Defendants beware! Aggravated damages more commonly utilised by the Courts. 


By McDowell Purcell \ In All Posts, Litigation & Dispute Resolution

South Dublin County Council (“SDCC”) recently had an award of aggravated damages made against them for the manner in which they defended a claim brought by Martin Stokes.

SDCC were the owners of a halting site at Bownogue, Dublin 22 in which the Plaintiff resided. He claimed that he was out jogging on a footpath in September 2011 within the halting site when he tripped and fell as a result of a depression/ hole in the footpath. Mr Stokes sought damages for a fractured knuckle.

The Plaintiff claimed that SDCC had breached their duty to properly maintain the footpath.

Counsel for SDCC made three main arguments in response to the allegations advanced on behalf of the Plaintiff;

  1. The Plaintiff’s injuries were caused through his hobby of boxing, rather than his accident and he was attempting to fraudulently place blame on SDCC;
  2. The Plaintiff was a recreational user under the Occupier’s Liability Act 1995. SDCC only had a duty of care not to act with reckless disregard towards the Plaintiff; and
  3. The hole was clearly visible to the Plaintiff, creating an element of contributory negligence.

Findings:

In finding for the Plaintiff, Mr. Justice Barr held that SDCC had failed to take steps to repair the damaged footpath. He made the following key points in his Judgment;

  • He accepted the Plaintiff’s argument that the accident location was not a public highway and was within the ownership of SDCC;
  • The Plaintiff was a visitor to the premises within the meaning of the Occupier’s Liability Act 1995. On that basis, SDCC owed him a duty to take reasonable care. Mr Justice Barr disagreed with the assertion that varying duties of care were owed to an entrant based on the particular activity being carried out (i.e. jogging). He stated that the classification of the entrant as either a visitor or a recreational user is determined by the circumstances by which they first entered the property.
  • He accepted that the Plaintiff was not looking directly at the ground as he jogged but made no finding of contributory negligence in that regard.

Award:

  • Justice Barr awarded the Plaintiff €35,000 in general damages and €20,000 for future pain and suffering.
  • The Plaintiff was also awarded €5,000 for aggravated damages for the nature of SDCC’s defence in alleging that he had made a fraudulent claim.

Martin Stokes v South Dublin County Council [2017] IEHC 229

The full text of the judgment can be found here.

Author: Mark Kelly