Edward O'Connor v Wexford County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 30 July 2021
• Neutral Citation: [2021] IECA 239
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2018/263CA

Between/

Edward O'Connor

Plaintiff/Appellant

and

Wexford County Council

Defendant/Respondent

[2021] IECA 239

Noonan J.

Faherty J.

Binchy J.

Record Number: 2018/263CA

High Court Record Number: 2013/12479P

THE COURT OF APPEAL

Personal injuries – Liability – Contributory negligence – Appellant appealing against the dismissal of his personal injuries action by the High Court – Whether the trial judge fell into error in dismissing the claim on the basis he did

Facts: The plaintiff/appellant, Mr O’Connor, was a water inspector employed by the defendant/respondent, Wexford County Council. His duties included making a daily visit to Ferns Reservoir for the purpose of checking the water level and carrying out other checks and observations. The plaintiff’s invariable practice when he came to the reservoir was to park his jeep on the downhill slope towards the meter room and to walk up the steep grass bank, check the manhole and walk down again. The plaintiff gave evidence that on 6th February 2011, he slipped and fell while on the way down the embankment. The plaintiff appealed to the Court of Appeal against the dismissal of his personal injuries action by the High Court (Twomey J) in a judgment of the 2nd May, 2018 and the subsequent order of the court of the 17th May, 2018. There was no real contest about the evidence but the essential thrust of the Council’s case was that the plaintiff should have used the alternative route that was available to him and which was safe. Mr Byrne in his evidence referred to various relevant provisions of the Safety, Health and Welfare at Work Act 2005 and in particular s. 8(2). The plaintiff drew attention to a number of authorities relevant to the issue of employer’s liability. The Council in response referred to two judgments of the Supreme Court dating from the 1970s and a 1959 decision of the House of Lords, all of which pre-dated the 2005 Act, and the essential thrust of which was that the employer was not an insurer and was only required to do what was reasonable in the circumstances.

Held by Noonan J that the trial judge fell into significant error in dismissing the claim on the basis he did. Noonan J held that while the trial judge was in a much superior position in terms of assessing the credibility of witnesses, and expressed clear views in that regard for example in the context of conflicts between the plaintiff and Mr Shaw, the Council engineer, that view of the plaintiff’s evidence could not displace the undisputed facts. Noonan J held that the outcome of the case was not dependent on findings of fact made by the trial judge in relation to disputed evidence but rather on the application of legal principles by him which Noonan J had found to be erroneous. In those circumstances, Noonan J was satisfied that the Court of Appeal was in as good a position as the High Court to determine the liability issue based on the clearly established facts and the respective legal obligations of the parties. Noonan J found that the heavy onus that lies upon an employer to comply with its statutory and common law duties suggested that the major part of responsibility for the accident lay with the employer. Noonan J also had regard to the fact that the plaintiff was a very experienced employee and ought, on reflection, to have appreciated the risks inherent in the route he habitually adopted. Noonan J held that, as the trial judge pointed out, this appreciation ought to have been heightened by the slip and fall accident that befell his work colleague, Mr Kavanagh, only eight months prior to the index accident and accordingly, there must be a finding of contributory negligence against the plaintiff.

Noonan J held that the appropriate apportionment of liability was 75% against the Council and 25% against the plaintiff. Noonan J allowed the appeal, set aside the order of the High Court and remitted the matter for damages to be assessed accordingly.

Appeal allowed.

JUDGMENT ( ex tempore) of Mr. Justice Noonan delivered on the 30th day of July, 2021

1 The appellant (“the plaintiff”) brings this appeal today against the dismissal of his personal injuries action by the High Court (Twomey J.) in a judgment of the 2nd May, 2018 and the subsequent order of the court of the 17th May, 2018.

Background

2 On the date of the accident, the 6th February, 2011, the plaintiff was a 56 year old water inspector employed by the respondent (the Council). He had held this position for some 16 years at the date of the accident. His duties included making a daily visit to Ferns Reservoir for the purpose of checking the water level and carrying out other checks and observations. This was a task that had to be performed 7 days a week, 365 days a year, and when the plaintiff was unavailable due to holidays or other reason, a substitute was arranged. Ferns Reservoir is entirely enclosed and relatively small at twenty metres square. It is covered over in concrete and soil on which grass has grown.

