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Carlow Nationalist — Council not liable for woman’s injuries caused by slipping on pavement, judge rules

Supreme Court reporters

A woman lost her compensation case blaming the local authority after she slipped and fell on a pavement, leaving her with head, wrist and arm injuries.

In a ruling on Wednesday, Judge Nuala Jackson said Breda Long was the “most honest witness” but added that Tipperary County Council could not be held liable for creating the threat.

Although there were wet leaves on the pavement on the day of the fall, November 16, 2018, the judge found there was no evidence that water or silt had accumulated in the area as claimed.

“Unfortunately, accidents happen, and sometimes they have serious consequences. This is just such an opportunity,” the judge said.

In her recent ruling, Mrs Justice Jackson said Mrs Long, of Ballyanna, Nenagh, Co Tipperary, was walking her animals when she slipped or tripped and fell onto the road.

An ambulance took her to the hospital, where she remained in the inpatient ward for five days.

Her head injury was not serious, although it left scars, while her wrist had largely healed, the judge noted. Ms Long’s shoulder injury remains and her movement in the joint is still limited.

The judge noted that work on the path was carried out in 2019, so the only evidence of its condition on the day of the incident was a Google image from 2009.

The judge said the 2009 photo supported Ms Long’s claim that there was a slope in the path.

Ms Long accused the council of “failing to properly design and/or repair the footpath, which resulted in water and leaves accumulating and creating a hazard for pedestrians”.

The judge accepted her testimony that she slipped on leaves and debris there.

Failure to perform and omission

A retired police officer testified that the sidewalk was in poor condition, with cracks and pieces of concrete missing.

He said he had seen leaves before in the same spot on the path where the fall occurred, adding that such a build-up of leaves is normal in winter when it is wet.

Mrs Justice Jackson said Ms Long’s case did in fact lead her to conclude that works to the surface in 2019 may have been intended to repair a defect caused by “puddling”.

The council said the path had been there for 50 years and repairs were completely normal. The slope of the path, which makes it easier for pushchairs and wheelchairs, was an acceptable design, the council also argued.

Justice Jackson cited case law that established a “well-known and long-settled distinction” between two concepts: abuse of authority and failure to exercise authority.

She recalled previous court decisions that had held that local road authorities were not liable for leaving public roads or footpaths in an unsuitable condition, but were liable if they did something that created a hazard.

As Justice Jackson explained, Ms Long had to show that the council had created a risk and therefore abused its power.

The judge found the council had constructed the path in a way that caused water to run off to the point where it met the road. However, she could not find the council had created a hazard.

Judge Jackson said that based on the evidence before the court, this was a “clear case of omission, not misconduct”.