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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kirby v Hotel Kilkenny Ltd [Trading as Hotel Kilkenny] (Approved) [2025] IEHC 305 (30 April 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC305.html
Cite as: [2025] IEHC 305

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AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 305

2020/5103P

BETWEEN

PAMELA KIRBY

PLAINTIFF 

AND

 

 HOTEL KILKENNY LTD T/A HOTEL KILKENNY

 

DEFENDANT

Judgment delivered on 30th April 2025 by Mr. Justice Tony O'Connor

Introduction

1.                  The evidence adduced at trial primarily focused on whether the plaintiff's fall outside a lift on the second floor (called the "sky lobby") of the defendant's hotel on 18 August 2018, was due to the presence of a clear liquid while she walked away from the lift.  The defendant maintains that the plaintiff did not slip on liquid. Issues about breach of duty, contributory negligence and quantum follow the determination of that issue.

2.                  It is convenient to summarise the evidence before making that determination on the balance of probabilities.

The plaintiff

3.                  Although the plaintiff suffered significant pain from the injuries sustained in the fall, she was able to recount that she slipped as she "went to step on to the carpet and [she] went down on to the ground".

4.                  The plaintiff was cross examined about the description of her slipping by reference to wording in the personal injuries' summons, the initial letter from her solicitor and the CCTV. The CCTV was viewed by the plaintiff for the first time on the eve of the commencement of trial, despite the without prejudice letter from the defendant's solicitors in September 2021 (inadvertently produced in cross examination) offering to make it available in the context of the request for the plaintiff to withdraw her proceedings.  The relevant description from the personal injuries summons was:

"At approximately 5:30pm the plaintiff... whilst exiting a lift in the company of her husband and other guests... was caused to slip and fall by reason of the said floor being wet and/or slippy due to the presence of a deleterious substance thereon."

5.                  The pertinent wording from the initial letter of 24 August 2018 was:

"At approximately 5:30p.m. when exiting the elevator... she had walked with others a number of steps from the elevator, slipped on the floor and fell to the ground."

6.                  The parsing of those accounts by counsel in cross examination did not cause the plaintiff to alter her description of the slip and fall.  The plaintiff was clear that the fall commenced as she stepped onto a tile before the carpet. She readily acknowledged that she did not know what had caused her to fall and that other witnesses would testify as to the presence of a clear liquid.

7.                  It was not put to the plaintiff that she had told any staff member in the hotel that she had tripped over herself or that she had been asked by a staff member about the cause of her fall.  Moreover, no witness gave evidence about investigating or disclosing the cause of the slip and fall to a staff member of the defendant in the aftermath.  On the fourth day of the trial, two witnesses were recalled by the defendant to give evidence about the existence of messages which the defendant copied to its solicitors following the completion of their evidence. That lead to a submission on behalf of the defendant to the effect that the plaintiff fell over herself.  The plaintiff specifically denied in evidence that she had lost her balance as suggested by the defendant. The content of those messages did not prove the alleged admission of the plaintiff or of her husband.

8.                  A lot of time was spent at trial viewing the CCTV taken from one single camera positioned at a height somewhat diagonally opposite the lifts in the sky lobby. Questions were asked of all witnesses based on interpretations of the CCTV and stills from same produced by Tony O'Keefe and Partners, the consulting engineering firm engaged on behalf of the defendant. The plaintiff's credibility and reliability as a witness were enhanced by her acknowledgment that she did not know what caused her to fall until she was told by her husband about a "wet and slippery floor" when she got home after her discharge from hospital early on 19 August 2018. The plaintiff was calm and candid when answering legitimate questions posed by both counsel.

9.                  The plaintiff was pressed by reference to the CCTV on whether her left ankle had buckled on her heel rather than that her right heel slipped. The plaintiff was quite clear that she remembered having slipped. The Court did not find the CCTV to have undermined the plaintiff's account.      

10.              The defendant's grievance about not having been alerted to the allegation of a wet tile or floor until receipt of replies to particulars dated 12 February 2021 became apparent from the cross examination of each witness which suggested that the allegation was inconsistent with the situation captured by CCTV.

High heels

11.              The defendant's solicitors by letter of 10 September 2021 alleged that "it is clear... that the plaintiff over balanced on her high heels causing her to fall and that she did not slip on a wet floor...".  The plaintiff satisfied the Court that her fall was not caused by a loss of balance due to the wearing of high heels. The plaintiff had worn them without difficulty to events for six years previously. Speculation that a lowering of the heels had contributed to the loss of balance was not supported by admissible evidence.

