Edina Nemeth v Topaz Energy Group Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 07 October 2021
• Neutral Citation: [2021] IECA 252
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2020/115

Between/

Edina Nemeth

Plaintiff/Respondent

and

Topaz Energy Group Limited

Defendant/Appellant

[2021] IECA 252

Noonan J.

Faherty J.

Binchy J.

Record Number: 2020/115

High Court Record Number: 2017/7926P

THE COURT OF APPEAL

Judicial review – Costs – Proportion – Appellant appealing against award of costs – Whether costs should follow the event

Facts: The High Court awarded the respondents, the Mongans, 50% of the costs of judicial review proceedings. The appellant, Clare County Council, appealed to the Court of Appeal, stating that it was an error of law and fact on the part of the High Court to determine that it was reasonable for the respondents to commence the proceedings in the absence of any determination concerning the issues arising in the proceedings. The appellant further contended that the trial judge, having determined that it was not reasonable to continue the proceedings beyond March 2017, should only have awarded costs, if at all, up to that date which were confined to the ex parte leave application. The appellant complained further that having successfully resisted the respondents’ motion to amend, it should have been awarded the costs of that motion as costs should follow the event. The notice of appeal stated that the order sought from the court was an order striking out the proceedings with no order as to costs and an order awarding the appellant the costs of the amendment motion. In their cross-appeal, the respondents argued that they were entitled to greater than 50% of their costs on the basis that the circumstances merited such an order. They claimed a similar proportion of their costs in respect of the amendment motion on the basis that the appellant secured a benefit from that motion being the determination of the High Court that the statement of An Taoiseach had no legal effect.

Held by Noonan J that in circumstances where the order sought by the appellant in its notice of appeal was that there should be no order as to the costs of the proceedings, with the exception of the motion to amend, there should be no order as to costs of the proceedings in the High Court, with the exception of the motion to amend. With regard to that motion, Noonan J held that it was by any objective measure clear that the respondents failed and the appellant was entirely successful. Noonan J did not consider that it could reasonably be said that the appellant derived any benefit from the finding of the High Court that the statement of An Taoiseach had no legal effect; this was merely an incidental finding to the court’s primary determination which was that the respondents were not entitled to amend their grounds. Therefore, Noonan J considered that costs should follow the event in respect of that motion and the appellant was entitled to those costs.

Noonan J held that his provisional view was that as the appellant had been entirely successful on both the appeal and cross-appeal, it should be awarded its costs of the appeal.

Costs awarded to appellant.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Noonan delivered on the 7th day of October, 2021

1 . The respondent (the plaintiff) suffered an injury to her right knee in the course of her employment with the appellant (the defendant) at its filling station in Clonshaugh, County Dublin on the 28th January, 2017. The High Court found the defendant responsible for the plaintiff's injury and awarded her €40,000 in general damages together with €13,682.95 for special damages. The total award was €53,682.95 and costs. The defendant appeals against that finding.

The Pleaded Case

2 . The plaintiff was born on the 13th February, 1975 and was 41 years of age on the date of the accident. She was employed by the defendant three months earlier, in October 2016, as a trainee assistant manager at the filling station. The injury to the plaintiff's right knee occurred during a routine stocktaking. In her personal injuries summons, she pleads:-

“… [T]he plaintiff was caused, instructed and required to assume a squatting position to be held for a sustained period of time, and in a congested workspace. Having done so for a number of minutes, the plaintiff then sought and attempted to rise to a standing posture, when she suffered sudden and severe pain and injury to her right lower limb and knee.”

3 . The particulars of negligence are almost entirely generic with the usual complaints of a failure to provide a safe system of work, proper training and so forth. The only specific pleas relate to causing, instructing and permitting the plaintiff to squat low and work in such a posture while conducting a stock take and failing to provide adequate seating for the work the plaintiff was directed to perform.

