Former caretaker loses High Court action over accident in school grounds

By Ann O'Loughlin

A former school caretaker has lost a High Court action over an accident in which his bicycle collided with a car being driven by a colleague in the school grounds.

Vincent O'Mahoney (aged 68), who has retired from the Dungarvan Adult Education Centre in Waterford, where the accident occurred, sued Nicola McCarthy Hanlon, a literacy co-ordinator at the centre, over the accident on April 23, 2012.

He claimed the accident was caused by Ms Carthy's negligence in control or driving of her car. He also sued Waterford and Wexford Education and Training Board for breach of duty or breach of his employment contract in failing to ensure his safety while in the premises.

The claims were denied.

The court heard that the collision caused him to land heavily on his shoulder and he was later diagnosed with a tendor rotator cuff tear. Two months later he had surgery which required him to keep his left arm in a sling for six weeks and was out of work for about eight months after the accident. The operation was a success and he is mostly pain-free but suffers inflammation of his shoulder from time to time.

Mr O'Mahoney said the front wheel of his bike went just beyond of a pedestrian pathway in the grounds when the front offside wheel-arch of Ms McCarthy's car glanced against his left thigh causing him to lose balance and fall against the wing of the car before he toppled against a concrete kerb.

Mr Justice David Keane, dismissing his case, said he could not accept Mr O'Mahoney's submission he was entitled to use the pedestrian pathway as a cycleway because it was frequently used that way.

The path was directly accessible only from a public path and cycling is expressly forbidden there by law, the judge said. The narrowness of the pedestrian entrance and nature of pathway confirmed the lack of care and attention "if not outright dangerousness" implicit in treating it as a designated cycleway.

"Foolhardy behaviour does not become reasonable behaviour merely because a number of people have engaged in it in the past"- Mr Justice David Keane

Even if that was not so, the proximate cause of the accident remained Mr O'Mahoney's failure to stop or dismount from his bike, he said.

He did not accept a hedgerow created a blind spot.

He accepted uncontroverted expert evidence on behalf of the education and training board that there was ample time for a pedestrian or dismounted cyclist to stop in time for any traffic using the access road on the school grounds.

He did not accept there was a failure by the board to ensure pedestrians and vehicles could circulate the grounds in a safe manner. There was no breach of health and safety regulations.

The judge also did not accept that Ms McCarthy's vehicle was travelling too fast.

In all of the circumstances, he found Mr O’Mahoney has failed to make out a case in negligence against either Ms McCarthy or the board.

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