Man succeeds in appealing court refusal to compensate him over fall due to hole in footpath

The man has been awarded over €5,000 by the High Court

The judge said he was satisfied the size of the hole was such that it 'was clearly visible and therefore avoidable by any pedestrian taking reasonable care for their own safety'. File photo

A 45-year-old man who caught his right foot in a hole in a footpath near his home has been awarded over €5,000 by the High Court.

Mr Justice Paul Coffey held South Dublin County Council was liable for the accident three years ago but the judge said he was satisfied the size of the hole was such that it “was clearly visible and therefore avoidable by any pedestrian taking reasonable care for their own safety”. 

As a result, the judge concluded that there was contributory negligence on the man’s behalf which he assessed at 25%, reducing the total award of €7,000 to €5,250.

The case was before the High Court by way of a circuit court appeal. In the circuit court Mr Stephen Devine from Harelawn Avenue, Clondalkin, Dublin, had sued South Dublin County Council over the accident at Harelawn Drive, Clondalkin, in which he broke his right wrist and grazed his knee in January 2022.

But his claim was thrown out after the circuit court ruled South Dublin County Council did not have to go around inspecting all of their footpaths and the local authority would only be responsible for someone falling if it had carried out negligent repair works in the area where three surface types joined — concrete onto macadam onto a brick-based traffic calming feature.

High Court ruling

In the High Court, Mr Justice Coffey said the hole lay directly in the line of pedestrian travel from the macadam area onto the red brick surface and it was not in dispute that the hole dimensions were such that it was clearly visible.

Mr Devine and his mother had been walking home from shopping, when to avoid a house where there was a pit bull terrier in the front garden they diverted to their right towards the roadway.

As his mother stepped off the path Mr Devine claimed his right foot went into the hole and he fell forward onto the red bricks. The judge ruled that on the balance of probabilities the accident occurred in the manner alleged by Mr Devine.

Mr Justice Coffey said based on the photographic evidence and that of Mr Devine’s engineer, he found the unravelling of the tarmacadam at the accident spot was “more likely than not due to the absence of a sealant at the intervening kerb which resulted in water ingress and consequent freeze expansion cycles that broke up the adjoining surface of the macadam strip”.

He further found that the water ingress in this area was most probably due to a failure by the council to seal the vertical face of the kerb with bitumen emulsion as required by the standard which was in force when the macadam strip was laid.

Although the judge said there was evidence of routine parking on the pavement in the general vicinity he was not satisfied that the defect was caused by vehicular encroachment as contended by the council.

Mr Devine was in a plaster cast for six weeks and had to have physiotherapy afterwards. Mr Justice Coffey said he was satisfied that the injury would be classified as a minor wrist injury under the Personal Injuries Guidelines.