Van Dalsen v Davy Hickey Properties Ltd

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Fullam
Judgment Date06 May 2016
Neutral Citation[2016] IEHC 717
Date06 May 2016
Docket Number[1621P/2014]

[2016] IEHC 717

THE HIGH COURT

Fullam J.

[1621P/2014]

BETWEEN
HERBIE VAN DALSEN
PLAINTIFF
AND
DAVY HICKEY PROPERTIES LIMITED

AND

BT COMMUNICATIONS (IRELAND) LIMITED
DEFENDANTS

Tort – Damages & Restitution – Personal Injury – Slip & fall – Injury at workplace – The Occupiers Liability Act, 1995 – S. 15 of the Safety, Health and Welfare at Work Act, 2005 – Means of access

Facts: The plaintiff sought damages against the defendants owing to the injury to his right foot as a result of a slip and fall at the premises of the second defendant, in which the business of the first defendant where the plaintiff was employed was situated. The plaintiff claimed that there was negligence by the defendants to maintain the said premises, which was the only way of ingress and egress out of the plaintiff's workplace.

Mr. Justice Fullam dismissed the plaintiff's claim. The Court held that the route taken by the plaintiff in order to enter his workplace building was out of his volition and not at the direction of the defendants. The Court observed that by providing a safe means of access through the driveway, the defendants had met the duty of taking reasonable care of the visitors of the premises as envisaged under s. 15 of the Safety, Health and Welfare at Work Act, 2005. The Court held that the plaintiff, instead of passing through the designated route, deliberately used the embankment and there was no evidence that the defendants knew that the embankment was being used as a means of access, and thus, the defendants had no duty to carry out risk assessment or put a warning sign over that place.

JUDGMENT of Mr. Justice Fullam delivered on the 6th day of May, 2016.
Introduction
1

The plaintiff is claiming damages for personal injury in respect of an injury to his left leg sustained in a slip and fall accident on 26th August, 2011 at the National Digital Park, Citywest Park, Citywest, Co. Dublin.

2

The plaintiff is a married man with three children and is now fifty years old. At the time of the accident the plaintiff was a systems administrator employed by Elavon Merchant Services (‘Elavon’) based at the IDA Business Park, Arklow, Co. Wicklow. Elavon maintained a business recovery unit in the premises of the second defendant at Citywest campus.

3

The first defendant is the developer and owner of Citywest campus and, in particular, the premises Unit 4027, the address of which is Kingswood Road, National Digital Park, Citywest Park, Citywest.

4

The second defendant at all material times occupied Unit 4027 as lessee of the first defendant and carried on its business there under the name “Telecity”.

5

On the morning of 26th August, 2011, the plaintiff travelled by Luas to Telecity for an appointment with an engineer engaged by Elavon to replace a part in its computer hardware. At approximately 9 am, in attempting to access the defendants' premises over a mown landscaped embankment between the public footpath and the defendants' car park, the plaintiff slipped on the dewy grass in making his descent and suffered a significant fracture of his right tibia.

6

Both defendants are sued as owners and occupiers of Unit 4027 under the Occupiers Liability Act, 1995. The defendants accept that the plaintiff was a visitor for the purposes of the Act.

7

The defendants are also sued for breach of statutory duty under section 15 of the Safety, Health and Welfare at Work Act, 2005. (‘2005 Act’).

8

Section 15(3) of the 2005 Act provides:

‘(3) A person to whom this section applies shall ensure, so far as is reasonably practicable, that the place of work, the means of access thereto, or egress therefrom, and any article or substance provided for use in the place of work, are safe and without risk to health.’

The location
9

Citywest Park is an open plan landscaped business park. Premises are separated and screened by mounding and tree planting. Unit 4027 was built in 2000. It is located at the junction of Citywest Avenue and Kingswood Road. As one travels east along Citywest Avenue between Riverwalk Roundabout and the Kingswood Road Roundabout, Telecity is the second of two properties whose front doors face south across Citywest Avenue. The first premises, Unit 4035, is occupied by Citadel. Neither of these properties has vehicular access off Citywest Avenue. Access to Citadel is from Lake Drive on its western border. Access to Telecity (and to Unit 4029, a storage facility behind it), is via a forked driveway off Kingswood Road. Pedestrian access to Telecity is also via this driveway. Pedestrian access to Citadel is via the driveway off Lake Drive and also from Citywest Avenue by means of a footpath which has been cut through the mounding.

10

Luas services to Citywest commenced on 2nd July, 2011. A birds-eye view of the location shows two Luas stops in the vicinity, namely, Citywest Campus to the southwest and a Cheeverstown Park and Ride stop to the southeast.