Other guests

12.              Another central theme of the defence was that no one else slipped or fell at the same location at this wedding reception.  The Court appreciates the inference sought to be drawn that others would have noticed or could have been affected by the liquid.  That type of inference can be used to corroborate a fact, but it does not establish whether there was liquid or not on the tile. The guests took various steps on exiting the lift and the Court was not persuaded that another guest would have noticed, alerted others or slipped on the tile in advance of the plaintiff coming along.  

The plaintiff's husband

13.              The plaintiff's husband, Mr. Kirby, qualified as an engineer and has a post graduate qualification in project management.  He testified that as they exited the lift, he had the plaintiff linked by an arm when suddenly the plaintiff fell.  He said that while attending to the plaintiff on the ground "he noticed that the ground looked wet".  He continued "you could see the liquid on the floor and it was pretty clear that there was some sort of substance on the floor, I can't tell you exactly what that substance was".  Mr. Kirby was understandably more concerned about the injuries sustained by his wife than investigating the cause of her fall. 

14.              Mr. Kirby did not have time to look after other guests who were passing through the area while the plaintiff was awaiting an ambulance for transfer to hospital.  The crucial issue about whether there was liquid on the floor was challenged by reference to:-

(1)   The alleged omission of Mr. Kirby to advise any staff member about the presence of liquid;

(2)   The alleged absence of any complaint when discharging the bill at the hotel in the early morning of 19 August 2018;

(3)   The absence of a reference to slipping on liquid in the ambulance records or in the initial letter from the plaintiff's solicitor.

15.              There was no suggestion put to Mr Kirby and no conclusion could be made that Mr. Kirby had concocted his observation of liquid or "some sort of substance on the floor". Mr. Kirby's observations are particularly relevant to the Court's ultimate consideration of this relevant fact.

16.              Mr. Kirby's integrity is not in dispute; he gave his evidence concisely and in a credit worthy way.  His reply that he did not mention liquid on the floor due to his primary concern for the plaintiff was understandable.  The recall and manner of accounting by Mr. Kirby added to his reliability as a witness.

Ms. Mullins

17.              Ms. Mullins, who has been a Montessori teacher for eighteen years, walked out of the lift with her husband in front of the plaintiff and Mr. Kirby.  She testified that on turning around she saw that the plaintiff had fallen following a slip.  She noticed "wet" and that the tile was "slippery" while Mr. Kirby was attempting to lift the plaintiff to her feet.  In cross examination, having been referred to the CCTV, Ms. Mullins described how the plaintiff fell onto the rug.  Ms. Mullins stayed with the plaintiff until the ambulance team arrived.

18.              The evidence given by Ms. Mullins about the presence of a wet floor sign became redundant because it was common case that the three hours of CCTV coverage did not reveal the presence of such a sign in the relevant part of the sky lobby.  Ms. Mullins took a photograph of a wet floor sign but could not recall when that photograph had been taken. She messaged an image of that sign to the plaintiff's husband on the following day.  Nothing really turns on that sign now other than for the Court to take it into account when assessing the reliability of Ms. Mullins' evidence about whether there was liquid in or around the tile.

Witnesses called by the defendant

19.              Mr. Byrne, who has been the general manager of the defendant's hotel since 2011, explained the standard operating procedures ("SOPs") for spillages and referred to a sheet entitled "Dealing with a spillage/use of wet floor sign" when a "slip hazard has been identified." He explained that "it takes between 20 minutes and 40 minutes for wedding guests to digress into the function room" and that "... 30-minute checks on toilets, dance floor and high-risk areas like the front of the bar counter" would be undertaken beforehand.  The lobby would be checked before and after guests passed through. He told the Court that the same lifts, tiles and rugs have remained in place since the hotel was refurbished in 2006.  No incident of a fall on the tile or rug in question had been recorded to his knowledge.

