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Fanning v Myerscough 2012 IEHC 128

Accident at Work and test for Contributory Negligence when breach of statutory duty

Fanning v Myerscough 2012 IEHC 128 – Accident at Work and test for Contributory Negligence when breach of statutory duty


This case (judgement  delivered on 27th March 2012) concerned an accident which occurred on 4th March 2008 in the course of the Plaintiff’s employment with the Defendant. The Plaintiff sustained an injury to his foot as he was descending from the tractor in which he was working. It was reported that the cab door swung open suddenly causing the Plaintiff to lose balance and fall.

The Plaintiff claimed that the accident occurred because the Defendant failed to repair a broken strut on the tractor door. The Defendant claimed that the accident was caused in whole or in part by the Plaintiff as he existed the cab whilst walking forward instead of turning to face the cab and this made it very difficult for him to keep hold of the handle at the side of the cab.

In his judgement, Ryan J. held that at the time of the accident, on the balance of probabilities, the restraining strut was defective which caused the door to swing open and strike the Plaintiff. In respect of the question of contributory negligence, Ryan J stated “the onus on an employer seeking to establish contributory negligence is higher when the employee has proven a breach of statutory duty as compared with common law negligence”. The court assessed contributory negligence at 50%.

The court held that the Plaintiff was aware that the restraining strut on the door was broken and he was also aware of the correct way to dismount from the tractor cab.

The court assessed loss of earnings at €90,000 (past and present), general damages in the past at €50,000, future damages at €30,000 and other expenses at €2,500. Damages in total were assessed at €172,500 and due to contributory negligence at 50%, judgment was made in the sum of €86,250.