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Coleman v. Shoneys Diner [2003] IEHC 26 (8 July 2003)

THE HIGH COURT

2001 No 7527P

BETWEEN

PATRICIA COLEMAN

PLAINTIFF

AND
SHONEYS DINER

DEFENDANT

JUDGMENT of Gilligan J. delivered on the 8th day of July 2003.

The plaintiff in these proceedings resides at 85 Orchard Park Curragh Co. Kildare and she was born the 21st day of March 1947. She was involved in an accident on the defendants premises Shoneys Diner Main Street Rathangan Co. Kildare on or about the 11th day of August 2000 when she slipped and fell heavily suffering a serious injury to her left ankle.

The plaintiff is very definite in her view that her accident occurred at a point in time prior to the floor of the defendant's premises being re-tiled which situation is represented in the photographs as taken by both the consulting engineers and adduced in evidence. She says that at the time of her accident there was a coved brass bar running across the entrance to the defendants premises as marked by her on photograph five of the plaintiffs engineer's photographs and this is at a point approximately 18 inches in from the door saddle. She says that from this brass bar to the door saddle there was an area of concrete and then one stepped off the area of concrete on to the outside step.

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The defendants adamantly maintain that the plaintiff's description of the premises prior to them re-tiled is inaccurate and that in fact the old tiles ran to the edge of the door saddle, and there was never a brass rod in place.

The defendants also adamantly maintain that the plaintiff is totally incorrect in her recollection as to the condition and layout of the defendants premises at the time of her fall and they say that the re-tiling had already taken place and that this occurred on or about Thursday the 29th of June 2000 so that in fact when the plaintiff met with her fall on or about the 11th of August 2000 the premises had already been re-tiled.

I take the view that the two principle issues namely the condition of the floor area in the defendants premises in the vicinity of the entrance door prior to re-tiling, and the date on which the re-tiling was actually carried out are interwoven.

There was no agreement whatsoever on the evidence as adduced on the plaintiffs behalf and on the defendants behalf as to the condition and layout of the floor at the time of the plaintiffs accident. Neither side made any concession but subsequent to the new tiles being taken up at an engineering inspection as carried out on Saturday the 31st of May 2003 it became apparent and indeed is uncontested that the plaintiff's description of the floor prior to it being re-tiled is incorrect and I am satisfied that there was no brass bar in a position in the area as outlined by the plaintiff some 18 inches from the door saddle.

I am also satisfied that the plaintiff's recollection that there was an area of concrete approximately 18 inches wide between the location where she described the brass bar as having been and the door saddle is also incorrect and insofar as counsel on the plaintiffs behalf attempted to set up a scenario where there may have been a brass rod or edging at a point some inches inside the door saddle where the old tiles ended the plaintiff herself never attempted to set up a basis for such a case. Her

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grandson John Coleman was of the view that there was a concrete area immediately inside the door which stretched for a foot to a gold bar but it does appear that factually his recollection has to be incorrect having regard to the situation that was actually discovered to pertain underneath the new tiles. Donna Meehan who was just short of her thirteenth birthday at the time of the accident was with her grandmother in the defendant's premises and she describes the doorway as consisting of a metal strip leading into concrete and that there was a brass bar but she didn't know how far back the brass bar was from the doorway.

Ms. Fiona Moloney the proprietor of the defendants premises gave evidence that the old tiles went right out to the door and there was no brass bar present nor any area of cement.

Anthony Moloney gave evidence that in carrying out the re-tiling there was no brass bar or other edging in situ at all at the end of the tiles that pre-existed the new tiles, and that he did not disturb the pre-existing situation in any way when re-tiling. Ms. Moloney is supported in her recollection by Claudia Kelehan and Pauline O'Rourke.

The plaintiff's case is quite simply that on the basis that the floor was in the condition as described by her the brass bar had to be contaminated so that when she put the sole of her left shoe on the brass bar she slipped causing her to fall as a result of which she sustained the injury complained of. She makes the case that the cleaning system was inadequate although she made no complaint as regards the floor area of the premises either on the day of her accident or at any time previously during her numerous visits to the premises.

As regards the date on which the tiling was carried out the plaintiff her grandson John Coleman and Donna Meehan all maintain that the premises had not

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been re-tiled at the time of the plaintiffs fall on the 11th of August 2000 and they cannot put the matter any further. Ms. Fiona Moloney adamantly maintains that the premises was re-tiled by her brother Anthony Moloney with the work commencing on the evening of Wednesday the 28th of June 2000 and finishing on the morning of Friday the 30th of June 2000. Her evidence in this regard is confirmed by Claudia Kelehan Pauline O'Rourke and Anthony Moloney and in addition she is in a position to satisfy this court that the tiles were actually purchased on the 6th day of June 2000 pursuant to invoice number 21461 from Walsh Brothers Tullamore Co. Offaly. I am also satisfied that the tiles were delivered shortly thereafter. In corroboration of her evidence Ms. Moloney produces a roster book which shows that for the three shifts which normally would have been carried out on Thursday the 29th of June 2002 no person was rostered for work.

The plaintiff herself adamantly maintain that even as of May 2002 when Mr. Purcell attended at the defendants premises and took a number of photographs the photographs did not depict the situation as it actually pertained and she clearly implied that Mr. Purcell's photographs did not portray an accurate picture of the premises at that time. In my view on this direct conflict the plaintiff is mistaken in her evidence and I accept the evidence of Mr. Purcell and that his photographs represent the condition and layout of the defendants premises as of May 2002.

The plaintiff says that she was in the premises in November 2000 and that they were in the original condition but accepts that subsequent to this date she never returned to the premises until the inspection in September 2002 and never saw the tiles being changed nor did any member of her family. The plaintiff's grandson John Coleman in giving evidence said that he was in the premises in June 2002 and he noticed that at that stage the floor was then changed. He did not tell anyone that the

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floor had been changed and this fact to me is surprising because when Mr. Culleton the plaintiffs engineer called for his inspection of the defendants premises on the 3rd of September 2002 he was not aware that the allegation was being made by the plaintiff that the floor had subsequently been re-tiled and it was only at that inspection that he became aware of this major conflict.

The onus of proof in this case is upon the plaintiff to satisfy me on the balance of probabilities that the floor was in the condition as described by her on the day of her accident and quite clearly on any interpretation of the evidence her recollection has to be incorrect. The evidence of Pauline Moloney is more accurate and I consider her recollection preferable to that of the plaintiff, John Coleman and Donna Meehan.

Of much more significance however is the fact that in relation to the date of the re-tiling of the defendants premises I accept the evidence of Ms. Fiona Moloney as to the date when the tiling was carried out and she has the benefit of the roster book to corroborate the factual situation. Accordingly as regards the pre-existing situation the plaintiff fails to discharge the onus of proof of satisfying me that the floor corresponded to her description as given in evidence but in any event I am satisfied that as a matter of probability the floor was in fact re-tiled on the 28th 29th and 30th of June 2000 and accordingly insofar as the plaintiff met with a fall on or about the 11th of August 2000 she fell on the floor in its retiled condition and I am satisfied on the evidence that in such circumstances having regard to the plaintiffs description of events no case is made out for the defendants to answer on the basis of negligence or breach of duty or breach of statutory duty and accordingly I dismiss the plaintiff's claim.