A woman will hold onto a €102,000 damages award after Dunnes Stores lost its appeal over a finding its negligence lead to her falling and suffering hip injuries while shopping in its store in Cork's Bishopstown shopping centre.
Rose Desmond was awarded the damages by the High Court’s Ms Justice Miriam O’Regan over the fall on August 31st 2017. Ms Desmond, then aged 83, slipped and fell after stepping on a spillage on the floor of one of the aisles. She suffered a fractured right hip which required surgery involving replacing half of the hip joint with a prosthetic.
The trial judge was satisfied Ms Desmond had fallen on a contaminant on the floor and Dunnes had not established its system of care at the time of the fall was sufficient. Dunnes appealed the finding of negligence to the Court of Appeal but did not appeal the sum of damages.
In a judgment delivered electronically on Wednesday, the three judge court dismissed the appeal. Giving the judgment, Ms Justice Mary Faherty noted Ms Desmond had said, while crossing an aisle towards the grocery section, she suddenly slipped and fell forward heavily to the right and onto the floor. Ms Desmond said, after falling, she was assisted by others, one of whom removed her right shoe and wiped some substance from the heel. She said a strip of clear liquid on the floor had been pointed out to her which she first thought was water but later wondered if it was shampoo. A Dunnes staff member produced a wheelchair, drove her to a health clinic and stayed with her until she was x-rayed.
After her evidence, counsel for Dunnes had accepted there was “something on the floor”. Ms Justice Faherty noted the trial judge had seen CCTV evidence of the incident. An employee seen on CCTV to be sweeping the aisle floor a number of times before Ms Desmond’s fall at 13.03pm had said she was keeping a lookout and saw no spillage.
In its appeal, Dunnes argued the trial judge erred in various respects, including in finding Dunnes had not shown the spillage occurred after 12.58pm, the time of the employee’s final passage along the aisle with a brush, and that the latter failed to see the spillage.
If Dunnes had established the spillage occurred after 12.58pm, it was not disputed Dunnes would have discharged the onus to show it had a reasonable cleaning system in place after that time. Ms Justice Faherty said there was nothing to preclude the trial judge’s finding that, on balance, the spillage was likely to have occurred between 12.40and 12.58pm because of the volume of customers passing through the aisle at that time, plus the fact another employee was cleaning shelves in the aisle at that time Dunnes had to establish the spillage was not there before 12.58pm and there was a “credible evidential basis” for the trial judge’s finding it had not done so.
The trial judge had seen CCTV evidence of the employee brushing the floor “looking straight ahead” for almost the entirety of her hour shift and the employee had accepted her mind could wander doing that “boring” job. The trial judge also emphasised the employee’s training had not concentrated on how vigilant her passage through the aisle should be. The trial judge’s lack of confidence in the employee’s testimony she was keeping a lookout was also “implicit” in her judgment.
The judgment contained a sufficient analysis of the evidence before the trial judge which led her to conclude as she did and the appeal would be dismissed, Ms Justice Faherty concluded.
