High Court: Woman awarded €20K compensation for slip and fall at pub in Wicklow

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Mr Justice Keane said that the pub was negligent and in breach of duty by failing to install a handrail on each side of the ramp, and rejected arguments that the woman was guilty of contributory negligence.

Background

In the High Court, Ms Danielle Busher sought damages from Altona Taverns Limited T/A The Old Forge for personal injuries sustained when she slipped and fell at while attending a birthday party at The Old Forge in Wicklow in December 2012.

The Court heard that the party was being held in an upstairs room at the venue, adjacent to which there was an adjoining flat-roof that had been converted into an external smoking area. When Ms Busher was walking down the ramp to exit the smoking area, she slipped and fell backwards, landing on her back and striking her head on the ramp.

After the fall, Ms Busher experienced increasing pain or soreness, then headaches and backpain throughout the night before attending an out of hours GP the following day where she was referred to A&E for an x-ray. There was no evidence of a fracture and Ms Busher was prescribed painkillers.

Medical reports submitted to the Court which detailed Ms Busher’s complaints that due to ongoing back pain that radiated down her left leg, she was unable to: pick up her daughter or change her nappy; enjoy intimate relations with her partner; play camogie; continue working as a children’s residential care assistant; drive long distances, or wear high heels. Her GP recorded 16 occasions in which Ms Busher had presented at the surgery for lower back pain in the five years after the accident, and opined that Ms Busher may continue to suffer intermittently and require physiotherapy during flare ups.

In response to questions raised about photographs of her ice-skating and carrying her daughter on Facebook, Ms Busher said that she “had good days and bad days” – which Justice Keane said was difficult to reconcile with her “unqualified complaints” of “constant discomfort and continuing lower back pain that she was experiencing every day”.

Negligence and breach of duty

In the personal injury summons in which Ms Busher contended there had been negligence and breach of duty on the part of Altona, Ms Busher argued that “Altona had permitted ice to be present on the ramp, had failed to remove it from the ramp or had failed to warn patrons about its presence there, which created a trap”

Further, Ms Busher asserted that Altona:

Altona defended the claim, pleading that “Ms Busher’s own negligent acts or omissions caused or contributed” to her accident and injuries, as she “failed to have adequate regard to her own safety and failed to keep a proper lookout”.

Causation

A weather report prepared on behalf of Met Éireann stated that the ground temperatures were 3-4 degrees Celsius with no indications of frost. As such, Ms Busher acknowledged that her complaints based on the presence of ice could not be maintained as the formation of ice was not possible.

An engineering expert on behalf of Ms Busher pointed to the absence of a hand rail on either side of the ramp; expressed the view that there was a likelihood of rain blowing onto the ramp on the night in question; and said that there should have been matting on the ramp for additional traction/maintenance to prevent the textured surface from being worn smooth and hence slippery through wear.

On behalf of Altona, an engineering expert said that the textured fibreglass surface with a resin element would give rise to an expectation of good slip resistance. The expert said that from the CCTV stills there was no evidence of worn patches on the surface, and evidence from the managing director of Altona said that the floor surface had been laid one month prior to the accident and no wear was then evident. Furthermore, a barman gave evidence that the ramp was “bone dry” after the fall.

On the basis of the evidence presented, Justice Keane said that he was not satisfied on the balance of probabilities that the ramp was wet on the night in question. Furthermore, Justice Keane was not satisfied that the accident was caused by any wearing of the ramp surface – and that even if he could be satisfied that there were worn patches on the ramp, he could not be satisfied that this would have made it more slippery, particularly because no tests were carried out by either expert during their joint inspection.

In considering whether Altona were negligent or in breach of duty by failing to install a handrail on each side of the ramp, Justice Keane said he was assisted by McDonald v Frossway t/a Bleu & Ors IEHC 440. Justice Keane pointed to similarities in the conclusions reached in this case, and said that Ms Busher’s slip would have been much less likely if there had been a handrail since she could have used it for support. Even if the slip had occurred, the handrail could have assisted in arresting the fall and preventing the injury she sustained. Furthermore, the experts were in agreement that a handrail was required on each side of the ramp.

Justice Keane held that Altona was negligent and in breach of its duty to Ms Busher and was liable to her in respect of her injuries. Further, Altona failed to make out its defence of contributory negligence.

Justice Keane concluded that the appropriate compensation for past and future pain and suffering and loss of enjoyment of life was €19,500. Special damages of €250 were agreed, bringing the total judgement to €19,750.

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