Dunnes Stores has lost an appeal against an €83,000 award of damages to a woman who slipped and fell in one of its stores.
The High Court had made the award to 60-year-old Doris Whelan who sued for injuries she claims she suffered after a fall on June 27th, 2013, at the chain’s outlet at the Ashleaf Shopping Centre in Walkinstown, Dublin 12.
In a judgment delivered on Wednesday, Mr Justice Seamus Noonan dismissed the retail chain’s appeal in its entirety.
He said it had not been in dispute that Ms Whelan, of Newtown Lane, The Commons, Nurney, Co Kildare, fell and suffered some injury in a Dunnes food aisle. Rather, it was the cause of the fall and the extent of her injuries that were very much at issue, he said.
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The High Court’s Mr Justice Michael Hanna found in Ms Whelan’s favour in December 2020, awarding her damages totalling €83,250. He concluded she had fallen due to a small amount of an oil-like substance on the supermarket floor, and she had not overstated or embellished her injuries.
Arising out of her fall, the former sales assistant said she suffered significant soft tissue injuries to her knees, which over time severely affected her ability to walk and stand. Her injuries resulted in her having to undergo knee replacement surgery.
Mr Justice Noonan said Dunnes’s appeal centred on its contention there was a lack of evidence for the judge to conclude there had been a contaminant on the floor that caused the incident. It argued the plaintiff had not pleaded that there was a substance on the ground and Dunnes was called upon to a meet a case that had not been made.
The judge said Dunnes should have applied for an adjournment if it felt it would be prejudiced at the trial when the plaintiff sought to amend her account when new evidence came to light shortly before the hearing.
It did not seem to Mr Justice Noonan that the defendant was being asked to meet an entirely new case, as he said Ms Whelan had always contended she had slipped on a treacherously slippery floor. The difference now, was that she said it was because of some spillage rather than due to being over-polished, he added.
It is a “misconceived” argument to say the trial judge was not entitled to infer, in the absence of direct evidence, there was a slippery substance on the floor, said Mr Justice Noonan, adding that he would draw “precisely the same inferences”.
The court was satisfied the trial judge’s conclusion on the issue of liability was “perfectly sound” and cannot be interfered with.
Ms Justice Máire Whelan and Ms Justice Aileen Donnelly indicated their agreement with the judgment.
The court gave a provisional view that Ms Whelan was entitled to her legal costs.
