THE HIGH COURT
			1995 No. 9141P
BETWEEN 
MICHELLE GUCKIAN
			PLAINTIFF
AND
GENPORT LIMITED TRADING AS SACHS HOTEL
			DEFENDANT

Judgment of Mr. Justice Diarmuid O’Donovan delivered on the 2nd day of November, 2000
	At the time of events which gave rise to this claim, the Plaintiff, Michelle Guckian, was a single lady, then nearly 27 years of age, who hailed from Carrick-on-Shannon in the County of Leitrim and was just about to embark upon a new career with the North Western Health Board; employment she was due to commence on the 15th of May 1995.  Since then, Ms. Guckian has married a man named Reynolds and, of course, she is now 32 years of age and she comes before the Court seeking damages by way of compensation for injuries which she suffered at about 1 o’clock a.m. on Friday the 28th of April 1995 as a result of a fall which she experienced at the entrance to a Nightclub called Raffles which is located in the basement of the Defendant’s hotel at Morehampton Road in the City of Dublin.  That Ms Guckian experienced such a fall and that, as a result of it, she suffered serious injury was not challenged by the defence at the hearing before me.  However, there was considerable controversy about the whys’ and wherefores’ of the Plaintiffs fall.  In that regard, the Plaintiff gave evidence that, earlier that evening, she had attended Kiely’s Public House in Donnybrook with a number of friends and, from there, they repaired by taxi to Raffles Nightclub in Morehampton Road.  In this regard, I think it relevant to note that, despite the fact that the Plaintiff had spent some time in a public house prior to the event which gave rise to her claim, it was never suggested on behalf of the defence that her capacity to comport herself was in any way affected by the consumption of alcohol and she, herself, volunteered that she was in no way affected by drink on the occasion; an assertion which I accepted without reservation.  Ms. Guckian gave evidence that, when her taxi arrived at Sachs Hotel, while her friend, Eleanor McKenna, was paying the taxi man, she headed for the nightclub which, as I have indicated, is located in the basement of the hotel and is accessed by a flight of eight tiled steps.  In that regard, I had the benefit of seeing photographs of those steps taken by Mr. Joseph Earley, an engineer, who gave evidence on behalf of the Plaintiff; photographs which, I think, speak for themselves and from which it is clear that the handrails on either side of that flight of steps and the handrail in the centre of it give no practical assistance to anyone descending the steps; a fact which Mr. Earley confirmed and which I accept to be so.  However, that is by the by.
	The Plaintiff gave evidence that she had frequented Raffles Nightclub many times previously and that she was familiar with the layout of the premises and, in particular, with the nature of the entrance to it and I saw reason to doubt her evidence in that regard. In particular, she told me that there are two gates located at the entrance at the top of the flight of steps which leads to the nightclub and this, of course, is borne out by the photographs taken by Mr. Earley.  Ms. Guckian told me that, on the night in question, both of those gates were open and, although it was put to her under cross examination, and very strongly put to her at that, that, not only was the left hand gate, as one approached the nightclub, closed on the night in question, but that it was the invariable practice of the nightclub to keep that gate closed when the nightclub was operating; a practice with which it was suggested that she should have been very familiar, given that she conceded that she frequently visited the nightclub, she was adamant that, at the material time, both of those gates were open.  Moreover, she was not prepared to say otherwise even when it was put to her that, as happened, several witnesses associated with both the nightclub and with the hotel; in particular Mr. Philip Smyth, who was the proprietor of the hotel at the material time, Mr. Louis O’Doherty - Campbell, who is the Manager of the nightclub, Mr. Michael Nolan who is employed as a “bouncer” at the nightclub and who, habitually, opened the gate at the entrance to the nightclub on evenings on which the nightclub was operating, a Mrs. Beirne who is a  Manager of Sachs Hotel, Ms. Louise Cullen, a cashier in the hotel and Ms. Brenda Flood who was the General Manager of the hotel at the material time, would all swear that it was the invariable practice that the left-hand gate at the entrance to the nightclub would be closed on evenings on which the nightclub was operating.  On the other hand, Ms. Eleanor McKenna who accompanied the Plaintiff to Raffles Nightclub on the evening in question, while she conceded that she did not really recall the gates at the entrance, she was fairly sure that there was no gate at the entrance which was closed.  Moreover Mr. Brendan Guckian, a brother of the Plaintiff, who had arrived at the nightclub sometime before the Plaintiff’s arrival was insistent that, at that time, both of the gates at the entrance were open.
	Initially, it seemed to me that the question as to whether or not one or more of the gates which were located at the top of the steps leading to the nightclub was open was much ado about nothing.  However, as the hearing progressed, the importance of this question became very evident.
