FBD must pay legal costs in footpath-trip damages case

Couple misled insurer over works outside home but firm did not inquire thoroughly, says judge

An insurance company's failure to carry out a "thoroughgoing investigation" of statements made by policyholders being sued over an incident outside their Dublin home means it must pay the legal costs of the case, the High Court has ruled.

Mr Justice John Hedigan said FBD was liable to pay the full costs of defending an action brought against policyholders Des Gallagher and his wife Emma Hutchinson over an incident on the footpath outside their home at Kilcarrig Crescent, Tallaght.

Although the couple had misled FBD by telling an investigator they did not have any work done on the footpath when the evidence was to the contrary, the company could have ascertained the true position via a thorough investigation, the judge said.

Elizabeth Berney, who lives down the street from the couple, tripped on a lip created when a ramp was built into a second entrance to their home during extension works in 2010.


In 2012, Ms Berney issued proceedings claiming damages against South Dublin Co Council, as the responsible authority for roads and footpaths, for injuries she received in the fall. She later also sued Mr Gallagher and Ms Hutchinson when the council lodged a defence pleading the couple carried out work on the footpath without its knowledge or consent.

FBD repudiated liability on behalf of the couple after it learned, when proceedings were under way, they had had work done to create an entrance into a driveway and last January also withdrew its legal representation for the couple. Last March, Mr Gallagher and his wife were found liable for damages.