The High Court has held Eircom Limited liable for a footpath defect that injured a French polisher on Lower Baggot Street, Dublin, in July 2014. Mr Justice Barr awarded the plaintiff €51,936.02 and dismissed his case against Dublin City Council.
The plaintiff stumbled when his right foot went into a hole beside a chamber cover while he was walking towards St Stephen’s Green. He did not fall, but wrenched his right knee. A photograph he took shortly afterwards showed part of the concrete surround beside the cover had broken away. The court heard that the hole was estimated to be up to 50mm deep and about 125mm by 200mm. Later photographs showed further deterioration.
The central dispute was which defendant was responsible for the concrete surround. The court accepted the plaintiff’s engineer’s evidence that the concrete mix was inadequate and had cracked and broken away through ordinary footpath wear. It found the surround was an integral part of the chamber construction because it helped secure the cover’s frame.
Eircom’s former employee gave evidence that the cover bore a Post and Telegraphs logo and was likely installed before 1984 or 1985, when Dublin City Council would generally have carried out permanent reinstatement around chambers. But he had no documents establishing when the chamber was built or whether Eircom or its contractors later worked on it. The judge was not satisfied that the council, rather than Eircom or its contractors, had installed the defective surround. He held Eircom responsible. Given the hole’s relatively small size, he found no negligence by the plaintiff in failing to notice it.
The plaintiff had experienced knee discomfort before the accident. His orthopaedic surgeon’s view, as set out in the judgment, was that the knee surgery would eventually have been required because of pre-existing wear, but the accident brought treatment forward by about 15 years. The plaintiff underwent several procedures, including a knee replacement, and also experienced depression and a recurrence of previously quiescent obsessive compulsive disorder. The surgeon expected him to return to full professional and social activity, though he was advised not to run.
The judge awarded €50,000 in general damages and added agreed lost earnings of €1,936.02. He did not award about €36,000 in medical expenses: the surgery costs had been met by the plaintiff’s private health insurer, and the judge concluded the accident had only brought forward treatment he would have needed later. Judgment was entered against Eircom for €51,936.02; the claim against Dublin City Council was dismissed.