20.              Cross examination of Mr. Byrne elicited that boxes in the mandated incident report form had not been completed in compliance with the SOP.  More particularly there was no attempt to answer the question about the cause of the plaintiff's fall.  Mr. Byrne said that speculation should not be entertained when completing those boxes although the form envisages the posing of questions to injured parties or witnesses by the person who completes the form.  The upshot of this line of cross examination leads one to the impression that the defendant can take responsibility for its own surprise about the allegation of plain clear liquid having caused the plaintiff to slip.  One may understand why the plaintiff may not have been questioned on 18 August 2018. However, it remains the case that the defendant's own procedures envisage a more thorough investigation than what occurred. The quick reliance by the defendant on the CCTV might have been justified if specific questions had been asked of the plaintiff, Mr. Kirby or Ms. Mullins.

Ms. Mather

21.              Ms. Mather, who worked for the defendant from 2016 for two years as a duty manager, described the protocols for spillages.  She was the duty manager in the sky lobby when the incident occurred and told the Court that there had been no necessity to operate the protocol for spillages before the plaintiff's fall. 

22.              The CCTV which was played a number of times during the trial was also put to Ms. Mather.  She spoke with the plaintiff and her husband after the incident. Ms. Mather could not recall who she phoned as seen on the CCTV.   The Court observed during the viewing of the CCTV that Ms. Mather was standing away from the group and accepts that Ms. Mather was not pointed to any liquid.  The CCTV tends to corroborate Ms. Mather's statement that she "...was checking for water with her feet and her eyes" after attending to the plaintiff.  Ms. Mather admitted that she did not bend down and one must look hard at the CCTV to detect some stalling by Ms. Mather at the locus of the fall. 

23.              While Ms. Mather understandably could not remember specific details about the wedding reception on 18 August 2018, such as when she called the ambulance, she asserted that she did not notice liquid when checking with her feet and her eyes without bending down.  Ms. Mather confined her replies to what was her role and practice as the duty manager, particularly in the aftermath of the plaintiff's fall. No staff member was called by the defendant to establish that the Sky Lobby area had been inspected or cleaned prior to the incident. The defendant relied upon the evidence of Mr. Byrne and Ms. Mather as to the expectations and practice arising from the SOPs.      

24.              Ultimately Ms. Mather is the only witness as to fact who prompts the Court to question the evidence of Mr. Kirby and Ms. Mullins about the slippy tile.  Ms Mather's principal concern like everyone else was the welfare of the injured plaintiff.  She completed the incident report form without referring to the recent suggestion at the end of the trial that the plaintiff had tripped over herself.

25.              It struck the Court during Ms. Mather's evidence that she was relying more significantly than other witnesses on a version of events as emerged from her viewings of the CCTV long before the commencement of the trial.  The defendant's position is that there were no spillages to have prompted cleaning in this area.  Ms. Mather did the best she could after more than seven years and after working with other employers since the fall, to recount her observations.  As in so many cases, the merging of memories and accounts of managing wedding receptions, parties and hazards inevitably has consequences for the ability to recall.  This can be compared to the evidence given by Mr. Kirby in particular who recounted his memory of a very significant event for his family. 

26.              The Court appreciated the effort of Ms Mather to answer its questions which probed the background to her admissible assertions as to fact.  Ms. Mather was not aware when originally viewing the CCTV of the significant allegation about the presence of liquid on a tile although the initial letter from the plaintiff's solicitor dated 24 August 2018 had referred to a slip and fall.  Ms. Mather, who could not recall when she first viewed the CCTV which was preserved and retrieved by the defendant promptly in August 2018, appears to have agreed with Mr. Byrne at an early stage that the plaintiff had not slipped according to the CCTV.  

Engineers

27.              Mr. O'Mahony, engaged on behalf of the plaintiff, testified that a wet ceramic tile upon which the plaintiff allegedly slipped would have high slip potential.  Mr. O'Hara, (engineer with Tony O'Keefe and Partners) who gave evidence by video link on day three of the trial, agreed.

28.              The dispute between the engineers concerned the consistency of the accounts given by or on behalf of the plaintiff and particularly the compatibility of the accounts given at trial with the CCTV.  Mr. O'Hara could not recall whether he saw the CCTV before or after the joint inspection on 15 March 2021.  He described his instructions that the plaintiff "slipped approximately half -way between the lift and the carpet or mat area". Mr. O'Hara referred to a description given at the joint inspection.  He continued:

"If her heel didn't land on the mat and was on the tile, it's the first part of her foot that would make contact with the surface.  It would be moving in a forward direction and would be the classical example of someone slipping on a wet floor and falling backwards.  So what I would anticipate in that instance is that if it was her left heel that was the source of the slippage, it would slide forward, she would fall backwards and I don't see that at all in the CCTV footage."

