The Court of Appeal (CoA) has reduced by €20,000 an award to a woman who claimed she broke her ankle when she fell off a step ladder while organising shelves in a Dunnes Stores supermarket five years ago.
The supermarket chain appealed the €120,000 High Court award made to Gunta Kadege (55), of Butlersgrange, Tullow, Co Carlow. The CoA awarded €100,000.
In both courts, Ms Kadege’s award was in addition to €40,901 in agreed special damages.
The High Court’s Mr Justice Michael Hanna previously accepted Ms Kadege’s evidence that she made it to the second rung of the ladder in the Leopardstown store when it became unstable. She contended that the step ladder was defective and had gone one way and she went the other way, falling off.
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Dunnes had disputed this version of the September 20th, 2018, event, claiming she tripped over the step ladder when walking past. It was not disputed that she suffered a severe ankle injury.
In a judgment on behalf of the three-judge court, Mr Justice Seamus Noonan found that the High Court’s €120,000 award for what was a severe and permanent ankle injury must be viewed as “disproportionate in this case”.
Using the Book of Quantum - the legal tool for assessing damages prior to the introduction of the new personal injuries guidelines - Mr Justice Noonan said Ms Kadege’s injury, which required surgery, “falls pretty squarely” within a category that allows awards of €80,500-€93,300.
Given Ms Kadege will have to have an ankle fusion in the future, the CoA allowed an uplift on the figure to award €100,000 for the injury. The CoA held against Dunnes in its appeal against the finding that it was liable for the incident.
In the appeal, Dunnes said Ms Kadege’s evidence was confused and contradictory. The alleged defect in the ladder, in the form of a 40mm “wobble”, had never been causally linked to the incident, it claimed. Dunnes also submitted that Mr Justice Hanna failed to give any reasons for preferring the plaintiff’s expert evidence over that of the defendant.
Mr Justice Noonan said, whatever the precise mechanism of the accident, it was common case that the ladder fell to the right on the ground, while Ms Kadege fell to the left.
He said Dunnes is correct in that Ms Kadege was “entirely unclear” about the precise mechanism of the accident and “was not able to describe with any clarity how she fell or why she fell”. However, he said she was clear and consistent in maintaining that she was on the ladder at the time of or immediately before the accident.
Supporting this was the fact that while she was on the ground waiting for an ambulance after the event, Ms Kadege wrote in a statement that she had been on the ladder.
The High Court rejected the store manager’s evidence that she had not been on the ladder on the basis that his recollection was incorrect. A statement made by the manager the day after the accident was lost without explanation, said Mr Justice Noonan.
In these circumstances, the High Court was entitled to prefer Ms Kadege’s evidence, he added.
Ms Kadege’s expert witness said the step ladder was wobbly enough to cause her to lose her balance and fall.
Mr Justice Noonan could see no reason why the High Court judge was not entitled to accept this evidence which “identified a clear causal link between the defect in the ladder and the accident”.
The appeal on liability must fail, the judge said.
Mr Justice Senan Allen and Mr Justice Robert Haughton agreed with the judgment.
