Waldemar Szczypior v Daly Transport Ltd
| Jurisdiction | Ireland |
| Judge | Mr Justice Cian Ferriter |
| Judgment Date | 02 February 2022 |
| Neutral Citation | [2022] IEHC 53 |
| Docket Number | RECORD NO. 2019/4843P |
| Year | 2022 |
| Court | High Court |
[2022] IEHC 53
RECORD NO. 2019/4843P
THE HIGH COURT
Judgment of Mr Justice Cian Ferriter delivered this 2nd day of February 2022
In these proceedings, the plaintiff claims for damages for personal injuries sustained in the course of his duties as a general operative at the warehouse of the defendant, Daly Transport Ltd, in Castleisland, Co Kerry.
The plaintiff was employed as a part-time general operative, working up to 3 days per week, in the defendant's warehouse premises in Castleisland. The defendant's business involved the sourcing and distribution of cheese and other dairy products. Consignments were delivered to the warehouse, stored in the cold room if necessary, labelled for onward distribution and loaded onto trucks for transport to customers.
The plaintiff received €225 for his three-day working week, with a social welfare top up under a Casual Workers Job scheme. He had been employed by the defendant for some five months when the accident in issue in these proceedings happened.
The plaintiff gave evidence that his duties were those allocated to him on any given day by his employer (the defendant's business being run by Mr Mike Daly and his son Sean Daly). These duties involved cleaning, unpacking deliveries, labelling boxes which were typically delivered on pallets and other related duties. While he was not a qualified forklift driver and did not have a “ticket” (i.e. permit) to drive same, he would occasionally be called upon to do some forklift duties.
The plaintiff gave evidence that he never received any training in manual handling or in respect of any other aspect of the duties he was asked to carry out. He said that he was not provided with any safety clothing or other protective equipment by the defendant.
The accident in question happened on 10 January 2017. The plaintiff gave evidence that on that day, it was extremely busy in the section of the warehouse that he was working in (being the section near the cold room) — “chaotic” as he described it. He said there were some 70 to 90 pallets in the area at the time. He said that he was asked to label boxes of cheese which had just been delivered to the warehouse on pallets containing some 50 boxes per pallet, each box weighing 20.5 KG and each pallet therefore containing over 1 tonne in weight. This task involves removing the foil wrapping around the pallet and sticking a label on each of the boxes which would have information as to its place of destination. The boxes were piled in 5 layers on the pallet, with 10 boxes in each layer. In order to label boxes on the inner part of the pallet, it was necessary to remove some of the outer boxes to get the necessary access.
The plaintiff said that he was under pressure from his boss to label as quickly as possible for that particular consignment. He said that the foreman, Philip, had instructed him to get the boxes on these pallets ready to move as soon as possible as there was another batch coming in for the next day.
The plaintiff said that there were three rows of pallets in the relevant section of the warehouse at the time with very little space to move between the pallets. He was seeking to apply labels to boxes in respect of one particular pallet which involved working his way through the boxes on the pallet. He was working on the second last layer of boxes and moving them with a view to getting in at the inner row of boxes. He said there was a pallet immediately behind him which was at an angle to the pallet he was working on, such that the space between the pallets progressively narrowed. The relevant dimensions were estimated to be 400mm at the narrow end and 800mm at the widest end. He gave evidence that the space between the panels was not sufficiently wide for him to be able to kneel down in the ordinary way to get access to the boxes. Accordingly, he put the tip of his left shoe inside one of the two openings at the base of the wooden pallet in order to stabilise himself, and put his right shoe at an angle. He then bent down to move a box. His back was pressed against the pallet behind him. He was seeking to slide a box out (the boxes been tightly packed together on a pallet) and was grabbing the box at the bottom. Having lifted the box to chest height, he then fell over to his right-hand side, with his left foot getting trapped under the pallet. He went over badly on his right hand and wrist when he fell to the concrete floor. He fell to the side as there was not sufficient room to fall forwards.
