Svajlenin v Kerry Group Services Ltd
 IEHC 439
THE HIGH COURT
[2013 No. 5577 P.]
Damages & Restitution – Accident – Course of employment – Injury – Negligence – Loss of earnings – Special damages.
This action arises out of an accident which occurred on 24th March, 2011, when the plaintiff was acting in the course of his employment with the defendants, at the defendants' food processing plant at Shillelagh, Co. Wicklow. The plaintiff alleges that while standing on the floor of the processing plant, and while reading a docket, he was struck in the back by a large cylindrical drum known as a ‘ massage’, which was being transported by another employee, who did not take sufficient care of what he was doing and, as a result, the plaintiff was struck in the back by the massage. The plaintiff alleges that the massage which struck him was full of meat at the time.
The plaintiff alleges that as a result of the accident, he suffered a serious injury to his mid and lower back. It is the plaintiff's case that while he was able to work on in his position of employment for a period of ten months after the accident, thereafter, he was obliged to give up work due to severe back pain. He alleges that he has been rendered unfit for his pre-accident employment and remains so disabled to the present time.
In addition to his physical injuries, the plaintiff also alleges that he was caused to suffer severe stress, due to the fact his employer did not treat his injury as being serious and he alleges that the employer put him under pressure to return to work and that as a result, he suffered great stress and anxiety. This manifested itself in the onset of stroke-like symptoms in April 2012. The plaintiff alleges that at that time he was paralysed on the right side of his body and was unable to speak. After admission to hospital on 14th April, 2012, and following extensive testing, the doctors were satisfied that the plaintiff did not have a stroke as such, but had a ‘ pseudo stroke’, which is where a person has stroke like symptoms, but there is no organic cause for same. They were of the opinion that the source of his symptoms was psychological in nature.
The plaintiff alleges that he has been rendered unfit for his pre-accident employment as a butcher, and remains so disabled to the present time. His claim in respect of loss of earnings amounts to €123,521.91.
While the defence filed on behalf of the defendants put all matters in issue, during the course of the hearing the defendants conceded that they were responsible for the negligence of the plaintiff's fellow employee in causing the massage to strike the plaintiff on the back. However, it was the defendants' case that the massage was empty at the time of the accident and was not full as alleged by the plaintiff. The defendants also denied the injuries alleged by the plaintiff and the claim for special damages was also denied.
In the circumstances, the following questions arise for determination by this court:
(a) Was the massage which struck the plaintiff, full of meat or empty at “the time of the accident?
(b) What personal injuries were suffered by the plaintiff as a result of the accident?
(c) What damages is the plaintiff entitled to in respect of the personal injuries suffered in the accident and in respect of the items of special damage claimed by the plaintiff to have arisen as a result of the accident?
The plaintiff stated that at the time of the accident, he was working as a boner for the defendants at their meat processing plant at Shillelagh, Co. Wicklow. He had been working for the defendants since 2006.
The accident occurred at approximately 13.30 hours on 24th March, 2011. The plaintiff stated that at the time of the accident he was checking a docket for a full massage, prior to putting it into the meat cutting machine. He was standing at the massage with his arms resting on the top of the massage and was looking at the docket. He stated that suddenly and without warning, he was struck a blow to the right side of his back by a full massage, which was being pushed by one of his fellow employees.
The plaintiff was adamant that he had been struck by a massage which was full of meat. The plaintiff stated that just prior to the accident he was standing in the position as shown in photograph number 4 of the booklet of photographs prepared by Mr. Alan Conlon, Consulting Engineer. The plaintiff stated that as a result of being hit by the massage, he was extremely shocked and experienced severe pain in his back. He was prevented from falling onto the ground as his hands were on the massage which was in front of him.
The plaintiff stated that after a short period, he was brought by the first aider from the factory floor to see the nurse on duty in the Occupational Health Department. There he was seen by Ms. Fiona O'Connor, who was on duty at that time. He said that he explained to her how the accident had occurred. He told her that he had been hit in the back by a full massage. In support of his contention, the plaintiff pointed to the note which had been taken by Ms. O'Connor at the time and which had been made available to the plaintiff on discovery. The relevant portions of her note were in the following terms:-
‘24th/3/11, 14.30, brought to OHD by first aider Sean Murphy. Incident in boning hall – Miroslav hit in back by rolling massager weight – 650 kg. …I attended boning hall to look at massages and incident location. Miroslav standing at massage locked into place – full massage (650 kg) rolled into Miroslav's back – his hands were on massage so this stopped his front from hitting off stationary massage.’
In her evidence, Ms. O'Connor stated that to the best of her recollection, she got the information that the massage in question was full of meat, from the first aider and from the plaintiff, when he attended at the Occupational Health Department. She stated that after she had examined the plaintiff, he went to the canteen to rest and have a cup of tea. She went down to the boning hall and got descriptions of the accident and looked at the massages.
Ms. O'Connor stated that having carried out her investigation into the accident she sent an email at 16.59 hours on 24th March, 2011 to two senior officers in the Kerry Foods Group in Co. Kerry. In that email she stated as follows:-
Miroslav attended the Occupational Health Department this p.m. following an incident at work in the boning hall. Miroslav was hit in the back by a rolling massager which was full. Felt weak after the incident. Attended the Occupational Health Department with first aider. Exam all vital signs normal, no bruising evident, feeling stiff and sore after incident, advice given.
Return to work. Advised to re attend the Occupational Health Department before going home this p.m. Attended, nil new. Advice given.
Lighter duties for tomorrow as agreed with team leader. Review in Occupational Health Department if required.’
Evidence was also given by Mr. Christopher Kelly, who was a supervisor in the plant at the time of the accident. He filled in an accident report form in relation to the plaintiff's accident. In the section of the report under the heading ‘ Details of Accident/Incident and Injury’, he had given the following description of the accident: ‘ Miro was standing at gunther and was hit in the back by a full massager. 500 kg weight. The force of the massager pushed Miro forward.’
Mr. Kelly stated that the description of the accident as put into the accident report form, was what he had been told by the plaintiff. He stated that he obtained statements from the other employee, Ivan Jordan, and from the first aider, Sean Murphy, and attached these to the accident report form.
The co-worker, who had been manoeuvring the massage, which struck the plaintiff on the back, was Mr. Ivan Jordan. He gave a statement to Mr. Kelly in relation to the circumstances of the accident. He did not state in the statement whether the massage was full or empty at the time of the incident. That statement was in the following terms:
‘Ivan was working on line one (Topside line). Miro had his back to Ivan at Gunther and Ivan had his back to Miro. Ivan was putting out a massage and it got away due to the slope on the floor. Miro got caught between Ivan's massager and his own. Miro was doubled over on the floor. Ivan helped Miro up and Miro said he was ok after a while. Miro kept working for a while and then felt unwell.’
In his evidence, Mr. Jordan stated that he had gone to the wash-room to obtain some clean massages which were needed on the factory floor. He stated that he obtained two massages from the wash-room and was pushing one and pulling the other. They were both empty. He stated that it simply would not have been possible to manoeuvre two massages at the one time if they were full of meat. He stated that while he was putting the empty massages into place, the first...
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