A €40,000 damages award to a checkout operator who suffered arm injuries after slipping on the floor of Dunnes Stores' Rathmines, Dublin outlet has been overturned by the Court of Appeal.
The appeal court ruled Dunnes was not liable and also reiterated its view that trial judges should not order payment out of part of a damages award unless “special circumstances” justify that when an appeal is pending on liability.
Hugh Mohan SC, for Dunnes, said the High Court required it to pay out €20,000 to Laura Greene as a condition of a stay in the event of an appeal but the appeal court later reduced the payment out to €10,000.
As Dunnes had won the appeal, it wanted Ms Greene to return the €10,000 and also wanted its legal costs, he said.
Richard McDonnell SC, for Ms Greene, did not oppose costs but said he needed to make inquiries concerning the €10,000.
Mr Justice Brian McGovern said the Court of Appeal had reduced the payment out to €10,000 during a listing hearing but that was done without the benefit of a full appeal hearing.
He repeated his view, as expressed in another case also involving Dunnes, that, when liability is an issue, a trial judge should not order payment out unless special circumstances justify it.
No special circumstances were indicated here, he said.
The matter was put back for a week to address the payment out and outstanding issues.
Ms Greene, of Gulistan Cottages, Rathmines, sued Dunnes over an incident on September 20th 2011 when she fell backwards, having apparently slipped on a wrapper of the type used around a roll of refuse bags, in the beverage aisle of the Rathmines store. She suffered injuries to her right arm, shoulder and elbow.
Dunnes appealed the finding it was liable.
Giving the three judge Court of Appeal judgment on Wednesday, Mr Justice McGovern said the unchallenged evidence was the wrapper was a “conspicuous” item which would have been seen on the floor and the only inference to be drawn from that is Ms Greene ought to have seen it.
While the evidence established the wrapper could have ended up on the shop floor as a result of actions of employees or staff, there was no evidence to support the trial judge’s finding it was probably caused to be there by a member of staff, he said.
Dunnes does not have “an absolute duty” to ensure Ms Greene’s safety, he said.
Evidence from a security manager who walks the store floor in a security and hygiene capacity of inspecting the area five minutes earlier and seeing no wrapper or other hazard on the floor was not challenged and the High Court finding the security manager might have missed that was not supported by evidence, he said.
Evidence from an engineer for Dunnes to the effect the cleaning and inspection regime in the store was “first class” was also not challenged.
The only proper inference from this was Dunnes had fulfilled its common law and statutory duty to Ms Greene as it had taken all such steps as were “reasonably practicable” to ensure her safety, he held.
The trial judge failed to engage with that and thus failed to apply the proper legal test in assessing liability.
Because the trial judge should have dismissed the claim on the evidence and application of the correct law, he allowed the appeal.