	The Plaintiff gave evidence that, as she passed through the entrance at the top of the steps leading to the nightclub, her left foot caught against something as a result of which the leg went back; as she put it “like elastic” and that she was then thrown forward and ended up at the bottom of the steps.  She said that her foot was caught as she passed through the centre of the entrance and, while she could not identify what had caused her foot to be caught (the severity of the injuries which she had suffered having prevented her, following her fall, from inspecting the place at which her foot had been caught) she was convinced that it was due to some irregularity of the surface of the entrance to the nightclub. This suspicion was confirmed in her own mind when, a few days after her accident, she was shown the flat shoes which she had been wearing at the time of her fall and discovered that the sole of the left had shoe had been torn off.  The Plaintiff’s evidence with regard to the condition  of her shoes after her accident was never challenged by the defence and, accordingly, I see no reason to doubt it.
	On the 10th of May 1995; some 12 days after the Plaintiff’s accident, Mr. Joseph Earley, the engineer, who gave evidence on behalf of the Plaintiff, visited Sachs Hotel with the Plaintiffs’ Solicitor, Mr. Conal Gibbons.  Although he did not at that time have the permission of the Defendants to carry out a detailed examination of the steps leading to Raffles Nightclub, he took the opportunity of taking a photograph of the entrance to the nightclub and that photograph clearly shows a defect in the tiling at the centre of the entrance at the point where the two entrance gates meet when the gates are closed, which was also the point at which the Plaintiff said that her foot was caught.  Mr. Early gave evidence which was not challenged and which I have no reason to doubt that the defect comprised a depression some 5 - 6 inches wide and ½ inch deep arising from the fact that portion of the tiling was missing and, while he conceded that he had not had the opportunity of inspecting that defect in detail, it was his view, from what he could see of it, that the sole of a shoe could catch on the edge of the step from which the tile was missing and, accordingly, that the incident described by the Plaintiff was consistent with the sole of her shoe having been caught at the edge of the step at which the defect in the tiling was located.  Mr. Earley had the opportunity of carrying out a detailed examination of the entrance to the nightclub on the 10th of May 1996 and he took photographs of what he found on that occasion; photographs which demonstrate that the defect which was evident in the photograph which he took on the 10th of May 1995 had been repaired.  Nevertheless, when, by letter dated the 10th day of December 1998 addressed to the Defendants’ then Solicitors, Messrs. Becker Tansey & Company, the Plaintiffs’ solicitors requested voluntary discovery of all records relating to the maintenance and or repair of (inter alia) the entrance and/or steps leading to the nightclub, they were advised by the said solicitors by letter dated the 22nd of January 1999 that no repairs had been carried out at the location in question during a period of three years prior to the Plaintiff’s accident or during the subsequent 12 months; an assertion which was repeated in a letter to the Plaintiffs solicitors dated the 13th of April 2000 from Mr. Keith Smyth, the solicitor, who was then acting for the Defendants’.  In the light of the photographs produced by Mr. Earley, it is clear that both of those assertions are untrue; a fact which Mr. Philip Smyth, the proprietor of Sachs Hotel at the material time, conceded when he came to give evidence.  In that regard, by the way, it is noteworthy that, although Mr. Smyth also conceded that, in the month of July of this year, he became aware of the fact that the assertions in the said letters of the 22nd of January 1999 and the 13th of April 2000 to the Plaintiffs’ solicitors were untrue, he did not see fit to appraise the Plaintiffs’ advisors of that fact until he came to give evidence at the hearing.  