Theresa Quinn v Topaz Energy Group Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Egan |
| Judgment Date | 01 December 2021 |
| Neutral Citation | [2021] IEHC 750 |
| Docket Number | [Record No. 2012/6852 P] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 750
[Record No. 2012/6852 P]
THE HIGH COURT
JUDGMENT of Ms. Justice Egan delivered on the 1st day of December, 2021
The plaintiff brings these proceedings against the defendant, Topaz Energy Group Limited, her employer, for damages for nervous shock suffered in connection with a murder in the defendant's service station, where she worked. The plaintiff's case is that she suffered avoidable trauma and psychiatric injury because she had no safe means of summoning assistance. In particular, the plaintiff contends that she did not have access to a mobile panic alarm, notwithstanding that the defendant's safety statements, risk assessments and emergency response plan (to which I shall refer collectively as the defendant's “H & S protocols”) provided that panic alarms ought to have been available to staff members. In addition, the plaintiff maintains that her trauma and resulting injury were aggravated by a lack of training on how to respond to emergencies.
The defendant's case is that this event, which had all the hallmarks of a contract killing, was entirely unforeseeable; that the defendant cannot be held liable for its consequences; that, the plaintiff should have been wearing a mobile panic alarm at the time of the incident as set out in the defendant's H & S protocols; and that, as a panic alarm could not have prevented the incident occurring or any resulting nervous shock suffered by the plaintiff, its absence is irrelevant.
For the reasons set out in this judgment, I have concluded that the defendant acted negligently and in breach of statutory duty in failing to implement its own H & S protocols and thereby failing to provide the plaintiff with a mobile panic alarm. In addition, I find that, although this extremely violent event was not foreseeable, this is not a good answer to the particular case made by the plaintiff.
The plaintiff, who was born on the 30th July, 1986 and was 24 years old at the time of the incident, was employed by the defendant as a deli assistant at the delicatessen counter of the defendant's service station at Caherdavin, Limerick. On 22nd February, 2010, the plaintiff arrived for work a little before 6 am. One other colleague was on duty, working at the till area, which was equipped with a static panic alarm. The deli area was not so equipped because cash was not directly handled at the deli counter.
As the plaintiff commenced her duties, a Mr. Treacy, the bread delivery man who was known to the plaintiff, entered the shop. At approximately 6.34 am, whilst the plaintiff was in conversation with Mr. Treacy, another individual who has since been identified as Mr. Coughlan, entered the shop carrying a bag from which he drew a gun, and in front of the plaintiff, shot Mr. Treacy in the head. On observing this, the plaintiff's colleague, who had been at the till, vaulted over the counter and left the shop without, it seems, activating the static panic alarm at his station. As a result, the plaintiff was alone in the shop with the assailant and, because she was behind the deli counter, she could not activate the static panic alarm at the till area. Company policy, reasonably enough, was that staff were not permitted to have mobile phones on their person whilst on duty and phones would usually be left in lockers located in a separate part of the shop. However, on this occasion the plaintiff's mobile phone was in her coat in a cloakroom adjacent to the deli counter. On witnessing the shooting, the plaintiff dropped to the floor behind the deli counter. She then crawled to the cloakroom in order to access her phone. When she got to the cloakroom, she heard more shots being fired in the shop and could smell the gunpowder. The assailant appears to have shot Mr. Treacy several times. The plaintiff retrieved her mobile phone. In a state of dread she called the emergency operator and explained the position as quickly and in as hushed a voice as possible. Because the plaintiff could hear that the assailant was still in the shop, she was terrified that he would hear her. The assailant had made no effort to cover his face. The emergency operator attempted several times to call the plaintiff back. The plaintiff's mobile phone was not on mute and therefore rang aloud. The plaintiff repeatedly hung up on the incoming calls and attempted to mute her phone as she was afraid that the assailant would hear her phone ringing, find her and kill her. The plaintiff stated in her evidence: “I thought I was going to die”.
At one stage during the incident the plaintiff peeped around the door of the cloakroom to see if the assailant was still in the shop and observed him picking up spent cartridges. The plaintiff could not precisely recall if this occurred before or after she had phoned for help but thought that it was the latter. I find that this is more likely to be the case as it makes sense that the plaintiff would have looked around the cloakroom door after calling for help, rather than before. The assailant left the premises just after 6.26 am, although the plaintiff did not know this until 6.27 am approximately when she heard other people enter the store. Roughly five minutes after the assailant had entered the store the Gardaí arrived, having been alerted by a call from a customer in the garage forecourt.