29.              Apropos the stiletto heel hitting the tile, Mr. O'Hara opined that the CCTV video was not "clear enough to see the heel".  He said that it is difficult to see whether it is on the mat or on the tile surface.

30.              Mr. O'Hara took the Court through a book of CCTV still images from 18:22:43p.m. just after the first lady stepped out of the lift at 18:22:48p.m. when the plaintiff's fall became visible.  Mr. O'Hara identified sixteen incidents of people stepping in the area of the relevant tile between 18:02p.m. and 18:22p.m. without anything occurring or anyone looking at the floor. 

31.              The cross examination of Mr. O'Hara revealed to the Court that a consensus had come about among the management of the defendant after the fall and particularly prior to the joint inspection on 15 March 2021, that there were no spillages in the area of the fall.  So, Mr. O'Hara's attention was honed on whether that fact could be corroborated.  Lest there be any doubt, the Court does not impugn the independence of Mr. O'Hara in giving his evidence.  Nevertheless, it is worth noting how two engineers armed with different narratives may find supporting evidence for their opinions whether from the CCTV or otherwise.  It is also noteworthy that Mr. O'Hara fairly conceded that the CCTV footage was not clear in disclosing the position of the heel which slipped. He also accepted that a person could fall after slipping in different ways while he maintained that a backward fall is usual.

32.              The issue about the effect of lowering the height of the plaintiff's stiletto heels had not been flagged in the pleadings or at the joint inspection.  The introduction of that issue followed the plaintiff's answer in cross examination that she had lowered the original height of her high heels.  Suffice to say that Mr. O'Hara had not studied this type of shoe and that he was effectively speculating when answering a question by counsel for the defendant, about the potential of a heel alteration to the cause of the plaintiff's fall.

Finding of fact

33.              The CCTV footage which was admitted into evidence without objection, did not undermine the evidence of the plaintiff, Mr. Kirby and Ms. Mullens as was submitted on behalf of the defendant. The CCTV appears to have prompted the defendant to maintain a stance without considering the possibility of some liquid being present. CCTV taken from one camera above and away from the scene of the fall does not identify the cause, which is explained by credible and reliable witnesses. The CCTV is not sufficient to swing the balance of probabilities.  The Court watched the CCTV on a few occasions and found clips open to differing interpretations. Having summarised its view about the reliability of Ms. Mather's account, the Court finds on the balance of probabilities that the plaintiff did slip on a tile which had liquid on it at the time.

Duty of Care

34.              This is not a "usual" danger case falling within the description of Noonan J. in Kandaurova v. Circle K Energy Group Limited [2025] IECA 13 as cited by the defendant.   Taking that some clear liquid was at the location of the plaintiff's slip and fall, the onus rests with the defendant to establish that it took "such care as is reasonable in all the circumstances... to ensure that [the plaintiff did] not suffer injury or damage by reason of any danger existing hereon" (Section3 (2) of Occupiers' Liability Act, 1995).  In the context of the defendant's hotel, this duty is more specifically described as placing the onus on the defendant to establish it took reasonable care to ensure that the floor traversed by the plaintiff was "as safe as reasonable care and skill" could have made it. (s.4 of Hotel Proprietors Act, 1963).

Procedures

35.              The SOPs of the defendant were presented to the Court during the evidence of Mr. Byrne and Ms. Mather.  The SOPs at pg. 8 of 50 requires a daily task of "clean floor - hoover and mop sections - use wet floor signs". 

36.              Mr. Byrne referred to a roster of individual staff members (pg. 13 of 50) but none of these individuals were called to give evidence about whether and when they cleaned around the area outside the lift.

Evidence of compliance with SOP cleaning

37.              Ms. Mather who described her role in the "SOP training for staff" and the protocol for dealing with spillages by reference to a video played in Court was not asked questions about what she personally did prior to the plaintiff's fall.  Notably counsel for the defendant asked on day two:-

"So, as part of your duty manager role, what would you normally do and, to the extent that you can remember, what did you do on this particular day with regard to preparing the area for guests who were going to arrive later on?"

38.              Ms. Mather replied:-

"You would survey the area that it was set up in accordance with the function sheet.  So, if a wedding, there would be a table plan, there could be a table with photographs etc. and you would obviously just survey the area also, for anything blocking a fire exit or anything of the lights, like that. So the floors and the exits are all clear."

