The High Court has overturned an award of €16,500 made against Dunnes Stores over a sales assistant falling off a two step-step-ladder while straightening a box of Midleton Reserve Whiskey.
This follows Mr Justice David Keane stating that CCTV footage of the incident fatally undermined the credibility of Jean Falsey’s evidence and dismissed her personal injury claim against the retail giant.
Dunnes Stores was appealing to the High Court a ruling at Kilkenny Circuit Court that awarded Ms Falsey €16,500 in damages against Dunnes Stores after finding that liability for the accident was 50/50 between Ms Falsey and Dunnes Stores.
However, in dismissing Ms Falsey’s claim, Mr Justice Keane in his judgement said: “Unfortunately, the direct conflict between Ms Falsey’s unwavering insistence that the step-ladder went from under her or, at the very least, fell with her, and the CCTV footage, which shows that she fell from it while it was completely stationary, has fundamentally undermined the credibility of her testimony.”
Mr Justice Keane found that Ms Falsey put herself at risk in the manner in which she used the step-ladder at the off-licence area of Dunnes Stores at St Kieran’s Street at Kilkenny City at 3.30pm at June 27 2014.
Mr Justice Keane also found that there was no material defect to the step-ladder that comprised of two steps below a top platform surmounted by a handrail.
In her evidence, Ms Falsey stated that when she was coming down the ladder, having straightened the box containing a bottle of Midleton Reserve Whiskey on the top shelf of one of the aisles in the off-licence, she felt it "just give way".
Under cross examination on the CCTV footage of the incident, Ms Falsey acknowledged that, while she is seen to fall to the floor in the images, the ladder on which she had been standing does not move at all.
After the incident, Ms Falsey presented at the local A&E complaining of pain in her chest and pelvis, with tenderness over her right thigh and her right side.
X-rays did not disclose any bone injury and Ms Falsey was prescribed painkillers and sent home.
However, Ms Falsey suffered headaches and was prescribed painkillers and anti-inflammatories by her GP. Apart from a brief and unsuccessful attempt to return to work a week later, Ms Falsey did not finally return to work for 13 weeks.
A report by Ms Falsey's GP stated that she did not anticipate any further improvement in Ms Falsey’s condition without further intervention and was concerned that her limitations were likely to persist or worsen, perhaps even leading to premature arthritis.
However, a consultant orthopaedic surgeon who examined Ms Falsey on behalf of Dunnes concluded in a report dated October 2017 that Ms Falsey’s prognosis was very good and that the persistence of symptoms for more than three years after her accident “was rather surprising”.
The consultant concluded that Ms Falsey should attain a full recovery.
In relation to the incident, Dunnes Security Manager on duty at the time, Jodie Moher was called to the scene immediately afterwards and she testified that Ms Falsey said to her: "I was coming down off the ladder. It was my own fault. I don’t know what happened."
Ms Moher said that another sales assistant named Delia Walsh asked Ms Falsey the same question and received the same answer.
In evidence, Ms Falsey denied that she had made any such statement and a witness for Ms Falsey, Ms Walsh also denied that she had the exchange with Ms Falsey described by Ms Moher.
However, Dunnes produced a contemporaneous statement made by Ms Walsh which recorded that she saw Ms Falsey lying on the floor “I went over to her and she said that she fell off the ladder.”
In his judgement, Ms Justice Keane said that he found Ms Moher to be a forthright, consistent and credible witness and did not accept the testimony of Ms Walsh.