In my view, it is intolerable that he should have delayed for so long to appraise the Plaintiffs’ advisors of the misstatements in those two letters and, to be quite frank, I have grave reservations that Mr. Smyth was not aware of those misstatements long before he concedes that he became aware of them. I say this because it seems to me that the defect in the step at the entrance to the nightclub, as it appears from the photograph taken by Mr. Earley, is a very obvious and visible one;  a view which was supported by Mr. David Bolger, who was employed by the Defendants as a maintenance man at the material time, when he came to give evidence, and, allowing that there was evidence on behalf of the defence that a large number of people were accustomed to traversing the entrance to the nightclub on a regular basis (Mr. Philip Smyth gave evidence that some 3,500 patrons attend the nightclub each week) and that it is clear that the defect which was photographed by Mr. Earley was repaired sometime after Mr. Earley saw it, I am satisfied that it must have been seen by some member of the Defendants’ staff and, that being so, I find it difficult to accept that its existence would not have been brought to the attention of senior members of the staff, like Mr. Smyth, or Mr. Doherty-Campbell, or Ms. Flood before instructions were given to write the letters of the 22nd of January 1999 and the 13th of April 2000 to the Plaintiffs’ solicitors. According, I have reservations about the explanations given by Mr. Smyth and by Ms. Flood with regard to the circumstances under which those two letters came to be written and given that, were it not for the fortuitous fact that Mr. Earley had photographed the defect in the step on the 10th of May 1995, a fact of which the Defendants do not appear to have become aware until the month of July of this year, those letters could well have persuaded the Plaintiffs’ advisors that the Plaintiff did not have a sustainable case, in which event they might well have advised her not to proceed with her action, I am afraid that I question the bona fides of the instructions which led to those two letters being written.  However, that is by the by.  Apart from asserting that both of the gates at the top of the steps leading to Raffles Nightclub were open when she arrived at the nightclub on the fateful evening; an assertion which, as I have indicated, was strongly challenged by the Defence, the Plaintiff also maintained that, on her arrival, she saw a doorman standing at the bottom of the steps outside the left-hand door which led into the nightclub and that, after her fall, that man was not particularly sympathetic or helpful, in that, as far as she was concerned, he appeared to be more worried about the fact that her presence at the bottom of the steps was preventing patrons from entering the nightclub than he was about the fact that the Plaintiff was complaining that she was in considerable pain. In fairness to this man, I have to acknowledge that the Plaintiff’s friend, Eleanor McKenna, said that this man helped to keep people away from the Plaintiff and was also instrumental in getting assistance for her.   However, apart from seriously challenging the Plaintiff’s assertion that both of the gates at the top of the steps leading to the nightclub were open when she had arrived at the nightclub on that fateful evening, her evidence that, when she arrived, there was a man standing at the bottom of steps outside of the nightclub was also seriously challenged and it was put to her in no uncertain terms and, indeed, was also put to her friend, Eleanor McKenna, that that just was not true.  Moreover, the Defendants introduced video evidence of film taken on the night in question which they maintained demonstrated that the four “bouncers” employed by the nightclub remained inside the club at all material times thereby giving the lie to the evidence of the Plaintiff and to that of Ms. McKenna  that there was a man, who they described as a doorman, standing outside the nightclub at the time of the Plaintiff’s fall.  It was also submitted on behalf of the Defence that that video film gave the lie to evidence by Ms. McKenna that, shortly after the Plaintiff’s fall, she noticed that the left hand door, as one faces the nightclub, was open and, in that connection, it is relevant to note that the Plaintiff, herself, when cross examined about the condition of the doors leading into the nightclub at the time of her fall, she conceded that she could not recall whether or not either of those doors was open at that time.  However, she was adamant that, when she fell, she had not collided with the right hand door leading into the nightclub; it having been suggested to her that it was the noise of that collision that had alerted those inside that there was something amiss outside rather than that there was a member of the staff outside at the time of the Plaintiff's fall.  Again, it was suggested that the video film was corroborative of the fact that the Plaintiff had collided with the door because it was suggested that it showed her lying on the ground very close to the door and not against the bottom step, as she had given evidence.  It was also suggested that that video film gave the lie to Ms. McKenna’s suggestion that the left hand door leading into the nightclub had been open at any material time.
