Court of Appeal: Issue of liability must be reheard in case of man awarded over €100k for slipping on his porch

About this case:

• Citation:
  [2019] IECA 245
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Brian McGovern

Finding that the trial judge had made a number of errors in concluding that the Council was liable for the accident which occurred on the front porch of a property owned by the council, Mr Justice Brian McGovern said he could not substitute his view on facts for that of the trial judge and therefore the unsatisfactory issues could only be put right by a re-trial.

Background

In November 2013, Thomas Keegan slipped on a wet exposed porch at the front of his home. Mr Keegan rented the property from Sligo County Council and had lived there since 2009. As a result of the accident, Mr Keegan suffered a “pilon fracture” to his left ankle which required the insertion (and subsequent removal) of two plates into his ankle joint.

Mr Keegan’s surgeon submitted that, as a result of the accident, he developed osteoarthritis in the ankle joint, affecting his ability to work as a labourer.

High Court

In the High Court in November 2017, Mr Justice Anthony Barr accepted the evidence of Mr Keegan’s engineer that the tiles used on the front porch were inappropriate for exterior use, and that the Council was liable pursuant to the Occupier’s Liability Act 1995.

During the course of the trial, Mr Keegan was candid about the fact that he had four or five pints of Guinness on the day of the accident. Mr Justice Barr said that he had regard to the fact that Mr Keegan was “a man who has worked in manual labouring jobs all his life” and declined to make any adverse finding against Mr Keegan.

Refusing to make any finding of contributory negligence, Mr Justice Barr awarded Mr Keegan €105,650 in damages, comprised of:

• €50,000 for general damages to date
• €55,000 for general damages into the future.
• €650 in agreed special damages

Court of Appeal

In the Court of Appeal, Sligo County Council appealed against liability and quantum, however, Mr Justice McGovern said “the issue of quantum was not pursued with any great vigour”.

The principal grounds of appeal were:

1. Whether Mr Keegan’s house is unfit for human habitation so as to trigger liability under Siney v Dublin Corporation [1980] IR 400 and Burke v Dublin Corporation [1991] 1 IR 341?
2. Whether the trial judge took the correct approach in deciding to impose liability under the Occupiers Liability Act 1996?
3. Whether the trial judge erred in law in his approach to the evidence of the mechanism of the accident as described by Mr Keegan and erred in fact in his finding as to that evidence?
4. Whether the trial judge erred in law in declining to make a finding as to prior complaints?
5. Whether the trial judge erred in law in his treatment of the effect of alcohol on the ability of Mr Keegan to take reasonable care for his own safety?
6. Whether the trial judge erred in law and in fact in not finding Mr Keegan guilty of contributory negligence?

Considering Hay v O’Grady, Mr Justice McGovern said the court was not entitled to substitute its view on the facts for that of the trial judge. However, he said there were a number of matters rendering the trial unsatisfactory, “which could only be put right by a re-trial on the liability issue”.

Mr Justice McGovern was particularly concerned about the failure of the trial judge to engage in a meaningful way with the conflicting accounts of the accident given by Mr Keegan before reaching his conclusions on liability, and that this fell short of what was required – there was no proper analysis of the conflicting evidence to explain the reasons why he was satisfied as to how the accident happened.

Finding that the trial judge was also in error in failing to properly examine and analyse the evidence before ruling out contributory negligence, Mr Justice McGovern said there had been a failure to address whether Mr Keegan had taken reasonable care for his own safety as required by the Occupiers Liability Act 1996. Mr Justice McGovern said the trial judge had also erred in law in holding that the onus was on the Council to call medical evidence to show that the accident could not have occurred in the manner claimed by Mr Keegan.

Furthermore, Mr Justice McGovern said that the conclusion that Mr Keegan’s house “was not reasonably fit for habitation” could have far reaching consequences for the Council. Mr Justice McGovern said that the trial judge had erred in making such a finding in circumstances where this had not been pleaded, thereby causing an “entirely unsatisfactory situation” where the Council “had to deal with the matter on an ad hoc basis during the course of the trial”.

Considering quantum, Mr Justice McGovern noted that the award was above the upper limit for a moderately severe ankle injury, but that it was not so significant to warrant the court interfering.

Allowing the appeal, Mr Justice McGovern directed that the issue of liability be remitted back to the High Court for re-hearing.