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You are here: BAILII >> Databases >> Irish Court of Appeal >> Keegan v Sligo County Council [2019] IECA 245 (10 October 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019_IECA_245.html
Cite as: [2019] IECA 245
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THE COURT OF APPEAL
CIVIL
Neutral Citation Number: [2019] IECA 245
Record No. 2018/9
Peart J.
McGovern J.
Baker J.
BETWEEN
THOMAS KEEGAN
PLAINTIFF/RESPONDENT
- AND–
SLIGO COUNTY COUNCIL
DEFENDANT/APPELLANT
JUDGMENT of Mr. Justice McGovern delivered on the 10th day of October 2019
1. This is an appeal from a decision of Barr J. delivered on the 30th November, 2017 in a
personal injury action where liability and quantum were both in issue.
2. The claim arose from a slip and fall accident that occurred on the 18th November, 2013
while the respondent was returning to his home at Cranmore, Sligo. He was a tenant of
the house which was let by the appellant, the housing authority for the relevant area. The
respondent had resided at the premises for approximately nine years prior to the
accident.
3. The accident occurred at around 5 p.m. as the respondent was about to enter his hall
door. He had been at a funeral during the afternoon and between 1 p.m. - 5 p.m. admits
to having consumed approximately four or five pints of Guinness having visited three
different pubs in that period. As he went to open the hall door, he claims that his left foot
slipped on the tiles which were wet as a result of the weather conditions on that day. The
porch faced in a south-westerly direction and was therefore open to the prevailing wind in
the area. The respondent gave evidence that the tiled surface of the porch would
frequently get wet.
4. In the High Court the trial judge heard evidence from consulting engineers that the tiles
provided good slip resistance when dry but presented a moderate risk when wet. It
appears from the evidence in the High Court that the tiles were of a standard type that
was provided in such locations at the time when they were laid.
5. The plaintiff suffered a pilon fracture to his left ankle which required surgical fixation. He
was unemployed at the time of the accident and the special damages were agreed in a
sum of €650.
6. Having heard the evidence, the trial judge determined the liability issue in favour of the
respondent and awarded general damages of €50,000 to date and €55,000 into the future
and the agreed special damages making in all a total of €105,650. He declined to make
any finding of contributory negligence.
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7. Although the appeal in this case was in respect of liability and quantum, the issue of
quantum was not pursued with any great vigour. The thrust of the oral submissions made
at the hearing of the appeal by both parties concerned the issue of liability.
Liability and related issues
8. The appellant sets out its principal grounds of appeal in the following terms:-
(i) Whether the respondent’s house is unfit for human habitation so as to trigger
liability under Siney v. Dublin Corporation [1980] I.R. 400 and Burke v. Dublin
Corporation [1991] 1 IR 341?
(ii) Whether the trial judge took the correct approach in deciding to impose liability
under the Occupiers Liability Act 1996?
(iii) Whether the trial judge erred in law in his approach to the evidence of the
mechanism of the accident as described by the respondent and erred in fact in his
finding as to that evidence?
(iv) Whether the trial judge erred in law in declining to make a finding as to prior
complaints?
(v) Whether the trial judge erred in law in his treatment of the effect of alcohol on the
ability of the respondent to take reasonable care for his own safety?
(vi) Whether the trial judge erred in law and in fact in not finding the respondent guilty
of contributory negligence?
Unfit for human habitation
9. The trial judge held that the use of the particular ceramic tiles in the porch of the
respondent’s house rendered that house “unfit for human habitation”. In respect of this
finding the appellant has concerns on a number of grounds. In the first place, it claims
that this point was not pleaded as part of the respondent’s claim. Secondly, it says that
such a finding has significant and serious implications for the appellant in a way which
transcends this particular case. The respondent argues that when the case came on for
hearing the point was raised in submissions and was not objected to by the appellant.
10. It seems to me that this is an issue which gives rise to a number of legal questions of
some complexity, including the legal relationship between the respondent and appellant
For example, is the respondent to be considered a “visitor” in the usual sense or is this
case one where there is more than one “occupier” of the premises as understood under
the Occupiers Liability Act 1995 having regard to the fact that the respondent had resided
in the house for approximately nine years prior to the accident? What is the meaning of
“unfit for human habitation” within the meaning of the Housing Act 1966?
