Case News - Patricia O'Rourke .v. Virgin Media Limited (Public Liability Tripping Claim)

3 May 2013

Public liability tripping claim.  Plaintiff alleged she had fallen due to a missing "toby" lid on a footpath close to her home.  Defendant was relying on an inspection defence but also arguing credibility. Following the Plaintiff's evidence, Counsel for the Defendant made an application for a Direction to strike out the Plaintiff's case for failure to disclose a prima facie case which was granted and therefore no evidence was called on behalf of the Defendant.  The Judge referred to the Plaintiff's Accident and Emergency note (12 hours post accident approximately) which said "slipped on a grate" and compared this to her evidence in Court which was that her left foot went into a hole where a toby lid was missing.  She gave evidence that she fell backwards and to her left (as per her account to Mr Mawhinney FRCS) but the Judge found it "impossible" mechanically that if her left foot went into the hole during forward momentum that she could fall backwards.  Furthermore he found her account implausible because there were railings and a wall which would have stopped her falling completely to the ground as she alleged.  In her examination in chief the Plaintiff admitted that following the fall she did not look to see what had caused her to fall but got up and went straight home.  She gave evidence that she told her partner where she fell and he went out the following day and "found" this hole in the footpath.  In conclusion the Judge found that the Plaintiff had not discharged the onus of proving the defendants were negligent as she failed to prove how and where this accident happened.