Pamela Dudgeon (57) was awarded €16,400 in damages despite CCTV showing she did not impact the ground during the incident
Pamela Dudgeon, (57) of Woodlands Grove, Coosan Road, Athlone, Co Westmeath, was awarded €16,400 in damages at Galway Circuit Court after a contested civil action.
Ms Dudgeon, a carer, said she suffers ongoing lower back pain after the incident at a Supermacs outlet in Eyre Square, Galway, on January 6, 2017.
In her claim for damages, Ms Dudgeon told her doctor, solicitor and several expert witnesses she fell and hit the ground when the chair she was sitting on fell from under her.
In November 2020, the High Court ruled that Supermac’s Ltd did not have to provide footage of the incident to Ms Dudgeon which was sought as part of the discovery process.
Supermacs argued that providing the footage to the plaintiff would allow her to “mend her hand” in circumstances where the footage may not support her version of events.
Mr Justice Barr said he was satisfied she did not need the footage to progress her claim, as Supermac’s had already admitted the chair broke and was defective.
In his ruling, Justice Barr said he was satisfied “the discovery sought only goes to the issue of credit in relation to the plaintiff’s account of the accident as set out in the pleadings to date.
“On the basis of the authorities that have been opened to me, I am satisfied that it is inappropriate for a party to obtain discovery of documents or other material on such a basis.”
During Wednesday’s hearing, Ms Dudgeon was brought through her evidence by her counsel John Hogan BL and repeated her beliefs that she fell suddenly and hit her buttock off the ground.
Ms Dudgeon said she got up quickly as she was embarrassed and didn’t feel any pain initially.
She informed a member of staff at Supermacs about what happened and continued with her meal. However, she told the court that later as she made her way to the train station, she began to feel a twinge in her lower back and lower right buttock.
Ms Dudgeon told the court that she developed a pain in her neck a few days later.
The incident happened on Friday, January 6, 2017, and Ms Dudgeon attended her GP on Monday, January 9. Her GP sent her for an x-ray and prescribed pain medication.
As Ms Dudgeon continued to complain of pain in the following months, her GP then sent her for an MRI in April 2017, which showed she had a pre-existing degenerative condition that the court heard is common in people her age that can be symptomatic or not.
Counsel for Supermacs James O’Donnell again brought Ms Dudgeon through her evidence that she believed she fell and hit the ground from a chair that Supermacs conceded was defective.
When asked if she was certain she hit the ground, she said: “That’s what I thought happened.”
She told Mr O’Donnell all she remembers is “jolting” and lurching to the left when the seat broke. She added: “I blanked.”
Footage shown to the court showed Ms Dudgeon sitting on the seat and momentarily lurching to the side, but she remained on her feet and stood upright immediately.
After a video of the footage was shown to Ms Dudgeon, Mr O’Donnell asked her if she accepted it did not show her falling and hitting the ground.
She replied: “I do. That’s what I thought (happened)."
She continued: “I’m sorry, but I did sustain an injury.
“I genuinely thought that was what happened.”
Ms Dudgeon said she continues to suffer back pain from the incident, especially when bending down and lifting things.
She said that five years on, she has recovered significantly and has less reliance on pain medication.
Surveillance footage taken in 2019 by a private investigator hired by Supermacs showed to court saw Ms Dudgeon loading two 12 packet bottles of water, one in each hand, into her shopping trolley at a supermarket.
Footage also showed her standing at the door of her family home, holding a toddler in one arm and waving with the other hand.
In cross-examination by Mr O’Donnell, Ms Dudgeon said she was able to do everyday tasks like that because she takes tablets that help her pain.
Orthopaedic surgeon Professor Aidan Devitt, an expert witness for Supermacs, told the court Ms Dudgeon’s MRI was normal for a person of her age and did not show any soft tissue injuries to her muscles or damage to her ligaments.
“MRI is very useful for picking up this kind of thing,” he said.
“From watching the footage, that incident was so minor in my opinion it would not have caused any kind of injury.”
When questioned by John Hogan BL for Ms Dudgeon, Prof Devitt said if Ms Dudgeon did hurt herself during the incident, it would, in his opinion, have only caused her pain for a matter of “days or weeks”.
Ms Dudgeon’s GP, Dr Mark McCormack, said that he found her injury claims credible.
“Clearly, she did not hit the ground, but that is immaterial. She clearly suffered a soft tissue injury.”
In closing arguments, Mr Hogan said it would be a “gross injustice for the plaintiff’s case to fail, simply because she got one element wrong”.
He said the sudden movement of the broken chair led to Ms Dudgeon suffering an injury to her lower back and buttock.
Judge Eoin Garavan said the courts should have no time for unmeritorious claims. But he said if someone had a valid claim, the court should recognise the reality of that and award damages with proportionality.
He detailed how the personal injury summons stated that the plaintiff fell to the ground in “a twisting type mechanism” and suffered pain.
Judge Garavan said Ms Dudgeon did not fall, but in this instance, this did not mean her case should fail.
The chair had “snapped suddenly”, and while Ms Dudgeon did not fall to the ground, she would have expected her “buttocks to be embraced by the chair”. He said that “the chair is the mischief here”.
Citing medical evidence presented to the court, Judge Garavan said he was satisfied Ms Dudgeon had “a certain level of injuries from this matter”.
He assessed on the evidence presented that the injuries persisted for a maximum of two and a half years.
He said the plaintiff had proved her case, she had suffered some injuries, and he assessed damages at €16,400.
Speaking outside the court Pat McDonagh, the founder and CEO of Supermacs, said he would consider appealing the case.
“We will consider an appeal.
“The CCTV evidence told its own story today.
“I think, though, the satisfying part about this case is both the Circuit and the High Court didn’t allow them (the plaintiffs) to view the CCTV before the case was heard. And I think that is very important going forward."