The case of Smith v Health Service Executive 2013 [IEHC] 360 concerned a claim for damages, breach of duty including statutory duty in respect of injuries sustained by the plaintiff in the course of employment in July 2010.BackgroundThe plaintiff was employed by the defendants for 18 years as a Household Assistant in St. Joseph’s, Clonmel, County Tipperary, an institution which engaged in the rehabilitation of boys between the ages of 12 and 18 years.On the day of her accident, the plaintiff was engaged in cleaning a shower or shower room in one of the residential units. The plaintiff’s task was to thoroughly cleanse the walls and floors of the shower room. Because of the bleach she was using, the plaintiff had to keep the door of the shower room open due to the fumes. The door did not function properly due to the hinges on the door and the plaintiff used the handle of a mop or brush into the jamb of the door with the head of the brush or mop securely placed in the angle between the doorstep and the opposite side of the doorway. While scrubbing the back wall with the long handled mop, the plaintiff, while backing away, tripped as her heel came in contact with the doorstop. The plaintiff collided heavily with the wall on the opposite side of the corridor and suffered a serious injury to her spine i.e. a wedge fracture of one of the vertebrae of her thoracic spine. She was unable to rise from the floor. Help arrived and in due course she was removed by ambulance to South Tipperary General Hospital.System of WorkThe plaintiff’s claim for negligence and breach of duty came down to three specific criticisms that the plaintiff makes of the defendants’ system of work under which she operated when she had her accident:1. the height of the step into the shower room. An engineer called for the plaintiff, said in evidence that this step was much higher than it needed to be, to achieve its purpose. Justice O’Neill disagreed and stated that even if the step was one inch in height, it would still have been a serious tripping hazard and noted this allegation of negligence and breach of statutory duty failed.2. a warning should have been given to the plaintiff by the defendants as to the hazard posed by this step. Justice O’ Neill disagreed and stated that a warning was unnecessary as the plaintiff had been working for 14 years prior to the accident and was familiar with the layout of the premises and noted again this allegation of negligence and breach of duty also failed.. He stated:“It would be completely unreal to suggest that her employers could have done anything more, realistically, to convey to the plaintiff the potential risks posed by this step and I am satisfied that it was wholly unnecessary for the defendants to have given or provided a warning of the potential hazards associated with this step which was readily visible to adult, competent employees including the plaintiff”3. the plaintiff’s contended that the defendants, over many years, condoned the practice of securing doors in the open position by placing the handle of a long mop or brush into the jamb of the door and securing the other end or head of the mop or brush into the angle between the doorstep and the other side of the doorway. Evidence was given by several of the defendants’ employees whereby it appeared that the practice was regularly and continuously used over a long period of time to prop open doors. Justice O’Neill stated “It is absolutely clear that the defendants at no stage did anything to prohibit this practice, and I am satisfied on the balance of probability that the management grade in St. Joseph’s must have been aware of it, or at the very least, having regard to the longevity and prevalence of the practice, they ought to have been aware of it”.Legal Issues – Safety Health and Welfare at Work Act 2005 The High Court had to first consider whether or not the condoning by the defendants of this practice and their failure to have prohibited it when they said they knew or ought to have known of it was a breach of statutory duty on their part.The plaintiff contended that the practice of propping open self-closing doors with the handle of a brush or mop was a breach of Section 8 of the Safety Health and Welfare at Work Act 2005 (as amended) which provides:“8.—(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following: (a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees; . . .”The plaintiff also contended that there was a breach of section 19 of the Act:“19.