In this case the member, represented by Bruce St. John Blake & Co. Solicitors, was injured during the course of his employment as a water inspector with Wexford County Council when he fell at a reservoir owned and managed by Wexford County Council. The member claimed a breach of the employer’s statutory duty to an employee in that the reservoir was a place of work which on the evidence of the plaintiff’s engineer was unsafe. The High Court Judge however placed considerable emphasis on a case in 2017 involving Dunnes Stores which was not an employer’s liability case and did not involve a breach of statutory duty owed by an employer to an employee or involve injuries to an employee of Dunnes Stores.
The High Court Judge interpreted the Dunnes case ‘as requiring the High Court to bring ordinary common sense to bear and what amounts to reasonable care by a Plaintiff’.
The High Court Judge ‘considered that common sense is also relevant to employees who are injured at work’. His conclusion was therefore that ‘ordinary common sense should have indicated to the Plaintiff that it was foolhardy for him to continue using this route when there was a flat route only meters away. He did not accept the Plaintiff’s reason for not using the flat route …. he held that the Plaintiff failed to take reasonable care for his own safety and an application of common-sense principles requires that the Plaintiff’s case be dismissed’. This decision was handed down on the 2nd of May 2018 and was appealed to the Court of Appeal which subsequently dealt with the matter on the 30th of July 2021.
The Court of Appeal reversed the findings of the High Court Trial Judge.
The Court of Appeal referred to the Engineer’s evidence which was put forward on behalf of the member which ‘establishes that a clear breach of statutory duty occurred which was causative of the Plaintiff’s accident’.
Again, the Court of Appeal goes on to state that ‘it is true to say that the Council argues that an employer is not an insurer and employees do of course have both common law and a statutory duty to take care for their own safety. That however is far from suggesting that where that occurs, an employer is there by discharged of any statutory or common law obligations to his employee which is in effect what the trial Judge concluded here’.
Therefore, as part of the decision of the Court of the Appeal, the Court of Appeal then set aside the judgement of the High Court and found in favour of the Connect member making a apportionment of 75% in favour of the plaintiff and 25% contributory negligence on the basis that ‘the heavy onus that lies upon on employer to comply with the Statutory and Common Law suggests that in this case the major part of the responsibility of this accident lies with the employer. I also however must have regard for the fact that the Plaintiff was a very experienced employee and ought on reflection to have appreciated the risks inherent in the route that he had habitually adopted’.
This Judgement reaffirms what follows from the general principle in all actions of employees injured in the workplace i.e. if the employer is deemed to have breached their statutory duty to the employee, they cannot seek to successfully defend the action simply by stating that the employee did not use their common sense. It is the situation however, that an employee must use their experience and common sense in any situation. However, if the employer has breached their statutory duty, and if it is proven that the employee did not use the experience or common sense which one would expect from an employee of such experience, a reduction will be made in any award. This is deemed to be contributory negligence, and a reduction in the award will be decided depending on the level of contributory negligence.
Following the Supreme Court judgement of Zalewski – v – Adjudication Officer and WRC, Ireland and the Attorney General 2021.
As a result of the judgement on the 6th April 2021, a number of changes will now take place in WRC Hearings.
The WRC Hearings will now be open to the public and the names of the parties will be published whereas prior to this judgement, Hearings were not open to the public and the names of the parties were not published. Where there is serious or direct conflict of evidence between the two parties, an amendment is being made to the WRC Act 2015 to give the adjudication officer the power to administer an oath or affirmation, and to provide for sanctions for the giving of false evidence. This legislation is not yet in place and currently cases are being adjourned if there is a serious and direct conflict of evidence until this legislation is enacted.
See the below link for further detail in relation to the above.
On the 6th March 2021 the Judicial Council (made up of all judges in the country) voted to adopt new guidelines which are aimed at reducing general damages awards for some personal injuries particularly the injuries which they describe as “minor injuries”. Prior to this, the guidelines in relation to personal injuries could be found in the Book of Quantum which gave general guidelines as to the amount of compensation to be awarded or assessed for personal injuries. This Book of Quantum is now to be replaced by the Personal Injury Guidelines. The proposals are to be brought to cabinet tomorrow the 9th March and will take affect once the minister commences Section 99 of the 2019 Judicial Council Act.
