Neuzil v Tesco Ireland Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bronagh O'Hanlon |
| Judgment Date | 01 March 2017 |
| Neutral Citation | [2017] IEHC 173 |
| Docket Number | [Record No. 2015/9724 P] |
| Court | High Court |
| Date | 01 March 2017 |
[2017] IEHC 173
THE HIGH COURT
O'Hanlon J.
[Record No. 2015/9724 P]
Tort – Damages & Restitution – Personal injury – Assessment of damages – Obligation of employer to provide safe work environment – Contributory negligence
Facts: The plaintiff had filed a claim for damages against the defendant for sustaining injury at the workplace. The plaintiff contended that he had hit another machine with the side of the Low Level Order Pricking Truck (LLOP) while reversing his LLOP into the trailer and the back of the machine pulled his leg and its raised cage bit into his shoes. The defendant took the defence of contributory negligence and argued that the plaintiff had failed to observe his shoulder and did not bother to look at the direction in which he was going at the time of the subject accident.
Ms. Justice Bronagh O'Hanlon awarded damages for pain and suffering to date together with damages for pain and suffering into the future to the plaintiff. The Court also awarded special damages to the plaintiff subject to the deduction of 20% for contributory negligence. The Court found that the parking of the stationary LLOP at the time of the subject accident was the negligent act on the part of the defendant. The Court, however, observed that the plaintiff, too, was guilty of contributing to the accident as he had failed to exercise greater care by not looking forward.
The plaintiff is seeking damages for personal injury, loss, damage, inconvenience and expense arising from an accident which occurred on 22nd December, 2014 at a distribution premises run by the defendant at Donabate, Co. Dublin. The plaintiff is and was an employee of the defendant at all material times.
The plaintiff was born on 16th January, 1986 in the Czech Republic, he then moved to Ireland after leaving school where he has worked for the last ten years with the defendant company as a warehouse operator. The plaintiff gave evidence of his normal work loading materials in the warehouse in question.
On the date of the accident the plaintiff described how he had begun his work at 6am taking full cages with loads onto a trailer. This was the work he did as a warehouse operative. Given that the premises would close for two days for Christmas, the plaintiff described the accident as occurring at the busiest time of the year when the workers were under pressure and needed to work fast.
At 9am on the morning of the accident, the plaintiff was asked to take up a different task. A trailer had been discovered to have empty cages in it which was not regular and it had to be emptied. In order to speed up the process of emptying this trailer a section manager who had been supervising loading on the day of the accident, took the plaintiff and another worker to remove these cages from the particular trailer so that the work of loading that trailer could begin. There was uncontroverted evidence that the trailer had a deadline for leaving the depot at 3.30pm that afternoon and the supervisor's evidence was that they had to go faster to meet that deadline.
Mr. Savic drove one LLOP (Low Level Order Picking Truck) with three cages out of this trailer. The plaintiff then reversed his LLOP into the trailer and attached three cages to same and he drove out onto a ramp and he began to lose one of the cages at the back of his load. The plaintiff gave evidence that after he had reattached the third cage he started to drive out again and was watching this cage behind him. He described watching quickly in front of him and still checking behind him to see if the cage was falling down again but described how he hit another machine with the side of the LLOP. The plaintiff described how the back of that machine pulled his leg out and its raised cage bit into his shoes and pulled him out of the machine. The plaintiff's evidence was that they had been told to move the cages to one side always and that the other stationary LLOP should not have been parked in his way. The plaintiff believed that his own foot was safe inside his own platform at the time of the accident and had he been given a high boot, the injury would not have occurred.
The plaintiff was administered first aid and was driven to the VHI clinic in Swords for x-ray and treatment and was obliged to remain out of work for a six week period following this accident. The plaintiff had been critical of what he said was a Welfare Meeting and Accident Pack Investigation on 9th January, 2015 both pages of which were signed by the plaintiff and by a Mr. William Dunne who also gave evidence. The plaintiff's evidence was to the effect that he feared losing his job when asked many times and having replied that he was not responsible for the accident, he finally gave in and agreed that he was responsible. Mr. Dunne denied that any pressure was put on the plaintiff and he had no authority to fire him. Mr. Dunne accepted that the plaintiff was a good employee.
The plaintiff agreed under cross-examination that he had seen Mr. Savic drive off the trailer but that he could not see around the corner and that he was looking to see the cages which had been slipping down behind him. While the plaintiff accepted the basic premise that he had to look where he was going, he said he had to check the cages behind which were falling down. The plaintiff's opinion was that when he was looking there were no obstructions.
The plaintiff agreed that he did training regularly although in effect he said that some of the training was quite casual. Various documentation was put before the Court in relation to health and safety training. Particular reference was made by counsel for the defendant to the 'Mechanical Handling Equipment Safety and You Participant's Workbook' which had been filled in by the plaintiff and the Practical Test which was completed in relation to the LLOP on 2nd January, 2014. The plaintiff accepted that issues in relation to his driving of the LLOP were brought to his attention although they were minor issues. Counsel for the defendant outlined that this documentation demonstrated that the training was extensive and he would have been told to watch where he was going when driving.
The plaintiff indicated that he needed to look sideways at the time of this accident, that he could not see through full cages and that he wanted to get out from the ramp to avoid losing the cage and that he got off the ramp safely and started losing the cage on the flat concrete floor. The plaintiff described the situation as being the most pressured time of year and that what was normally a one person job was at this point involving three people and that there was pressure to clear the trailer fast to prepare it for loading. The plaintiff said that his role at the time of the accident was to make sure the cage was stable and that he wanted to turn to the front and off the ramp and he described claw like forks on the cages which can slip down and that he had to watch these cages as he was not on flat level. The last cage was a heavy cage with empty crates and he was under pressure and he felt he was not going at a speed which was too great in the circumstances.
Mr. Christophe Tabbard, the section manager, gave evidence that he was supervising loading on the day of the accident and he confirmed that empty cages had been found in a particular trailer and that they had to be moved so that that trailer could be filled with goods. The supervisor was in the trailer lining up cages in blocks of three for the plaintiff and Mr. Savic to take them off the trailer. Mr. Tabbard agreed that he did not notice the LLOP on the left which was stationary and agreed that he could not have seen it because he himself was still inside the trailer in question.
Mr. Marko Savic gave evidence in relation to where he had parked the particular LLOP he stated that there was no right or wrong way to park in that particular spot. When the plaintiff arrived as he took out the first three cages with his LLOP, Mr. Savic said he saw the last cage falling off the plaintiff's LLOP and that Mr. Tabbard told the plaintiff to...
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