39.              The above references were made at para. 37 on pg. 13 of the speaking note relied upon by defence counsel for the final submissions on day four of the trial that: "... the presence of liquid on a floor is not of itself sufficient evidence to establish negligence and breach of statutory duty if the defendant establishes that it had an adequate and appropriate cleaning system in place."

Limit of engineers' evidence

40.              In direct examination on day three Mr. O'Hara said that the standard of cleaning demonstrated in the training video for staff seemed to be "an appropriate system" for spillages.  He said that the absence of a history of incidents supported that view.  Mr. O'Hara was properly not asked about specific measures by individual staff members immediately before the fall at 18:22:47p.m. on 18 August 2018 according to the CCTV time because no evidence as to fact had been adduced during the trial about the actual measures taken.

Clarification given in answer to the Court

41.              It is in that context that the Court at the end of day two asked whether the defendant accepted liability if liquid was present.  Counsel replied: "if there was liquid...".  The Court in order to clarify the position continued: "The question comes down to whether there was liquid there or not, isn't that right?".  Counsel replied: "yes".

42.              On day three of the trial, Mr O'Hara the engineer engaged on behalf of the defendant, clarified that he "was told at the engineering inspection [on 15 March 2021] that the floor was examined by the staff members, who will state that the floor was dry..." having stated earlier that he had not spoken with "...those staff members...". Mr O'Hara was only asked in direct examination about the procedure for having wet floor signs. Questions in cross examination of Mr. O'Hara did not concern the SOPs.  The Court proceeded on the basis that liability was not in issue if liquid was present until the issue arose during closing submissions.  

Submission about presence of staff  

43.              In the "speaking note" and submissions of counsel for the defendant on day four, despite the Court noting its understanding of the primary focus at trial concerning liability, it was contended that the circulation of staff and guests as shown in the CCTV clips showed that "staff was present" to deal with difficulties.

Consideration by the Court

44.              As explained and accepted by the engineers, the presence of liquid on the wet ceramic tile surface created a high slip potential.  The absence of evidence about actual specific measures taken by a staff member of the defendant to look out for spillages or to clean the tiled area in the hour or minutes before 18:22p.m. on 18 August 2018 is particularly relevant.  Ms. Mather when questioned by the Court regarding her recall was sketchy in her memory of specific detail.  For the sake of clarity, the Court did not detect a desire on Ms. Mather's part to be economical with the truth.  The elapse of time coupled with the narrative which arose during the days following the incident on 18 August 2018 fed into Ms. Mather's patchy recall. 

Later disclosed messages

45.              On day four Ms. Mather and Mr. Byrne were recalled to prove the existence of:-

(a)   The exchange of WhatsApp messages in a group called "duty managers" between 18:22p.m, and 18:40p.m. on 18 August 2018;

(b)   Emails from Ms. Mather to Mr. Byrne starting at 11:03p.m. on 18 August 2018 and ending at 11:04p.m. on 20 August 2018 which included the line "yes they said she came out of the elevator and fell over herself somehow";

(c)   Email from Ms. Mather to Mr. Byrne of 15:04p.m. on 24 August 2018 which stated that Ms. Mather had telephoned Mr. Kirby who told her about the injuries sustained.

Effect of these exchanges

46.              The existence of these documents was merely established by those witnesses and the wording did not prove anything. However, they tend to support a view that a narrative had commenced within the corporate knowledge of the defendant about the fall of the plaintiff by Monday morning, 20 August 2018, to avoid considering liability.  No statement had been taken from the plaintiff, her husband or any other guest who was in the area of the lift at the time of the fall despite the defendant's own protocol for the completion of box 23 in the incident report form which specified: "describe clearly how the accident, incident/hazardous situation occurred (to be completed with the person involved/injured person)."

47.              None of the witnesses were questioned about whether the "plaintiff fell over herself somehow".  The cross examination of the plaintiff, Mr. Kirby and Ms. Mather dwelled on the absence of any liquid on the floor, the location of the plaintiffs fall and whether the plaintiff tripped with her footwear.

