A €62,500 award to a woman for an injury from a fall on a speed bump while crossing a road has been overturned.
The Court of Appeal said Helen Power, from Tramore, Co Waterford, had admitted she was not looking where she was going and was looking to see if there might be a free table at a nearby café when she fell on the Promenade in Tramore on July 15, 2015.
Ms Power, who hosts Spanish students in summer at her home, fractured her left hip in the fall. She later made a substantial, if not full, recovery, the court noted.
In March last year, the High Court awarded her €62,500 when Ms Justice Bronagh O'Hanlon held that the speed bumps constituted a trip hazard because of their positioning and shape and they were located beside a pedestrian crossing. The judge said it was therefore reasonably foreseeable Ms Power would trip.
Today, Mr Justice Donald Binchy, on behalf of the three-judge Court of Appeal said the admission by Ms Power in evidence that she was not looking where she was going was most significant.
It was this, the fact she was looking for a free table, coupled with the fact that she chose to walk on the road in the first place, that caused the accident, he said.
It was not caused by the failure of the council to put in parking restrictions around the nearby pedestrian crossing or put the bumps further away from the crossing. While such measures are recommended in certain road safety guidelines they are aimed at encouraging pedestrians to use the crossing and discourage them from walking on speed bumps, he said.
He also accepted the council expert's evidence that as long as the bumps were highlighted with bright lines, as they were in this case, they did not constitute a hazard to pedestrians.
In her evidence to the High Court, Ms Power said she wanted to get to the café with one of her students for an ice cream.
The area around the promenade was very busy at the time. She parked her car about 50 yards from the café which was almost adjacent to the pedestrian crossing.
She considered the footpath was so busy with people that it was at full capacity and she felt she would have a better chance of getting a table if she did not go on the footpath which her student had already done.
She thought the speed bump was one continuous bump but it was, in fact, two separate bumps with a gap between them.
She also claimed her view was obscured by a car parked beside them. The council denied claims of negligence.
Mr Justice Binchy said the High Court fell into error in concluding Ms Power did not have a "good, clear way" or her view was impaired by parked vehicles. That was "simply not borne out" by Ms Power's own evidence, he said.
The trial judge also fell into error by concluding the pedestrian crossing had anything to do with the accident. Ms Power's clear evidence was she was not walking on, and had no intention of walking on, the crossing.
He awarded the costs of the appeal and of the High Court, subject to any submissions Ms Power's lawyers may want to make later, to the council.