Background
In this case the plaintiff Mr Andrew Larkin was injured while playing football at a sports hall and community centre in Carlingford. The centre was controlled and occupied by Carlingford Community Development company, a company limited by guarantee. Mr Larkin claimed the injury to his left leg and knee arose when the sole of his shoe came into contact with sticky residue on the wooden floor which had apparently been left behind by duct tape that had been used to secure temporary carpeting for the purposes of a prior event.
In his personal injuries summons Mr Larkin alleged that the accident was caused by the negligence of the company in causing or permitting that sticky residue to be present on the floor of the sports hall or by failing to warn him of its presence there. As a result, Mr Larkin, who is a firefighter, was out of work for three months following the accident and spent some months restricted to light duties upon his return to work.
In its personal injuries defence, the company noted that Mr Larkin was involved in a tackle when the accident occurred and that Mr Larkin caused or contributed to his own injury by not taking appropriate care and failed to pay attention to, or make allowance for, the condition of the surface on which he was playing.
Analysis
The High Court noted that the questions in this case were essentially twofold; first, ‘what caused it?’; and, second, if the answer to that question is that the proximate cause was the presence of a sticky residue or substance on the floor there, ‘was there some negligence or breach of duty on the part of the defendant company as occupier or manager of that premises in causing or permitting that to be so?’
In that context the Court noted that, there were, in substance, two strands to Mr Larkin’s case. The first was his uncontroverted, though uncorroborated, evidence that, in the immediate aftermath of his accident, he noticed a sticky residue on the floor at the point where he fell. The second is that the sticky residue in question came from the remains of duct tape that had been used on some prior occasion to secure temporary carpeting on that floor.
Whether Mr Larkin’s fall came about in the course of a sudden change of direction or in the course of a tackle, the real issue for the Court was whether the proximate cause of that fall was the presence of a sticky residue on the floor for which the company was responsible.
The High Court noted that Mr Larkin invited the court to conclude from the photographs furnished that there was masking tape present on the floor of the sports hall between July/August 2016 and January 2017 and, from that proposition to infer (or conjecture) that, on the balance of probabilities, there was some residual masking tape present on the part of the floor where Mr Larkin fell on 12 July 2016, creating the sticky residue that he says was present there.
The Court noted that there were two pieces of evidence which militated against that inference or conjecture. First, the evidence of Ms Higgins who inspected the floor several times a week before conducting her fitness classes and had never discovered any sticky residue on it and secondly the unchallenged evidence of several witnesses on behalf of the company that the temporary carpeting had not been installed at any time between December 2015 and 6 August 2016.
The Court observed that it was particularly unfortunate that Mr Larkin made no formal report of his concerns to the management of the centre and that the unfortunate consequence of the way in which Mr Larkin approached the matter was that any opportunity to conduct a prompt investigation of the cause of the accident was lost
Conclusion
Section 3(2) of the Occupiers Liability Act 1995 (as amended) makes clear that the common duty of care owed by an occupier of premises to a visitor means a duty to take such care as is reasonable in all of the circumstances “having regard to the care which a visitor may reasonably be expected to take for his or her own safety“.
The Court observed that there was there was no doubt that the common duty of care on the defendant company, as the occupier of the centre would extend to taking reasonable steps to ensure that a sticky residue was neither caused nor permitted to be present on the floor of the sports hall while it was being used for activities like playing indoor football.
The High Court concluded that the plaintiff failed to satisfy the Court on the balance of probabilities that
(a) there was a sticky residue present on the part of the floor where he fell on 12 July 2016 and, by a slightly wider margin,
(b) an inference should be drawn that any such substance that may have been present there was the remnants of adhesive duct tape previously used to secure temporary carpeting that the defendant company had caused to be there or had failed to properly remove from there, or bot
Mr Larkin’s claim against the defendant company was dismissed.
