A man who fractured his knuckle after tripping on a footpath while jogging has been awarded €60,000 in damages after it was found in the High Court that South Dublin County Council breached the common duty of care it owed to the man by failing to repair the footpath.
Included in the award made by Mr Justice Anthony Barr was an award of €5,000 in aggravated damages due to the Council’s accusation that the man was putting forward a fraudulent claim.
Mr Martin Stokes, 24, was living with his parents in a caravan at a caravan park at Oldcastlepark, Bownogue, Dublin 22 – owned by South Dublin County Council – when he tripped and suffered a fracture to his knuckle in September 2011.
Mr Stokes was jogging up a footpath leading from the entrance to the site, when he alleged that he tripped over a depression or hole in the surface of the footpath, causing him to fall to the ground and suffer a fracture to the knuckle on his right hand.
The Council accepted that Mr Stokes suffered a fracture of the knuckle – however all other matters were in dispute:
- The Council argued that having regard to the nature of the injuries, they were more likely to have occurred while pursuing his sport of boxing.
- They submitted that Mr Stokes was fraudulently trying to place the blame on the Council, by alleging that his injuries happened due to a trip and fall on an unsafe section of the footpath; and that this was further supported with regard to the fact that Mr Stokes delayed in informing his solicitor or the Council of this accident until March 2013.
- The Council also argued that the road and footpath in the caravan park constituted a public highway and in these circumstances they were entitled to rely on the defence of non-feasance.
- In the alternative, it was submitted that as Mr Stokes was engaged in jogging, when he allegedly met with his accident, he was a “recreational user”, within the meaning of the Occupiers Liability Act 1995 and therefore the Council only owed him a duty not to act with “reckless disregard” for his safety. They submitted that there was no evidence that they had so acted in this case.
- Finally, the Council submitted that having regard to the state of the locus as shown in the photographs taken by the plaintiff’s engineer, the hole or depression in the footpath was clearly visible. They submitted that if Mr Stokes had kept a proper lookout while jogging up the path, he would not have met with his accident. They submitted that he was either entirely the author of his own misfortune, or was guilty of a substantial element of contributory negligence.
Justice Barr stated that the essential question was, whether the Council as occupier, breached the common duty of care which it owed to Mr Stokes on the day in question.
Justice Barr was satisfied that the depression and scoring on the surface of the footpath, constituted a danger to people using it; that on the balance of probabilities, this had been caused by the servants or agents of the Council; and that “even if the damage was caused by some third party, it was clear from the growth of grass in the depression, that it had been done a significant time prior to Mr Stokes’ accident”.
In failing to repair the footpath, the Council breached the common duty of care which it owed to Mr Stokes.
Justice Barr also declined to make any finding of contributory negligence against Mr Stokes.
In relation to the issue of general damages, Mr Stokes suffered a nasty fracture which required surgical treatment in the form of open reduction and internal fixation, which was carried out two days after the accident.
Mr Kieran O’Shea, Consultant Orthopaedic Surgeon was of opinion that it was unlikely that there would be any further resolution of the pain and swelling suffered by Mr Stokes. Thus, while the symptoms were not terribly severe or grossly disabling, they would nevertheless be with Mr Stokes into the longer term – which Justice Barr found significant given Mr Stokes’ young age.
Justice Barr declined to take into account Mr Stokes’ complaint that he had been unable to return to boxing since the accident, as there was no evidence to suggest he had attempted to do so. Further, there was no reason to suggest that he had tried to reapply to take a FAS woodwork class after this was interrupted by the accident.
Finally, regarding the scar – Justice Barr accepted that while it was visible, it was not particularly disfiguring.
Justice Barr made an award of €35,000 as general damages for pain and suffering to date; and €20,000 in respect of future pain and suffering.
As per Conway v. Irish National Teachers Organisation  2 I.R. 305, Phillip v. Ryan  4 I.R. 241 and Lackey v. Kavanagh  IEHC 341 – Justice Barr stated that it was necessary to have regard to the nature of the defence run by a defendant when considering whether it was appropriate to make an award of aggravated damages.
Since the Council accused Mr Stokes of putting forward a fraudulent claim, Mr Stokes was entitled to be compensated for the upset caused to him by virtue of the nature of this unsuccessful defence.
Accordingly, Justice Barr made an award of €5,000 in aggravated damages
Thus the overall award in favour of Mr Stokes was in the sum of €60,000.
- by Seosamh Gráinséir for Irish Legal News