	Having considered the video film shown by the Defendants’ very very carefully; including requesting that certain portions of it be re-run, I am not persuaded that it establishes all of the matters which the Defence contend for.  Certainly, it seemed to demonstrate that most, if not all, of the Defendant’ staff spent the night inside rather than outside of the nightclub but, if it did, Mr. Michael Nolan, who has been employed by the Defendants as a bouncer at Raffles Nightclub for some 18 years, told me that the atmosphere in the nightclub can become very warm and, accordingly, that, from time to time, some bouncers go outside for fresh air and, in my view, it could well be that that was what the man who the Plaintiff and Ms. McKenna said  was outside of the nightclub when they arrived was doing but in any event, despite the evidence of the video film, I have no doubt at all that there was a doorman standing outside of the nightclub when the Plaintiff and her friend arrived because, for the life of me, I cannot see any reason in the world why they would invent such a story. On the evidence of the video film, I am prepared to accept that both doors leading into the nightclub were kept closed most of the time and that Ms. McKenna may have been mistaken when she said that she thought that the left-hand door had been open for an appreciable period.  However, in my view, that is neither here nor there.  So far as the allegations that the Plaintiff collided with the door leading into the nightclub as she fell is concerned, I do not think that the video film supports that conclusion because I saw the Plaintiff’s brother attending her after her fall while she was lying outside the nightclub.  In that regard, it seems to me that he was occupying a space between her and the door of the nightclub which suggests to me that she fell some distance away from the door.  Again, however, I am not convinced that whether or not the Plaintiff collided with the door of the nightclub as she fell, is of any great significance. I do accept, however, that it is of considerable significance that, contrary to the sworn testimony of virtually  every person who gave evidence on behalf of the Defence, the Plaintiff maintains that both of the gates at the top of the steps leading to the nightclub were open when she arrived at the premises. This is so because, obviously, if, as the Defendants assert, the left-hand gate was closed, it would have covered the defect in the tiling which is demonstrated by Mr. Earley’s photograph and, in that event, it would have been physically impossible for the Plaintiff to have caught her foot at that point, as she claimed that she did.  Accordingly, if I were to accept that that gate was closed at the material time, I would have to conclude that the Plaintiff had not given an honest account of her accident and that her claim herein must fail. However, notwithstanding the weight of the evidence which has been adduced on behalf of the Defence, I am quite satisfied that Michelle Guckian has described her fall as it occurred and has accurately pinpointed the location at which her foot was caught whereby her fall was precipitated and that that point is the place at which the defect in the tiling shown in Mr. Earleys photograph was located.  It follows, of course, that I reject the Defendants’ case  that the left hand gate at the top of the steps was closed at the material time.  In this connection, I am influenced by the evidence of  Eleanor McKenna that, while she did not remember seeing any gates,  she was fairly sure that there were no gates closed at the top of the steps and the evidence of Brendan Guckian that, when he arrived at the nightclub a short time before the Plaintiff’s arrival, neither of those gates were closed.  In addition, however,  I am particularly influenced by the fact that, although, at the Defendants’ request, the Plaintiff on the 20th of December 1996; over three and three quarter years before the trial of this action, marked on a plan which was produced by the Defendants, the point at which she maintained that she had fallen and that point clearly coincides with the point at which Mr. Earley’s photograph demonstrates that the defect in the tiling existed.  Yet, although the Defendants maintain that the left-hand gate at the top of the steps leading to the nightclub was always closed when the nightclub was operating so that the Plaintiff could not have tripped at that point, no suggestion in that behalf was made to the Plaintiff; either in correspondence, or, indeed, at any time before she got into the witness box.  In my view, if the Defendants believed that that gate had been closed at the material time, they would have left the Plaintiff and her advisors in no doubt about that fact from an early stage.  Accordingly, I am satisfied that the Plaintiff’s fall was precipitated by a defect in the tiling at the top of the steps at the entrance to the Defendants’ nightclub; a defect of which the Defendants were aware, or ought to have been aware and, accordingly, should have recognised that it was a potential source of danger to persons frequenting their nightclub; a danger which it seems to me that they took no steps to avoid.  Accordingly, I am satisfied that the Defendants are liable in damages to the Plaintiff in respect of the injury which she suffered.
	Insofar as the Plaintiff’s injuries are concerned, she described how, after her fall, she tried to stand up but found that her left leg was very painful and, as she put it “ like jelly”.  Moreover, when she looked at it she saw that the shin bone was protruding which she said was a very shocking experience and I have no doubt that it was.   As I have already indicated, the Plaintiff said that the Defendants’ doorman appeared to be more concerned about people coming into the nightclub than he was about her. However, that as it may be.  It appears that someone sent for an ambulance which, apparently, took an age to come or, at least , so far as the  Plaintiff and her friend Eleanor McKenna was concerned, it appeared to be an age.  In any event, when the ambulance arrived, the Plaintiff’s left leg was splintered and she was stretchered into an ambulance and taken to St. Vincent's Hospital. She said that, at that stage ,she was experiencing a considerable amount of pain.  In hospital, she came under the care of Mr. Brian Hurson F.R.C.S.I., who diagnosed that she had suffered a displaced fracture of the left tibia and fibula which required surgery involving manipulation and reduction of the fracture and fixation with an intra-madullary nail.  