11. In my view, it is not at all satisfactory that a finding of the trial judge on an issue of such
importance should be made where it has not been pleaded by the respondent and arose
in circumstances which required the appellant to deal with it on an ad hoc basis in the
course of the trial. I do not think it matters whether or not the appellant engaged with the
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issue at the trial. While the particulars of negligence in the personal injuries summons
included a plea of “failing to comply with the provisions of the Occupiers Liability Act 1995
and the Housing Acts 1966” the respondent did not furnish further particulars of same
although asked to do so in a notice for particulars dated the 26th August, 2016. Both the
Siney and Burke cases involve claims regarding the interior condition of dwellings. This
appeal however concerns an external surface on the porch where one enters the dwelling.
Under the Housing Act 1966 a housing authority has a duty to inspect houses in their
functional area and ascertain the extent to which they are in any respect unfit or
unsuitable for human habitation. The second schedule of the Act sets out matters to
which a housing authority ought to have regard in considering whether a house is unfit for
human habitation and the list of matters is stated to include “safety of stair cases and
common passages including the state of paving in any yard or open space pertinent to the
house”. That schedule has, below its heading, a reference to “Section 66”. That section
deals with the power of a housing authority to serve a notice on the owner of the house
or any other person having an interest in the house whether as mortgagee, tenant or
otherwise a notice under the act requiring certain works to be done where the authorities
is of the opinion that the house is unfit for human habitation. While it may well be that
this also applies to the housing authority itself this is not something that was canvassed
in either Siney or Burke or in this case when the matter was before the High Court.
Though it is not for this court to express any view on these issues, I have concluded that
it was unsatisfactory for the trial judge to make a finding that the house was unfit for
human habitation having regard to the fact that the matter was not specifically pleaded
and therefore had to be dealt with in an ad hoc way at the trial and in circumstances
where the legal issue could be properly argued and considered.
The Occupiers Liability Act 1996
12. Section 3(2) of the Act of 1996 states:-
“In this section “the common duty of care” means a duty to take such care as is
reasonable in all the circumstances (having regard to the care which a visitor may
reasonably be expected to take for his or her own safety and, if the visitor is on the
premises in the company of another person, the extent of the supervision and
control the latter person may reasonably be expected to extend over the visitor's
activities) to ensure that a visitor to the premises does not suffer injury or damage
by reason of any danger existing thereon.”
“As to that duty, it is clear that merely establishing that an accident occurred on
premises is not enough. The plaintiff must show that a danger existed by reason of
the static condition of the premises; that in consequence of it he/she suffered injury
or danger; that the occupier did not take such care as is reasonable in the
circumstances to avoid the occurrence.”
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14. In this case, the trial judge held that the mosaic ceramic tiles in the porch of the premises
held by the respondent as a local authority tenant were “inappropriate” and “unsuitable”.
The appellant argues that the test was whether or not they constitute a “danger”.
15. I think it is fair to say that the judgment of the trial judge makes it clear that he regarded
the tiles as being a danger on account of the fact that, when they were wet, they
presented a moderate risk of slipping. It seems to me the question which has to be
considered is whether or not on the facts of this case the respondent took reasonable care
for his own safety. This may also include a consideration of the question as to whether he
was a “visitor” or “occupier”. The evidence established that the respondent was aware
that in wet conditions the porch tiles could become somewhat slippy and to prevent that
danger he placed a rubber backed mat on the tiles. He gave evidence that on the morning
of the accident the mat was extremely wet so he lifted it out and hung it over his side
gate before proceeding into town to attend a funeral. On his return, he said the mat was
gone and on entering the porch he slipped and met with his accident. He described how
he proceeded down the garden path and came to the tiled porch area in front of the hall
door and that the tiles were wet as it had been raining all day. It is clear therefore that
the respondent, in those circumstances, must have anticipated that the tiles would be
somewhat slippy as (a) he could see they were wet, and (b) the mat which he normally
used to prevent anyone slipping on the tiles was not available to put down on the tiles.
16. The trial judge does not appear to have considered that evidence and whether or not, in
those circumstances, the respondent had exercised reasonable care for his own safety.
Nor does he appear to have given any consideration as to whether he was a “visitor” in
the normal sense or whether, having regard to his occupancy of the house for
approximately nine years, he should in some way be considered differently, and indeed
whether he could be considered an “occupier”. Some of these matters are relevant to the
issue of contributory negligence. It seems to me that the trial judge did not sufficiently
engage with these issues before concluding that there was no contributory negligence.