—(1) Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be known and referred to in this Act as a ‘risk assessment’) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions . . .”Justice O’Neill was of the opinion that in relation to section 8(2)(a) of the Act of 2005 ” that the defendants were in breach of this statutory duty to the plaintiff and there is a direct causative link between that failure and injuries suffered by the plaintiff”.Justice O’Neill also stated that the practice of propping open doors with brush or mop handles should have been addressed in a risk assessment and the failure to have done so was a breach of the defendants’ statutory duty under section 19(1).Contributory Negligence and Section 13 of 2005 ActSection 13 of the 2005 Act deals with the issue of contributory negligence and provides:“13.—(1) An employee shall, while at work—(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work. . . .”The court noted that “where a breach of statutory duty is established as a primary cause of a plaintiff’s injury, mere inadvertence or inattention on the part of the employee as distinct from positive conscious deliberate action will not amount to contributory negligence” The court concluded that(a) liability must attach to the plaintiff in respect of “what may fairly be regarded as her negligence in bringing about this accident by backing into and falling over an obstacle which she had placed in her own pathway only moments earlier”.(b) reflecting the higher or heavier duty resting upon the employer under section 8(1) with regard to managing the system of work, “a significantly greater proportion of liability must attach to the defendants for having condoned and permitted the practice of propping open doors with brush or mop handles to have continued uninhibited over a long period of time”. Justice O’Neill concluded that the appropriate apportionment of liability between the plaintiff and defendants was 75% against the defendants and 25% against the plaintiff.Medical Injuries and DamagesBoth parties agreed to the medical reports submitted and no medical expert witnesses were called. Justice O’Neill stated that he was satisfied that since the accident, the plaintiff had a great deal of pain and discomfort, particularly down the left side of her body and that all of this pain and discomfort had had a very debilitating effect on her life,The court assessed damages in respect of the plaintiff’s pain and suffering in the sum of €45,000 and future general damages at €30,000, making a total of €75,000.Dismissal for Fraudulent ActionThe close of the case counsel for the defendants applied to the court to dismiss the plaintiff’s case under the provisions of sections 26(1) and (2) of the Civil Liability in Courts Act 2004 (as amended) on the basis that the plaintiff did not disclose all of her medical history.Justice O’Neill however concluded that “In light of all of the information disclosed to the defendants in the plaintiff’s medical records and bearing in mind that there is little or no dispute concerning the injuries suffered by the plaintiff in this accident, save to the relatively minimal extent revealed in the defendants’ medical experts reports, the forensic assault on the plaintiff to set up an application under s. 26 of the Act of 2004, can only be seen as wholly unjustified and an opportunist attempt to evade their liability to the plaintiff by a misconceived invocation of section 26”.The Court was particularly dismissive of the application by the defendant under section 26. Justice O’Neill also stated:“I would like to add that this section is there to deter and disallow fraudulent claims. It should not to be seen as an opportunity to prey on the frailty of human recollection or the accidental mishaps that so often occur in the process of litigation, to enable a concoction of error to be assembled so as to mount an attack on a worthy plaintiff in order to deprive that plaintiff of the award of compensation to which they are rightly entitled. There is a world of difference between this plaintiff’s case and the fraudulent claims that have been exposed in the cases that were opened to this court in dealing with this s. 26 application, namely: (i) Folan v. Ó Corraoin & Ors. [2011] IEHC 487, Murphy J.(ii) Rahman v. Craigfort Taverns Ltd. [2012] IEHC 478, O’Neill J.(iii) Montgomery v. Minister for Justice, Equality and Defence & Anor.[2012] IEHC 443, O’Neill J.(iv) De Cataldo v. Petro Gas Group Ltd. & Anor. [2012] IEHC 495, O’Neill J.(v) Salako v. O’Carroll [2013] IEHC, 17, Peart J.(vi) Ludlow v. Unsworth & Anor. [2013] IEHC 153, Ryan J.It behoves defendants to use prudent discernment before taking the very serious step of making a s. 26 application”The court also questioned the practice of seeking particulars beyond their legitimate scope and referred to the case of Armstrong v. Sean Moffatt and Thomas Moffatt t/a Ballina Medical Centre and Maureen Irwin. He also noted that discovery in this case extended far beyond what was relevant to the issues in the proceedings as raised on the pleadings.ConclusionThe plaintiff was originally awarded special damages agreed at €5,000 together with general damages of €75,000 however the award was reduced by 75% to €60,000.
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