Mr. Hurson described the injury as a very severe one. The Plaintiff gave evidence, which I accept, that she experienced a lot  of pain in her left leg, both before and after the operation, and, following surgery, she was detained in hospital for five days and shortly prior to her discharge, her left leg was encased in a plaster of paris cast  extending from her hip to her ankle.  She was discharged from hospital on crutches and was advised against weight bearing so that, in the weeks following, she was very incapacitated because she had to keep her left leg off the ground and she was in constant pain requiring painkillers on a daily basis. Approximately six weeks after  her accident, the plaster of paris was changed to a below knee plaster following which the Plaintiff experienced some relief from the pain which she had suffered.  She was still experiencing pain but it was not as bad as it had been. The plaster of paris was removed altogether on the 30th of June 1995; some nine weeks after the Plaintiff’s accident, and  she was then told to commence weight bearing which she found to be a very painful experience and one which caused severe swelling of her left leg.  She started her new job with the Western Health Board in the month of July 1995, while she was still on crutches which made it very difficult for her to cope with the demands of the job and one would have to agree that that was not the best way to commence a new career.  Moreover, for some time she had to be driven to and from work. It was not until Christmas of 1995 that the Plaintiff was able to discard her crutches and, at that stage, apart from persistent pain in her left leg and left heel, she found that the movements of her left ankle were very restricted so that she was prescribed physiotherapy which, in itself, she said was a painful experience. She had to submit to physiotherapy for some months; at first on a daily basis but reducing gradually and she found that it helped to alleviate her pain and to restore movement to her left ankle.  However, even after the physiotherapy she was not free of pain and she walked with a limp and she, herself, associated her ongoing problems with the nail which had been inserted by Mr. Hurson so she asked him could it be removed.  For his part, Mr. Hurson thought that the nail had served its purpose, in that, he was satisfied that the fracture had healed in a satisfactory position. Accordingly, on the 29th of January 1997, Ms.Guckian was readmitted to hospital where the hardware in her left ankle was removed.  On that occasion, she spent only a day in hospital but she could only mobilise with the assistance of crutches for a few weeks afterwards.  She experienced a considerable improvement, both insofar as comfort and freedom of movement was concerned following the removal of the hardware.
	Since early 1997, the Plaintiff gave evidence that, from time to time, she has the feeling that her left leg is giving under her. While Mr. Hurson, whose reports I have had the benefit of reading, does not mention this problem, I accept the Plaintiff’s evidence in that regard.  However, if I do, I think that, as Mr. Hurson has not referred to it, it is unlikely to be a long term problem for Ms. Guckian.
	The present situation, insofar as the sequilae of her injuries is concerned is that the Plaintiff’s left leg is sensitive to trauma and I assume that that is going to be a permanent feature.  Furthermore, she has residual scarring on her left knee and left ankle which, although readily visible, are not, in my view, particularly disfiguring in the ugly sense of the word.  However, the Plaintiff, herself, tells me and I accept that she prefers not to have those scars on view and, therefore, covers them with clothing.  In this regard, bodily scars are a very personal matter for those who have them and I do not doubt the genuineness of the Plaintiff’s displeasure at having these scars through no fault of her own.  Moreover, apart from the appearance of the scars, the Plaintiff tells me and I accept that she experiences pins and needles in the scar on her left knee and that , on account of that scar, she cannot kneel on that knee.  In that regard, she was particularly upset at the fact that she was unable to kneel on the occasion of her wedding some two years ago.  Furthermore, the Plaintiff complains that she experiences a locking sensation in her left knee and pain and restriction of movement of  her left ankle; particularly, when it is cold.  However, in the light of Mr. Hurson’s opinion in his report of the 20th of November 1998 (the latest report with which I have been furnished) and given that the Plaintiff, herself, conceded under cross examination that she has not had cause to consult a doctor with regard to her injuries for over two years now, I assume that her ongoing symptoms of pain and stiffness will abate in the relatively near future and will not be a long term problem for her.  However, it is now nearly five and a half years since her accident and, allowing for all that she has had to put up with during that period; as Mr. Hurson says, she had a turbulent rehabilitation, I think that a sum of £30,000.00 would fairly compensate her for damages to date. As for the future, given that she will have permanent scars on her left knee and left leg which she, understandably, does not like although, as I have indicated, they are not particularly disfiguring, that the site of her fracture is always likely to be sensitive to trauma and that I have no reason to believe that she will ever again be able to kneel with comfort, I think that a sum of £20,000.00 for general damages for the future would be appropriate.   
	In the light of the manner in which the Defendants met this claim and, particularly, the fact that they appear to have attempted to hide the fact that there was a defect in the tiling at the entrance to their nightclub at the material time, I was sorely tempted to accede to an application on behalf of the Plaintiffs’ advisors to award punitive or exemplary damages in this case.  However, somewhat reluctantly, I am not persuaded that, reprehensible thought it was, the Defendants' conduct was sufficiently inappropriate to justify such an award.
	In the light of the foregoing, therefore, and allowing that special damages have been agreed in the sum of £1,500.00, there will be Judgment for the Plaintiff for £51,500.00 and costs.

Dated this  2nd day of November, 2000.

Signed___________________________
The Honourable Mr. Justice Diarmuid B O’Donovan.