Court of Appeal overturns €40k award in Dublin Airport personal injury case

About this case:

• Judgment:
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Dublin Airport Authority (DAA) successfully appealed the High Court’s finding of negligence, and Justice Peart stated that the trial judge had erred when concluding that there was a breach of that duty to Ms Elizabeth Lavin. The DAA did not have a duty to “spoon feed” members of the public when considering what reasonable steps it should take to protect those likely to use the terminal.

High Court

In his ex tempore judgment, Justice Hanna noted that this was Ms Lavin’s first experience of using an escalator, and that while the DAA was to not know that, “it must nevertheless take account of such neophytes but also the steepness of the escalator in question”.

While Justice Hanna was satisfied that there were lifts available and visible, Ms Lavin alleged that she was unaware of their existence.

Justice Hanna stated that the DAA was under a duty to take reasonable care of passengers, and had to accommodate all the different types of passenger, and that the signage had to be viewed in that context.

Justice Hanna found no fault in the fact that Ms Lavin placed her bag behind her and did not hold the handrail provided. He faulted her because she failed to ask the airport staff available whether there was a lift that she could use, therefore reducing the award of damages of €60,000 by one third to €40,000 – to reflect contributory negligence on the part of Ms Lavin.

Court of Appeal

According to Justice Peart, the core issue was the scope of the duty of care under section 3 of the Occupiers Liability Act 1995 owed by the authority as “occupier” of the terminal to Ms Lavin who was its “visitor”, and whether that duty was breached.

Section 3 of the Occupiers Liability Act 1995 provides:

“(1) An occupier of a premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.

(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”

Unusual danger

Counsel for Ms Lavin referred to Long v. Saorstat Eireann 93 I.L.T.R 137, asking Justice Peart to consider “the different class and nature of the invitees”. It was argued that according to Long, it was incumbent upon the DAA to anticipate that someone like Ms Lavin would wish to access the departures area and would prefer to use a lift.

Justice Peart pointed to the fact that in Long, “the plaintiff had to establish that the defendants had failed to take reasonable care to prevent damage from unusual danger which they knew or ought to have known.” Furthermore, Justice Peart stated that the distinction between an unusual danger and a usual danger was important even in the context of section 3 of the Occupiers Liability Act 1995.

Justice Peart was satisfied that there was nothing inherently or unusually dangerous about a moving escalator, even if a person has not used one previously. Both engineers giving evidence agreed the escalator was a properly designed and properly functioning escalator conforming to the required British Standard, with no faults existing in it. Therefore there was no unusual danger.

Absent some unusual defect or danger being present in respect of a fixed staircase, the occupier would not be liable if the visitor loses her step and falls – provided that reasonable care has been taken by the occupier no liability will exist.

Even an older person using a staircase must take such reasonable care, and there is no particular obligation imposed on the occupier to take greater precautions in respect of an older person than a younger person, absent some unusual danger, or some visitor’s disability or other difficulty having been brought to its attention in advance.

Even if the signage was inadequate, there was a disconnect between the inadequacy of signage and the reason for Ms Lavin’s fall on the escalator – thus there was not sufficient evidence to establish causation, and the trial judge was wrong to consider that the DAA had failed in its common duty of care to Ms Lavin by having only such signage as it had in place on the date of the accident.

Justice Peart was not satisfied that the evidence supported a want of reasonable care by the DAA for Ms Lavin or indeed the public generally, and that the trial judge was imposing a greater duty upon the DAA than that intended by the words of section 3 for the DAA to ‘spoon-feed’ Ms Lavin.

The real and proximate cause of Ms Lavin’s fall was that she attempted to adjust her carry-on bag while on the moving escalator, and did so while not holding the handrail provided.

The DAA was entitled in accordance with the provisions of section 3 of the Occupiers Liability Act 1995, when considering what reasonable steps it should take to protect those likely to use the terminal, to have regard to the fact that a visitor must take reasonable care for his or her own safety.

Considering all of the above, the DAA’s appeal was allowed, the order made in the High Court was vacated, and Ms Lavin’s claim dismissed.