Case Review: Court of Appeal decision – Rose Desmond v Dunnes Stores (Appellant)  IECA 125June 2020
A recent Court of Appeal decision highlights the importance for defendants / occupiers of ensuring not only the existence and adequacy of a cleaning system, but also that it is correctly implemented.
The Plaintiff brought Personal Injuries proceedings in the High Court against Dunnes Stores following a slip and trip incident which occurred in the Bishopstown Store on 21 August 2017. The Plaintiff alleged she suffered serious personal injuries – including a fractured right hip – after slipping on spillage on one of the aisles. The case was fully defended at hearing.
The Plaintiff testified that she had been walking in the Grocery section. She was wearing flat shoes and carrying a basket, a paper bag and her purse when suddenly she slipped and fell forward landing heavily on her right side. She was assisted by other customers and then by staff. She said that there was something on the floor which she initially thought was water but could have been shampoo.
The trial Court viewed about an hour of primarily pre-incident CCTV footage, as well as some post incident footage. The footage showed a member of the Store’s cleaning staff had swept the aisle five times prior to the incident occurring. The footage also captured dozens of patrons traversing at or near the locus in the hour preceding the incident.
Mr Martin Foy, Engineer – for the Plaintiff – noted that while the footage confirmed that regular sweeps had in fact taken place by cleaning staff, in fact the footage showed that the cleaner appeared to be staring straight ahead the entire time and did not appear to be actively engaged in the process, looking from side-to-side or down to the floor. He further noted that between the cleaner’s last sweep and the incident occurring there was no clear evidence on the CCTV footage of any spillage.
Mr Pat O’Connell, Engineer – for Dunnes Stores – disagreed that a cleaner needs to be constantly looking from side-to-side in an aisle of the width in question and further disagreed the cleaning system was inadequate. However he conceded that it appeared the cleaner had no specific training which emphasised the importance of vigilance and look out.
The trial judge, Ms Justice Miriam O’Regan, cited Mullen v Quinnsworth  ILR 59 and held the onus shifted to Dunnes Stores to establish the system of care at the time was sufficient so that liability doesn’t attach to them. She found in favour of the Plaintiff.
Court of Appeal:
The Defendant / Appellant appealed the High Court decision on the grounds that the Court had erred in law and in fact in respect of the findings that the Defendant was negligent having regard to the evidence. The level of Quantum was not appealed. The Court of Appeal dismissed the Appeal brought by Dunnes Stores.
Counsel for Dunnes Stores, while acknowledging that the onus was on his client to show the adequacy of their own systems, nevertheless submitted that the evidence had not been properly considered by the Trial Judge. Ms Justice Faherty cited the principles in Hay v O’Grady  1 IR 230, which hold that an Appellate Court does not re-hear a case and does not enjoy the opportunity to hear evidence vive voce or to observe the demeanor etc of witnesses at hearing. Faherty J. further noted the COA is bound by and proceeds on the findings of fact of a trial judge which are supported by credible evidence, however voluminous and, apparently weighty testimony against them. Accordingly, the fact there is contrary evidence does not alter that position. Faherty J. further cited that an Appellate Court should be slow to substitute its own inferences of fact where such depends upon oral evidence and where a different inference has been drawn by the trial judge. The fact there is some evidence before a trial judge which may lead to a different conclusion does not alter the fundamental principle.
Ms Justice Faherty the cited the Supreme Court decision in Doyle v Banville  1 IR 505, where Mr Justice Clarke stated part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the Trial judge reached a conclusion as to the facts.
Having established the relevant precedents, Ms Justice Faherty held that the trial judge had not erred in finding against the defendant. Although there may have been a more forensic analysis of the available evidence at hearing, she was satisfied that the judgement contained sufficient analysis of the evidence to make the conclusions reached and dismissed the appeal.
Conclusions and lessons to be learned
This is a case where the defendant had CCTV footage of an hours duration pre- and post-incident and, at least on paper, an adequate system of cleaning, cleaning records, training records and direct witness testimony.Regardless when the court analysed the evidence to hand it concluded that the training was inadequate and did not seem to require active engagement with the cleaning process, and this was confirmed by the CCTV and the witness testimony where the cleaner appeared to be simply going through motions rather than qualitatively checking for spillages etc. which could cause a danger.
To successfully defend such a case, the store – or any defendant / occupier – needs to show that training and the actual cleaning processes objectively displays an active awareness and implementation of relevant health and safety issues, such as spillages, and that the risk assessments have been actually implemented.Download PDF