Woman awarded €58,000 after fall on 'unorthodox' design footpath

High Court reporters

A woman has been awarded €58,741 by the High Court after she fell stepping off a pavement.

Geraldine Keane claimed the footpath had been designed and constructed in an unorthodox way.

Ms Keane, a civil servant from Castlerea, Co Roscommon, sued Donegal Co Council after she fractured her elbow in the accident on July 27th, 2018, when she was visiting her sister in Dungloe, Co Donegal.

Ms Justice Marguerite Bolger awarded her €117,482, but as she found Ms Keane was 50 per cent liable by failing to keep a proper lookout, she was entitled to €58,741.

The court heard she had just come out of a gift shop and, having crossed the main street, stepped onto a raised kerb which she believed was flush with the pavement.

However, unknown to her, there was a double step coming down from the raised kerb and she fell. She sustained a significant injury to her right knee, the court heard.

Negligent

She claimed the council was negligent and breach of statutory duty in the design, construction, makeup, maintenance, upkeep, warnings and/or inspection and/or the provision of the footpath.

She also claimed the defendant had designed and constructed a highly unorthodox arrangement between the roadway, kerb and pavement.

This, it was alleged, gave rise to foreseeable hazard for pedestrians. She claimed the council created an unusual feature and failed to give any or any adequate warning or notice of the existence of it. It therefore effectively concealed its existence, it was claimed.

The council denied all allegations. It claimed she was responsible by not keeping a reasonable lookout and that the raised kerb followed by two steps was readily apparent to anybody keeping a reasonable lookout.

The council’s engineeing expert said the two-step arrangement was good road design to both prevent flooding during rainfall and motorists from mounting the pavement.

Ms Keane’s expert said it was an unusual and unsafe design, but it could have been alleviated by installing a handrail, the erection of barriers, or the provision of warning signs.

Ms Justice Marguerite Bolger was satisfied that in putting the two two-step arrangement in place in 1995, the council did so without including anything to alert pedestrians of its existence. The council did it in a way as to create a danger and was therefore liable.

Careful lookout

However, she said there was a failure on Ms Keane's part to keep a more careful lookout, She therefore assessed liability for the accident as 50/50 between the plaintiff and the defendant.

Ms Keane was brought to hospital by ambulance following the accident and immediately underwent surgery for a fracture to her elbow.

Subsequently, she experienced severe pain and restrictions in her daily activities for many months and was unable to return to work or to her own home.

She eventually returned to work on a part-time basis and to her home some four months post-accident. She returned to full time employment some months later and was facilitated by her employer with adaptive equipment.

The judge said she sustained a serious injury to her right elbow as a result of which she has permanent limitation of movement and scarring

Taking of her contributory negligence at 50pc, she was entitled to an award of €58,741, she said.