Complaints about personal injuries summons

48.              Submissions for the defendant were made at the conclusion of the trial that the personal injuries summons followed by the verifying affidavit were "not true or accurate" and failed to comply with "s. 14 of the Civil Liability and Courts Act 2004 ("the 2004 Act") which requires parties to personal injuries proceedings... to clearly and precisely plead the factual basis of their claim or defence".  The submission refrained from relying on s. 26 of the 2004 Act for the dismissal of the plaintiff's actions.  However, the defendant maintains that the personal injuries summons as verified was inaccurate and should prompt the Court to dismiss the plaintiff's action.  This is a less forceful application than one which could be made under s. 26 of the 2004 Act.  No authority was cited in support of the submission to dismiss where there is no deliberate fraud or misleading pleading.  The Court was referred to:-

(1)   Paragraph 109 in Brown v. Van Geene [2020] IECA 253 which referred to "deliberately false and misleading pleadings";

(2)   Naghten (A Minor) v. Cool Running Events Limited [2021] IECA 17 which stressed that allegations should be made based on facts.  There the plaintiffs award was upheld and Noonan J. stated: "this case provides a timely reminder that s.14 applies with equal force to defendants...";

(3)   Paragraph 23 in Crean v. Harty [2020] IECA 364 which referred to the requirement that cases be pleaded with "far greater precision".

49.              There was no deliberate lack of precision in the personal injuries summons, the most relevant part of which has already been set out earlier in this judgment.  The submission made on behalf of the defendant bordered on being a s. 26 application, which would have consequences for a defendant, if unsuccessful.  This Court does not condone an application which is akin to an application under s. 26 of the 2004 Act and which is not pleaded.  Reciprocity of precision in the defence delivered on 7 January 2022 was not argued on behalf of the plaintiff.  That defence merely denied that the plaintiff fell as alleged and did not plead an alternative cause for the fall.  The Court clarifies that counsel for the plaintiff submitted that the particulars in the summons were sufficient and did not submit that the defence failed to comply with s. 13 (1)(b) of the 2004 Act.

50.              Counsel for the defendant carefully avoided aggravating the plaintiff by suggesting that she had deliberately pleaded in a fraudulent or misleading manner. The belated application by way of a closing submission had an unjustified sense of exasperation on the part of the defendant which the Court on this occasion will not sanction as it has no sense of any pain inflicted on the plaintiff by the application. 

Determination

51.              As indicated, the initial primary fact to be decided upon is whether the plaintiff slipped on a tile which had some form of clear liquid.  The Court has had the benefit of observing the CCTV, the reactions of the various witnesses to the CCTV and the witnesses themselves in recalling events.  It also had the advantage of reviewing the circumstances giving rise of this hotly contested claim for damages.  Nothing in the CCTV persuades the Court to depart from its understanding of the accounts given by each of the witnesses.  The credibility and reliability of Mr. Kirby in particular together with the candour of the plaintiff satisfies the Court on the balance of probabilities that the plaintiff slipped on a clear liquid which was situated on a tile upon which she placed her shoe while walking across from the lift in the sky lobby.

52.              Despite the SOPs, there was insufficient evidence of compliance immediately before the plaintiff's fall with those procedures on the part of the defendant to avoid what is not a usual danger for guests of the defendant hotel.

53.              In relation to the issue of contributory negligence, there is no dispute that the plaintiff was entitled to attend the wedding reception in high heels or stilettos.  The speculation about the effect of reducing the height of the plaintiff's heel in 2012 does not constitute admissible evidence. The plaintiff was entitled to expect that the floor area which she had to traverse did not have liquid or if there was liquid, that there were signs to indicate a wet floor. The defendant has not satisfied the Court that it took the necessary care.  For those reasons, the Court finds the defendant to have been in breach of its duty of care to the plaintiff which caused the plaintiff to slip and fall giving rise to her injuries.

Quantum

54.              The plaintiff, who is a nurse herself, realised that she had suffered significant injuries.  The paramedic team brought her by stretcher to the ambulance.  In the fall, the plaintiff dislocated her elbow in two places and had a very swollen foot.  Her first visit to the hospital allowed the hospital staff to manipulate the dislocation.  It had been hoped at that stage that the plaintiff could return to the defendant's hotel. On the way back to the hotel the plaintiff got sick and the elbow dislocation reoccurred.  This prompted a revisit to the Accident and Emergency Department where she was sedated and discharged so that she could go home via the hotel. 

