Kirby v Hotel Kilkenny: Burden on Occupier to Prove Reasonable Cleaning Protocols in Slip-and-Fall Claims

1. Introduction

This commentary examines the High Court’s decision in Kirby v Hotel Kilkenny Ltd T/A Hotel Kilkenny [2025] IEHC 305. The case arose from a slip-and-fall incident on 18 August 2018 in a “sky lobby” outside a lift. Pamela Kirby (the plaintiff) alleged she slipped on a clear liquid left on a ceramic tile and sustained serious elbow and foot injuries. Hotel Kilkenny (the defendant) contended that no liquid was present and that the plaintiff tripped over her own footwear. Key issues included:

Whether the fall was caused by a hazardous spill or by the plaintiff’s heel.
Whether the hotel breached its duty of care under the Occupiers’ Liability Act 1995 and the Hotel Proprietors Act 1963.
The role of CCTV evidence versus eyewitness testimony.
Contributory negligence and quantum of damages.

2. Summary of the Judgment

Mr Justice O’Connor, having observed the witnesses and reviewed CCTV footage, found:

The CCTV camera’s diagonal, distant view did not disprove the presence of liquid.
The plaintiff, her husband and an independent guest (Ms Mullins) were credible in describing a slip on a clear liquid.
The defendant failed to prove it had taken reasonable care immediately before the accident (no record of cleaning or inspection in the minutes preceding 18:22:47 pm).
The hotel breached its duty under Section 3(2) of the Occupiers’ Liability Act 1995 and Section 4 of the Hotel Proprietors Act 1963.
No contributory negligence could be imputed to the plaintiff for wearing high heels.
General damages of €72,000 were awarded for combined elbow and mid-foot injuries.

3. Analysis

3.1 Precedents Cited

Kandaurova v Circle K Energy Group Ltd [2025] IECA 13: Distinguished as a “usual danger” case not covering hidden spills.
Occupiers’ Liability Act 1995, Section 3(2): Imposes on occupier the onus to show reasonable care where a hazard exists.
Hotel Proprietors Act 1963, Section 4: Defines the hotelier’s duty to maintain safe premises “with reasonable care and skill.”
Civil Liability and Courts Act 2004, Sections 14 & 26: Governing precision of pleadings; the court rejected a late submission to dismiss the claim for imprecise “personal injuries summons.”
Brown v Van Geene [2020] IECA 253; Naghten v Cool Running Events Ltd [2021] IECA 17; Crean v Harty [2020] IECA 364: Illustrating the requirement for clear, precise factual pleadings.
Keane v Johnson & Johnson Vision Care Ireland [2025] IEHC 216: Two-stage approach to assessing general damages under the 2016 Book of Quantum.

3.2 Legal Reasoning

The court applied the balance of probabilities standard. Key elements of the reasoning were:

Credibility and Reliability: The plaintiff’s consistent account, corroborated by her husband and an independent guest, outweighed speculative interpretations of CCTV footage.
CCTV Limitations: One distant camera cannot reliably show the presence or absence of a clear liquid on the floor.
Burden of Proof: Once the plaintiff established a slip on liquid, the onus shifted to the hotel to prove it had taken all reasonable steps (cleaning, inspections, signage) to prevent such accidents.
Procedures vs. Practice: The hotel’s Standard Operating Procedures (SOPs) mandated 30-minute checks and daily cleaning, but no evidence was produced of specific compliance immediately before the fall.
Pleadings: The court refused to strike out for imprecise pleadings under s. 14 of the 2004 Act, absent deliberate fraud or misleading intent.
Quantum Assessment: Following the structured approach from Keane, the court allocated damages within the 2016 Book of Quantum bands and then adjusted for overlap and proportionality.

3.3 Impact

This decision reinforces several practical points:

Occupiers must not only draft robust cleaning protocols but also document and prove actual compliance in the period immediately preceding an accident.
CCTV footage, depending on angle and clarity, may have limited value in slip-and-fall cases; courts will prioritize credible eyewitness testimony.
Pleadings in personal injury litigation must be precise, but courts will allow some flexibility absent deliberate misstatement.
The judgment provides a clear template for assessing occupier liability under the 1995 and 1963 Acts, particularly in hospitality settings.

4. Complex Concepts Simplified

Balance of Probabilities: The standard of proof in civil cases: the court must be satisfied that a fact is more likely than not.
Burden of Proof (Onus): Once a plaintiff shows a hazard (e.g., slip on liquid), the occupier must prove it took all reasonable measures to prevent harm.
Occupiers’ Liability Act 1995, Section 3(2): Requires an occupier to take “such care as is reasonable” to ensure visitors are safe from hazards on the premises.
Hotel Proprietors Act 1963, Section 4: Imposes a specific duty on hoteliers to keep their premises “as safe as reasonable care and skill” can make them.
Structured Two-Stage Quantum Approach: First assign a value to each injury band (Book of Quantum), then adjust the total for overlap and proportionality under the statutory cap.

5. Conclusion

Kirby v Hotel Kilkenny clarifies that in slip-and-fall litigation:

CCTV evidence is not dispositive where camera placement is inadequate to show a hazard clearly;
Credible eyewitness evidence can establish presence of a dangerous condition;
Occupiers bear the burden of proving real-time compliance with their own cleaning and inspection regimes;
Precise pleadings are required, but courts will not lightly dismiss actions absent deliberate misstatement.

This judgment will guide future occupier-liability and hospitality-industry cases, underlining the necessity of documented and demonstrable safety practices.