About this case:

• Citation:
  [2023] IECA 268
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

Delivering judgment for the Court of Appeal, Mr Justice Seamus Noonan opined that in the absence of evidence concerning any system of inspection, monitoring or cleaning, the High Court could not have come to any other conclusion but that there was negligence. In response to the contentions of the appellant hotel that the respondent guest was intoxicated, the court warned that “the mere fact of having a few drinks is not evidence of negligence”.

Background

On 2 May 2015, the respondent was attending a wedding reception at the appellant’s hotel in Charleville, Co Cork, when she slipped and fell on the dancefloor, fracturing her heel. She claimed that she was not intoxicated, that she had changed out of her high heels and into flip flops, and that the dancefloor was wet.

The respondent also contended that no hotel staff were present to clean up spills, and that the only member of staff was a lone barman.

Conversely, the appellant claimed that the floor was dry, that the plaintiff was intoxicated and was wearing high heels at the time of the incident. No CCTV footage of the incident was retained as the appellant found it to be ‘grainy’.

The High Court

As to liability, the High Court found that the plaintiff’s action was grounded upon the duty owed to her pursuant to the Occupiers Liability Act 1995 and s.4 of the Hotel Proprietors Act 1963.

Observing that the only defence witness as to fact was unable to identify any system of checking, monitoring or cleaning spillages on the dancefloor, the court further observed that his opinion that the dancefloor was not wet did not arise from any detailed inspection.

As to quantum, the respondent put two medical reports into evidence, with the appellant proffering no medical evidence. The reports stated that the respondent required surgery on her foot and was out of work for some 14 weeks, with intensive physiotherapy throughout and intermittently thereafter. It was further contended that the respondent now walks with a limp, and has problems with walking long distances and running after her young daughter.

The trial judge viewed the respondent’s foot, finding that the swelling and scarring were very noticeable compared to her other foot. Referring to the fact that the parties were in agreement that the respondent’s injuries fell within Category 5 of the Book of Quantum, dealing with lower limb injuries, the trial judge assessed general damages at €91,000.

The Court of Appeal

The Court of Appeal found that the appellant’s complaint concerning the trial judge’s finding of negligence was difficult to understand, with the appellant advancing no reason as to why the trial judge was not entitled to accept the evidence of the respondent’s witnesses and to reject that of the appellant’s witness.

Mr Justice Noonan opined that “faced with the evidence of the defendant, or more accurately the lack of it, concerning any system of inspection, monitoring or cleaning of spillages on a dancefloor that the defendant knew or ought to have known was highly dangerous when wet throughout the course of the entire evening, it seems to me that the judge could have come to no other conclusion but that there was the clearest negligence and breach of statutory duty on the part of the defendant”.

Stating that the finding was one clearly open on evidence which was “patently credible”, the court highlighted that on the Hay v O’ Grady [1992] 1 IR 210 principles, the finding could not be interfered with by the Court of Appeal.

Turning to the second complaint raised on the liability finding, that the trial judge failed to consider contributory negligence, Mr Justice Noonan found that “the mere fact of having a few drinks is not evidence of negligence”, and that the plaintiff and her two witnesses gave “very clear evidence that she was not intoxicated, and certainly not intoxicated to the extent of being unable to exercise reasonable care for her own safety”.

The court clarified that “the fact that the trial judge did not expressly refer to the issue of contributory negligence does not mean that he did not consider it. His findings were clearly consistent only with there being no contributory negligence on part of the plaintiff and it was in my view unnecessary for him to explicitly state that… this would, in the circumstances, be no more than a statement of the obvious.”

As to quantum, the appellant submitted that the award was disproportionate and excessive as the judge had assessed it at the higher end of the severe category, as there were potentially more severe injuries at that level. Noting that the “defendant’s submission in this regard appears to me to be not unreasonable”, Mr Justice Noonan confirmed that “that is not the test that this Court has to apply”.

Finding that as per Rossiter v Dun Laoghaire County Council [2001] 3 IR 578, an appellate court must not interfere with an award unless satisfied that it was so disproportionate as to amount to an error of law, the Court of Appeal explained that the suggestion in that case that interference is warranted where a disparity between the award and what the appellate court might be inclined to give is no less than 25 per cent is only a ‘rough guide’ suitable for low value cases.

Conclusion

Finding that no such disparity existed in the case before it, the Court of Appeal dismissed the appeal in its entirety.

The court also considered the cross-appeal of the respondent, which contended for an uplift in her award due to the severity of her scarring and the psychological stress suffered by her. Finding that those matters were encompassed within the severe and permanent category, and noting that those factors were not sufficient to take the injury beyond “a fairly generous award”, the Court of Appeal also dismissed the cross-appeal.

Sweeney v Atlantic Troy Limited [2023] IECA 268