Marguerite Daly v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 09 December 2014
• Neutral Citation: [2014] IEHC 560
• Court: High Court
• Date: 09 December 2014

Daly v Health Service Executive (HSE)

Approved Judgment

BETWEEN

MARGUERITE DALY

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

[2014] IEHC 560

[No. 1393 P/2013]

THE HIGH COURT

Tort – Negligence – Personal injuries – Duty of care – Allegations of lies by plaintiff – Back pain – Civil Liability and Courts Act 2004

Facts: The plaintiff had been employed as a care assistant in a hospital run by the defendant. In the course of her duties, she had slipped and injured her back. She now claimed for damages suffered as a result of the defendant”s negligence.

On the plaintiff”s claim for special damages, the Court reminded practitioners of the duty owed by them to the Court to ensure claims were not exaggerated and/or unsustainable. Noonan J stated that the plaintiff”s evidence did not suffice to prove she could not resume employment. Whilst the evidence was at times unsatisfactory and flawed, the defendant had chosen not to apply under s. 26 of the Civil Liability and Courts Act 2004 for the dismissal of the claim. Judgment for the plaintiff was therefore granted.

Background Facts

1 1. The plaintiff is a married woman and resides at Grallaghbeg, Ballinure, Thurles, County Tipperary. She was born on the 21st September, 1981 and is now aged 33 years. She is married to Ronan and they have two children, James born in 2005 and Mairead in 2009. James suffers from autism. The plaintiff did well in school, having been awarded a Student of the Year prize, and she achieved 425 points in her Leaving Certificate. Thereafter, she studied for an Arts degree in University College Cork for one year intending ultimately to teach. However, after working as a nurse's assistant during her first summer at college, she decided that she would like to pursue a career in that area. In February 2001, the plaintiff obtained a job with the defendant as a multi task attendant at St. Patrick's Hospital in Cashel. A multi task attendant is broadly synonymous with a care assistant who assists the nursing and other staff in relation to the management of patients. Their duties include assisting patients transferring, mobilising, washing, and toileting, together with serving meals and removing and cleaning meal trays and crockery. There seems to be some general cleaning involved also.

2 2. In 2011, the plaintiff was attached to The Rehab Ward which has 21 beds and caters for mainly elderly patients who have had strokes, surgery such as hip replacements and so forth. This ward is served by a small domestic style kitchen measuring approximately 10' x 10'. Although it has cooking facilities, main meals such as lunch are brought in from elsewhere. Cleaning of crockery is carried out here and there is an industrial type dishwasher located in the corner with standard kitchen units including a sink, draining board and counter top alongside.

3 3. The patients' trays are brought in to the kitchen after meals where the plates, bowls, cups, saucers and the like are rinsed in the sink in soapy water and then placed in a dishwasher tray which is located at the end of the counter top beside the draining board and closest to the dishwasher. When the tray is full, it is transferred into the dishwasher and run through a cycle. When it is complete, the clean crockery is removed, sometimes onto a trolley nearby so that the fresh trays can be set in readiness for the next meal. The kitchen becomes extremely busy at meal times and the dishwasher cycle is repeated between 35-40 times in an average day.

4 4. On the 4th January, 2011 at about 1.30 pm the plaintiff walked into the kitchen carrying a dirty cup in her left hand. Her evidence is that as she approached the sink, her right foot slipped forward and she fell to the ground landing in a twisting fashion on her right hip. She says that as she was falling she grabbed onto a trolley which was on her right to try and break the fall. Somewhat surprisingly, she did not drop the cup in her left hand. The plaintiff says that the cause of her fall was that there was water on the floor which she saw and felt. The fall occurred broadly speaking opposite the sink tap in or about the centre of the room probably closer to the sink than the entrance door behind.

5 5. Two of the plaintiff's colleagues were present in the kitchen at the time, Breda O'Connor and Alice Ryan. Ms. O'Connor said in evidence that the trolley was on the plaintiff's left as she entered the room and positioned close to the dishwasher. The plaintiff conceded that there may have been a trolley on her left but was adamant that there was also one on the right and this was the one she grabbed onto. Ms. O'Connor was unable to say which hand the plaintiff was using to carry the cup.

6 6. The plaintiff alleges that as a result of the fall, she suffered a serious injury to her back.