3 The reservoir is located in a field which appears to be somewhat sloped so that at one end, the reservoir is almost level with the surrounding field, while at the other, it is significantly elevated above ground. The reservoir is surrounded by a steeply sloping grass bank with an incline of between 1:3 and 1:2.3. The vehicular access to the reservoir field is at the southern end which is almost level and there is a grass track around the perimeter of the reservoir. There is plenty of space to park a vehicle at the southern end. One then travels downhill towards the northern end where there is located a small concrete building known as the meter room which the plaintiff also had to check daily. Before reaching the meter room, as one drives around the reservoir, about halfway along one side of it, there is a small concrete construction, known as the telemetry kiosk, and beside that a manhole lid that provides access from the top of the reservoir. A ladder is located beneath the manhole cover that drops down into the reservoir and the plaintiff could ascertain the water level by reference to the steps on the ladder.

4 The plaintiff's invariable practice when he came to the reservoir was to park his jeep on the downhill slope towards the meter room and to walk up the steep grass bank, check the manhole and walk down again. The plaintiff gave evidence that on 6th February 2011, a Sunday, he slipped and fell while on the way down the embankment. He said he was almost “down” i.e. at the bottom of the bank when he fell. He was at work alone, and there were no witnesses. He said he got a little bit of a shock, and felt some discomfort, but he continued home and had a normal day afterwards. The next day, he mentioned the accident to his colleague, Michael Kavanagh, and he also went to the water services section to request an accident report form with a view to formally reporting the accident. However, he said that this did not prove possible, because the staff member concerned became distressed and “burst into tears” apparently because the Council had moved offices in the previous days. In the event, he completed this form the following Friday, 11th February. He did not seek medical assistance for some three weeks after the accident, when he first attended his general practitioner.

5 The plaintiff's evidence was that he had been shown the route to the meter room and manhole chamber by his predecessor, Paul Keogh, when he started the job some 16 years earlier. Mr. Keogh's evidence was that he had acted as the water inspector for about four years before the plaintiff started, and before that again, John Foley had been the water inspector and had shown Mr. Keogh the ropes as it were. When Mr. Keogh started, there was a well-worn path up the side of the grass bank to the telemetry kiosk, which he used in the same way as the plaintiff subsequently used it. The plaintiff often worked with a helper, another Council employee, Michael Kavanagh, who assisted him from time to time and in fact Mr. Kavanagh took over as water inspector after the plaintiff.

6 Mr. Kavanagh's evidence was that he also used the well-worn track up the side of the reservoir both during the plaintiff's tenure and after Mr. Kavanagh took over. Mr. Kavanagh also described the well-worn path which had been shown him by the plaintiff as the route to take to the inspection manhole. He said the path was always obvious. Mr. Kavanagh's evidence was that he had himself slipped and fallen on the steep path about eight months prior to the plaintiff's accident but suffered no injury. Mr. Kavanagh was with the plaintiff when this happened and as a result, the plaintiff told Mr. Kavanagh that he would see about getting steps installed up the side of the reservoir.

7 The plaintiff's evidence was that he had raised the issue of steps with the Council engineer, Neville Shaw, and Mr. Shaw agreed that the issue of steps had been raised. However, there was a difference of recollection between the plaintiff and Mr. Shaw on the subsequent conversation. The plaintiff said that Mr. Shaw had agreed to put in the steps. Mr. Shaw disputed this and said that he had refused to put in steps and instead told the plaintiff that he should walk across the top of the reservoir at the “shallow” or southern end.

8 The plaintiff disagreed that this had been said. Mr. Kavanagh gave evidence that the plaintiff had told him that Mr. Shaw agreed to put in the steps. Mr. Kavanagh continued to work in the Ferns area up until about 2016 by which time new telemetry equipment had been installed by the Council which rendered it unnecessary for the water inspector to physically check the water level at Ferns Reservoir. Mr. Kavanagh confirmed that after the plaintiff's accident, Mr. Kavanagh continued to use the same route up the side of the reservoir until the new system became operational.

9 It was put to the plaintiff and his witnesses,...