High Court of Ireland Decisions

1. The plaintiff is a married lady now 78 years of age who resides with an adult son and daughter in Kimmage, Dublin. Prior to the accident which is the subject-matter of this action, she led an active, independent life and appears to have been in good physical condition commensurate with her age, save for the fact that she has suffered heart trouble from in or about 1981. In 1984 she was fitted with a pace-maker. The only medication she requires in that regard are daily anticoagulant tablets. Her evidence indicates that she appears to have had no manifestation of significant heart problems since the pace-maker was fitted. This is borne out by the fact that the grievous injury she sustained in the accident and its aftermath did not affect her heart condition. Whatever caused her to fall in the defendant's shop, it was not a heart attack or weakness caused by any manifestation of heart trouble. She remained conscious at all material times, notwithstanding severe pain and distress resulting from a major displaced fracture of her femur.

2. One of the enjoyments of life which gave the plaintiff particular pleasure was shopping in the centre city and her favourite venue was the defendant's department store in Henry Street which for many generations of Dubliners has been a revered institution in the retail life of the city. She and a close friend, Mrs. Violet Fagan, a senior lady of similar age and disposition, used to take the bus to the centre of the city and spend the day shopping there. They did this twice or more week in week out and had been doing so for upwards of 20 years. They have been friends for about 50 years.

3. On 19th April, 1995 the plaintiff and Mrs. Fagan went to town as usual and once more Arnotts in Henry Street was the focal point of their interest. They had lunch there in the cafe on the first floor and then decided to visit the footwear section at ground floor level. While walking in the vicinity of the information desk near the scarves section, the plaintiff fell and suffered an obviously serious injury.

4. None of the foregoing facts are in dispute and I accept their veracity. However, there is a stark conflict as to the cause of the plaintiff's fall. The plaintiff stated in evidence that on the day in question she had lunch in Arnotts with her friend, Mrs. Fagan, at about 12.00 o'clock. Afterwards they came down the stairs which are adjacent to a combined information desk and station for floor managers. The ladies decided to go to the shoe department which is at ground floor level across the store from that point. They approached the information desk walking normally. The pedestrian isles in the shop are of plastic or vinyl material but there is a carpet around the area of the information desk which at the time was secured by a substantial band of rubber-like material which was raised at the centre and sloped down at either side. I digress at this point to comment that a sample of carpet nosing was produced by the defendant and it was put to the plaintiff's companion that the nosing complained of was the same as that which was in use at the time of the accident. The sample comprised a plastic band slotted into a metal strip. Subsequently, in the course of the defendant's evidence it was conceded by the senior floor manager, John O'Brien, that it was not what had been in use at the material time. Photographs introduced by the defendant also make that quite clear. There was no explanation as to why the misleading sample was put in evidence.

5. The plaintiff went on to state that she and her companion were walking normally and at the information desk her foot caught in the carpet nosing. The toe of her left shoe caught in something and she tripped. She tried to hold on to her friend, Violet, but she fell forward and landed on her left side and suffered a severe displaced fracture of her left femur. In cross-examination, the plaintiff stated that she turned to her left at the foot of the stairs, although she is not certain, her recollection is that she was walking on the carpet prior to the incident. She was wearing a t-bar strap shoe. Her foot caught in something and she could not release it but when she fell to the floor her foot was released. She denied that she had collapsed of her own volition and stated that at all times she was clear in her mind. She stated that part of the carpet nosing was raised and she also commented that she had never collapsed in her life.

6. In course of her evidence Mrs. Fagan stated that she is 77 years of age; that she has been a friend of the plaintiff for nearly 50 years and that she had never known her to collapse. She confirmed that they were regular visitors to Arnotts and that they went there two or three times a week. She confirmed the plaintiff's account of her movements prior to the accident which she described in the following terms:-

