation: [2017] IEHC 229
• Docket Number: [2013 No. 9964 P.]
• Court: High Court
• Date: 07 April 2017

[2017] IEHC 229

THE HIGH COURT

Barr J.

[2013 No. 9964 P.]

BETWEEN

MARTIN STOKES

PLAINTIFF

AND

SOUTH DUBLIN COUNTY COUNCIL

DEFENDANT

Tort – Damages & Restitution – Trip and fall – Occupiers Liability Act 1995 – Nature of the injury – Aggravated damages

Facts: The plaintiff sought an order for the damages for suffering injuries to his knuckle as a result of tripping over a hole in the surface of the footpath. The plaintiff claimed that the defendant had breached its duty for maintaining that footpath and thus, was liable to pay for the damages. The defendant took the defence that the plaintiff had made a fraudulent claim as the type of the injury suffered by the plaintiff was inconsistent with the manner of his alleged fall. The defendant submitted that the plaintiff was a recreational user within the meaning of the Occupiers Liability Act 1995 and thus, the defendant owed a duty not to act with reckless disregard for the plaintiff's safety.

Mr. Justice Barr awarded general damages for the pain and suffering to date coupled with the damages for future pain and suffering to the plaintiff. The Court also awarded aggravated damages to the plaintiff by way of compensating him for the disturbance caused to the plaintiff by the nature of the defendant's defence to the effect that the plaintiff had filed a false claim. The Court held that the nature of injury to knuckle on the third digit in the right hand was consistent with the trip and fall. The Court observed that the plaintiff was a "visitor" of the premises under the 1995 Act and the fact that he was jogging up the footpath instead of walking on it would not make him a recreational user. The Court found that the defendant had breached the duty of care by failing to repair the damage to the footpath, which was due for a considerable period of time.

JUDGMENT of Mr. Justice Barr delivered on the 7th day of April, 2017

Introduction

1 This action arises out of an accident which occurred on 18th September, 2011, at a caravan park or halting site, owned by the defendant at Oldcastlepark, Bownogue, Dublin 22. The plaintiff, who lived with his parents in a caravan at the park, was jogging up a footpath leading from the entrance to the halting site, going towards the caravans, when he alleges that he tripped over a depression or hole in the surface of the footpath, causing him to fall to the ground and suffer a fracture to the knuckle on the third digit of his right hand.

2 The defendant accepts that on or about 18th September, 2011, the plaintiff suffered a comminuted fracture of the knuckle on the third digit of his right hand. Other than that, all matters are in issue. In particular, the defendant argued that having regard to the nature of the injuries, they were unlikely to have occurred in the manner suggested by the plaintiff. They argued that in all probability, the plaintiff had met with his injuries while pursuing his sport of boxing. They submitted that it was more likely that the plaintiff had injured his hand boxing and was fraudulently trying to place the blame on the defendant, by alleging that his injuries happened due to a trip and fall on an unsafe section of the footpath. They submitted that this was the more likely explanation of how his injuries occurred, having regard to the medical evidence in relation to the injuries which are usually suffered as a result of a trip and fall and having regard to the fact that the plaintiff delayed in informing his solicitor or the defendant, of this accident until in or about March 2013.

3 The defendant also argued that the road and footpath in the caravan park constituted a public highway and in these circumstances they were entitled to rely on the defence of non-feasance.

4 In the alternative, it was submitted that as the plaintiff was engaged in jogging, when he allegedly met with his accident, he was a ' recreational user', within the meaning of the Occupiers Liability Act 1995 and therefore the defendant only owed him a duty not to act with ' reckless disregard' for his safety. They submitted that there was no evidence that they had so acted in this case.

5 Finally, the defendant submitted that having regard to the state of the locus as shown in the photographs taken by the plaintiff's engineer, the hole or depression in the footpath was clearly visible. They submitted that if the plaintiff had kept a proper lookout while jogging up the path, he would not have met with his accident. They submitted that he was either entirely the author of his own misfortune, or was guilty of a substantial element of contributory negligence.

