Trip & Fall on a public footpath yet again

A young Sportsman was recently awarded €51,936.02 following a trip on a public footpath on Lower Baggot Street, Dublin. This ruling may mark a slight departure from the court’s traditional reluctance to award damages for minor falls on public footpaths.

What Happened
The accident occurred on the 29th July 2014 when the Plaintiff was returning to work at the Shelbourne Hotel. While walking down the footpath he was caused to stumble when his right foot got caught adjacent to a cover over a chamber which was believed to have been fitted by Eircom. The Plaintiff did not fall to the ground but felt some pain and after composing himself returned to work.

Footpath but crucial is another element

In cases that occur on public footpaths, the most important thing to establish is who (if anyone) may be liable. In this case, the Plaintiff was not caused to trip by the path itself but rather a small hole that had formed around the poorly fitted cover. On this basis the Plaintiff sued Eircom as the party responsible for the upkeep of the chamber and cover and also Dublin City Council, being the Roads’ Authority for the relevant area.

Who is responsible

In his judgement, Mr Justice Barr identified that ‘the essential dispute in the case revolved around the question of which of the defendants was responsible for the concrete surround around the chamber cover’. Some conflicting propositions were put forward about who had fitted the poorly secured surround and there was some suggestion from the First Named Defendant that the Second Named Defendant may have taken the locus in charge at the time in order to complete these works. However, given the lack of documentary evidence in support of this assertion coupled with the first Named Defendants continuing obligations under the Telegraphs Act, the Judge was not satisfied that the Second Named Defendant had any liability in this case whatsoever.

Injured person should look where they walk?

In such cases, the Judge will always consider whether the injured party contributed to or even caused the accident by not acting with due attention and care for their own safety. This can be a significant consideration in relation to the assessment of liability in trip and fall cases. On the facts presented, the Judge felt that given the size of the hole, the Plaintiff could not have been reasonably expected to notice same as he walked along the path and consequently found no contributory negligence on the part of the Plaintiff.

The Judge ultimately found the First Named Defendant 100% liable for the accident and awarded damages in the sum of €51,936.02.

What slightly differentiates this case in terms of trip and falls on public paths is that responsibility for the precise accident locus was not found to rest with Dublin City Council, being the relevant Roads’ Authority. Nonetheless, this judgement opens the possibility of success in such cases where the relevant portion of the footpath creates a ‘substantial danger’ to pedestrians.

Polski Prawnik Dublin Personal Injury Law Odszkodowania

Be careful when suing MIBI

In essence if the uninsured driver is either known or can be tracked with use of some reasonable efforts, such responsible uninsured driver must be named in proceedings or otherwise the injured party risk losing their case and no compensation will be paid by MIBI.

Natalie Grimes V Motor Insurers Bureau of Ireland

This recent judgement relates to the circumstances in which a case can be taken against the MIBI as a sole Defendant. The MIBI Agreement 2009, Section 6 states that such a case can only be taken where the third party responsible for the accident has been determined untraceable and thus cannot be sued.

In this case, the Plaintiff sued that MIBI as a sole Defendant on this basis, despite the responsible party being personally known to her for well over a decade as well as being the father of her child. The circumstances of this particular case are somewhat unusual but this is a defining judgement in terms of what it actually means to be ‘untraceable’ within the meaning of the MIBI agreement. It is clear that on this particular set of facts, the judge did not opine that the third party was untraceable under the MIBI agreement (Section 6). Of particular relevance was the fact that the inspecting Garda actually had several addresses for the relevant party which the judge felt could have been obtained by means of more persistent enquiry from the Plaintiff herself and more particularly from her Solicitor.

The function of the MIBI is to allow those who suffer as loss at the hands of an uninsured driver to seek compensation but this does not impose a responsibility to be listed as a sole defendant in circumstances where the responsible party is traceable and reasonable enquires would have confirmed that he was within the jurisdiction at the relevant time.

This judgement clarifies that Section 6 of the MIBI Agreement cannot be relied upon to solely impose liability on the MIBI for the payment of compensation for the personal injury or death of any person caused by the negligent use of a vehicle in a public place’ where sufficient efforts were not made to trace the responsible third party. The MIBI is not a tortfeasor and the courts will not tolerate them being treated as such.

 

 

 

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