A man who sued after he lost a finger when he climbed a fence to get to a Luas platform because he claimed he could not find the station entrance has failed in his High Court action.
Mr Justice Michael Hanna said Michael Kelly had suffered a frightful injury and was entitled to sympathy but his case had to be dismissed.
Costs of the three day action were also awarded to the Luas operators against Mr Kelly, but the judge said he hoped they would not seek to pursue Mr Kelly for the legal costs bill.
On October 20th, 2012 Mr Kelly, who wanted to get back in to the city centre for his lunch, had seen a tram at Dundrum station on the Green Line and climbed up the the four foot high fence at the top of an embankment.
His ring snagged on the fence and and his finger “degloved with his own body weight.” as he jumped. He later had to have the injured finger amputated.
Mr Justice Hanna said it is likely Mr Kelly took a chance on what he thought was a shortcut and he was aware he should not have gone that way. He was a trespasser the judge said and remained so. From the time Mr Kelly climbed the first fence the judge said there was “a sequence of reckless acts culminating in the injury to Mr Kelly’s hand”.
The judge said the 43-year-old man said he did not see the signs for the entrance to the Luas station which was up a laneway but he could have asked somebody or asked in a shop.
“At no stage did he enquire what was the way to the station,” the judge added.
Michael Kelly (43) of Clare Village, Malahide Road, Co Dublin had sued Luas operators TransDev Dublin Light Rail Ltd and Transport Infrastructure Ireland as a result of the accident on October 20th, 2012.
Mr Kelly claimed he had climbed steps which appeared to access the Dundrum Luas stop and there was a gate and a fence but the gate was locked. He claimed there was an alleged failure to have the lift operational at the Dundrum Luas which would have enabled him to access the station and platform and there was an alleged failure to take any or any reasonable care to see he would be reasonably safe in using the Dundrum Luas stop premises.
The claims were denied and it was claimed there was contributory negligence on the part of Mr Kelly who it is alleged attempted to access the Luas platform in a reckless and dangerous manner and he failed to access the Luas stop by way of a clearly marked and signposted public access route.
It was further alleged Mr Kelly took an alleged dangerous and hazardous shortcut to access the platform and that he allegedly used a means of access which was allegedly clearly blocked and prohibited to members of the public.
In his judgement Mr Justice Hanna said he was impressed by Mr Kelly who had faced challenges in life and he deserved commendation for his work going to schools and meetings warning of the dangers of alcohol.
The judge said he was satisfied that when Mr Kelly clambered over the fence he knew it was not an authorised way to the platform.
Mr Justice Hanna said there were protrusions on the railings where the accident occurred but they were rounded not jagged.
The judge said he was satisfied the fence where the accident happened was a boundary fence which also served a security purpose and it was a standard one approved for the task and location.