4 . In answer to a notice for particulars asking, inter alia, who instructed the plaintiff to assume a squatting position, the plaintiff answered (at para. 16):-

“The plaintiff was directed to complete a full stock-take, which included magazines in the press at floor level. During training on manual handling provided by the defendant to the plaintiff, the plaintiff was instructed to always put the weight on her legs while completing tasks rather than bending her back.”

5 . This is a reference to a manual handling course provided by the defendant to the plaintiff in November 2016 in which she received the customary advice about lifting, namely to bend her legs rather than her back.

6 . In updated particulars of negligence provided by the plaintiff on the 9th April, 2019, specific breaches of the provisions of the Safety, Health and Welfare at Work Act, 2005 and the General Application Regulations S.I. 299/2007 were given, which again are largely generic save for (v):-

“Failing to ensure that the plaintiff, and employees were physically suited to carry out the task the subject matter of the within proceedings.”

7 . The plaintiff's S.I. 391 disclosure of medical and engineering reports was consistent with the pleaded case. She told both her own doctors and those of the defendant that she was squatting at the material time. She told Dr. Robert McQuillan who examined her on behalf of the defendant on the 3rd April, 2018 that she had to squat to count magazines for about twenty five minutes. A joint engineering inspection took place on the 11th September, 2018 at the premises attended by Mr. Alan Conlan, consulting engineer, on behalf of the plaintiff and Mr. Sean Walsh, consulting engineer, on behalf of the defendant. In his report, Mr. Conlan records the instructions given to him by the plaintiff in the following terms:-

“Edina Nemeth reports that at the time of the accident she was doing a stock check of the newspapers and magazines in the cupboard behind the serving counter. They were stored on a low shelf inside the cupboard. She reports that while she was doing this she squatted down; she did a full squat, she was squatting down for between five-ten minutes counting the newspapers and magazines. She reports that it is quite a congested area. She reports that at the time she suffered an injury as she was attempting to stand up from a squat her right knee cap popped out, as a result she suffered injuries. She couldn't stand up, she was left squatting… She reports that she is 1.72 metres tall and weighed approximately 90 kilograms.”

8 . A similar description is to be found in Mr. Walsh's report although he says that the accident was described in terms of the plaintiff having been squatting “for a few minutes”.

9 . The plaintiff was medically examined on behalf of the defendant by Mr. James O'Flanagan, consultant orthopaedic surgeon, who provided a medical report which in common with all the medical reports in the case, was agreed without the necessity for formal proof. Mr. O'Flanagan notes that the plaintiff told him that she sustained an injury to her right knee whilst squatting at work. In his conclusion and prognosis, Mr. O'Flanagan says:-

“This lady sustained a bucket handle tear of the lateral meniscus while squatting at work on the 28th January 2017. The mechanism of injury described is quite classical for such an injury.”

10 . In the “Discussions” section of his report, Mr. Conlan noted that there was very little published information available on lower limb disorders in the work context but one which he had come across was published by the European Agency for Safety and Health at Work entitled “E-Facts 42”. This identifies certain risks associated with squatting at one location for at least half an hour or, intermittently, at two or more locations for more than two hours a day. It is common case that neither of these arise in the present situation.

11 . Mr. Conlan also notes in his report that because of the plaintiff's large build, this probably increased the risk to which she was exposed in squatting and lifting herself up from a squat. His opinion was that it was probably a combination of the action of squatting and the plaintiff's individual risk profile which resulted in her injury. He refers to various statutory provisions relevant to employers which appear to be reproduced in the updated particulars of negligence, but Mr. Conlan does not specifically suggest in his report that any of these were breached by the defendant. His conclusion was that:-

“It is likely that Edina Nemeth's employers did not give due consideration to her risk profile when assigning her to this task.”

The Trial

12 . The trial commenced on the 10th March, 2020. As is often the way in such cases, a central feature of the trial was CCTV footage of the accident itself and the plaintiff's activities in the lead up to it. This footage was available to the plaintiff's legal team for several years prior to the trial but somewhat remarkably, it was not viewed by the plaintiff herself, her lawyers or engineer until the morning of the trial. What it shows is something quite different from the case made by...