The Court of Appeal has overturned a High Court decision awarding damages to a woman who tripped over a concrete kerb at a Dublin fuel station, and substituted an order dismissing her claim.
In a judgment delivered on 27 January 2025, the court held that the kerb was a commonplace feature and therefore a “usual danger” that the fuel-station operator was not liable for under the Occupiers’ Liability Act 1995. It also found that the High Court had not engaged with uncontradicted engineering evidence about how common such kerbs are.
The woman fell on the forecourt of a Circle K station on Strand Road, Sandymount, on the morning of 26 August 2016. She was five months pregnant and had stopped to buy coffee on her way to work. CCTV showed her walking towards a raised pavement section marking the end of a parking bay, then tripping over its kerb and falling forward. The judgment said the sun was low and she was facing it while wearing sunglasses.
At the High Court hearing, her engineer argued that the kerb was an unnecessary hazard and should have been dished or made more visible with paint, signs or bollards. The operator’s engineer said this kind of pavement and kerb was common in car parks and on streets, and that most kerbs were not marked.
The High Court found that merchandise and bollards blocked the footpath beside the store, leaving the woman to walk around the back of her car and across the kerb. It found the blockage negligent, considered the kerb difficult to distinguish from the surrounding surface, and held the operator 100% liable with no contributory negligence.
The Court of Appeal concluded that the blocked path was not the real or proximate cause of the fall. It said there was no evidence the operator had a duty to provide a footpath, and that the woman would have encountered the same kerb if she had parked and walked across the forecourt.
The appeal court said the usual-danger distinction remained central to whether the operator breached its duty of care. It found the kerb was commonplace and that the evidence it might have been more visible if painted or dished did not establish liability. It also noted that the woman had agreed she must have seen the pavement on previous visits and when parking that morning.
The court allowed the operator’s appeal and dismissed the woman’s claim. On costs, the judgment gave the operator liberty to seek its costs in both courts, subject to the woman’s right to make written submissions within 14 days and the operator’s right to respond within a further 14 days. No final costs order is stated in the judgment.