Whelan v Dunnes Stores

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 15 June 2022
• Neutral Citation: [2022] IECA 133
• Docket Number: Record Number: 2020/266
• Court: Court of Appeal (Ireland)
• Year: 2022

Between/

Doris Whelan

Respondent/Plaintiff

and

Dunnes Stores

Appellant/Defendant

[2022] IECA 133

Whelan J.

Donnelly J.

Noonan J.

Record Number: 2020/266

High Court Record Number: 2019/4037P

THE COURT OF APPEAL

Personal injuries – Liability – Quantum – Appellant appealing against liability and quantum findings – Whether there was evidence that there had been a contaminant on the floor which caused the respondent’s accident

Facts: An alleged slip and fall accident befell the plaintiff/respondent, Mrs Whelan, at the supermarket premises of the defendant/appellant, Dunnes Stores, at Ashleaf Shopping Centre, Walkinstown, Dublin 12 on 27th June, 2013 shortly before lunchtime. It was not in dispute that Mrs Whelan fell and suffered some injury while shopping in one of the food aisles in the supermarket. However, the cause of the plaintiff’s fall was in dispute, as was the extent of her injuries arising from that fall. In an ex tempore judgment delivered on the 1st December, 2020, the High Court (Hanna J) found in favour of the plaintiff and awarded her damages totalling €83,250. Dunnes Stores appealed to the Court of Appeal against both the liability and quantum findings of the High Court. The primary thrust of Dunnes Stores’ appeal was that there was no evidence that there had, at any time, been a contaminant on the floor which caused the plaintiff’s accident and the judge’s findings otherwise were based on speculation and conjecture.

Held by Noonan J that the trial judge’s conclusion on the issue of liability was perfectly sound and could not be interfered with. Noonan J was not satisfied that the defendant had demonstrated any error by the judge in his assessment of general damages, less still an error of sufficient seriousness as to amount to an error of law, that being the relevant test – per Fennelly J in Rossiter v Dún Laoghaire Rathdown County Council [2011] 3 IR 578.

Noonan J dismissed the appeal. It appeared to Noonan J to follow that Mrs Whelan should be entitled to her costs of the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 15th day of June, 2022

1 This appeal arises from an alleged slip and fall accident that befell the respondent (Mrs. Whelan or the plaintiff) at the supermarket premises of the appellant (Dunnes or the defendant) at Ashleaf Shopping Centre, Walkinstown, Dublin 12 on Thursday 27th June, 2013 shortly before lunchtime. It is not in dispute that Mrs. Whelan fell and suffered some injury while shopping in one of the food aisles in the supermarket. However, the cause of the plaintiff's fall is very much in dispute, as is the extent of her injuries arising from that fall. In an ex tempore judgment delivered on the 1st December, 2020, the High Court (Hanna J.) found in favour of the plaintiff and awarded her damages totalling €83,250. Dunnes brings this appeal against both the liability and quantum findings of the High Court.

Background

2 Mrs. Whelan was born on the 22nd January, 1962 and was 51 years of age at the date of the accident. She is a sales assistant and lives in Nurney, County Kildare. It is relevant to note that at the time of the accident, Mrs. Whelan's husband had recently been diagnosed with a terminal illness. In addition to being her husband's primary carer until his death in 2018, Mrs. Whelan continued to work.

3 Of central importance to the case is the fact that the aisle where Mrs. Whelan fell was covered by a CCTV camera which recorded Mrs. Whelan's fall and other relevant events both before and after that happened. It is also relevant to note that the CCTV footage does not take the format of a continuous recording in the way of a film or television broadcast. Rather, it comprises a series of still photographs, or snapshots, taken at one second intervals. The plaintiff's engineer, Mr. Paul Romeril, gave undisputed evidence that the still images in each frame cover an exposure of less than one tenth of a second so that, in effect, 90% of what occurs during the relevant one second interval is not recorded.

4 The video footage shows Mrs. Whelan's fall as occurring at 12:41:57. At the time of the accident, Mrs. Whelan did not have a trolley or a basket but only her handbag on her elbow. She was holding her mobile phone in one hand and a cake she intended to buy in the other. As a result of the fall, the contents of her handbag were strewn over the floor and her mobile phone disintegrated so that parts of that were also scattered around. The plaintiff was wearing what are described as wedge shoes, noted in the Dunnes Accident Report Form as “Flat shoes” and both of these came off Mrs. Whelan's feet in the fall.

