McDermott v Teagasc The Agricultural and Food Development Authority

JurisdictionIreland
JudgeMr. Justice Brian O'Moore
Judgment Date04 November 2022
Neutral Citation[2022] IEHC 607
Year2022
CourtHigh Court
Docket Number[2017/9021P]
Between
Myles McDermott
Plaintiffs
and
Teagasc The Agricultural and Food Development Authority
Defendant

[2022] IEHC 607

[2017/9021P]

THE HIGH COURT

Personal injuries – Risk of injury – Safety Health and Welfare at Work Act 2005 s. 12 – Plaintiff claiming for personal injuries – Whether the defendant acted to extinguish the risk to the plaintiff of the sort of injury that he had suffered

Facts: The plaintiff, Mr McDermott, was engaged by the defendant, Teagasc, to carry out pregnancy tests on cattle at Teagasc's premises at Grange, Dunsany, County Meath. While being examined by Mr McDermott, one cow became "fretful and tremorous and anoxic". The neck brace had to be released to relieve the animal. Mr McDermott called out, the gate was released so that the neck brace loosened, the cow fell onto Mr McDermott and he was injured. The pleaded claim for personal injuries focused on the sudden release of the front gate neck brace, the failure to warn Mr McDermott that the brace was about to be released, and the failure to wait until Mr McDermott had moved out of "proximity to the beast". The defence asserted, among other things, that Mr McDermott was retained as a specialist and was an independent contractor. It was further pleaded that Mr McDermott was responsible for his own injuries as follows: (a) he failed to step back from the animal or out of the cattle crush; (b) he remained in the same place and/or within the cattle crush notwithstanding distress on the part of the animal; (c) he remained in the same area and/or within the cattle crush notwithstanding direction given by him to the employee of the defendant that the neck brace be released; (d) he failed, prior to and having requested that the gates be loosened, to take any or any adequate steps to ensure his own safety/wellbeing; (e) he failed to bring his knowledge and experience in the area to bear; and (f) he failed to exercise the simple and obvious expedience of stepping away from the animal or out of the crush. On the day of the trial, Mr McDermott's solicitors notified the solicitors for Teagasc of a loss of earnings claim for €75,000. In addition, Mr McDermott's engineer, Mr Hayes, identified in his report a further alleged defect which was not pleaded but which was agitated at the trial. This stated defect (that "the design of this crush causes a trap of the head if the animal falls down, causing a choking effect") was attributed to Mr McDermott rather than to his engineer.

Held by the High Court (O’Moore J) that in providing a crush box equipped with a restraint bar, Teagasc acted to extinguish the risk to the plaintiff of the sort of injury that he had suffered. O’Moore J held that on a proper application of s. 12 of the Safety Health and Welfare at Work Act 2005 and of McWhinney v Cork County Council [2018] IEHC 472, the plaintiff failed. Regarding the question of what was said by Mr McDermott to Ms McCabe, the operator of the crush box, O’Moore J preferred the evidence of Ms McCabe over that of Mr McDermott, for the following reasons: (a) the evidence of Mr McDermott was equivocal and inconsistent; (b) Mr McDermott made much of the lack of sense in directing the gates be opened when he was in the vicinity of the cow and it transpired that in the past he had remained in the crush despite directing that the gate be loosened; (c) the plaintiff accepted that the words he did speak were designed to prompt some action to address the cow's predicament; (d) the impact on Mr McDermott's credibility by the changing of his evidence on the presence of the rear restraint bar; and (e) the way in which the two witnesses presented themselves on that point. On exactly what Ms McCabe did, and how the cow reacted, O’Moore J found that there was really only the evidence of Ms McCabe as Mr McDermott accepted that his vision was obscured and the resulting pain had made precise recollection difficult. Regarding the claim, foreshadowed in the report of Mr Hayes, that the form of neck restraint used in Dunsany was unsatisfactory, O’Moore J held that this part of Mr McDermott's case was not pleaded and could not be properly advanced.

O’Moore J dismissed the claim made by Mr McDermott against Teagasc.