17. Another issue which falls to be considered under the question of whether the respondent
took reasonable care for his own safety concerns the amount of alcohol he consumed
between approximately 1 p.m. and 5 p.m. on the day of the accident. This will be
considered in more detail later.
Mechanism of the accident
18. The issue which attracted the greatest deal of attention during the appeal was the
manner in which the judge addressed the way in which the accident occurred and in
particular what the appellant described as conflicting and improbable accounts of what
happened. The transcript shows that the respondent gave a number of accounts of his
accident not all of which were consistent. At one point he stated that, as the door opened,
he fell forward and inserted the key into the lock before he started to slip. At another
point he stated that he was slipping before the key went into the lock. Then he said “As I
approached, I stood in with my right foot, then my left foot, key in. As I got the key in I
put the handle down at the same time, it happened together at the same time”. On that
version of events he had the key in the door and his hand on the handle yet he managed
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to slip and fall forward into the hall. But then the following question and answer emerged
from the transcript:-
“Q. And it is applying pressure to the handle to open the door. It is only then that you
started to slip. Isn’t that right?
A: No, I had already slipped.”
Then a few moments later he said that he slipped as he entered the porch and he put the
key in and opened the door and that is when he went forward. He agreed that this meant
that he managed to get the key into the lock while he was slipping. He agreed that this
account sounded “a bit strange”. At an earlier point in his evidence he accepted that an
account he had given did not make sense and at another point he admitted that he could
not explain how he had fallen while getting the key into the keyhole and his hand on the
handle.
19. In the course of his judgment the trial judge described the accident in the following
terms;-
“When he arrived at his house, he noted that the mat had been removed from his
side gate. He did not know who had removed it, or to where it had been taken. He
proceeded down the garden path and came to the tiled porch area in front of his
hall door. He stated that it had been raining that day and the tiles were wet. He
placed the key into the lock of the front door with his left hand and depressed the
handle with his right hand. While moving forward his left foot slipped on the tiles
and he fell forward, through the partially opened hall door landing in his hall…”
(para. 10 judgment).
20. While the trial judge noted that the respondent was questioned at length in relation to the
exact mechanisms of the slip and fall and that it would not have been possible for him to
have been moving at the time when he inserted the key into the keyhole with the left
hand while depressing the handle with his right hand, he remarked that the respondent
said that it had happened in that way.
21. Later at para. 62, the trial judge referred to the submission of the appellant that the
respondent’s account as to how the accident occurred was totally implausible and that it
was not possible to put the key into the lock, turn the key and depress the handle and slip
and fall through the door.
22. When it came to the trial judge’s conclusions on causation at para. 71 he stated:-
“…I do not think that it is possible to break down the mechanics of a slip and fall
into neat sequences which lawyers, or others, may think convenient, at a
considerable remove from the time of the accident. It would have been different if
there had been medical evidence to the effect that such an injury could not have
happened from the circumstances of the accident as described by the plaintiff.
However, there was no such evidence.”
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23. There was no serious attempt by the trial judge to analyse the various and somewhat
conflicting accounts of the accident given by the respondent. Furthermore, it was not for
the appellant to call medical evidence to show that such an injury could not have
happened in the manner as described by the respondent. The burden of proof at all times
remained on the respondent. In my view the trial judge was in error in failing to properly
apply the burden of proof and in neglecting to analyse in any meaningful way the
discrepancies in the evidence given by the respondent. This is especially in light of the
fact that the respondent admitted in cross-examination that it was “extraordinary” and
“strange” but “a fair summary” that he commenced slipping, managed to insert his key
into the lock of the hall door, turn the key, open the door with his other hand, push the
door open and then fall inside, see transcript, day 1, pp. 49-51.
24. Furthermore, the engineer called on behalf of the respondent gave evidence that the
account of the accident given by the respondent to him was that he had slipped and fallen
on his porch and outside his door and not that he had slipped, opened the door and fell
inside.
25. Effectively, the outcome of the case turned on the account giving by the respondent as to
how the accident occurred. If the account had been deemed implausible or unreliable by
the trial judge than it is likely that the action would have been dismissed. In those
circumstances the trial judge ought to have conducted an analysis of the evidence and
stated why he accepted a particular version of the accident as given by the respondent
and rejected the thesis postulated by the appellant that the account was entirely
implausible.
