Djadenko v Dunnes Stores

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Barr
Judgment Date18 January 2017
Neutral Citation[2017] IEHC 11
Date18 January 2017
Docket Number[2013 No. 134 P.]

[2017] IEHC 11

THE HIGH COURT

Barr J.

[2013 No. 134 P.]

BETWEEN
OLGA DJADENKO
PLAINTIFF
AND
DUNNES STORES
DEFENDANT

Tort – Damages & Restitution – Workplace injury – Impact of injuries – Quantum of damages – Admission of liability – Safety, Health and Welfare at Work Act 2005

Facts: The plaintiff sought damages from the defendant owing to workplace injuries suffered while working at the restaurant operated by the defendant. The plaintiff sustained injuries to her left hand and left ankle while removing a glass panel from the rear of the hot deli display counter. The plaintiff contended that she had tried to catch hold of the glass panel so that it would not fall but it slipped from her hands and fell onto the plaintiff's ankle. The engineer retained by the plaintiff had contended that the probable cause of the accident was the degradation of the rubber runners on which the glass vision panels were mounted, and the failure to repair those reflect breach of statutory duty by the defendant under s. 8 (2) of the Safety, Health and Welfare at Work Act 2005. The defendant, initially claiming contributory negligence, conceded to its liability and agreed for special damages.

Mr. Justice Barr awarded general damages along with damages for continuing disability in addition to the special agreed damages to the plaintiff. The Court took into account the condition of the plaintiff, the impact of the injuries on the personal and psychological condition of the plaintiff. The Court found that the probable cause of the accident identified by the plaintiff's expert engineer was supported by the documents discovered by the defendant during discovery and hence, there was lack of statutory duty by the defendant. The Court, however, refused to award damages to the plaintiff for the breakup of her engagement with her partner as it was two years since that break up had occurred and the injuries sustained had no direct impact on the plaintiff's deteriorating relationship.

JUDGMENT of Mr. Justice Barr delivered on the 18th day of January, 2017
Introduction
1

This action arises out of an accident which occurred on 21st June, 2011. At the time, the plaintiff was working as an assistant chef with the defendant company at its shop premises situated at Ongar Village, Clonee, Dublin 15. It is alleged that on the evening in question, the plaintiff had removed a glass panel from the rear of the hot deli display counter. Having washed the pane of glass, she was holding it in both hands and was about to replace it onto the counter, when suddenly the glass slipped out of the rubber surround and began to fall to the ground. The plaintiff attempted to catch the glass in her left hand and in so doing suffered a jerking injury to her left shoulder the glass fell onto the plaintiff's ankle, causing a partial tear of the medial ligament in her ankle joint. It is alleged that as a result of this incident, the plaintiff was caused to suffer soft tissue injury to her left shoulder and, left ankle. She also developed psychiatric symptoms.

2

Initially, the defendant entered a full defence to the action, which included a plea of contributory negligence against the plaintiff. This stance on liability was continued until the morning of the hearing of the action, at which stage counsel for the defendant, Mr. Leonard, S.C., informed the plaintiff's counsel that while he was not formally conceding liability, the defendant would not be cross examining the plaintiff, or her engineer on any liability issues.

3

Prior to the hearing of the action, special damages were agreed between the parties in the sum of €5,246.

The liability evidence and conclusions thereon
4

The plaintiff stated that at approximately 18:00hrs on 21st June, 2011, she had lifted the glass panels from the rear of the hot deli counter, for the purpose of cleaning them. She had removed one of the panes of glass and had washed it. She then lifted the frame for the purpose of putting it back onto the counter. However, the glass panel fell out of the rubber frame in which it had been held and fell towards the floor. The plaintiff stated that she tried to catch the glass, but she was unable to prevent it falling onto her foot. She suffered a strain injury to her left shoulder in attempting to catch the falling pane of glass.

5

The pane of glass fell onto her left ankle and foot. It did not break. A colleague came to her assistance and lifted the pane of glass from her foot.

6

The plaintiff stated that the pane of glass simply slipped out of the rubber frame in which it had been housed.

