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	High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Kelly v Department of Regional Development [2007] NIQB 4 (24 January 2007) URL: http://www.bailii.org/nie/cases/NIHC/QB/2007/4.html Cite as: [2007] NIQB 4

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Ref: MORF5730

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ________ KELLY -v- DRD ________

MORGAN J

[1]      The plaintiff was born on 2 April 92. He claims damages for injuries he says he received when he stumbled and fell at a pavement at Orchard Grove, Crumlin, Co Antrim on 22 September 2000. His action is framed in negligence, nuisance and breach of statutory duty but the parties are agreed that the issues are whether the pavement was dangerous at the time that the plaintiff stumbled and fell and whether he sustained his injuries as he alleges.
[2]      The plaintiff says that on the evening of 22 September 2000 he was visiting a friend, Ciaran Lenihan, at Orchard Grove, Crumlin. They were playing music and were in the company of a third friend, Vincent McCready. At approximately 10:30 p.m. they decided to go to the shop in the Main Street. They crossed the road at Orchard Grove and walked up the footpath towards Orchard Road. The plaintiff was on the inside of the footpath which was bordered by an amenity area with some planting and grass. It was described as rather mucky at the time. As he walked along the plaintiff said he stumbled on a deep hole, his right foot caught on the edge of flagging and he fell to the ground. After the fall he realised that he had sustained a laceration to the point of his right elbow. He said that he had raised both elbows at the time of his fall in order to protect his face.
[3]      He said that he went back to examine what had caused him to stumble. It appeared that there were flagstones missing and that there had been a repair by use of tarmac. He noticed that there was nothing to hold the tarmac filling in place, that the tarmac had gone into the mucky area and the tarmac had subsided so that the footpath was not level. The tarmac had slid or subsided to the right-hand side into this area. He said that the difference in level between the paving stones and the repaired area was approximately 2 inches. In his direct evidence he said that there was a small amount of the tarmac in the flagstone area but the majority was in the mucky area.
[4]      The plaintiff sustained a nasty injury which divided the right ulnar nerve at the elbow. He said that this was caused by a piece of glass which he removed a short time after the accident. He has residual numbness of the right little finger and part of the right ring finger as well as the ulnar side of the palm. He described how this interfered with his computer studies and maintained that he had been adversely affected subsequently in the labour market.
[5]      In cross-examination he said that the laceration to his elbow had been caused by a small thin piece of glass which had cut through his jacket into the elbow. It was clear glass which he said had come from a glass bottle. He said that the neck of the bottle was still intact on the ground and that the neck and pieces of the smashed bottle were lying on the ground in the area. He said the neck of the clear glass bottle was identifiable. He said that as he fell he raised his arms to protect his face as a result of which he had fallen on the right elbow. He did not instinctively put his hands out to prevent his fall. He had made inquiries from a neighbour, Betty Donnelly, who told him that the tarmac area had been repaired shortly thereafter. Mrs Donnelly provided a written statement in respect of the defect. The tarmac repair had been effected to deal with a broken flag which had been reported to DRD on 22 September 2000. He said that he went back and examined the tarmac that night. He saw that tarmac had been put in the hole but that there was nothing to hold it in. The majority of the tarmac was out of the hole in the flower bed. He did not see any treadmarks and there were no sudden dips in the tarmac. It was very smooth. He said that when he examined the area the tarmac to the right-hand side seemed very bitty and very loose. He said the majority of the tarmac was in the amenity area. That on the right-hand side had not been compacted. There was a very small amount in the area which had been repaired. There was very little tarmac in the repaired the area. He said the material in the hole had been compacted. At the very end of his cross-examination he stated for the first time that there seemed to be a slope in the tarmac as one got to the edge.
[6]      Evidence was given by Mr McGill, a consulting engineer. He reviewed the records held by the defendant and established that there had been a complaint about a dangerous flagstone in this area at 11:10 a.m. on 22 September 2000. There had been an instruction to repair this by delay set bitmac. On 25 September 2000 it appeared that the area was reinstated with concrete flags. He said that delay set bitmac was adequate for temporary repairs. If properly compressed it should last several months. He said that in order to properly compress it it was necessary either to create an edge by way of a plank or alternatively to grade off the repair as one went into the grass area. In cross-examination he said that compaction is essential. He said that three bags of material would be used to carry out the job. He said that delay set bitmac was not as viscous as hot bitmac and was less likely to flow. If the tarmac was not adequately compacted he did not consider that this would give rise to a spreading effect but it could give rise to problems at the edges.
[7]      Ciaran Lenihan lived at 23 Orchard Grove, Crumlin. He said that the plaintiff had been a friend for three to four years and he and Mr McCready had called round to his house on the evening of 22 September 2000. And approximately 10:30 a.m. they made their way towards Main Street. His home was approximately 100 m from the scene of the accident. He was walking between his friends with the plaintiff on his right-hand side. The plaintiff took a tumble and fell. He saw recently laid bitmac. There seemed to be a bit of a gap between the bitmac and the flagstone. He said that he had a good look. He said that he had examined the scene a few days after that in daylight. He said that the tarmac appeared to slope to the right-hand side towards the mucky area. He said there was a good bit of a slope. The left-hand side of the tarmac was pretty level with the flagstones but it then sloped down and spread out towards the flower bed. He said that it was pretty crumbly at the edges. It was mostly intact in the hole. He saw no sign of any vehicle damage or tracks. He said that as a result of the slope the difference in level became one and a half to 2 inches. He said that he did not see the glass which the plaintiff had pulled from his arm and that he did not think much of the incident at the time as he did not realise that the plaintiff had sustained any significant injury.
