TENANT SUES COUNCIL

A householder who slipped and fell on porch tiles breaking his left ankle sued Sligo County Council in a personal injuries action lasting three days at the High Court in Sligo.

The court was told that Thomas Keegan (pictured) of 1 McNeill Drive, Cranmore was returning home after attending a funeral after which he had been drinking. He had drank five pints when the accident happened as he entered his house.

An engineer called on behalf of the plaintiff described the tiles in the porch as semiglazed mosaic but this was disputed by an engineer called on behalf of the defendants. It was agreed however that the tiles posed a moderate to low risk of slipping when wet and that after the accident they were concreted over by the Council which was doing up the houses in the street at the time as part of the Cranmore Regeneration Programme.

The court heard that Mr Keegan, who was represented by Mr John Finlay SC instructed by Mr Michael Quigley, solicitor, had moved into his house as a tenant in 2004. It was claimed by the defendants that the plaintiff had never complained about the tiles before the accident though he had lodged some 39 complaints regarding other issues over the years.

The Council was represented by Mr Peter Bland SC with Mr Eoin Armstrong, solicitor.

Mr Keegan insisted he had mentioned the tiles were slippy to regeneration staff. He admitted to having had five pints after the funeral before going home on the day of the accident on November 18th 2013.

The plaintiff recalled how he walked up to his house, his foot slipped on the tiles which threw him forward.

He managed with his left hand to put the key in the door and with his right hand open it before falling forward but twisting his ankle and breaking it.

Mr Keegan, who was using a walking stick, was questioned by Mr Bland regarding a subsequent accident he had on July 13th 2014 when he had slipped off the pavement and had x-rays taken at Sligo University Hospital of his left ankle, the same one he had fractured.

The plaintiff admitted that he hadn’t mentioned this accident to his orthopaedic surgeon Mr William Gaine and that he had answered no when filling out a PIAB for on February 31st 2015 when asked if he had any accidents in the previous five years.

Mr Keegan said this accident was just a slip. “I just went in to check if I did any more damage to my ankle. It wasn’t an injury,” he said. The x-ray showed no damage.

He had plates in his ankle still at that stage following the original fall at his house. Mr Keegan, who once worked in construction, said he always brought the stick with him when he left his house as he got pain in his ankle whenever the ground was uneven or when he had to negotiate steps.

He insisted he had made the regeneration team aware that he wished to bring his front door out so that the porch would be enclosed. Mr Gaine told the court he first examined the plaintiff on May 19 th 2015 and on two further occasions. He said the injury suffered by Mr Keegan was worse than the normal ankle fracture as it involved the tibia and fibula.

It was described as a pylon fracture. The plaintiff had plates inserted on both sides of the ankle in an operation carried out the day after the accident. He was subsequently in a plaster cast for ten weeks. Mr Keegan developed a wound infection and this had to be treated with antibiotics and dressings for a number of weeks.

Mr Gaine noted that some fifteen years earlier, Mr Keegan had been involved in a crash in which he had hurt his neck.

The witness said that while the ankle mended, he was left with stiffness and pain in it especially when walking on uneven ground, going up stairs or when on long walks. He was walking with a slight limp.

One of the metal plates was removed in November 2015 and the other in August 2016. This gave him some local improvement but he still required pain killers at night. In June 2017 witness saw the plaintiff again and there was no significant change in his circumstances.

He still got discomfort in bed at night or if he was on his feet for long periods.

Mr Gaine said he could not rule out the need for further surgery which may be fusing of the ankle. He agreed this was an infrequent operation, having done just two in the past two to three years.

Engineer, Mr Tom O’Brien told the court he attended at the plaintiff ’s house on February 16 th 2015 where a slip alert test device which is calibrated was subsequently carried out.

Its findings were that the tiles, which he described as unglazed and rough to touch, presented a moderate to low risk of slipping in wet conditions. There was also a rubber mat in place which Mr O’Brien said he dried out regularly. Mr O’Brien said the porch was exposed and facing the prevailing wind in what is a seaside town. He viewed the tiles as being semi-glazed and believed an external, unglazed tile should have been used.

On the morning of the court he visited the estate again and saw that most of the 62 houses he had seen, some 52 of them, had blocked off the porches with another door or had concrete instead of tiles.

Nine still had tiles in place on an open porch but he was not sure what type they were. Mr O’Brien said the plaintiff had told him he had stepped on to the porch when he slipped, struggled with his balance and fell.

Mr Bland said the council did not fit doors enclosing the porches in Cranmore as these were more problematic and the ones seen by the witness must have been privately installed.

Morgan Duggan, consultant forensic engineer, on behalf of the defence, in evidence said he visited the house on May 17 th and said the tiles were grimy and dirty. There were two mats in place, one rubber and the other brush and wire. The tiles were 20 millimetre square. Four slip tests were carried out and an unglazed tile had a low to medium risk of causing slipping when wet.

“But this tile presented good grip to my shoes when wet,” he said. He noted there were many similar mosaic tiles at shop and pub fronts around Sligo, particularly in O’Connell Street.

Witness said mosaic tiles were durable, easy to clean and aesthetically pleasing and this was why they were used at shop fronts.

Mr Duggan told Mr Finlay that the slip test was on the cusp of low and he believed the tiles were appropriate for the location.

Marisa Moran of the Cranmore Regeneration Project told the court said in the ten years she was working there no porch was enclosed by the council because of a potential trip hazard. All requests for repairs were logged she said and none had been received from the plaintiff regarding tiles in his porch. There was one complaint from the householder living next door to the plaintiff which was received on November 27 th 2015 and on January 7 th 2016 the porch was concreted over.

Estate Officer at Cranmore since 2014, Noel Meehan, who was also previously Clerk of Works there, said a new windows and doors programme was introduced in 2011 for 43 houses which included the plaintiff ’s.

Witness called to the plaintiff on April 27 th 2011 who wanted one window blocked up. There was no mention of his wanting the porch closed in. On October 26 th 2011, witness again called to Mr Keegan’s home and he wanted an extra open sash for ventilation in an upstairs window and solid panels at the bottom of the front door instead of glazing. Agreement was reached on this and new pvc windows and doors were installed.

“He did not discuss bringing out the door to cover the porch,” said Mr Meehan.

To enclose the porch would necessitate the moving of the ESB meter box. The plaintiff did raise concerns about the chimney. In submissions at the conclusion of the evidence, Mr Finlay argued that though Mr Keegan was a tenant, the local authority remained the occupier within the meaning of the Occupiers Liability Act.

The council therefore owed Mr Keegan common duty of care. A surface presenting a moderate risk of slipping was not providing a duty of care for the occupant, he said. He added that the question arose of whether the house was fit for human habitation due to the exposed entrance.

“And, I say not if it presents a hazard when wet,” said Mr Finlay.

Mr Bland submitted that there can be more than one occupier and that there were two for social housing, the landlord and the tenant. He said the porch was negotiated thousands of times in the nine years the plaintiff was living there. He said the description and mechanism of how the accident befell Mr Keegan was unreliable.

“His account of how he came to grief is incredible and not credible,” said Mr Bland.

Mr Bland also submitted that whether the tiles were glazed or not they did have slip resistance.

“It was found to be at the cusp of low to medium risk when wet and that is not a danger in a small porch negotiated safely thousands of times by the plaintiff,” he said. He stressed that the duty of care is not mechanical in its application and that there had to be recognition of the practicalities of life.

Mr Justice Anthony Barr reserved his judgement saying he would deliver it in a couple of weeks’ time in Dublin.