5 The relevance of this is that it became the basis for a suggestion by Dunnes that the plaintiff's shoes were ill-fitting and that the cause of her fall was that she tripped over her shoes or feet and did not, in fact, slip at all. Because of the limitations of the CCTV as explained, the footage does not clearly show the mechanism of Mrs. Whelan's fall but rather one second, she is walking and the next she is on her knees having fallen.

6 Within a minute or so of the accident, the store manager, Mr. Alan McGarry, arrived on the scene and rendered assistance to the plaintiff. After a short interval, he was joined by a security operative, Mr. Przemyslaw Turczak. Mr. McGarry is seen on his hands and knees, endeavouring to retrieve the contents of Mrs. Whelan's handbag and the parts of her phone.

7 Until shortly before the commencement of the trial, the narrative advanced on behalf of the plaintiff as to how the accident occurred was that the floor was slippery as a result of being highly polished and having what was described as a mirror-like finish. Consistently throughout the plaintiff's narrative account was that she had slipped on this surface. Her evidence was that when Mr. McGarry and Mr. Turczak came on the scene, Mr. McGarry slid his foot from side to side on the area where she fell, performing a sort of “shuffle test” and said to Mr. Turczak “Oh my god, it's like a mirror, it's like glass, you can see your face through it.” and that he would have to talk with the cleaners first thing in the morning. Both Mr. McGarry and Mr. Turczak denied that this conversation ever took place. At no time did Mrs. Whelan say that she had observed a spillage of liquid, or anything else, on the floor and she agreed that there was no evidence of any liquid on her shoes or clothing after the fall.

The CCTV

8 The CCTV was shown extensively to the trial judge and was commented on by each of the witnesses and in particular, the respective sides' engineers, Mr. Romeril for the plaintiff and Mr. Kevin Roche for the defendant. The footage itself was made available to this Court also. The following events and timings are of relevance to the issues and all relate to the camera covering aisle six:

• • 12:16:13 A gentleman, described as a shelf stacker, moves a stock trolley containing products to an area in aisle 6 (the aisle where the accident occurred) and proceeds to stack the shelves around. It emerged from the evidence that this gentleman was not a Dunnes Stores employee but rather an employee of a franchisee or supplier whose products were sold by Dunnes. The area where the trolley is located in this still was subsequently described by Mr. Romeril in his evidence as area A.

• • 12:34:24 A Dunnes cleaner, subsequently identified as Mr. Dean Shanahan, is shown sweeping the floor. As he passes the area where the shelf stacker's trolley is, he does not sweep the right side of the aisle, which is the side on which the plaintiff falls.

• • 12:37:24 The shelf stacker begins to move his trolley towards another area, subsequently designated by Mr. Romeril as area B, being the area where the plaintiff falls.

• • 12:37:30 The shelf stacker stops his trolley in area B. He walks around the cage looking apparently downwards. While there was some dispute as to what exactly he was looking at, he appears to be looking at either the cage or the ground or possibly both. He does not carry out any shelf stacking operation at area B.

• • 12:37:46 The shelf stacker leaves the area with his cage.

• • 12:41:56 Mrs. Whelan is seen walking down the aisle towards the camera.

• • 12:41:57 Mrs. Whelan is seen on her knees on the floor having fallen. Over the next number of minutes, Mr. McGarry and Mr. Turczak arrive at the scene. There is no footage showing Mr. McGarry moving his foot across area B doing the “shuffle test” described by the plaintiff, although it appears to be common case that this could have occurred without necessarily being picked up on the CCTV. Various other events occur including Mr. McGarry getting a chair for the plaintiff and getting down on all fours to search for Mrs. Whelan's items. Mr. McGarry's evidence also was that he was down on all fours for the dual purpose of both getting Mrs. Whelan's things and examining the condition of the floor. Mr. McGarry remained adamant throughout and “100% certain” that there was nothing on the floor in the nature of a spillage, liquid or anything else which could have caused the plaintiff's fall. He said that he examined the floor at least five times. He denied that he had done any shuffle test or that he had had the conversation with Mr. Turczak about the mirror-like floor. Mr. Turczak gave evidence to like effect.

• • 12:47:08 Mr. Shanahan, the cleaner, approaches the scene with his sweeping brush sweeping the aisle, apparently on a routine circuit.

• • 12:47:13 Mr. McGarry speaks to Mr. Shanahan. Mr. McGarry is seen taking the brush from Mr. Shanahan and dispatching him off. Mr. McGarry's evidence was that he sent Mr. Shanahan to get a roll of blue absorbent cleaning tissue.

• • 12:52:06 Mr. Shanahan returns to the locus with what appears to be a blue roll of paper.

• • 12:52:34 Mr. Shanahan is seen down on his hands and knees cleaning the...