Claim dismissed.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 4 th day of November, 2022

1

. This is a claim for personal injuries. In summary, the Plaintiff (Mr. McDermott) is a farmer and bovine embryologist of considerable experience. He was engaged by the Defendant (Teagasc) to carry out pregnancy tests on cattle at Teagasc's premises at Grange, Dunsany, County Meath. The testing was to be carried out by introducing each cow to a cattle crush, where the animal was restrained in a neck brace. Mr. McDermott stood behind the cow, inserted his left arm into the rectum, and by use of a probe photographed the cow's uterus. The resulting image can then be inspected by Mr. McDermott to see whether the cow is pregnant. The cattle crush comes with an iron bar which can be placed between the animal and the embryologist. If the bar had been in place during Mr. McDermott's examination of the cattle on the day in question, he would have been fully protected from injury by any movement backward on the part of an animal. Mr. McDermott, although fully aware of the protection that the use of this bar would provide, but it was not his common practice to use one. This was because using the bar would slow down the process of checking the animals, this would mean that less cattle would be done in the day, and (as he was paid by the beast) he would earn less money. Mr. McDermott, in his evidence, accepted that he was aware of the use of the bar as a safety feature in other places, but that he had made a conscious decision that he did not need the bar at Dunsany and therefore did not ask about the availability of the bar; (pages 56 and 57, day 2). The bar was, in fact, available for use by Mr. McDermott and (had he asked for it) he would have been provided with it.

2

. The importance of Mr. McDermott's decision can be seen in light of what happened. While being examined by Mr. McDermott, one cow became “fretful and tremorous and anoxic” (page 10 day 1). The neck brace had to be released to relieve the animal. Mr. McDermott called out (though the precise details of what he said are disputed), the gate was released so that the neck brace loosened, the cow fell onto Mr. McDermott and he was injured.

3

. The pleaded claim focused on the sudden release of the front gate neck brace, the failure to warn Mr. McDermott that the brace was about to be released, and the failure to wait until Mr. McDermott had moved out of “proximity to the beast”. The more relevant particulars are set out here;

  • (a) Suddenly and without warning released the front gate neck brace permitting and or allowing the beast to move backwards when the Plaintiff was in close proximity to the beast;

  • (b) Failed to warn the Plaintiff that they were going to press the release button on the front gate neck brace;

  • (c) Failed to wait until the Plaintiff was safely out of proximity to the beast prior to pressing the release button;

4

. The Defence asserted, among other things, that Mr. McDermott was retained as a specialist and was an independent contractor. It is further pleaded that Mr. McDermott was responsible for his own injuries as follows;

  • a. Failed to step back from the animal or out of the cattle crush;

  • b. Remained in the same place and/or within the cattle crush notwithstanding distress on the part of the animal;

  • c. Remained in the same area and/or within the cattle crush notwithstanding direction given by him to the employee of the Defendant that the neck brace be released;

  • d. Failed, prior to and having requested that the gates be loosened, to take any or any adequate steps to ensure his own safety/wellbeing;

  • e. Failed to bring his knowledge and experience in the area to bear;

  • f. Failed to exercise the simple and obvious expedience of stepping back away from the animal or out of the crush;

5

. Two other matters should be mentioned at this stage. While the Summons claimed that there has been a loss of earnings on the part of Mr. McDermott, these were not particularized. On the day of the trial, Mr. McDermott's solicitors notified the solicitors for Teagasc of a loss of earnings claim for 75,000 euro. In addition, Mr. McDermott's engineer identified in his report a further alleged defect which was not pleaded but which was agitated at the trial. This stated defect (that “the design of this crush causes a trap of the head if the animal falls down, causing a choking effect”) is attributed to Mr. McDermott rather than to his engineer (paragraph 3.18 of the report of Mr. Hayes).

6

. The balance of this judgment is arranged under the following headings;

1. The Evidence.

2. The Submissions of the Parties.

3. Decision.

THE EVIDENCE
7

. Mr. McDermott's evidence was heard over two days, albeit the first of these was somewhat truncated. He is clearly a very accomplished and justifiably self confident person. He described his practice in embryology, which includes procuring the superovulation of pedigree cows, bull fertility testing and reproductive scanning. It was the last of these, which Mr. McDermott described as a form of pregnancy testing, that he was engaged upon when he was at the Teagasc premises on the 14 th of October 2015. Mr. McDermott had been doing this type of work for a lengthy period (25 years) at that time, had a PhD (which he “did” with Teagasc), had worked with Teagasc at Belclare for 8 years (where this type of testing was “an intrinsic part” of his work) and had been carrying out this form of pregnancy testing at Teagasc in Dunsany for 3 years prior to the accident.

8

. On the day of the incident, there were about 300 cows for Mr. McDermott to test. At the time of his injury, he was about halfway through. On...

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