Pauline Sullivan slipped and fell on a wet floor in the Cumbernauld branch of Dunnes Stores. It had been raining, and matting which had been put in place did not cover a critical area at the entrance and exit to the store. Primary liability for the creation of a slipping hazard was admitted. An argument on contributory negligence was pursued but assessed at nil.
The pursuer suffered a particularly serious ligamentous injury with a damages award of £41,835.55. A particular point of interest is the way the court approached the question of future loss relating to the risk of osteoarthritis. The medical evidence was that clinical signs of osteoarthritis would be likely to materialise within ten years of the accident circumstances, necessitating a possible further operation. But what could not be said on the evidence was that such an operation was likely on the balance of probabilities. The pursuer argued that the risk of a further operation was a real risk and that further, 8 services would be required during the recuperation period. The court accepted that the test for future loss was not the balance of probabilities (the 51% test) but whether a real risk had been established. Whilst the court was prepared to accept a notional risk, there was no real evidential basis for quantification, and that head of claim failed. In substantial cases, the advice was that provisional damages should be claimed.