[8]      In cross-examination he said that he did not see any parts of a glass bottle. He said that he had not looked out for it but that there was always broken glass in the area. He said that when he first saw the repaired area it looked unsafe. He said that it started off level but sloped down towards the flower bed. He said that the slope started about a third to a quarter of the way across. He did not know that the plaintiff had sustained a serious injury until a week or so later. He said that he and his friend were laughing after the incident as they did not think that anything serious had happened. He said that he had remarked to a friend a few days later that the tarmac was unsafe and that the plaintiff had fallen on it.
[9]      The defendants called Mr Graham who had worked on the roads for approximately 23 years. He said that he and his workmate Mr O'Donnell had received a call from Mr Spence, the foreman, on 22 September 2000 asking them to carry out temporary repairs to this area. He said that he remembers arriving at the location and taking broken flags out. He said they had bags of delay set bitmac on their lorry which they then used to carry out the repairs. He said that they poured 2 bags into the area first and then finished it off with the third bag in order to get it level. They then tampered down the edge into the amenity area. In cross-examination he said that he had been contacted about this case first in March or April 2006. He agreed that he had carried out many repairs since then and on occasions had carried out 20 patches a day. He said that his memory of this repair was good. He said that he finished at 3:30 p.m. on a Friday. If he had needed extra bags of bitmac he agreed that this would have made him late in finishing work but he said that he would have been paid overtime. His colleague Mr O'Donnell wrote up the record for the job but had no recollection of the repair.
[10]      Mr Rock was a road inspector at the time of the incident. He dealt with public complaints. At 11:10 a.m. on 22 September 2000 he received a complaint that flagstones were broken in this location. He referred it to Mr Spence, the works foreman. He then called with the complainant at 2:50 p.m. on that afternoon. He made a note to that effect but did not record that work was ongoing at that time. This appeared to contradict the works record made by Mr O'Donnell. According to that record the work was carried out between 2:30 p.m. and 3:30 p.m. He returned to see the complainant at 1:10 p.m. on Monday 25 September 2000 at which stage the final repair was ongoing.
[11]      The final witness on the liability issue was Mr Colin Spence, a flagging worker. He attended the scene on 25 September 2000 to carry out the final repair. He says that he vaguely remembers the job. He has a vague memory of a bit of a bulge to the back of the tarmac next to the soil end as if someone had driven over it. If a car or lorry had driven on it this would have caused this type of problem. In cross-examination he said that he was first asked about this in May 2006. He agreed that he had repaired a large number of defects since then. He said that the photographs helped to bring this back to his mind but that he only had a vague memory. He had some memory of taking the tarmac out in order to effect his repair and did not think that very much of the tarmac had gone on to the grass area.
[12]      It is common case than a temporary tarmac repair had been carried out to this footpath on the afternoon of 22 September 2000. The visit by Mr Rock to the scene at 2:50 p.m. on that afternoon tends to suggest that the work was not ongoing at that time but it is impossible to say whether the work had been completed before this or was completed after words. I have very considerable difficulties with the plaintiff's account of the scene which he says led to his injuries. His evidence initially was that the majority of the bitmac had slid or subsided into the grassy area. Although he retracted this towards the end of his evidence he still maintained that there was very little tarmac in the area that was repaired. On the basis of Mr McGill's evidence I am satisfied that this material was not likely to slide, slip or subside into the amenity area. I accept that if there was not adequate compaction some irregularity might occur at the edges. That does not, however, suggest that any material had graduated from the repaired area to the amenity area. If, therefore, I am to accept the plaintiff's account it must be on the basis that those carrying out the repair for some reason decided to place more of the bitmac on the amenity area than on the area to be repaired. Although that is a possibility it seems to me unlikely.
[13]      The account given by Mr Lenihan differs considerably from that of the plaintiff. Whereas the plaintiff was only prepared to accept that there was a small degree of compacted tarmac in the repaired area Mr Lenihan indicated that the tarmac on the further side from the flower bed was level with the existing flag stones at a height of approximately 2 inches above the base. He suggested that there was a slope towards the flower bed which might suggest that the repairers did not have sufficient tarmac to complete the job but this explanation is difficult to accept if one accepts the evidence that there was a substantial amount of tarmac in the amenity area. If the tarmac had been in short supply it would most probably all have been used in the repaired area.
[14]      The essence of the plaintiff's case is that the fall he sustained led to him suffering the laceration with glass at his right elbow. If he is to satisfy me about the circumstances of this claim I must find on the balance of probabilities that there was glass in that location. The plaintiff asserts that there was clear evidence of broken glass including the neck of a full bottle at the location. Mr Lenihan who says that he saw the area at the time had no recollection of any glass of any kind although he said that broken glass was often found at this area. If Mr Lenihan had paid even passing attention to the scene described by the plaintiff on the night in question he must have seen the broken glass. Either it was not there or he paid no attention to the area at all. In any event the only evidence suggesting the presence of glass on the ground at this location is that of the plaintiff. The evidence of both witnesses is that they made their way to the shop after the fall and then returned to Mr Lenihan's house. By that time it was abundantly clear that the plaintiff had sustained a glass injury if his account is right. In those circumstances it is surprising that none of those involved appear to have identified the glass at the scene on their return journey.
[15]      The mechanism of the injury described by the plaintiff also causes me to doubt his account. He says that he stumbled and then began to fall. As a result of that he says that he put his arms above his face thereby exposing his elbows. In my view the instinctive reaction if one is falling as a result of losing balance is to put out one's hands in order to break the fall. It is, I accept, possible that he fell as described but in my view it is unlikely.
[16]      In order to succeed in this action the plaintiff must establish on the balance of probabilities that the tarmac repair was dangerous for pedestrians, that he fell as described and that there was glass at the location which caused his injury. For the reasons set out above I do not consider on the balance of probabilities that any of these matters have been made out by him and accordingly I must dismiss his claim.