Once the guidelines come into effect the guidelines will apply to any personal injury action which is currently with the Injuries Board. The guidelines will not apply to any action which is no longer with the Injuries Board (having not been assessed or either party having rejected the assessment). Whilst judges retain their discretion in these particular actions it is envisaged that they will have regard to the recommendation in the judicial guideline.
At the moment it appears that the guidelines relate to “minor injuries” and does not as yet appear to relate to other types of what are described as “more severe injuries”. A definitive list of the guidelines will be published and we will include this on the website. The link below highlights examples of the type of changes to the awards being proposed.
A question which we are frequently asked in Bruce St. John Blake is whether an employer is obliged to pay an employee who is injured in an accident at work.
There is no legal obligation on an employer to pay an employee’s wages despite the fact that the injury occurred at work. In this situation, the injured employee is only entitled to Social Welfare payment from the state.
The exception to this position is where there is a condition in the contract of employment where the company agrees to pay the employee’s wages whilst he/she is off work due to the injuries for whatever length of time stated in the contract.
Similarly, the medical or hospital expenses may be paid by the employer, but again there is no obligation to do so unless provided for in the contract of employment. Also, some employers might pay all or part of the medical expenses but decline to pay the loss of earnings.
However, the loss of earnings and medical expenses will often form part of a claim in the event that the employee makes a claim to the injuries board or in any legal proceedings.
A frequently occurring difficulty which we have encountered in the past when advising on personal injury cases has been in relation to time limits. Essentially, there are time limits placed on the length of time within which a claim can be pursued. This various depending on the type of action. For personal injury actions the time limit is 2 years. So if an accident happens on the 3rd October 2018, the person has until the 2nd October 2020 to commence a claim. Obviously if the claim relates to a medical condition rather than a specific injury (e.g. industrial asthma, industrial deafness, asbestos related conditions, etc.) the time limits are much harder to calculate and vary according to each individual case. While there is still a time limit of 2 years, in these cases it is 2 years from the date when the injured party becomes aware of the medical condition or 2 years from the date when they should reasonably have been aware of the condition.
These time limits in all personal injury actions are extremely strict and if an action is not commenced within the 2 year period the case cannot ever be pursued again at a later date.
The information in these articles are intended as a general guide only and detailed advice should be obtained. No responsibility is accepted for errors or omissions howsoever arising.
If you have been involved in an accident at work or a road traffic accident the following points may be useful:
Report the accident and fill out an accident report form.
Make a note of any witnesses and their phone numbers.
If possible have someone take photographs of the accident location or the equipment/machine involved in the accident.
Get medical attention as soon as possible.
Ensure that a claim is commenced within two years from the date of the accident
In the case of a road traffic accident, try and take a photograph of the vehicles before the vehicles have been moved if possible.
In the case of a road traffic accident, always notify the Gardai as there is a statutory obligation to report any accident to the Gardai even if there are no injuries and there is no claim being made by any party.
If you are off work as a result of the injuries: –
keep a diary of all matters relating to the accident e.g. doctor’s appointments, physio appointments;
keep a brief note of symptoms as these will change throughout the course of the duration of the claim and may be difficult to recall by the time an action goes to Court;
keep copies of all receipts re doctors, physiotherapy, medication, hospital, pharmacy bills, taxi receipts etc.
Keep a note of your loss of earnings.
If you are a Connect Trade Union member and you wish to make a claim in respect to an injury at work, please contact your branch secretary and complete a Legal Aid Form as soon possible.
If you are not a member of a Trade Union please contact us directly at the contact details provided on our Home Page.
The information in this article is intended as a general guide only and detailed advice should be obtained. No responsibility is accepted for errors or omissions howsoever arising.
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