Court of Appeal: Appeal allowed against €60,000 award for man who slipped on ice outside his own apartment

About this case:

• Citation:
  [2022] IECA 269
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

Delivering judgment in the case, Mr Justice Seamus Noonan noted that the plaintiff had not properly pleaded the issues raised in the trial and that an expert report was not a substitute for clear and specific pleadings. The court went on to hold that none of the complaints attracted liability for the management company and the plaintiff’s €60,000 award was overturned.

Background

The plaintiff was a bus driver who lived in an apartment from 2002 to the date of the accident. The apartment had a balcony upstairs which overhung his front door. The front door was at first floor level and led to an open-air external landing. From the landing, there was a set of steps leading to ground level.

In November 2016, the plaintiff left his apartment at 5.30am to go to work. It had been a cold night and it was dark because the light over the plaintiff’s front door was not working due to water ingress. As the plaintiff stepped onto the landing from his front door, he allegedly slipped on black ice and fell down a flight of stairs. He sustained a fracture to his elbow in the fall.

Subsequently, in October 2018, the plaintiff issued personal injuries proceedings against the management companies of the apartment complex and of which he was a member of the residents’ committee. The particulars of negligence were general in nature but claimed that matting or other material should have been in place to avoid slipping.

Updated particulars of negligence were provided in February 2020 alleging that the defendants failed to operate an adequate system of cleaning. In June 2020, the plaintiff obtained an expert report which stated that the landing should have been gritted. Further, it was suggested that the accident may have been avoided if there were nosing trips on the steps and if the external light had been working. As such, the day before the trial, an additional particular of negligence was provided claiming that there was a failure to provide appropriate lighting.

At trial, it was established that the plaintiff could see that it was wet outside his door. Further, it was accepted that the external light above his front door was the plaintiff’s responsibility. Finally, the management company gave evidence that a property management company would have provided gritting services if asked to do so. However, none of the property management company’s 98 developments required gritting on footpaths or steps.

The trial judge determined that the pathway was in control of the defendants and that they had a duty to grit these areas to avoid falls. It was held that nosing strips would have assisted the plaintiff in preventing his fall and that water dripping into the light may have resulted in the formation of ice. The plaintiff was awarded €60,000 for his injuries.

Court of Appeal

On appeal, Mr Justice Noonan noted that certain findings of the trial judge were erroneous. First, it was admitted that the plaintiff was responsible for the light above his door so it was not appropriate for liability to attach the defendants in this regard. Further, neither party suggested that water dripping into the light was the cause of the ice and therefore the evidence did not support this finding.

Additionally, the failure to keep the common area free from excess water was never part of the plaintiff’s case and, as such, this finding could not stand.

It was held that the plaintiff relied on three issues at trial: the lighting, the gritting and the nosing of the steps. However, the lighting issue was only particularised the day before the trial and the remaining issues were not pleaded at all. The court held that this was inappropriate and emphasised that parties were required to provide full and detailed particulars of each allegation or assertion comprising the claim.

The court referred to recent decisions on the failures by parties to comply with the Civil Liability and Courts Act 2004 and said that this case “unfortunately constitutes more of the same” (see Morgan v ESB [2021] IECA 29; McGeoghan v Kelly & Ors [2021] IECA 123). It was “entirely impossible for the defendants to fathom” the claim they had to meet based on the pleaded case, the court said. 

The court accepted that the defendants were not necessarily taken by surprise by the gritting issue given that there was an expert report on the subject. However, expert reports were not a substitute for pleadings and parties were still obliged to properly plead the case they wished to make at trial. 

The court held that the plaintiff’s expert evidence on the nosing of the steps only went as far as stating that it “might” have slowed the plaintiff and allowed him to grab a handrail. The hypothetical nature of the evidence showed that the effectiveness of the nosing was no more than a possibility rather than a probability.

Turning to the gritting, the fact that such action may have avoided the accident did not mean that the defendants were liable for the accident. The court held that the defendants did not breach their duty to the plaintiff by not gritting the landing. There was no supportive analysis from the plaintiff’s expert which established that gritting was appropriate for the area and the mere assertions of opinion did not assist the plaintiff.

The alleged obligation to grit pedestrian areas in anticipation of adverse weather was an unreasonable duty to place on occupiers, the court said. The court also noted that the plaintiff was a member of the management company but gritting services were not supplied.

Even if there was a duty, the plaintiff was required to take reasonable care for his own safety. He had lived in the apartment for years and ought to have anticipated the potential of ice on the landing. At a minimum, the plaintiff was guilty of a very high degree of contributory negligence, possibly up to 100 percent.

Conclusion

The court held that the trial judge was incorrect to find that the defendants were liable for the accident. The appeal was allowed and the €60,000 award was overturned.

Ahmed v. Castlegrange Management Company Limited By Guarantee [2022] IECA 269