Mohammad Aldasouqi v Dunnes Stores

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Tony O'Connor
Judgment Date11 February 2021
Neutral Citation[2022] IEHC 110
Docket Number[2021 3862 P]

[2022] IEHC 110

THE HIGH COURT

GALWAY

[2021 3862 P]

Between
Mohammad Aldasouqi
Plaintiff
and
Dunnes Stores
Defendant

Counsel for the plaintiff: John Kiely SC, Bernard Madden SC, John O'Donnell BL

Counsel for the defendant: Marcus Daly SC, Paul McGettigan BL

Personal injuries – Negligence – Breach of duty – Plaintiff claiming negligence – Whether the plaintiff had established a breach of duty of care on the part of the defendant

Facts: Personal injuries summons issued on 31 August 2016 pleaded that the plaintiff, Mr Aldasouqi, during his employment with the defendant, Dunnes Stores, on 18th January 2014 was caused, permitted, and required to replace a defective security camera, following which the plaintiff owing to the breach of duty of the defendant, its servant or agents, fell off a ladder which broke and collapsed underneath. Out of the 23 subparagraphs giving particulars of negligence the plaintiff concentrated on paragraph 5(f) at trial which read: "Caused, permitted, and required the plaintiff to use a ladder which was defective and exposed the plaintiff to risk of damage or injury of which they knew or ought to have known". The defendant then asked the plaintiff to identify who directed the plaintiff. By reply dated 8 December 2016 the plaintiff’s solicitor identified Mr McGrath. The defence delivered on 27 February 2017 pleaded that the plaintiff was on full proof of each and every such allegation of fact, under the heading "Grounds upon which the defendant claims that it is not liable". The defence then denied that the accident occurred in the manner alleged, that the ladder broke, the particulars of negligence and the injuries and loss. The particulars of contributory negligence were then pleaded. That defence was verified by Mr McGrath on behalf of the defendant. The plaintiff contended that the defendant by not specifically denying the alleged direction to the plaintiff to fix the camera, was deemed to have admitted the direction. The defendant at trial adduced evidence from Mr McGrath to the effect that the alleged direction was not given. Counsel for the plaintiff submitted that the failure to deny the alleged direction to fix the camera and to only challenge the deemed admission at trial had resulted in the plaintiff and his advisors not investigating and adducing supporting evidence in support of the plaintiff's assertion of a direction having been given by Mr McGrath. Counsel contended that the High Court ought to take the omission in the pleading for the defence as a ground to strike out the defence and to take the facts as pleaded.

Held by O’Connor J that given the requirement for pleading in a defence under s. 13(1)(b) of the Civil Liability Act 2004, he could not condone the omission in the defence to plead that the defendant did not require the plaintiff to replace the camera. O’Connor J found that the fairest and most just approach was to exclude from his consideration of the liability issue arising, the evidence of Mr McGrath that he did not speak with the plaintiff about replacing the camera. O’Connor J held that there was only one ground for alleging breach of duty on the part of the defendant which was supported by evidence adduced at trial; that related to the form of instruction from Mr McGrath to the plaintiff. O’Connor J held that Mr McGrath merely told the plaintiff to fix the camera. That did not necessarily convey to O’Connor J that the plaintiff had to do it himself or to adopt any means to do it and, particularly, without regard to his own safety; there was no evidence that Mr McGrath exerted undue pressure or intimated that the safety of the plaintiff should be ignored. O’Connor J could not find that the plaintiff was in some way pressed to adopt an unsafe means; on the day of the fall it was solely his choice to grab a most unsuitable ladder and not to investigate other ways of replacing the camera. The honest view of Mr Gallagher, engineer, and the acceptance by counsel for the plaintiff after the conclusion of evidence that the plaintiff wilfully breached his own duty of care in the method which he adopted and in failing to comply with s. 13 of the Safety Health and Welfare at Work Act 2005, to consult with the defendant, also fed into O’Connor J’s conclusion that the plaintiff had not established a breach of duty of care on the part of the defendant which contributed to his undoubted injuries following the fall.

O’Connor J dismissed the proceedings.

Proceedings dismissed.

JUDGMENT of Mr. Justice Tony O'Connor delivered on 11 February 2021 at Galway Courthouse .