26. To reach such a conclusion is not to call into question the law as well established in Hay v
O’Grady [1992] I.R. 210. While an appellate court cannot substitute its view of the
evidence for that of the trial judge this does not absolve the trial judge from carrying out
a proper analysis of the evidence where there are issues in controversy so that it is
possible to see why he preferred or accepted one account or one piece of evidence over
the other.
Evidence of prior complaints
27. There was conflicting evidence as to whether the respondent had made complaints about
the tiles prior to the accident. It is important to note that this was not pleaded in the
personal injuries summons. The respondent gave evidence that he had complained to the
appellant’s regeneration office on several occasions and asked that the tiles be taken up
and the area replaced with concrete. He also stated that he regularly complained to staff
on the street and he referred to a conversation with Mr. Noel Mehigan, the estate
manager, about replacing the tiles and enclosing the porch when works were done on the
house. A reading of the transcript shows that any such discussion of that nature with Mr.
Mehigan involving an alteration to the porch was not a complaint, as such, about the
condition of the tiles but rather a request for an enclosed porch. It was explained to the
respondent that this could not be done because of the existence of a services meter
outside the hall door which had to be available for inspection. The appellant had records
of extensive complaints made by the respondent in respect of various matters but none in
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respect of the porch tiles. The trial judge decided that it was not necessary to resolve this
issue but referred to the evidence called by the appellant as “reasonably strong” and
suggested that the appellant did not submit records in evidence to establish that there
were no complaints.
28. At para. 70 of his judgment, the trial judge incorrectly characterised the evidence
concerning the records as given by Ms. Marissa Moran. She was not challenged in her
evidence as to what was in the records and what (if anything) was missing.
29. The appellant submits that the evidence which was described by the trial judge as
“reasonably strong” raised credibility issues for the respondent and that the trial judge did
not give any reason for declining to take that into account. It seems to me that the
appellant is entitled to feel that a credibility issue which might have had an impact on the
determination of liability was ignored by the trial judge in circumstances where he had
accepted the evidence of the appellant on this issue was “reasonably strong”. In doing so
he fell into error. While the issue of prior complaint had not been pleaded the trial judge
allowed the issue to be canvassed in evidence and, having done so, ought to have
explained why he decided to ignore evidence from the appellant which he described as
“reasonably strong” when it could have had a bearing on the respondent’s credibility.
The issue of alcohol
30. The respondent admitted that he had attended a funeral on the afternoon of the accident
and that between 1 p.m. and 5 p.m. he had consumed four or five pints of Guinness. The
trial judge dismissed this as a factor to be considered either in terms of the issue of
negligence or contributory negligence. On the first day of the trial, the judge remarked
“[b]ut also five pints for a man who has done physical work all his life, unless you are
going to allege that he in fact had considerably more, I wouldn’t take five pints as being a
particularly large amount over a number of hours”. At para. 73 of his judgment he
stated:-
“…Having regard to the fact that this is a man who has worked in manual labouring
jobs all his life, I decline to make any adverse finding against him having regard to
the level of alcohol consumed by him that day.”
31. It has to be said that there was no specific plea in the personal injury defence that the
respondent’s actions on the day of the accident were impaired by alcohol. However, the
issue was clearly canvassed in the exchange of particulars before trial and therefore the
respondent was aware that it might become a feature in the case. It seems that an
objection was taken to the matter being raised in cross-examination and the issue was
not pursued. But the pleadings did encompass an allegation that the respondent failed to
take reasonable care for his own safety. Since the matter had been canvassed in the
exchange of particulars prior to trial and since the issue was raised before the judge in
the course of the trial, it seems to me that it was a factor which he ought to have taken
into consideration having regard to the duty of the respondent to take reasonable care for
his own safety and given the conflicting accounts given as to how the accident that
occurred. Furthermore, the judge’s remarks as to how alcohol would affect “a man who
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has worked in manual labouring jobs all his life” was unsupported by any evidence given
at the trial and was no more than the expression of his opinion. Such an opinion should
not play a part in the trial judge’s decision to rule out alcohol as relevant.
Contributory negligence
32. The issue of alcohol was a relevant matter for the judge to take into account in
determining whether there was any contributory negligence on the part of the
respondent. But he declined to make any adverse finding having regard to the level of
alcohol consumed by him that day. There was no evidence as to what effect four or five
pints of Guinness might have on the respondent in the period between 1 p.m. and 5 p.m.
society are obliged to take care for their own safety and cannot divest themselves of
responsibilities for their actions”. That was in the context of a claim made under the
the 1996 Act and stated at 56:-
“…Under s. 3 that question is part and parcel of the consideration of whether the
occupier complied with its statutory duty or common duty of care imposed upon it
by s. 3. The occupier must take such care as is reasonable in all the circumstances
to protect the visitor, but having regard also to the duty of care upon the visitor
herself.”