The Pleadings

7 7. The plaintiff's case was pleaded on the basis that the dishwasher trays in use at the material time were slightly too large for the countertop and overhung it somewhat, resulting in drips from the rinsed crockery wetting the floor beneath. It was pleaded that this was a dangerous work practice and the defendant failed to mop up the spillage and erect appropriate signage which would have warned the plaintiff of the hazard. It was also alleged that there was a failure on the part of the defendant to place a mat on the floor in or around the draining board area.

8 8. The defendant's defence was a full traverse of the plaintiff's claim pleading contributory negligence and pleading specifically that the defendant would refer to the plaintiff's prior medical history in support of the denial that the plaintiff suffered injuries complained of as a result of the accident.

9 9. The defendant strongly contested the issue of causation regarding the plaintiff's injuries and in that regard, the particulars of injury in the personal injury summons stated:

"With regard to the plaintiff's past history, approximately 7 years ago, the plaintiff was pregnant with her first child. She had a sciatica type of back pain. This was related to her pregnancy and disappeared once her child was delivered."

10 10. On the 25th March, 2013, the defendant served two documents on the plaintiff, the first a notice requiring further information pursuant to s. 11 of the Civil Liability and Courts Act 2004 and the second, a notice for particulars. At paragraph 3 of the notice requiring further information, the defendant sought particulars of any prior or subsequent injury that would have a bearing on the injuries the subject matter of the proceedings. The response given by the plaintiff on the 3rd May, 2013 was:

"The plaintiff suffered from sciatica type back pain during the birth of her first child in 2005. The plaintiffs symptoms resolved after this and did not re-occur until the incident on the 4th January 2011."

11 11. The defendant's notice for particulars at paragraph 24 asked the following question:

"It is noted that the plaintiff had sciatica type pain approximately 7 years ago when pregnant with her first child. Did the plaintiff suffer from back pain or hip pain on any occasion subsequent to her first pregnancy but prior to 4 January 2011? If your reply is in the affirmative please furnish full details."

12 12. The plaintiff's response was as follows:

2 "24. The plaintiff did not suffer from sciatica type back pain subsequent to her first pregnancy in 2005 and prior to the incident on 4 January 2011. The plaintiff gave birth to her second child in 2009 and did not suffer from any sciatica back pain at that point. The plaintiff may have experienced minor back pain between 2005 and 2011, however this was not severe or in any way similar to the pains she has been suffering since the fall the subject matter of these proceedings."

The Liability Evidence

13 13. Counsel for the defendant, Mr. Patrick Treacy SC, put it to the plaintiff that Ms. O'Connor would say that the plaintiff went to put the cup down beside the sink and fell when turning back towards the door. However, Ms. O'Connor when called did not give this evidence but rather simply said that when the plaintiff entered the kitchen she heard a noise and saw the plaintiff fall and catch the trolly which moved a little. The trolley which the plaintiff grabbed was in front of the dishwasher.

14 14. In the course of his cross-examination of the plaintiff, Mr. Treacy put to the plaintiff that whilst it was accepted that there was water on the floor, the water was around the base of the dishwasher and remote from the locus of the plaintiff's accident. He specifically put to the plaintiff that Ms. O'Connor would say in evidence that after the plaintiff's accident, Ms. O'Connor mopped up water around the base of the dishwasher. In fact, Ms. O'Connor did not give that evidence. Rather, she said that after the plaintiff fell, Ms. O'Connor mopped up drops of water at the end of the trolley farthest from the dishwasher pretty much where the plaintiff says she fell. She said that you would expect water on the floor in the kitchen and she kept a mop around the sink for that reason.

15 15. The plaintiff said in evidence that there was a problem with drips falling from the overhanging dishwasher trays on the floor and she had reported that to Ms. Maire O'Brien, the clinical nurse manager and Ms. Sadler, the assistant manager. Ms. O'Brien in evidence denied that the plaintiff had made such a complaint. Ms. Sadler was not called to give evidence, though appeared on the defendant's SI 391 schedule. The plaintiff also said that she asked Ms. O'Brien to put down a mat and was told this was not possible for health and safety reasons. Ms. O'Brien could not recall if the plaintiff ever asked for a mat to be put down although agreed that there may have been mats in some of the...