The Court of Appeal has dismissed Dunnes Stores Unlimited Company’s appeal against a finding of liability for injuries suffered by Rose Desmond, who fell on a spill in the company’s supermarket in Bishopstown, Cork, in 2017.
The High Court had awarded Ms Desmond €102,000 and costs. Dunnes appealed the liability finding only; the amount of the award was not challenged. The appeal court left the High Court order in place.
Ms Desmond, then 83, fell in an aisle on 21 August 2017 and fractured her right hip. Dunnes accepted that a spill caused the fall and that Ms Desmond had not caused the spill. It also accepted that, once those matters were established, it had to show that its cleaning system was reasonable and had operated reasonably on the day.
The central issue on appeal was whether the spill had appeared after a cleaner’s last pass through the aisle at 12.58pm, or was already there then. Dunnes argued that CCTV showed a customer crossing and recrossing the spot at about 1.01pm without falling, supporting the inference that the spill appeared later. The appeal court accepted that the High Court judge had not specifically addressed that argument.
But the court said that omission was not enough to overturn the decision. It found that the High Court had a credible basis for concluding that Dunnes had not shown the spill was absent at 12.58pm. The evidence included the cleaner’s CCTV-recorded route, her position on the opposite side of the aisle on her final pass, her evidence that the repetitive work was boring and could make it difficult to maintain concentration, and the engineering evidence about the need for vigilance. The trial judge had also considered evidence that training had not focused on maintaining a lookout for spills.
The appeal court stressed that the burden was on Dunnes to establish that the spill appeared after the cleaner’s final pass. It held that the trial judge’s conclusions were open to her on the evidence and should not be disturbed under the principles governing appeals against factual findings. It also rejected Dunnes’ argument that the trial judge had failed to analyse the competing cases adequately.
The court did not determine when the spill actually occurred. It held that Dunnes had not proved that it appeared after 12.58pm and dismissed the appeal. Justices Donnelly and Collins agreed with the judgment.