Thomas Keegan v Sligo County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Jordan |
| Judgment Date | 12 January 2022 |
| Neutral Citation | [2022] IEHC 19 |
| Docket Number | Record No. 2016/3562P |
| Year | 2022 |
| Court | High Court |
[2022] IEHC 19
Record No. 2016/3562P
THE HIGH COURT
JUDGMENT OF Mr. Justice Jordan delivered on the 12th day of January, 2022
These proceedings were commenced by a Personal Injury summons which issued on 22nd April, 2016. The plaintiff was born on 27th February, 1968. He resides at 1 McNeil Drive in Cranmore in Sligo. He is a single man and he has one adult child. He did in the past work as a construction worker (a paver) but he was unemployed at the time of the accident which gave rise to these proceedings.
The accident occurred on 18th November, 2013. It is the plaintiff's case that he slipped on attempting to enter his home at McNeil Drive and that the cause of the slip was the wet and slippery tiles in the exposed porch. He suffered a serious fracture to his ankle.
On the date of the accident the plaintiff was a tenant in the house which was let to him by the defendant as a housing authority, under the Housing Act 1966.
The house on McNeill Drive is part of the large housing estate known as Cranmore Estate. Ms. Moran of Sligo County Council explained in evidence that McNeill Drive was built as part of the second phase of the estate in the 1970s. The second phase involved the construction of thirty-seven houses. The first phase had involved the construction of ninety-seven houses. It appears that there were five phases in all so it follows that the number of dwellings provided ran into the hundreds although there was no direct evidence as to the final count.
It is the plaintiff's case that the porch and the tiling of the porch created a particular hazard because of the slippyness of the tiles and because of the fact that the porch is orientated to the south/southwest which is the direction of the prevailing wind and rain in Sligo – and all along the western seaboard. The case is made that the open porch was constantly exposed to being wet as a result of the prevailing weather conditions and that this exposure exacerbated the problem caused by the slippy tiles.
The case was originally heard in November 2017 at the High Court sitting in Sligo. In a reserved judgment the trial judge found on liability for the plaintiff and found that there was no contributory negligence. He awarded the plaintiff total damages of €105,650.00 – of which €650.000 were apparently special damages. The balance of €105,000 was for general damages, including provision for the continual interference with the plaintiff's employment capacity as a result of the injury.
The defendant appealed on both liability and quantum to the Court of Appeal. Judgment in that appeal was delivered on 10th October, 2019. The Court of Appeal decided that it would not interfere with the award of damages but it did direct that there should be a retrial on the issue of liability.
So what has come back before this Court is a trial of the issue of liability.
The Court of Appeal did make it clear that the trial judge erred in making a finding that the dwelling house was not reasonably fit for habitation in circumstances where this had not been pleaded. The particulars of negligence in the personal injury summons did include a plea of “failing to comply with the provisions of Occupiers Liability Act 1995 and the Housing Acts 1966”. But the plaintiff did not furnish further particulars of the alleged breach of the Housing Acts 1966 although asked to do so in a notice for particulars dated 26th August of 2016. The position is that the alleged breach of the Housing Acts was not part of the plaintiff's case at this hearing and the solicitors for the plaintiff wrote to the defendant's solicitors on 29th October, 2021 indicating that they did not intend to proceed with that argument at this hearing. In that regard Counsel for the plaintiff advised the court that if the plaintiff was to pursue that argument the pleadings would have to be amended and that matter was considered and a decision was made not to amend the pleadings.
At the time of the accident the plaintiff had been a tenant of and resident in the house for approximately nine years. The letting agreement dated 7th May, 2004 was proved in court.
Clause 14 of the letting agreement provides that:-
“The tenant shall not execute any addition, alterations, improvement or other works in, or in relation to, the dwelling or erect any shed, garage out office or other building, without the consent of Sligo Borough Council.”
It is clear that the defendant did retain a degree of control over the premises including the porch area and the tiles in that area. For example, the plaintiff would have required the consent of the defendant to change the tiles to concrete or something else.