The Evidence on Liability

6 The plaintiff was born on 18th March, 1993. He was approximately 18.5 years of age at the time of the accident. He had lived with his parents in their caravan at the Bownogue halting site since it opened in 1998. He stated that on 18th September, 2011, at approximately 18:30hrs, he had gone jogging around the roads in the area and was returning up the footpath which led from the entrance to the halting site, to the caravans. The general layout of the footpath was shown in photograph 1 taken by Mr. Conlon, the plaintiff's engineer. The depression or hole shown in photograph 2, was taken approximately 2m from the depression. A closer view of the depression was shown in photograph 3.

7 The plaintiff stated that as he ran up the footpath, his right leg went into the hole or depression and he fell forward. He stated that he fell onto his right hand, which had been turned inwards with the palm facing his body. This meant that his knuckles had come into direct contact with the ground. He felt severe pain in his right hand. On the following day, he went to his G.P. in relation to his hand injury. He was seen by Dr. Lindy Barnes, who was one of the doctors in the practice. She referred him for an x-ray of his right hand. This was carried out on the same day and revealed he had suffered a fracture of the knuckle on the third digit of his right hand. On the following day, 20th September, 2011, the plaintiff was brought to theatre where open reduction and internal fixation was carried out of the fracture site. The nature of the injury, its treatment and sequelea will be dealt with later in this judgment.

8 The plaintiff was asked about access to the halting site generally. Referring to photograph 12 of Mr. Conlon's photographs, the plaintiff stated that this showed the entrance to the caravan park. On the extreme right, there was a pedestrian entrance which led to the footpath on which the plaintiff was jogging at the time of the accident. In the centre of the photograph, there were closed gates. The plaintiff stated that these were kept closed and were only opened by arrangement with the caretaker employed by the defendant, or by arrangement with the Traveller Accommodation Unit, which was based in Tallaght. The gates would be opened to enable caravans to be brought onto the site and taken from the site. To the left of the gates was another open entrance on which there was a fairly steep ramp. This entrance was always open. It was to allow vehicular entrance to the compound. The ramp was designed to prevent the entrance being used for the purpose of bringing caravans onto or out of the site. The plaintiff stated that in relation to the pedestrian entrance to the right and the vehicular entrance with the ramp to the left, these were open all the time and permitted 24hr access to the site.

9 The plaintiff stated that on 17th September, 2011, he had been involved in a road traffic accident, when he was a passenger in a car which was hit from the rear. He had suffered soft tissue injuries to his neck and back as a result of that accident. He confirmed that he had consulted a solicitor in relation to that accident and a claim had been submitted on his behalf to P.I.A.B. The plaintiff stated that he did not inform his solicitor about his trip and fall on 18th September, 2011, nor of the injury to his hand, as he did not realise that he would not get better quickly from this injury and would not be able to go back to his sport of boxing.

10 In cross examination, it was put to the plaintiff that it was somewhat incredible that he would decide to go jogging on the day after he was involved in a road traffic accident. The plaintiff stated that he had had neck and back pain on the day of the road traffic accident. On the following day, he had gone out jogging in the hope that this would alleviate his symptoms.

11 The plaintiff was asked about his initial visits to the G.P. practice. He stated that he went to that practice on 19th September, 2011 in relation to his hand injury. He saw Dr. Lindy Barnes on that occasion. He returned to see his G.P. on 23rd September, 2011, in relation to his neck and back injuries arising out of the road traffic accident. He saw Dr. Murphy on that occasion. By that time, he had had the operation on his hand, which had been carried out on 20th September, 2011.

12 The plaintiff was asked as to when he first consulted his solicitor. He stated that he went to his solicitor on 19th October, 2011, in relation to the R.T.A. He said his hand was in a cast at that time. However, he did not tell the solicitor about the hand injury, or why his hand was in a cast. He stated that he could not offer any explanation as to why he did not tell his solicitor about the accident and the hand injury at that time.

13 It was put to the witness that there was a caretaker employed by the defendant on the site. It was put to the witness that the caretaker was on site for a number of hours each day, Monday to Friday. The plaintiff accepted there was a caretaker employed on the site and that he had seen him after the accident. He was asked as to why he did not report his accident and his hand injury to the caretaker. The plaintiff stated that he thought that the hand would heal...