The Court of Appeal has dismissed Dunnes Stores’ appeal against a High Court award of €83,250 to Doris Whelan, who fell in the retailer’s Ashleaf Shopping Centre supermarket in Walkinstown in 2013. The appeal challenged both liability and the assessment of damages. The court upheld the High Court’s findings on both issues.
The High Court found that Ms Whelan slipped on a small amount of oil-like substance and that the likely source was a stock trolley. No substance was visible in the CCTV footage, which recorded still images at one-second intervals. The High Court drew its conclusion from the evidence as a whole, including the cleaner’s later actions on the floor.
The footage showed a shelf stacker moving a trolley to the area where Ms Whelan fell, and later returning with it. About 11 minutes after the fall, cleaner Dean Shanahan returned with absorbent paper and scrubbed two areas where the trolley had been parked, including the fall location. Shanahan did not give evidence. Dunnes’ manager Alan McGarry said he had asked Shanahan to check the floor, but the High Court did not accept that account.
The Court of Appeal said the trial judge was entitled to infer that there had been a slippery contaminant. It also upheld the finding that Ms Whelan slipped rather than tripped over her shoes, as Dunnes had suggested. The court said the inference was reasonably open on the evidence, including the cleaning seen on CCTV and the absence of an explanation from Dunnes for why those specific areas were scrubbed.
The appeal court also rejected Dunnes’ arguments that Ms Whelan had advanced an unpleaded case and that the trial judge had acted improperly. It noted that her pleadings alleged a slippery substance and an inadequate cleaning system. The court criticised Dunnes for maintaining at the start of trial that Shanahan would be a witness when it knew he could not be located, but said the trial judge had not drawn an adverse inference merely from his absence.
On damages, the High Court had awarded €45,000 for past general damages and €35,000 for future general damages. Ms Whelan had soft-tissue injuries to both knees, and the trial judge accepted that the accident aggravated a pre-existing, previously symptom-free condition. The evidence accepted by the High Court was that it brought forward a left knee replacement by about 12 years and made later revision surgery more likely. The Court of Appeal found no sufficient error in the damages assessment to overturn it.
The court said Ms Whelan should receive her appeal costs. Dunnes may seek a short supplemental hearing on costs within 14 days; otherwise, an order in those terms will be made.