High Court: Man who tripped under the Luas Bridge awarded €67,500

About this case:

• Judgment:
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Declining to make any finding of contributory negligence on the part of the plaintiff, Mr Justice Barr awarded €40,000 for pain and suffering and disability to date, together with €27,500 for disability and loss of function into the future

Background

At approximately 1 am on the 4th November 2007, Mr James William O’Shaughnessy left his flat in Ranelagh for the purpose of purchasing cigarettes. While walking under the Luas bridge, he was caused to trip and fall to the ground, when his right foot came into contact with portion of a stone block, which was projecting from the right-hand side of the Luas bridge at ground level.

As a result of the accident, Mr O’Shaughnessy suffered a fracture to his right shoulder and was left permanently disabled. As such, Mr O’Shaughnessy sought damages from Dublin City Council, Irish Rail, the Railway Procurement Agency and Veolia Transport Ireland Limited in the High Court. The defendants did not separately contest liability, and reached an arrangement whereby they were jointly represented.

Injuries sustained

X-rays revealed that Mr O’Shaughnessy had a comminuted fracture of the right shoulder; and open reduction and internal fixation was carried out to the shoulder. Due to the grossly comminuted nature of the fracture, it was not possible to insert any screws into the shoulder itself. Post-operatively, Mr O’Shaughnessy’s wound healed. The fracture went on to make a satisfactory, though incomplete, union.

In February 2008, Mr O’Shaughnessy returned to the UK, where he had worked for a number of years as a plumber. The court heard that he now lives in sheltered accommodation, provided to him by the local authority, on the basis that he has a permanent disability.

Having assessed his needs, they installed a wet-room in the house; and the Court heard that he was now on Disability Allowance and Employment Support Allowance from the U.K. government.

The Court heard that Mr O’Shaughnessy continued to be unable to use his right arm and hand, which was his dominant hand. The Court heard that he finds using his left hand for everything very difficult and that ordinary tasks such as washing and toileting are a lot slower.

Liability

Justice Barr identified three issues on liability:

Considering Hassett v. O’Loughlin 78 ILTR 47, Justice Barr stated that it was settled law that even a small impediment on the public highway can constitute an actionable nuisance

Justice Barr was satisfied from the evidence that the piece of stone, which jutted out from the foot of the wall, constituted a nuisance on the public highway.

Justice Barr was also satisfied having regard to the provisions of the Transport (Railway Infrastructure) Act 2001, that the third and/or fourth named defendants were the owners and occupiers of the lands consisting of the Luas line and in particular of this bridge. As such, they were the owners of the highway out to the midpoint in the road.

In allowing the stone to project out onto the footpath, they failed to extend the common duty of care as defined in the Occupier’s Liability Act 1995, to persons using the footpath, who are visitors on their property.

Despite the fact that Mr O’Shaughnessy gave the wrong date for the accident in his initial instructions to his solicitor and to his engineer, thereby causing the incorrect date to be stated in the initial warning letters from his solicitor and in his Injuries Board form, Justice Barr accepted that Mr O’Shaughnessy had done his best to tell the truth in relation to the circumstances of the accident.

Where the danger existed at ground level and where it would appear that the locus was somewhat badly lit and having regard to the fact that the projecting stone was of the same colour and material as the walls above it and surrounding it, Justice Barr was satisfied there was not any negligence on the part of Mr O’Shaughnessy in failing to see this particular obstacle on the footpath.

Conclusion

Justice Barr accepted that Mr O’Shaughnessy was unable for his pre-accident hobbies of snooker and table tennis, that he was very embarrassed by his right arm being significantly shorter than his left arm; and that the loss of function in the right arm and its being shorter in length, would be permanent.

Mr O’Shaughnessy was awarded €40,000 for pain and suffering and disability to date, together with €27,500 for disability and loss of function into the future.

There were no items of special damage.

Justice Barr concluded that Mr O’Shaughnessy was entitled to a joint and several judgment against all of the defendants in the sum of €67,500.