The High Court found Circle K Ireland Energy Group Limited liable after Mary Delaney fell on a raised section of repaired tarmacadam at a filling station forecourt in Kilkenny. The court awarded her €70,000 in general damages and €1,770 in agreed special damages, a total of €71,770.
Delaney said she was walking across the forecourt on or about 20 May 2017 when her right foot caught on a raised edge and she fell forward. She was carrying milk and bread. The court heard that she fractured her left ankle, injured her face, upper lip, right knee and teeth, and underwent dental treatment. Her evidence was that she continued to have ankle stiffness and swelling, difficulty walking, sensitive teeth and residual irritation at her lip.
Two engineers who inspected the repair disagreed about how to describe the change in surface level. Delaney’s engineer measured a difference of about 12 to 14 millimetres and said excess material and protruding stone chips created a trip hazard. The defence engineer considered the surface rose gradually and argued that the change did not create a health and safety risk. He said the maximum difference was 20 millimetres and could not say how Delaney stubbed her toe.
The judge accepted that the repair formed a distinctive raised surface, rather than a slight gradient, and found on the balance of probabilities that too much bitumen had been used. The court concluded that the 14-millimetre difference was sufficient to present a trip hazard and that the work had been carried out incorrectly. It found the hazard foreseeable and held that there had been a lack of reasonable care in reinstating the forecourt surface. Delaney was found to have been a visitor entitled to safe entry and exit under the Occupiers’ Liability Act 1995.
The court described Delaney as a credible witness and accepted the medical reports, which had been handed in by agreement. A 2020 orthopaedic report said she had residual ankle stiffness, might need physiotherapy for a further 12 to 18 months and could have permanent stiffness; it also assessed a 5 to 10 per cent risk of post-traumatic arthritis five to ten years after the injury. The judgment records no guarantee of full recovery.
The court assessed general damages at €70,000, taking account of her multiple injuries, ankle fracture, ongoing stiffness and treatment prospects. Special damages of €1,770 were agreed. The judgment did not set out a separate order on liability apportionment. It also noted that a third party could not participate at that stage because of Covid-19 restrictions.