7

Evidence was given by Mr. Patrick Hayes, consultant engineer, on behalf of the plaintiff. He had prepared a booklet of photographs showing the hot deli counter at the time of his inspection. In particular, he referred to photograph No. 4 which showed that the glass was housed in an aluminium frame. He stated that this was different to the situation which had pertained at the time of the accident, when the glass was housed in a rubber surround. There were two panes of glass and it was designed in such a way that one pane of glass could slide across the other pane of glass, so as to allow staff gain access to the trays of food in the deli counter.

8

Mr. Hayes pointed out that in photographs Nos. 12 – 14, it was possible to see the residue of the rubber channelling in which the glass had originally been housed. It was his opinion that at the time of the accident, the rubber surround on the glass had degraded to such an extent, that the glass was able to slip out in the manner described by the plaintiff.

9

Mr. Hayes pointed out that there were a number of relevant documents included in the documents which had been discovered by the defendant in advance of the hearing. In particular, there was a receipt from Martin Food Equipment dated 24th February, 2011. This indicated that work had been undertaken at the defendant's shop where the plaintiff worked and had been carried out on a Bailey & Townley Hot Deli, the piece of equipment which the plaintiff was working on at the time of the accident. That receipt noted: ‘needs sliding glides for glass doors’. Mr. Hayes believed that this referred to the rubber glides in which the glass doors sat.

10

A further receipt from Martin Food Equipment dated 22nd April, 2011, had also been discovered. There was text under the engineer's report in that receipt, however, same was illegible.

11

A service call history for Bailey & Townley Hot Deli serial 108344, had also been discovered. This document had two entries, the first of which referred to two heat blubs not working. The second entry dated 21st April, 2011, stated: ‘Hot deli cabinet – doors falling out of door runners. Staff member cut her hand on door last night as a result.’ That entry went on to state :- ‘Resolution: parts not available – recommended [incomplete text]’.

12

Finally, discovery had been made of an email dated 28th April, 2011, from Mr. David Hughes of Martin Food Equipment to Mr. Padraig Kearney of Dunnes Stores. That email stated:-

‘Our engineer was on site in Clonsilla as requested to look at the Bailey and Townley Hot Deli cabinet – reported that doors falling into the cabinet on top of food and that one staff member had cut herself on the door runners.

Unfortunately we are unable to get the parts for the Bailey and Townley apart from blubs…Our only available option that we could offer is to recommend changing this machine both because of the condition of the unit and also because it injured a member of staff. I believe we recommended this after a previous visit to site.’

13

Mr. Hayes stated that the conclusion in their initial report, that the probable cause of the accident was degradation of the rubber runners on which the glass vision plates were mounted in the aluminium frame; was supported by the documents which had been discovered by the defendant. These documents indicated that the defendants were aware of the degradation of the ‘sliding glides’ in February 2011. The documentation also indicated that the glass fell out of the door runners causing an injury to a member of staff in April 2011. As such, the defendant, was fully aware of the defective nature of the doors on the hot deli cabinet, prior to the date of the plaintiff's accident in June 2011.

14

Mr. Hayes further pointed out that the accident report form completed following the plaintiff's accident, indicated that glass fell out of position onto the plaintiff's foot at the time of the accident. The defendant's accident reporting and investigation procedure, as specified in the defendant's Safety Statement which had been discovered, stated that as part of their response to an incident, the area where an incident occurred, would be made safe. Mr. Hayes stated that it was clear from the documents which had come to hand, that a member of the defendant's staff had had an incident and suffered injury at least two months prior to the plaintiff's accident. For the plaintiff's accident to occur in the manner as described and as detailed in the accident report form, the defendant did not comply with its own Safety Statement or with their statutory duty and did not make the equiptment safe.

15

In addition, Mr. Hayes stated that it was clear that the defendants did not comply with the recommendations of the maintenance engineer to make the equiptment safe. Had the defendants complied with their own Safety Statement and their statutory duty by providing safe working equipment, the plaintiff's accident could have been avoided.

16

Mr. Hayes stated that in the circumstances outlined, it was his opinion that the defendant had acted in breach of s. 8(2) of the Safety, Health and Welfare at Work Act 2005, and in breach of Regulation 31 of the General Application Regulations 2007, which placed a duty on the employer to maintain plant and...

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