33. The respondent met with his accident after consuming four or five pints of Guinness that
afternoon in circumstances where he knew the tiles were wet and that a mat which he
had used to prevent slipping had been removed by him earlier in the day. He had hung
that mat over a gate and it had been removed by some person unknown. In my view the
trial judge did not give proper consideration to the issue of contributory negligence. He
discounted alcohol as a factor purely on the basis of his own opinion and not on the basis
of evidence and did not consider the question of the respondent’s own knowledge of the
tiles on his porch in premises where he had lived for nine years and which he knew could
be slippy when wet.
34. Furthermore, the trial judge did not properly apply the provisions of s.3 of the Occupiers
Liability Act 1996 by considering whether he had taken reasonable steps for his own
safety.
Quantum
35. The trial judge pointed out that the appellant did not call any medical evidence although it
had retained the services of Mr. Brendan Healy, orthopaedic surgeon, who had examined
the respondent. The judge accepted the evidence of Mr. William Gaine, the orthopaedic
surgeon called on behalf of the respondent, that he has developed mild to moderate
osteoarthritis in the ankle joint with evidence of osteopenia (a weakening of the bones).
The medical evidence was to the effect that the respondent would only be capable of light
work. He was forty-nine years of age when the judgment was delivered and the trial
judge held that should be taken into account. He had also been unemployed for some
time prior to the accident and the trial judge had regard to that fact. The trial judge also
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took into account the fact that he had a limited capacity for work in the future and took
the view that this could be taken into account in the assessment of general damages. In a
brief submission on quantum counsel for the appellant pointed out that the Book of
Quantum provides a range of damages of €79,900 to €89,300 in respect of a moderately
severe ankle injury being one which involves ongoing pain and stiffness which impacts on
movement of the ankle. Although the trial judge was obliged to have regard to the Book
of Quantum he did not make any reference to it in his judgment. In neglecting to do so he
was in error. While he was entitled to take into account the factors that are referred to in
his judgment, it is not clear to me how he related the figure of €105,000 for general
damages to the ranges provided for in the Book of Quantum.
36. The Book of Quantum puts an upper limit of €89,300 for a moderately severe ankle
injury. The judge built into his award for general damages the respondent’s limited
capacity for work in the future. In all the circumstances it seems to me that the difference
between the higher figure provided in the Book of Quantum and the damages determined
by the trial judge (being just over €15,000) is not so significant as to warrant this Court
interfering with it.
Conclusions
37. This court is not entitled to substitute its view on the facts for that of the trial judge and
Hay v. O’Grady still remains the law. But in my view there are a number of matters which
have been referred to in this judgment which make the trial unsatisfactory and which can
only be put right by a re-trial on the liability issue. In particular, the failure of the trial
judge to engage in a meaningful way with the conflicting accounts of the accident given
by the respondent before reaching his conclusions on liability fell short of what was
required. There was no proper analysis of the conflicting evidence which would point to
the reason why he was satisfied, on the balance of probability, that the incident happened
in the manner as described in para. 10 of the judgment.
38. The trial judge was also in error in failing to properly examine and analyse the evidence
before ruling out contributory negligence by failing to address the question as to whether
the respondent had taken reasonable care for his own safety as required under the
Occupiers Liability Act 1996. He also erred in law in holding, at para. 71 of his judgment,
that the onus was on the appellant to call medical evidence to show that the accident
could not have occurred in the manner claimed by the respondent.
39. The trial judge’s finding that the respondent’s house was not reasonably fit for habitation
is one which could have far reaching consequences for the appellant. The trial judge erred
in making such a finding in circumstances where it had not been pleaded thereby giving
rise to a situation where the appellant had to deal with the matter on an ad hoc basis
during the course of the trial. This gave rise to an entirely unsatisfactory situation. It is
not for this court to express its view on the issue in circumstances where it should not
have been dealt with by the trial judge.
40. The trial of the liability issue was unsatisfactory and I would allow the appeal. I would
direct that the issue of liability be remitted back to the High Court for a re-hearing.
Result: Appeal allowed