Marek v Agatha Mocior T/A Summito Garden Architecture
| Jurisdiction | Ireland |
| Judge | Mr. Justice Bernard J. Barton |
| Judgment Date | 18 December 2017 |
| Neutral Citation | [2017] IEHC 763 |
| Docket Number | [2014/2606 P] |
| Court | High Court |
| Date | 18 December 2017 |
AND
[2017] IEHC 763
[2014/2606 P]
THE HIGH COURT
Damages & Restitution - Tort - Personal injuries - Quantum of special damages - Nature and extent of injuries - Safety, Health and Welfare at Work Act, 2005 - Safety, Health and Welfare at Work (General Application) Regulations, 2007 - Negligence
Facts: The plaintiff filed a claim for damages for personal injuries and loss arising from an accident against the first named defendant. The plaintiff also brought a claim of negligence against the second named defendant for breach of provisions of the Occupiers Liability Act 1995. The plaintiff contended that he had not received any formal health and safety training appropriate to his duties. The plaintiff fell from the stepladder while performing work under the direction of the first named defendant in the second named defendant's premises and sustained bilateral wrist injuries together with a minor head injury.
Mr. Justice Bernard J. Barton awarded general damages and agreed special damages between the parties. The Court ruled that the plaintiff's claim against the second named defendant must be dismissed. The Court held that the second named defendant never gave permission and had no reason to believe that the subject ladder would be used in connection with the work to be undertaken by the first named defendant at the premises of the second named defendant. The Court observed that the first named defendant was responsible for selecting and supplying the equipment for use to her employees. The Court took into account the impact of the subject accident on the plaintiff's physical well being. The Court noted that the first named defendant had failed to comply with the relevant provisions of the Safety, Health and Welfare at Work Act, 2005 and the Safety, Health and Welfare at Work (General Application) Regulations, 2007.
This is an action for damages for personal injuries and loss arsing from an accident which occurred on the morning of the 17th September, 2012, in the garden of the second Defendant's home at 32 Neville Road, Rathgar, Dublin, 6.
The Plaintiff is a Polish national with a limited command of English. He commenced employment with the first Defendant about six months before the accident which occurred while the Plaintiff was attempting to pull a broken branch down from a tree. He had reached the branch by using a step ladder taken from the householder's garage. One of the matters in issue germane to the potential liability of the second Defendant for the accident was whether he had given permission for use of the ladder in connection with the gardening work.
A co-employee of the Plaintiff, known to him as "Pawel", was in charge of operations on site. He held the ladder while the Plaintiff climbed up to see whether the broken branch could be pulled free or would have to be cut down. The height of the branch above ground and the dimensions of the ladder were such that the Plaintiff had to stand on the second last step from the top before he could reach and grab hold of the branch.
For reasons which were never satisfactorily explained, Pawel let go of the ladder without telling the Plaintiff who, unaware, continued to pull on the branch which he was unable to free. In the process the ladder became unstable, it fell one way and the Plaintiff the other. He landed awkwardly on the ground as a consequence of which he sustained bilateral wrist injuries, a transient injury to his right ulnar nerve and a minor head injury.
Although both Defendants delivered full Defences, the first Defendant did not participate in the trial. On the 18th October, 2006, she wrote to the Plaintiff's solicitors informing them that she would not be defending the case as she had moved to live abroad and could not afford legal representation. The Court was satisfied at the outset of the trial that the first Defendant had been notified and was aware of the hearing date. She did not appear and was not represented. The claim against the second Defendant was fully contested.
The first Defendant carried on the business of landscape design and garden maintenance styling herself "Summito Garden Design". In the year or so before the accident she had provided gardening services to the second Defendant and his wife. Although the Plaintiff was employed to work as a general operative in landscape gardening, he had not received any formal health and safety training appropriate to his duties. Although he had an established work record and a good work ethic, immediately before he took up employment with the first Defendant he had worked as a security guard; he had never previously worked in the horticultural sector.
On any view of the evidence it may safely be stated that the first Defendant failed to comply with the relevant provisions of the Safety, Health and Welfare at Work Act 2005 and the Safety, Health and Welfare at Work (General Application) Regulations, 2007, about which more later. In so far as it may be said that he had received any training at all in landscape gardening, when the Plaintiff started working for the first Defendant she informed him that he would learn on the job and assigned him to work with Pawel, whom he understood was a trained and experienced landscape gardener.
The second Defendant's home consists of a substantial and long-established semi-detached house occupying a corner site within a large mature garden. At approximately 9 am on the morning of the accident, Pawel and the Plaintiff arrived at the premises to carry out gardening maintenance work. A man, the identity of whom was never established but whom they took to be the owner of the property, let them into the garden via a side entrance. They started to unload gardening equipment, from a van which included a ladder and a hedge/ branch trimmer.
The second Defendant's evidence was that he had left home at 8.30 am to go on a school run before either the first Defendant or her employees arrived on site and was unaware that the household step ladder was wanted for use in connection with the gardening work due to be undertaken that day.
Shortly after the Plaintiff and Pawel arrived on site, the first Defendant joined them and gave instructions concerning their work duties. The Plaintiff witnessed but was unable to hear a conversation between the first Defendant and a person, whom the he took to be the householder, as a result of which the first Defendant gave instructions to put the company ladder back into the van and to use the householder's ladder, which was kept in a garage adjoining the house. His understanding of why the householder's ladder was to be used was because the firm's ladder was required for another job elsewhere.
There was no evidence that the first Defendant inspected or examined the house holder's ladder for the purpose of satisfying herself that it was suitable and safe for use by her employees in connection with the work they were to undertake in the garden. The first Defendant having departed, the householder's ladder was taken from the shed and both men proceeded to get on with their work.
At a post accident joint engineering inspection, the second Defendant's wife was reported to have said that she had no memory of having given permission for use of the ladder; she was not called as a witness. On the Plaintiff's evidence, the instructions to put the employer's ladder back into the van and to use the householder's ladder were given contemporaneously with the conversation between the first Defendant and the householder; in the circumstances and absent any evidence to the contrary, I am satisfied that it is likely permission was given to use the ladder in connection with the gardening work in general. The Plaintiff's initial recollection was that the conversation had taken place between the first Defendant and the man who had let them into the property; however, under cross-examination he accepted that he could not be sure about that after all. For reasons given later, it is more likely permission was given by the second Defendant's spouse.
Shortly after the accident the ladder was photographed by a representative of the second Defendant's insurer. These photographs (which were no longer available at the time of trial) were said to show that the rubber inserts in the feet of the ladder stiles were not in good condition and had partially migrated into the stiles. The ladder was subsequently examined and reported upon by engineers retained by the Plaintiff and the second Defendant, at which stage the rubber inserts were missing altogether.
During a joint engineering inspection the Plaintiff positioned the ladder under the tree where the accident had occurred. The accident locus with the ladder in position was then photographed. The purpose dimensions and capabilities of the ladder were not in question; it was designed to be used as a full length or as an A-frame step ladder, the format in which it was being used by the Plaintiff. The engineer's reports and photographs were admitted in evidence.
The distance from the ground to the top of the ladder and to the step on which the Plaintiff was standing was measured by Mr. Conor Murphy, the Plaintiff's engineer, at approximately 1.6 and 1.2 metres respectively. The ladder was designed and manufactured with the option of having stabiliser bars fitted to provide additional stability when it was being used in certain situations. There was no evidence that stabilisers had been fitted at the time when the ladder had been borrowed some time...
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