7. The first aid worker did not give evidence.

8. Mrs. Fagan remained with her friend until an ambulance arrived about 15 or 20 minutes after the event and she was taken to the Mater Hospital. Although not stated specifically in evidence, I was informed by counsel for the plaintiff that before leaving the shop on the day of the accident, Mrs. Fagan was given a voucher for a free lunch in the restaurant. She returned the next day to avail of it and had a discussion with staff in that area. They asked what had happened to Mrs. Molloy and she informed them that she had caught her foot in the border of the carpet. It appears that the staff were aware of this and Mrs. Fagan stated that she was told that a man had come and nailed down the nosing. She looked at it and saw that it was in fact well nailed down. The raised area had gone. She deposed specifically that "on the day of the accident I looked at the nosing and I saw it was raised. I have no doubt about it". Mrs. Fagan concluded by commenting that since the accident her friend, Mrs. Molloy, is not the same person. If they go out they have to take a taxi and they do not go shopping now. In cross-examination, Mrs. Fagan reiterated that she saw the plaintiff's foot caught as she was falling. She fell sideways on her left side. She had looked round to see if there were any witnesses to the accident but there were none.

9. Three witnesses as to liability gave evidence on behalf of the defendant. The first was Mr. Eamonn Galavin who was then a floor manager. He is now a personnel officer. He was on duty on the day of the accident standing at the floor managers' station attached to the information desk. He was leaning against the desk and believes that he was making notes at the time. He stated that the carpet nosing had not been altered to his knowledge since the accident. As the plaintiff and her friend approached on the main walkway, the witness recalled looking at the lower part of her body. She stopped walking and fell forward to her left. He described Mrs. Molloy as being at least nine inches from the carpet nosing when she appeared to collapse. He confirmed that it was his function to ensure that the floor in the store was in a safe condition for patrons and others. He stated that the reason why the plaintiff fell was that she had collapsed and that there was no other explanation. The witness saw no defect in the flooring but stated that he had paid no particular attention to the carpet trim as the lady was on the walkway when she fell and it was not relevant to the cause of her fall. He stated that the plaintiff had ended up lying on the carpet close to the information desk and stated that she had pirouetted around to arrive in that position from the place where she collapsed on the walkway. In the course of a written statement about the accident made by the witness on 9th October, 1995, the following passage occurs:-

10. He did not accept that the reference to "obstructions" indicated that his inspection had included the carpet nosing. I have no doubt that in making that case, Mr. Galavin was endeavouring to establish that there was no relevant defect in the premises for which he would have responsibility if in fact it had existed.

11. The witness also accepted that he never sought to speak to either lady but he did make arrangements for the ambulance to be called and for the first aid worker to attend. He noted in his diary the following entries:-

12. Seemed to collapse.

13. He conceded in evidence that the phrase "seemed to collapse" was not made at the time of the original entry but he contended that it had been made prior to the entry relating to the ambulance. It has all the appearances of an afterthought included to support his version of events. It is remarkable that he never sought to speak to either of the ladies, although he was a senior member of staff only feet away from them, for, on his own admission, a period of about 15 minutes.

14. Mrs. Anne Warren, the assistant manager in the scarves department, also gave evidence. She said that she witnessed the plaintiff's fall as she was fixing scarves on a stand nearby. She said that the lady suddenly fell to the ground on her left side. She did not see her twist around and did not see her trip. She was on the carpet when the witness went over to attend to her but she had fallen on the walkway. She was unable to explain how the plaintiff had ended up on the carpet. To the best of Mrs. Warren's knowledge, the plaintiff's foot did not get trapped and she did not trip. She had a general look at the area when the ambulance had gone but did not notice anything unusual. She remained with the plaintiff who was in great pain until the first aid person arrived a couple of minutes later. The witness's inspection afterwards was limited to the walkway.

15. Mr. John O'Brien, the defendant's senior floor manager, also gave evidence. He was sitting in the managers' station at the time of the accident, i.e., just feet away from where it happened. He did not see the plaintiff before she was lying on the floor. She was partly on the carpet and partly on the walkway. He never made a formal statement and was not asked to recall the accident until the commencement of the trial. He stated that after the incident he checked the carpet area including the trim and there was nothing wrong with it. He also checked the walkway itself with negative results. He recalls personally inspecting the nosing and there was no lip in it. He agreed that an elderly customer had been seriously injured. He had left it to the first aid worker to ascertain the identity of the injured person. He never sought to obtain any explanation from the plaintiff or her companion about how the accident had happened.