The case, as pleaded in the personal injury summons which issued in July of 2012, is somewhat generic. Essentially the plaintiff pleaded that the defendant failed to take adequate or reasonable precautions for her safety and failed to provide a safe system of employment. The plaintiff also pleaded that the defendant acted in breach of the provisions of the Safety Health and Welfare at Work Act, 2005 (“the 2005 Act”), in particular ss. 8, 9 and 10 thereof.
After the exchange of notices for particulars and replies thereto, the defence was delivered in December of 2012. Discovery was made in 2015 of, inter alia, documents relating to (a) the defendant's H & S protocols and (b) the plaintiff's training.
The case was very slow coming to trial. Expert reports were exchanged pursuant to S.I. 391 of 1998 two weeks before the trial wherein the plaintiff disclosed, inter alia, a report from Mr. Martin Stairs, security consultant. The pleadings had not advanced the criticism made by Mr. Stairs concerning the defendant's failure to equip the plaintiff with a mobile panic alarm. In legal submissions at the end of the case, the defendant relied upon the judgment of the Court of Appeal in Edina Nemeth v. Topaz Energy Group [2021] IECA 252 in which, Noonan J. commented unfavourably on the fact that, as it was being opened before the High Court, the case as originally pleaded was entirely abandoned such that the defendant was faced with meeting a new case. However, the circumstances of Nemeth were more extreme than in the present case. In Nemeth, the case ultimately made at trial was neither pleaded nor defined in the plaintiff's disclosure pursuant to S.I. 391 of 1998. The defendant in Nemeth had no notice whatsoever of the case ultimately advanced by the plaintiff at trial. In the present case, although the plaintiff's case emerged very late in the day (eleven years post event), it was exhaustively set out in Mr. Stairs' report. Crucially, the defendant did not contend that it was unable to deal with the new case and made no objection to Mr. Stairs' evidence. Furthermore, although the defendant indicated that there had been difficulty in sourcing an independent security expert in the short time available, it did ultimately retain its own security expert to address the issues raised in Mr. Stairs' report. Therefore, although it is undesirable that the plaintiff's case in relation to the absence of the panic alarm was first intimated at such a late stage, nonetheless the case presented by the plaintiff at trial was fully defended by the defendant; and I will deal with the case on that basis.
It may be of assistance to outline those issues which are not in dispute. First, it is common case that the defendant's policy and the intention of its H & S protocols, is that all employees, including those at the deli counter, should wear portable panic alarms (these are small devices, worn on a belt or on a lanyard, which when pressed, alert the emergency operator to an incident). Secondly, the parties' respective experts considered that policy to be a reasonable and practicable safety measure for this particular premises. The defendant never suggested that it was not intended that this policy be complied with by its deli staff. Nor was it suggested that compliance was unnecessary or that implementation of this policy would be too expensive, too onerous or otherwise impracticable. None of this was in issue. What was in issue, however, was that the defendant maintained that the plaintiff herself ought to have known that she should wear a panic alarm and that her failure to wear one on this occasion could not be laid at the defendant's door. Thirdly, it is common case that the terrifying incident which the plaintiff witnessed was entirely unforeseeable. Thus, no case is made by the plaintiff that the defendant could have taken any steps to prevent the assailant from entering the shop and murdering Mr. Treacy in front of her. Fourthly, it is common case that, as a result of these events the plaintiff sustained a recognisable psychiatric illness, post-traumatic stress disorder (“PTSD”). Fifthly, it is not in dispute that this PTSD was shock induced and was sustained by reason of actual or apprehended physical injury to the plaintiff and another person, namely, Mr. Treacy. Sixthly, the plaintiff accepts that she would have sustained a recognisable psychiatric illness,...
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...to protect the employee from the risks pertaining to such hazards …” 124 . The judgment of Egan J. in Quinn v Topaz Energy Group [2021] IEHC 750 provides a helpful summary of the legal principles relating to employer liability at common law and statute. In Quinn, Egan J. considered the empl......