In the recent case of Barry v Dunnes Stores (Clonmel) Limited 2011 1376P the plaintiff claimed damages for an accident which took place on the floor premises. Justice Irvine delivered judgement on 12th June 2013.BackgroundThis claim concerned an incident which took place on the defendant’s premises at Clonmel, Co. Tipperary in October 2004. The plaintiff was employed as a part time sales assistant and was six weeks pregnant. At the time her job included putting out stock on the shop floor from trolleys which are loaded by members of staff in the stores area. On the day of the incident the plaintiff and her colleague found a number of trolleys in the homeware department which were stacked with goods to be displayed on shelves in that department. Part of the plaintiff’s duties was to unload any trolleys so positioned as part of her regular duties and to place the goods on display.The plaintiff claimed that she went over to one of the trolleys which was stacked with boxes well above the height of her head and reached up to one of these boxes and pulled it forward to take it down. As the weight of the box came into her arms, which were stretched above her head, the plaintiff realised it was too heavy for her to manage. She called to her colleague who was otherwise engaged. The plaintiff stated that she had to take the weight of the box into her arms and put it down quickly on a table that was close by and that a few minutes later she felt pain in her back which then started to radiate into her left buttock and down her left leg.The plaintiff claimed that she suffered a significant injury to her back due to negligence and breach of duty on the part of her employer and that her employer failed to provide her with a safe place of work, a safe system of work, safe equipment or any competent assistance. The plaintiff further claimed that the defendant was liable at common law due to its failure to take reasonable care for her safety claiming that as a result she sustained a foreseeable injury to her back.The defendant denied all liability and contended that the plaintiff was not exposed to a trolley which was laden in the manner alleged and if the trolley was so laden, that the plaintiff’s injuries were caused entirely by her own negligence. The defendant stated that the plaintiff was given extensive safety training which focused significantly on accident prevention and back safety and that the plaintiff was warned that she should never lift any load without first ascertaining its weight. In essence the defendant stated that the plaintiff was the author of her own misfortune.DecisionJustice Irvine noted that the plaintiff’s account of the events which led to the accident was entirely consistent with the pleadings, her written account of how she sustained her injuries and the evidence of her co-worker. The court also accepted the plaintiff’s evidence that on the morning of her injury, several trolleys were stacked with goods to a height of approximately 6ft and were left on the shop floor to be unpacked.The court noted that although it had heard evidence from the plaintiff’s manager at the time that the staff were trained not to stack trolleys above eye level for safety reasons, it was satisfied that the company’s safety practice were not followed. Justice Irvine also referred to the evidence of the consulting engineer who inspected the locus in quo and was only permitted to photograph an empty trolley. The engineer gave evidence that he observed the presence of three other trolleys on the premises and that two trolleys were stacked with goods to a height of 6.5, 7 and 8ft respectively. He asked for permission to photograph these trolleys but was refused.Having regard to the findings of fact, Justice Irvine stated “I am satisfied that I must find the defendant guilty of negligence” He noted that the “…….trolley was stacked too high and boxes of bath mats weighting 9-10 kilos should never have been stacked above shoulder height”.Justice Irvine further noted….”Clearly, it is not only the employer that has obligations in terms of health and safety. Every employee must take care for their own safety” Having considered all of the evidence, including the training videos shown in the course of the proceedings, Justice Irvine noted that the plaintiff had received adequate safety training as to the manner in which she should approach any task involving the lifting of goods. However he further noted that ” the fact that an employer may train its staff at the time of recruitment and intermittently thereafter regarding the risk of injury to their back is significantly negated if, in daily practice, the methods for moving goods safely as advised in the course of training are not deployed by employees and managers do not enforce compliance with training and safe practice”.The court also referred to the defendant’s position that there were step ladders in the store which could have been used by the plaintiff for the task in question. Justice Irvine noted that the plaintiff should never have required a step ladder to unload any trolley of goods and that step ladders were not in abundant supply around the store. He was also satisfied that the load concerned could not have been moved safely by the plaintiff standing on a step ladder.The court concluded that regardless of the facts, the Plaintiff should have known not to try to lift down the box which caused her injury and that “….Had the plaintiff ascertained its weight by getting a step ladder, albeit it that this may have taken some minutes, I think this injury would not have happened”. Alternatively the plaintiff should have refused to move the load. Justice Irvive decided that the plaintiff must bear 30% of the liability for the injuries sustained.In respect of pain and suffering to date, the court awarded a sum of €45,000 and €33,000 in respect of loss of earnings which would be added to any agreed special damages. Thereafter the court noted that a deduction of 30% must be made in respect of the plaintiff’s contributory negligence.
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