Millington v Taylor



[RECORD NO: 12711/00]


Employment - Employer’s duty of care - Employee injured challenging intruder - Personal injuries - Whether employer failed to establish a safe system and a safe place of work - Novus actus interveniens - Claim against MIBI - MIBI Compensation of Universal Road Victims Agreement 1998, Clause 6 - Civil Liability Act, 1961, s. 11(1)


Judgment of His Honour Judge Bryan McMahon delivered on the 17th July, 2002, in Dublin.


The plaintiff had been employed as a full-time bar-woman for eight and a half years by the first defendant when the events the subject matter of these proceedings took place. On Tuesday, 9th February, 1999, at approximately 1p.m, the plaintiff was passing back from the lounge to the bar of the public house, when she looked out the door leading into a store room! staff quarters (“the store room”) behind the bar. At the other end of this store room another door opened out onto the car-park and, as this was open at the time, the plaintiff had a clear view onto the car-park. On looking out she saw a youth loading two cases of long-necked bottles of Budweiser into the booth of her own car. As she wondered what was going on, another employee, Mr Leo Capper (“the yardman”), passed between her and the youth. This employee was wheeling a rubbish bin out towards the front of the premises. The plaintiff then walked across the store room, through the outer door and challenged the youth in the yard. Caught in the act, the youth jumped into the plaintiffs car, locked the doors from inside, and began to reverse the car back from the wall against which it was parked. As the car moved backwards the plaintiff


lay across the bonnet and clung on. The youth changed gear and as he drove out the gate towards the public road the plaintiff fell off and was injured. The youth made good his escape and was never apprehended.


The plaintiff sued her Employer and also sued the second defendant, the Motor Insurers Bureau of Ireland, claiming that the Bureau was obliged to compensate the plaintiff under clause 6 of the Motor Insurers’ Bureau of Ireland Compensation of Uninsured Road Accident Victims, 1988.


The case against the first defendant.


Before addressing the liability of the first defendant, I should address some conflicts of evidence in the versions of events given by the plaintiff and Mr Capper, the yardman, as to what happened in the yard that day. Mr Capper in his evidence said as he was wheeling out the rubbish he saw the youth loading up the beer into the plaintiffs car which he recognised. He said that any concerns he had were allayed by the fact that the plaintiff was standing at the outside door looking on. He assumed that the youth was acting on the plaintiffs instructions and he continued on wheeling the rubbish bin out of the car-park. He said he clearly saw the plaintiffs face and she appeared not to be concerned. He also said she did not call for assistance. I should hasten to say that neither defendant suggested during the trial that there was any collusion between the plaintiff and the youth who clearly was stranger to all concerned and was never identified or traced. The plaintiffs version is that she saw Mr. Capper pass while she was looking out from the inside door through the staff quarters and through the outside door. She also said she did call for assistance and that help did come, but not in time, from a shop across the road from the car-park entrance.


Nothing much turns on this conflict of evidence, but in so far as it is relevant I find that when Mr. Capper saw the plaintiff, she was still within the building, moving perhaps out towards the outer door, but not realising fully what was going on with the youth in the yard. When she called out Mr Capper had already passed on towards the front of the premises out of earshot. When Mr Capper returned from the front of the premises some two minutes later he found there was pandemonium in the yard.

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The First Defendant

The duty of care which an employer owes to his employee is that he is bound to take reasonable care for the safety and welfare of his employee. The plaintiff complains in this case that the system of work was unsafe in that there were insufficient employees to run the premises and that the security system on the yard door was inadequate.


At the outset it must be noted that it was clearly appreciated by the employers in this case that the back door entrance from the car park represented a security risk. There was evidence from a Mr Savage, a former employee, which I accept, that when he worked there he expressed concern that he was left on his own a lot of the time and that the door to the car park would sometimes be left open. Employees exiting through this door, because the door could not be closed from the outside, were obliged to alert the employees inside the bar that the door had to be shut behind them. The method devised by the employer was to locate a bell near the exit which was to be rung by the exiting employee. On hearing this, the employee inside was to attend and lock the door from within. It was also acknowledged by all who gave evidence that frequently, the departing employee would merely call out to the employees in the bar that they were departing and alerting them to attend to the door. This latter method, “the shout method”, might be the only method available where, for example, the departing employee was carrying something and did not have a free hand. The day in question Mr Capper, the yardman, had exited earlier and called back into the building that the door should be shut behind him. He did not give evidence that there was...

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