High Court: €50,000 awarded to GAA player who injured his knee slipping on hole in footpath

About this case:

• Citation:
  [2018] IEHC 731
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Robert Barr

Finding that Eircom was responsible for maintaining the concrete around the chamber, Mr Justice Robert Barr was satisfied that Eircom was liable for the accident, and the man was not negligent for failing to observe the small hole.

The accident

In July 2014, Mr Richard Dignam was walking along Lower Baggot Street in Dublin when his right foot went into a hole adjacent to a cover over a chamber, which was the property of Eircom Limited

Mr Dignam did not fall to the ground, but stumbled forward causing a wrenching injury to his right knee.

Mr Dignam composed himself by leaning against the window of an adjacent shop and went into the shop for coffee when the shop owner advised him to take a photograph of the locus. Thereafter, Mr Dignam returned to the locus and took a photograph of it on his mobile phone. 

Mr Justice Barr said that it was clear from the photograph taken by Mr Dignam immediately after the accident that a “portion of the surround immediately adjacent to the frame of the P&T cover had broken away exposing a hole in the public footpath”. Mr Justice Barr said that it was also clear from photographs taken by engineers in the months after the accident, that the locus had further deteriorated, and further chunks of concrete had broken away enlarging the hole.

Liability

In the High Court, Mr Dignam brought proceedings against Eircom, and Dublin City Council being the Roads’ Authority for the relevant area.

In dispute was whether Eircom or Dublin City Council was responsible for the concrete surrounding the chamber cover. Mr Justice Barr was satisfied that the concrete surround between the frame holding the chamber cover and the surrounding paving slabs, was an integral part of the construction of the chamber itself – and was therefore the responsibility of Eircom. Therefore, liability for the accident rested with Eircom.

Mr Justice Barr was also satisfied that, given the relatively small size of the hole, Mr Dignam was not negligent for failing to observe it when he was walking on the footpath.

Injuries and Quantum

Mr Dignam experienced severe pain in his right knee, which became progressively worse in the days and weeks following the accident. 

In 2015, Mr Dignam had to have surgery on his knee by way of excision of a loose fragment of scar tissue/cartilage, and small ganglion. When his knee pain persisted and adversely affected him in his work as a French polisher, Mr Dignam underwent further surgery in 2017. Mr Dignam was 36 when the accident happened, and was still playing sport at a competitive level, so he found the injuries difficult.

Mr Dignam also suffered depression and a recurrence of pre-existing Obsessive-Compulsive Disorder as a result of the injury he suffered in the accident, the treatment that he had to undergo, and the resultant disability. 

The court heard that Mr Dignam was a very successful sportsman, having won several county titles and a Leinster title with Rathnew GAA, played senior rugby for various clubs in Leinster, and represented Ireland in Australian Rules Football.

It was possible that as a result of this extensive sporting career Mr Dignam had developed pain and discomfort in his knee for approximately a year before his accident, and his GP had referred him for an MRI scan in October 2013. Mr Dignam’s surgeon said that the surgery and other treatment that he underwent after the accident would have been required in any event, but that the accident brought forward the necessity for treatment ‘by a factor of approximately fifteen years.

As such, Mr Justice Barr said that he was entitled to take into account that, but for the accident, Mr Dignam would have been operating at a reasonable level for at least another fifteen years or so. Mr Justice Barr accepted Mr Dignam’s evidence that in 2013, he was working and playing sport as normal, although he did have knee pain, but it was of a different type than that post-accident. Mr Justice Barr also had regard to the psychiatric sequelae suffered by Mr Dignam as detailed in his evidence and in the medical report.

In all the circumstances, Mr Justice Barr awarded Mr Dignam €50,000 for general damages. and €1,936.02 for loss of earnings.

Mr Justice Barr was not satisfied that the €36,000 in medical expenses incurred were recoverable from Eircom, given the medical evidence that the treatment would have been necessary in any event, notwithstanding the fact that it was brought forward by a factor of 15 years by the accident. Mr Justice Barr noted that the medical expenses had been discharged by Mr Dignam’s private medical insurer, and given the medical evidence, the cost thereof would have had to be borne in any event.

• by Seosamh Gráinséir for Irish Legal News