The High Court awarded Martin McCluskey €42,075 in damages after finding that NTL Communications (Ireland) Limited was responsible for an inadequately reinstated pavement excavation where he fell on Botanic Road in Dublin in 1987. The award was reduced by 30% because the court found that Mr McCluskey had not kept a sufficiently careful lookout.
In a judgment delivered on 26 January 2007, Mr Justice de Valera said Mr McCluskey fell at about 9.30pm or shortly afterwards on 18 July 1987, just outside 30/32 Botanic Road, between Phibsborough and Glasnevin. The judge accepted Mr McCluskey’s evidence and that of a witness, Mr Carroll, about the fall.
The court found that the pavement had an irregular subsidence where earlier excavation work had not been properly reinstated. Ordinary pedestrian use had caused further subsidence, creating the hazard. The judge said the defect had existed for a considerable time, but also noted that it was still bright and that Mr McCluskey knew the area well.
The dispute was which defendant had last worked on the excavation and was responsible for filling it. Evidence about an exploratory investigation in August 2000 showed a Cablelink/NTL cable above gas piping installed by An Bord Gáis Éireann. The judge concluded, on the balance of probabilities, that NTL had been the last to work there and that its work was inadequate and caused the fall. He said the decision was difficult and the balance had tipped only narrowly.
The judgment found no liability on the part of Dublin City Council. It said the Electricity Supply Board and Eircom plc had not been the subject of evidence. An Bord Gáis had also carried out work in the area, but the court attributed responsibility for the excavation’s final reinstatement to NTL.
Mr McCluskey injured his right wrist and left hand. The court awarded €35,000 in general damages to the date of judgment and €15,000 for future general damages. It allowed €10,180 for 43 weeks of lost earnings, based on £185 a week, and rejected his claim that he had earned €500 or more weekly before the accident. The judgment states that his gross weekly earnings had been about €250 in the prior year. The total damages of €60,108 were reduced by 30% for contributory negligence, leaving €42,075.