Mr Justice Raymond Groarke made the remark during a legal action by a fisherman against Irish Rail. The fisherman was claiming compensation* for a triple fracture of his right shoulder when he fell though the gap between the train.
The man was travelling on a train from Dun Laoghaire to Connolly Station in Dublin when he mistakenly disembarked at Tara Street. He realised his mistake and tried to re-board the train. It was at this point that he slipped through the gap and onto the train tracks. He managed to re-board the train and reported the incident to Irish Rail when he arrived at Connolly Station. Irish Rail denied liability and claimed the passenger had been distracted and had failed to look where he was going. Counsel on behalf of Irish Rail stated that the CCTV footage of the incident had been destroyed because it "showed nothing."
The man attended St Michael’s Hospital, in Dun Laoghaire the next day where X-rays revealed the injury. He said he had ongoing pain in his shoulder. Irish Rail accident reports showed that 11 accidents involving people falling through a gap had happened during the five years prior to this accident.
Mr Bowman SC for the man said that it was extraordinary that despite the fact that the man had reported the incident and despite the fact that there are “probably more CCTV cameras at Tara Street Station than there are at Pinewood Studios,” no CCTV footage of the incident was available. Mr Bowman further stated that the man was entitled to travel safely and that obligation had not been met by Irish Rail. Drivers are responsible to delivering an audible warning to "mind the gap". Judget Groarke said he was satisfied that there was no evidence that the driver did so on this occasion.
Judge Groarke, hearing that train drivers were responsible for delivering an audio warning to ‘mind the gap,’ said he was satisfied that there had been no evidence that in this case the driver did so, and that a train driver might not see a passenger who had fallen onto the tracks through the gap. Judge Groake further stated "I recognise that the man, having got off the train at the wrong station, may have been distracted, but that is why it is all the more important that there should be a warning to remind people to be careful of the gap." He said that he was satisfied that Irish Rail had been negligent, but that the man should have been more careful, he was therefore 50% liable for the accident, and reduce the award to €25,000.
*In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.