The High Court awarded James William O’Shaughnessy €67,500 after finding that he fell on a stone projecting from the wall beneath the Luas bridge on Cullenswood Road, Ranelagh, in November 2007.
Mr Justice Barr, in a judgment delivered on 20 December 2017, found that the protruding stone created a nuisance on the public highway. He also found that the third and fourth named defendants had failed in their duty of care as owners and occupiers of the bridge and relevant lands.
The plaintiff said he was walking close to the wall behind a small dog on a lead when his right foot caught the stone and he fell onto his right shoulder. The court accepted his account. An engineer who inspected the site measured the stone’s projection onto the footpath at about 120mm. The judge accepted that it served no function and should have been removed.
The defendants denied liability and pleaded that the plaintiff failed to keep a proper lookout. The judge rejected contributory negligence, finding that the obstacle was at ground level, similar in colour to the wall and pavement, and in a poorly lit area. He said pedestrians may use the full width of a footpath and are not expected to walk looking down at their feet.
The court also considered questions raised in cross-examination about the plaintiff’s history of seizures, possible alcohol use and medication. It noted that no medical evidence established the effects or dosage of the medications mentioned, and that it had not been proved he was taking them at the time of the fall. The judge accepted the plaintiff’s account of how the accident happened.
The fall caused a severe fracture to the plaintiff’s right shoulder, which required surgery. The court accepted that he had lasting limits on the arm’s function, but did not accept that it was incapable of any use. It found that a significant degree of his continuing disability and muscle wasting resulted from his stopping the physiotherapy exercises advised to him.
The judge awarded €40,000 for pain, suffering and disability to date, and €27,500 for future disability and loss of function. No special damages were awarded. Although the court found the third and fourth defendants liable, it entered a joint and several judgment against all defendants for €67,500, noting that they had been jointly represented and had not separately contested liability.