16. It also emerged in evidence that the defendant carries its own insurance and both Mr. O'Brien and Mr. Galavin would have to accept responsibility to the company if it transpired that the accident had been caused by a defect in the premises of which they ought to have been aware. Bearing in mind that the nosing is alleged to have been raised within feet of their own work station, it is probable that failure to notice such a defect, if it existed, would be regarded as a serious lapse.

17. If the evidence given by Mr. Galavin and Mr. O'Brien is correct, i.e., that the carpet nosing was not defective in any way and that the plaintiff appeared to fall on the passageway of her own volition, i.e., that she had collapsed spontaneously, then three inescapable conclusions follow: First, that two apparently respectable elderly ladies of conservative background have conspired to perpetrate a serious fraud on the defendant company; secondly, that they have consciously and deliberately perjured themselves in evidence and thirdly, that Mrs. Fagan has aggravated the matter by deliberately lying about what she alleges she was told by members of staff and what she saw when she returned to the store on the following day and that she did so with the intention of bolstering the fraud. Having regard to the demeanour of the two ladies, the nature of their evidence and the manner in which they gave their testimony which was redolent of truth, I reject any such conclusion. In reviewing the situation I have to ask myself why should Mr. Galavin and Mr. O'Brien be untruthful in their evidence. I am satisfied that the answer to that question relates to the responsibility which both of them have for defects in the premises, a responsibility which has particularly serious consequences by reason of the fact that the defendant company carries its own insurance. It seems likely that both men spotted the offending piece of raised nosing after the accident and suspected that it caused the plaintiff to fall. That would explain the remarkable fact that neither manager sought to question Mrs. Fagan or the plaintiff as to the cause of the accident or about anything at all. If they were aware of the defective section of nosing then the probability is that they would have no wish to say anything to the ladies which might stimulate a claim on Arnotts. From their perspective it would not have been helpful if either was told about the defective nosing - worse still if it was pointed out by Mrs. Fagan at that time.

18. There are two aspects of the evidence which strongly support the explanation for her fall given by the plaintiff and supported by her friend. The first is that if she had collapsed spontaneously as alleged by Mr. Galavin, she would have fallen on the plastic walkway and could not have ended up several feet away on the carpet close to the information desk. Secondly, there is no evidence to support the contention that the plaintiff had collapsed spontaneously. The concept of a brittle bone being responsible for the fall advanced as a possibility by Mr. Robinson was emphatically rejected by Mr. Martin Walsh. He described the fracture as resulting from trauma. It was an oblique spiral fracture brought about by a twisting force (such as a fall to the left side). Mr. Walsh is an orthopaedic surgeon of international repute and great experience. Mr. Robinson is a general surgeon without specialist experience in orthopaedics.

19. I have no doubt whatever that the plaintiff and her friend, Mrs. Fagan, have given an honest truthful account of what caused the accident. I am also satisfied that there is no sustainable evidence of contributory negligence against the plaintiff. The segment of defective nosing was small and would not have been readily apparent to elderly ladies perambulating in a department store. I note also that the issue of contributory negligence was not raised by the defendant at the trial.

20. The plaintiff suffered a major dislocation of her left femur which extended for most of the length of the bone. It necessitated the fixation of a long plate which remains in situ. I accept the plaintiff's evidence that she has suffered great pain from the injury. She was detained in the Mater Hospital for two weeks. Her convalescence was slow and Mr. Walsh has stated that the fracture did not unite for five months. She was transferred to the orthopaedic hospital at Clontarf where she remained an in-patient for a further three months. The end result is that she has one and a half inches of shortening of the left leg which necessitates a raise in her shoe. There is wasting of the muscles and she has a limp. She has suffered a permanent substantial residual disability and in the view of Mr. Walsh the plaintiff's degree of locomotion has been severely compromised. Furthermore, her confidence has suffered on that account. She now walks with the aide of a stick and has difficulty in getting around and about. She cannot take a bath without help. Her pre-accident shopping expeditions in the city are at an end. She is unable to travel by bus and must be conveyed in a motorcar. In short, her way of life is now greatly restricted. She has lost her independence and she is deprived of many of the facets of life which gave her existence meaning and enjoyment prior to the accident.

21. I assess damages as follows:-

22. Agreed special damages £ 500.00

23. Pain, suffering and disablement to date £60,000.00

24. Pain suffering and continuing disablement in the future £30,000.00