High Court Reporters
A €60,201 award to a bus driver who allegedly slipped on black ice at the top of a stairs in a common area of his apartment block has been overturned by the Court of Appeal.
Shakur Ahmed (54), Castlegrange Square, Clondalkin, Dublin, fractured his elbow when he fell down an entire flight of stairs as he was leaving for work at 5.15am on a cold and dark November 21st, 2016, morning.
The Court of Appeal said a claim that the management company of the apartment complex had an obligation to grit pedestrian common areas in anticipation of adverse weather would place "an unreasonably burdensome duty on occupiers" of premises.
Mr Ahmed claimed Castlegrange Management Co Ltd and Castlegrange Square Management Co Ltd, with registered offices at Dunboyne Business Park, Co Meath, had a duty under Sections 3 and 4 of the Occupiers Liability Act to ensure a person did not suffer injury.
He claimed the defendants were negligent in the maintenance, upkeep and repair of the landing and stairs including by a failure to grit the surface to deal with black ice and to warn by signage of the danger.
He also claimed that matting or other material would have reduced the risk of slipping as there was no grip-providing "nosing" at the edge of the first three steps on the stairs. The court also heard that a light above his apartment door, which he accepted he was responsible for, had blown a week before the accident.
He suffered a displaced fracture of the left elbow in the accident and was off work for two months.
The claims were all denied by the defendants.
A year ago, now retired High Court judge Bronagh O'Hanlon awarded Mr Ahmed €60,201 after she found the area where the accident happened was a public pathway which fell within the control of the defendants and the effect of gritting would have averted this accident.
If nosings on the steps had been in place and in proper condition they would have assisted in breaking his fall, she also said.
Castlegrange appealed the High Court decision.
On Wednesday, Mr Justice Seamus Noonan, on behalf of the three-judge Court of Appeal said the High Court judge’s conclusion that the defendants had a duty to grit the landing "cannot be permitted to stand". He allowed the appeal and dismissed Mr Ahmed's claim.
He said, "it seems to me impossible for the judge to have legitimately concluded that compliance with their duty to take reasonable care required the defendants to constantly monitor weather conditions and, if ice was anticipated, provide gritting to the common areas."
"It was perhaps worth observing that if the provision of such gritting was such an obvious measure that ought to have been employed by any reasonable management company, it is surprising to say the least that it never occurred to the plaintiff’s legal team to plead it."
What had in fact been pleaded, and it was without the benefit of an engineer's report, that there should have been matting on the landing, he said.
If the members of the management company, who are the apartment owners, thought it necessary to pay for gritting, it seemed Castlegrange would have been perfectly happy to provide it, he said. "The management company must be assumed to comprise a membership of reasonable people," he said.
Even if it could be said that there was a basis for imposing such a duty on the defendants, there was equally a duty on the plaintiff to take care for his own safety, he said. The Occupiers Liability Act recognises such a duty, he said.
Mr Ahmed lived in the apartment since 2002 and was "intimately familiar with the locus of the accident", he said.
He knew that the weather had been extremely cold on the previous day and was able to see as he emerged from his apartment that the ground was wet.
While he may not have been able to observe the black ice he said was present, he ought "surely to have reasonably anticipated the potential or likely presence of ice on the landing", he said.
"I cannot see in such circumstances how he could be regarded as other than guilty of a very high degree of contributory negligence, quite possibly to the extent of 100pc as submitted by the defendants".