The Court of Appeal has overturned a €62,500 High Court award to a woman who fractured her hip after falling on speed cushions on the Promenade in Tramore, Co Waterford. It allowed Waterford City and County Council’s appeal on liability and dismissed her claim.
The Council accepted that the fall happened as alleged, that it caused the fracture and that the damages awarded were within the appropriate range. The appeal concerned liability only.
The woman fell on 15 July 2015 while walking along the roadway towards a café. The High Court had found the Council liable, concluding that the cushions were a trip hazard and that their position and shape beside a pedestrian crossing created a foreseeable risk. It awarded €60,000 in general damages and €2,500 in special damages.
In the Court of Appeal, Mr Justice Binchy said the trial judge had erred in finding that parked vehicles impaired the woman’s view when she crossed the cushions. Her evidence was that she had passed the parked car by then and could see the road surface. She had looked towards the café to see whether a table was available, rather than where she was walking.
The judgment said the woman was not using the pedestrian crossing and had no intention of using it. The court also considered that moving the cushions to comply with guidance on the crossing would not have prevented the accident: she would still have encountered them while walking on the roadway.
The court made no finding on whether the Council had been negligent in the general layout or the location of the cushions. It concluded that the alleged negligence had not caused the fall. The woman chose to walk on the road rather than the busy footpath and did not watch where she was going; the court identified those choices as the causes of the accident.
The appeal was allowed and the claim dismissed. The Council was entitled to seek its costs in the appeal and High Court proceedings, subject to any submissions by the woman within 14 days of the judgment.