Insurance Update: Common Sense Prevails

08 June 2018


In Louise Byrne v Ardenheath Company Limited, the plaintiff alleged that he slipped and fell in the carpark of the defendant’s premises when she took a “short cut” down a slope. Ms Byrne’s expert witness said that there was a design fault in the car park and that additional exits should have been provided. She was awarded €125,066.87 in the High Court with a discount of 40% for contributory negligence.

In overturning that award, the Court of Appeal applied the criteria set out by Mr Justice Michael Hanna in the High Court, which stated:  

  • A court should bring “ordinary common sense to bear” on the assessment of expert evidence, particularly where it is not dealing with a complex or specialist field of activity.
  • Plaintiffs are responsible for their own actions where the application of “ordinary common sense” would have prevented the accident giving rise to the claim.  

In applying these criteria more stringently than was done in the High Court, the Court of Appeal dismissed the plaintiff’s claim.

The application of the criteria

The most recent analysis of this case is set out in the judgment of Edward O’Connor v Wexford County Council which was handed down in May 2018. In that case, Mr O’Connor slipped down a steep embankment while carrying out a water level check of a reservoir in the course of his employment with Wexford County Council. Mr O’Connor followed the route to the reservoir shown to him by a predecessor sixteen years previously. However, there was a safer, less steep alternative route a few metres away. 

In applying the criteria set out in the Byrne judgment, Mr Justice Michael Twomey held that common sense dictated that Mr O’Connor should have known that the route he took was riskier than the alternative. He also acknowledged that while these criteria applied to circumstances arising from occupier’s liability, they were also relevant in the context of employer’s liability claims such as this one.

The December 2017 decision of the High Court in Thomas Moore v Mary Carroll also shows that the courts are taking a broad view in terms of the types of claims the Byrne criteria will be applied in. That case involved a low impact road traffic accident, as a result of which Mr Moore claimed that he sustained hip and back injuries. His medical expert attributed these injuries to the accident despite the fact that Mr Moore had a significant relevant medical history. In applying the Byrne judgment criteria, the Court dismissed Mr Moore’s claim. It was emphasised that particular caution must be exercised when relying on experts where their opinion is based on information provided to them by the person who retains them.

The High Court also applied Byrne in Seamus Comerford v Carlow County Council and Dwaine O’Donnell v South Tipperary County Council and Clonmel Borough Council in November 2017. Mr Comerford’s claim arose from a “trip and fall” on a large and obvious hole in pedestrianised cobblelock. Mr O’Donnell fell from his bike when he drove into what the judge considered to be a clearly visible pothole. The application of the principles set out in the Byrne judgment resulted in the dismissal of both of these claims. 


The dismissal of these claims on the application of Byrne is a welcome development from the point of view of defendants and their insurance companies. The courts are now requiring plaintiffs to use “common sense” to avoid injuries. They are also applying this approach in the assessment of expert opinion where the incident of alleged negligence is not in a field of activity which is complex or specialist.

The broad scope of the criteria means that they are potentially applicable in a wide variety of claims. Significantly, in all of its High Court applications so far, the Byrne judgment has resulted in dismissals. It is hoped that this trend will continue.

For more information on the application of the principles which underpinned the Byrne judgment, contact a member of our Insurance & Risk team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

Discuss your insurance queries now with Deirdre Munnelly.


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