The High Court dismissed Miriam Cronin’s personal injuries claim against Ardkeen Sales Limited, trading as Londis, after finding she had not proved that her fall happened in the way and at the spot she alleged.
In an ex tempore judgment delivered on 22 June 2017, Mr Justice Twomey said the issue was whether, on the balance of probabilities, Cronin caught her heel in indentations in the car park. The court concluded that she had not discharged the burden of proof. It did not find that she was deliberately misleading the court; it said the evidence was insufficient to establish that her injury was caused by her heel catching at the particular spot she identified.
Cronin said she fell in the defendant’s car park after leaving a neighbouring pub on 21 June 2014. She alleged that her footwear caught in uneven, cracked tarmac, causing her to fall and fracture her ankle. The judgment records that two plates were inserted and that she spent 12 days in hospital, followed by several months using a Zimmer frame.
The court considered inconsistencies in the accounts of how the fall happened. A solicitor’s letter issued shortly after the accident and the hospital admission note both described her as having “slipped”. In court, about three years later, Cronin said she had not slipped but had caught her heel in a depression. The judge also noted that she described her shoes as having about a one-inch heel, while the shoes produced in court had a five-inch heel and a raised front.
The alleged accident spot was a circular depression in the tarmac, with three small indentations. Engineers gave measurements indicating indentations about 10 to 20 millimetres deep. Cronin’s husband could not confirm that the fall occurred there, and her son, who was alongside her, was not called as a witness. The judge said Cronin’s evidence was the only evidence identifying the precise location of the fall.
The court also commented, though it was not necessary to its decision, that even if the accident had happened as Cronin described, a separate issue would arise over whether an occupier was liable for minor hollows or cracks in a car park. The judgment said pedestrians could not expect tarmac exposed to the elements and heavy use to be perfectly flat. It did not determine liability on that alternative basis: the claim failed because Cronin had not proved how and where the accident occurred.