55.              Early the following week the plaintiff's right elbow was placed in a cast and she was referred to an orthopaedic surgeon specialising in upper limb.  After five weeks of wearing a cast which prevented her from moving her hand, she attended for physiotherapy in Clonmel hospital.  Throughout this time the plaintiff was unable to care for her three-year old son which obliged Mr. Kirby to take time off work to care for the plaintiff and their son. Subsequently extra child-care was sourced.  

56.              The ongoing effect of the right elbow injury can be summarised as follows:-

(i)                 The elbow does not fully straighten;

(ii)              Strengthening exercises like spinning classes need to be more managed than before the fall and exercise occasionally requires the taking of difene;

(iii)            Lifting patients as a nurse can aggravate her elbow;

(iv)             Overtime at work is restricted due to the elbow injury.

56.         The plaintiff had persistent pain in her right foot and was ultimately referred in 2019 by her general practitioner to Professor Flavin, Consultant Orthopaedic Surgeon specialising in foot and ankle reconstruction. She could not run or wear any kind of heels. There was a sense of instability within her ankle and right foot.  She had a SPECT-CT which involved the injection of liquid into the foot to show the extent of the injury.  That scan revealed that the bones in the plaintiff's right foot were broken which the plaintiff described as "smashed". Ultimately the plaintiff underwent a midfoot triple fusion surgery under general anaesthetic on 12 September 2019 which left two scars on her foot with a metal plate inserted.  The plaintiff explained how the toes which meet the flat part of her foot were fused.  She was discharged from hospital after three days. Having undertaken half marathons previously, the plaintiff is limited now in her running activities. Professor Michael Stephens engaged by the defendant's solicitors noted in his report dated 19 September 2023 that orthotics have helped and described the elbow injury as the "main injury". On the other hand, Professor Flavin who has treated the plaintiff believes that the plaintiff "...had an extensive midfoot injury which is an extremely unusual configuration" and does "... not think that she will make a full recovery due to the nature of her [foot] injury". Dr. Patrick Lynch, the plaintiff's general practitioner over the years agrees that "... any improvement from here will be minimal". He mentioned that the plaintiff "... had a very high level of leisure physical activity" before the fall.

57.              The predominant injury is in the right foot and falls within the "severe and permanent

conditions" category described in the book of quantum published in 2016 with a suggested band of €38,900 to €62,300.  The effect of the injury to the right elbow needs to be considered also.  The relevant band is "moderately severe" with a band of damages of €22,000 to €59,600. 

58.              The following excerpt from para. 36 of the judgment in Keane v. Johnson and Johnson Vison Care Ireland 2025 IEHC 216 (unreported judgement of Coffey J. on 1 April 2025) succinctly sets out the process which the Court follows: -

"As the accident giving rise to these proceedings occurred in 2018, I am required to have regard to the 2016 edition of the Book of Quantum when assessing general damages. As this case involves multiple injuries, I am further required to adopt a structured two-stage approach in assessing the overall award for general damages. First, I must determine appropriate compensation for each injury to ensure that the plaintiff is properly compensated for each injury to which I must assign a value that is both fair to the parties and proportionate to the maximum of €450,000 and equivalent awards available in the Book of Quantum for injuries of similar gravity. Second, I must not simply mathematically aggregate the assigned values but rather must step back and, if necessary, adjust the overall award to ensure that it is itself proportionate to the maximum and equivalent awards available so that the final award neither overcompensates nor undercompensates the plaintiff, having regard to his overall injury profile. Typically, this is done to ensure that there is non-duplication of compensation where, for example, injuries have overlapping effects on daily life, work, or long-term prognosis."

Conclusion on damages

59.              Taking account of those bands and the fact that the plaintiff was 36 years of age at the time of accident and is now 42 years of age, the Court determines that the foot injury merits an award for past and future suffering of €56,000 while the elbow injury on its own falls within the mid-range of the relevant band of some €40,000. The overlap of effects from both injuries, the cap on general damages and the proportionality test leads the Court to award €72,000 in general damages for pain and suffering to date and into the future. No agreement was reached nor was evidence lead about special damages. 

 

Legal representation

Counsel for the plaintiff: Darren Lehane S.C, Benjamin Shorten B.L.

Solicitor for the plaintiff: Galvin Donnegan LLP Solicitors.

Counsel for the defendant: Eamon Marray S.C with Michael Binchy B.L.

Solicitor for the defendant: Byrne Wallace Shields Solicitors for the defendant.

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