The plaintiff gave evidence that there was, in his view, definitely less space available for manoeuvring with the boxes than there normally was given the configuration of the pallets on the day in question. The plaintiff said that ordinarily if there was insufficient space between pallets for him to safely access the boxes on them, he would get assistance from one of the other workers who operated the forklifts. While he had said in his replies to particulars that he did not seek assistance on the day in question, he said in his oral evidence that he did go looking for assistance that day but the forklift drivers were all busy and that the warehouse was so busy there was nobody else available. He also said that he sought to get a manual electric pallet lift but they were charging at the time and none was available. He was nearing the end of his work shift at the time.
In response to questioning under cross-examination to the effect that he ought to have waited until someone was available to help him to move the pallets to a safer position before attempting the labelling of the pallet in question with insufficient space, the plaintiff said that he sought to get on with the job as he was under pressure from his boss to label as quickly as possible for that particular consignment.
The plaintiff gave evidence that there were no marks on the floor of the warehouse to identify where pallets were to be placed to ensure that there would be a safe and sufficient distance between them. He said that pallets were dropped randomly and that there was a culture of pressure being put on operatives as there was on the day in question where they were being told regularly to hurry up with the work. The plaintiff said he remembered very clearly that at the time in question there was barely enough space for the forklift to drive through to the cold-room given the number of pallets that were there.
The plaintiff gave evidence, under cross-examination, that while he always tried to be careful in the way he approached work, there were no health and safety rules in the company and that no training had been provided to him. In addition, no protective equipment was provided by the defendant so that the workers had to provide their own safety shoes and clothes.
Immediately after the incident, the plaintiff's hand became swollen and one of his fingernails was slightly damaged. As he was near end of a shift, he did not tell anybody of the incident at that time. His immediate reaction was that it was likely to be a minor injury. The plaintiff went to the pharmacy the evening of the accident and got painkillers and a gel for swelling.
The plaintiff claims that he came into work the next day and showed his hand to his boss, Mike Daly, in the canteen at 10am. The plaintiff says that Mike Daly asked whether he could move his fingers and when the plaintiff said he could, he was told to go back to work. Mike Daly denies that this conversation took place. The plaintiff further says that Mike Daly's son, Sean Daly, later that morning told him not to report the accident to anywhere as it would involve a lot of paperwork and hassle for him. The plaintiff says that Sean Daly acknowledged that space was tight in the warehouse setup as it then was but that he was in the process of purchasing an extra hall which would mean that there will be more space available. The plaintiff says that Sean Daly also promised him in this conversation that they would give him full-time hours soon. Sean Daly denies that this conversation took place.
After 6 days of taking painkillers, his hand remained sore and swollen so the plaintiff went back to his pharmacist who advised him to go to the doctor. He then attended with Dr Pat Daly, his GP in Tralee. A report furnished by Dr Daly for these proceedings confirms that the plaintiff first attended him in relation to the matter on 17 January 2017. Dr Daly referred him to Tralee hospital where was x-rayed, prescribed stronger painkillers and recommended to undertake physiotherapy. He attended for physiotherapy initially in Castleisland. His GP subsequently referred him to Tony Higgins an orthopaedic specialist in Tralee hospital who organised further physiotherapy treatment in Tralee hospital which the plaintiff found helpful.
The plaintiff said that if a physiotherapy session fell on one of his working days (Monday to Wednesday) he would be given the time off by the defendant to attend the session. Mike Daly's son, Sean Daly, was the person to whom the plaintiff reported. Sean Daly accepts that the plaintiff was let out of work to go to medical appointments at various stages in the 14 months following the accident but that he was unaware that he was receiving treatment for an accident related to his work with the defendant and that he never inquired as to the purpose of the medical visits. When asked if he had noticed that the plaintiff was slowing up at his duties, Sean Daly said that while he had noticed that the plaintiff was taking more bathroom breaks, he had not noticed any appreciable change in the plaintiff's performance of his duties. The plaintiff for his part says that his employer must have known that he was receiving treatment for his workplace...
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