In the circumstances the plaintiff asserts that the defendant was an occupier in relation to the premises within the meaning of that word as set out in s.1 of the Occupier's Liability Act, 1995.
It is also asserted on his behalf that the plaintiff was attending at the premises and entering the premises as of right because he was then a lawful tenant of the defendant and that he was therefore a visitor in relation to the premises within the meaning of that word as set out in s.1 of the 1995 Act.
If the defendant was an occupier of the premises and if the plaintiff was a visitor then the defendant did owe a duty of care to the plaintiff under the Occupier's Liability Act of 1995. The Act is dealt with in greater detail later in this judgment.
In Allen v. Trabolgan Holiday Centre Limited [2010] IEHC 129, Charleton J stated:
“As to that duty, it is clear that merely establishing that an accident occurred on premises is not enough. The plaintiff must show that a danger existed by reason of the static condition of the premises; that in consequence of it he/she suffered injury or damage; and that the occupier did not take such care as was reasonable in the circumstances to avoid the occurrence”.
The focus of the running of the case was on the allegation that the tiles were slippy and unsuitable for the particular application and thus constituted a danger which caused the injury. The court for that reason considers it best to first deal with the case thus made and the evidence adduced – and assuming for the moment that the defendant did in fact owe the duty of care contended for by the plaintiff.
In evidence the plaintiff identified his porch with the tiles in situ and he confirmed that it was facing south/southwest. He said the mosaic tiles in the porch were there since he took the property in 2004. Over the years he would have exterior mats covering the tiles (in part). At the time of the accident he had a mat in the porch – a rubber mat. According to the plaintiff the tiles were always very slippy when they were wet and he said that he did report this problem – although he was not sure or could not remember their names with certainty he thought there was a Sinéad and a Kay to whom he had complained.
According to the plaintiff he asked Dessie McGarry to move the door to the front of the porch when new windows and doors were being fitted. The plaintiff said that he would have been happy if the porch had been concreted over. He said he had not asked them to do so directly although he could not really remember now. Speaking once more of the fitting of the windows and doors the plaintiff recollected meeting the window fitter and Dessie McGarry – or Noel Meehan. He recollected asking Noel Meehan to put the door to the front as he said he wanted the new door flush with the front of the house. This would have enclosed the porch. According to the plaintiff Mr. Meehan said that he couldn't do that because he would have to move the ESB meter to the front of the house.
On the morning of the accident the plaintiff left the house at about 11 a.m. to attend a funeral. It was a very bad day – it was raining and windy. As the plaintiff left the house he took the mat which was very wet and he hung it on his garden gate to let it dry off. The plaintiff visited a number of pubs and had five pints of Guinness. When going home he went to a nearby bakery and purchased some sandwiches. The plaintiff said that the five pints did not cause him any difficulties. He said that he ate one of the sandwiches and kept one for when he got home. He was returning to his house sometime after 5 p.m. It was in November and it was pretty dark but there is a street light outside the front of the house. The plaintiff said it doesn't give off a lot of light. It was very wet and windy and when the plaintiff got home he saw that the mat was gone. It did not turn up afterwards.
So as the plaintiff approached the porch of his house there was no mat on it.
As the plaintiff proceeded into his house he described what happened as follows:-
“Well as I walked onto the porch I put my right leg on…and followed with my left leg…I kind of got my key ready to go in the door. My leg went back and I stumbled and I kind of bent over a bit on the door…and then I straightened myself up. I unlocked the door then…then I kind of got ready to walk in. I pushed the handle down to open the door and my leg was just gone. I just fell forward then.”
The plaintiff went on to describe further how his leg went: “It slipped back from underneath me and I went forward.”
The plaintiff said that it was the wet tiles that caused this to happen and he confirmed that he had hurt his leg before he went in the door. When asked again to describe the incident the plaintiff said:-
“Just my leg just went. I can't really remember like. I just put the key up. I just fell forward. My leg, I broke my leg.”
The plaintiff also said that two houses that he knew of had the porches enclosed with doors. These houses were around the corner from his – one would be number 15 and the other number 12, McNeil...
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