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.