11

A pedestrian coming from Citywest Campus stop on his way to Unit 4027 would walk in a west east direction via the Riverwalk Roundabout along Citywest Avenue footpath passing in front of Unit 4027, proceed up to the roundabout, turn left, continue along the footpath on Kingswood Road until he met the driveway serving Units 4027 and 4029. The driveway forks with the first branch leading to the Telecity car park and the front door of the premises; the second branch leads to Unit 4029. The distance of the pedestrian route from a point opposite the front door of Telecity via the footpath and driveway back around through the car park to the front door is 230 metres, with 150 metres on the public footpath and the final 80 metres on the private driveway. The width of the driveway is 6 metres.

12

As stated, the accident occurred as the plaintiff began his descent of the grass embankment to the Telecity car park. The grass area between the footpath up to the point of descent is level to a depth of 2.8 metres and a width of 15 metres. At the point of descent, it slopes at 30 degrees for a distance of 1.7 metres, then flattens out for a further 1.6 metres to the kerb of the car park.

The litigation
13

By initiating letter of claim dated 15th April, 2013 to the first defendant, the plaintiff's solicitors describe how he sustained his injury: ‘He was making his way across the grassy knoll between the footpath and the car park outside the BT building Unit 4029 when he lost his footing. We are informed that there is no other pedestrian route by which to reach the building.’

14

Subsequently, in a letter dated 3rd May, 2013, the plaintiff's solicitors informed the defendant's insurers that ‘Site investigation will show that there is no footpath to access the BT building other than that across the grass and the plaintiff followed a route which would be visible on inspection namely that there was a path has been carved out by frequent foot fall.’

15

On 25th September, 2013, there was a joint inspection at the locus attended by, inter alia, the plaintiff and his consulting and forensic engineer, Mr. Niallo Carroll, and the defendants' engineer Mr. Donal Terry.

Pleadings
16

At paragraph 3 of the Personal Injuries Summons issued on 21st January, 2014, the plaintiff describes the circumstances of the accident as follows;

• The plaintiff's accident occurred when the plaintiff, who was walking along a pathway, was required as a result of the pathway coming to an end, to walk onto and across a grass area between the footpath and the car park which the plaintiff was required to use for the purpose of gaining access to the reception entrance of the premises. As the plaintiff took his first step onto the initial part of the grass area which comprised a slope and just after the plaintiff began placing his full body weight onto his right foot, the plaintiff slipped causing him to fall backwards. In order to prevent him falling onto his back, the plaintiff turned sideways to his left and put his left hand to reduce the impact with the ground.

• The principal particulars of negligence and breach of duty, including breach of statutory duty alleged against the defendants were;

(i) Requiring the plaintiff to walk across a grass area which contained a slope for the purpose of gaining access to the reception entrance on the second named defendants' premises.

(ii) Failing to comply with the provisions of the Occupiers Liability Act 1995.

(iii) Failing to comply with the provisions of the Safety, Health and Welfare at Work Act, 2005 including sections 8, 15, 19 and 20 thereof and Schedule 3 of the said Act.

(iv) Failing to comply with the provisions of the Safety, Health and Welfare at Work (general applications) Regulations 2007.

(v) Failing to comply with the provisions of the Buildings Regulations, 1997 by failing to provide a safe means of access to the premises, and

(vi) Failing to erect notices and/or warnings of the risks and danger presented by the grass area as a means of gaining access to the reception entrance to the premises.

17

In their Notice for Particulars delivered on 3rd March, 2014, the defendants asked:

‘7. Please confirm why the plaintiff decided to walk across the grass area’.

The plaintiff's solicitors responded:

‘7. The plaintiff's route was the accepted pedestrian route and furthermore was the safest and shortest route to the plaintiff's destination’.

The Plaintiff's Evidence
18

The plaintiff travelled by Luas to the Citywest Campus stop. It was a dry sunny morning. He said he was wearing office shoes with rubber soles. He walked on the footpath and reached the front of the Telecity building at about 9 am. He then crossed the flat part of the grass. Although the day was dry the grass was still dewy. When he reached the point of descent he put his right foot down, slipped, felt he was going to land on his back, so he twisted to his left and...

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1 cases
  • McWhinney v Cork City Council
    • Ireland
    • High Court
    • 31 July 2018
    ...Boyle v. Marathon Petroleum (Ireland) Ltd. [1999] IESC 14, [1999] 2 I.R. 460 (‘ Boyle’) and Van Dalsen v. Davy Hickey Properties Ltd. [2016] IEHC 717 (‘ Van Dalsen’). 35 In Boyle, the Supreme Court dismissed the plaintiff's appeal from the decision of the High Court which had dismissed the ......

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