Introduction
1

. The following headings outline the course of this judgment for what may be categorised as an accident at work claim:

1. Admission of direction given to replace the camera?

2. Established facts.

3. The undertaking of the task.

4. The breach of duty or breach of statutory duty.

5. Extent of injuries.

Admission of direction?
2

. Counsel for the plaintiff following the exchange of written submissions after the conclusion of evidence last week, characterised the situation facing the plaintiff at trial as “the perfect ambush”. The plaintiff contends that the defendant by not specifically denying the alleged direction to the plaintiff (a security manager in the defendant's store at Briarhill, Galway) to fix a security camera (“ the camera”), is deemed to have admitted the direction. The defendant at trial adduced evidence from the relevant store manager (“ Mr. McGrath”) to the effect that the alleged direction was not given.

Background
3

. The personal injuries summons issued on 31 August 2016 pleaded that:

“The plaintiff during his employment with the defendant on 18th January 2014 ‘was caused, permitted, and required to replace the defective security camera…’, following which the plaintiff owing to the breach of duty of the defendant, its servant or agents, fell off a ladder which “broke and collapsed underneath”.

4

. Out of the 23 subparagraphs giving particulars of negligence the plaintiff concentrated on paragraph 5(f) at trial which read:

“Caused, permitted, and required the plaintiff to use a ladder which was defective and exposed the plaintiff to risk of damage or injury of which they knew or ought to have known”.

5

. The defendant then asked the plaintiff to identify who directed the plaintiff. By reply dated 8 December 2016 the plaintiff's solicitor identified Mr. McGrath. The defence delivered on 27 February 2017 pleaded that:

“The plaintiff is on full proof of each and every such allegation of fact”, under the heading “Grounds upon which the defendant claims that it is not liable…”. The defence then in the following numbered paragraphs denied that:

8. The accident occurred in the manner alleged.

9. The ladder broke.

10. The particulars of negligence and;

11. The injuries and loss.”

The particulars of contributory negligence were then pleaded. That defence was verified by Mr. McGrath on behalf of the defendant.

Status of pleading
6

. Section 2 the Civil Liability Act 2004 (“ the 2014 Act”), provides:

“Pleading” means, in relation to a personal injuries action, a personal injury summons, a defence, a defence and counterclaim or any other document (other than an affidavit or a report prepared by a person who is not a party to that action) that, under rules of court, is required to be, or may be, served (within such period as is prescribed by those rules) by a party to the action or another party to that action”.

As it becomes relevant later it is worth stating that this definition in the context of the discrete issue arising before this Court, is the relevant definition and supersedes the definition of “pleading” in Order 125 of the Rules of the Superior Courts (“ RSC”). It is a specific statutory provision and comes later in time to the RSC which are comprised within statutory instruments made pursuant to other statutes enabling the Superior Courts Rules committee, with the concurrence of the relevant minister, to make the RSC.

Reference to deemed admission in report of expert
7

. In a letter of 24 January 2019 Mr. Gallagher, engineer called by counsel for the plaintiff (which was only disclosed during the trial and not during the exchange pursuant to Order 39 (46) of the RSC) noted that the plaintiff:

“…was allowed or encouraged by his superior, Mr. Paul McGrath, to carry out the work”.

Nothing now turns on how that comment by the expert was made or disclosed. Counsel for both parties with an admirable sense of having justice administered efficiently make no point about that non-binding interpretation or late disclosure.

Effect of disputed deemed omission to deny the direction
8

. Counsel for the plaintiff submits that the failure to deny the alleged direction to fix the camera and to only challenge the deemed admission at trial has resulted in the plaintiff and his advisors not investigating and adducing evidence in support of the plaintiff's assertion of a direction having been given by Mr McGrath. The plaintiff's solicitors by letter of 4 April 2014 had requested, in the absence of an admission of liability, an undertaking from the defendant to preserve property relevant to the accident pending an examination. CCTV of the actual fall from the ladder was shown to the Court and counsel for the plaintiff submits that similar CCTV may have existed for the area in the store where the plaintiff was given directions by Mr. McGrath. Counsel for the defendant concedes that any such CCTV would have been erased unless requested within six months. The absence of CCTV for the area in the store where the alleged direction was given is only one example of the effect of the alleged “ambush” for the preparation and preparation for trial.

Submissions for plaintiff
9

. Counsel for the plaintiff submits that Collins J., in Morgan v. ESB [2021] IECA 29( Unreported, Court of Appeal, 5 February 2021) (“ Morgan”)...

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