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Accident at Work – Court of Appeal overturns award to Dunnes Stores employee

Employment Law - For Employers

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In the recent case of Geraldine Martin and Dunnes Stores (Limerick), the defendant appealed against an award of damages of €67,450 made in favour of the plaintiff on 21st May 2014. Justice Irvine delivered the ruling in this case on 14th March 2016.

Background

The plaintiff was 26 years old when on 10th August 2011 she left her till to replace a 10kg pack of potatoes for a customer. The plaintiff attempted to extract another bag from a pallett in the fruit and vegetable department which was wedged between two adjacent bags of potatoes and sustained injuries as a result.The plaintiff contended in the High Court that she had not been provided with a safe system  of work and that there had been no one at the check out who could assist her.

The trial judge was satisfied that the injury to her arm was caused by trying to remove the bag of potatoes which was wedged. He was also satisfied that insofar as checkout operators might have to respond to customers requests, the defendant had in place a system whereby employees would first seek assistance from staff at or near the checkout and, in default of finding a member so available, would seek backup assistance by deploying the tannoy located in the checkout area. The judge concluded that on the day in question the store was short staffed and the plaintiff could see no one available to assist her. He found that in such circumstances the plaintiff had no alternative but to leave the checkout and go and get the customer’s bag of potatoes herself. He thus found that the plaintiff had not been provided with adequate assistance or a safe system of work. He also concluded that the weight of the bag was excessive and that the attempt to extricate the bag presented a very significant risk of injury and that the lift she was required to carry out was excessive, inappropriate and potentially dangerous. The judge acknowledged that the plaintiff had been trained in manual handling but that they were “very inadequate” in that they did had not address the practicalities of what employees might be expected to lift. He instanced a number of products such as bags of dog food, compost and potatoes and found the defendant negligent in its failure to incorporate within its training programme the practicalities of lifting such products.

He stated

So I am satisfied that the accident which happened to the plaintiff was caused by a dangerous lift and an absence of adequate training in the proper lifting of objects such as this and then the failure of the defendant’s system for providing assistance on the day in question. The plaintiff did her best on the day and I see no evidence of any contributory negligence on her part and it seems to me that the defendants are entirely liable for and responsible for this accident because of their failure in their duty to the plaintiff to provide her with a safe system of work on the day and they are, therefore, obliged to compensate for the full amount for damage.”

Appellant Submission

Counsel on behalf of the defendant contended that the trial judge had erred insofar as the only option available to the plaintiff was to carry out the task of fetching the potatoes herself and that there were a number of options available to the plaintiff including using the tannoy system.As the plaintiff had departed from this system the the defendant could not be held to be in breach of their duty of care or liable as to what later occurred.

As to the trial judge’s finding that the plaintiff’s training had been inadequate, senior counsel submitted that it was wholly unreasonable to expect an employer to train an employee as to how they might go about lifting every potential type of product or object they might have to handle in the course of their employment. This would be unreasonable, impracticable and would impose an unfair burden on an employer. It would involve the employer in trying to identify every potentially difficult product that an employee might potentially have to handle in the course of their duties after which there would have to be given practical training as to how they might carry out any manoeuvre. He also stated that the trial judge ought to have concluded that there was no negligence on the part of the defendant in so far as its training of the plaintiff was concerned. The evidence established that the plaintiff had been trained to identify a dangerous load. The documentation completed by her following her manual handling training evidenced the fact that she should have comprehended the danger of seeking to extricate the bag of potatoes and she should not have attempted it.

Respondent Submission

Senior Counsel for the respondent submitted that the trial judge was quite correct in finding the defendant negligent in its failure to provide adequate assistance to the plaintiff when she was at the till. He submitted that but for that negligence she would not have been faced with the lift which caused her injury. She had no practical assistance on the day in question having regard to the shortage of staff and this created a foreseeable risk of injury, particularly in circumstances where staff on the tills were under pressure and the company policy was to ensure that the customer was served with all due expedition.He maintains that the finding of the trial judge to the effect that the defendant was negligent in failing to adequately train the plaintiff, in practical terms, how to lift a load such as a bag of potatoes or other like heavy product was to fall short of their obligations as the plaintiff’s employer

Legal Principles
Justice Irvine noted that the duty of the employer to their employee is not an unlimited one and that the employer is not to be taken as an insurer of the welfare of their employees as outlined in Bradley v. C.I.E. [1976] I.R. 217.He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances. However, their duty is met once they take reasonable and practicable steps to avoid accidents. The judge noted it is not possible to eradicate all risks and accidents.He referred to the Safety Health and Welfare at Work Act 2005 and “Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

Decision

The court noted that it was bound by the decision of McCarthy J in Hay v O’Grady [1992] IR 498. He also referred to the fact that there were a number of matters which were not in dispute between the parties namely.

  1. The plaintiff was a loyal and hard working employee and a credible witness
  2. The defendant had in place a system whereby employees could call on the assistance of other members of staff if they required it
  3. The plaintiff was trained in manual handling on a regular basis

Critical to his conclusions on the appeal was the extent of the onus placed on an employer to take due care for the safety and welfare of their employees.In the context of this case he stated it was reasonable to say that the obligation of the defendant was to identify potential hazards likely to affect the safety and health of the plaintiff and then, whether through training or the implementation of procedures and precautions which were practicable in all the circumstances, to guard against those risks: Quinn v. Bradbury [2011] IEHC. He disagreed with the trial judge that the defendant had failed to comply with its duty of care to the employee insofar as there a number of staff available to the employee and that she had the option to use the tannoy. He noted that the plaintiff did not follow her training.

The judge stated that Dunnes Stores had a policy and procedure in place to protect the welfare and safety of those working at their checkout and that the procedures took into account the possibility that, from time to time, there would be no one immediately available at the tills themselves in which case the checkout operator has been trained to seek assistance from a member of staff using the tannoy.

The judge stated “I believe that it would be neither reasonable not practicable to expect the defendant to have an employee ever present available to deal with any query as might be brought to the checkout operator by a customer….even if the store had one or more full time assistants available to checkout operators, it would invariably happen that from time to time these would be deployed on the floor when another problem needing attention. In such circumstances assistance would only be available over the tannoy. The temporary unavailability of a staff member in such circumstances could not, in my view, be considered sufficient to establish a breach of duty on the part of an employer”.Thus, a system which depends on the occasional use of the tannoy is, in my view, perfectly acceptable as providing a system which is practical and reasonable for the purposes of protecting the health and safety of the employee working as a checkout operator”.

Justice Irvine noted that ven if the defendant was negligent in failing to provide the plaintiff with adequate assistance, the same was not causative of her. He also noted that the trial judge had accepted that the plaintiff had been trained and assessed on a regular basis in relation to manual handling skills and techniques and referred to the fact that the plaintiff accepted under cross examination that she had been taught to look for help if she needed it and that she must not lift or handle any load which she felt uncomfortable about handling.

The judge noted that there could be no causative link between any failure on the part of the defendant and the plaintiff’s injuries.The injury was not sustained because the plaintiff was lifting a 10 kg bag of potatoes from a pallet. It was sustained when the plaintiff lent in sideways over the pallet and “yanked” the product from between two other bags of potatoes, which for some reason she left in situ while trying to extricate the bag concerned. This precise scenario was unlikely to be covered by any manual handling course practical or otherwise.

The judge concluded that he was “quite satisfied that for an employer, such as the defendant in this case, it reasonably discharged its obligations to the plaintiff by training her on a regular basis as to the principles of safe manual handling which it was then up to her to deploy when faced with any given task. The fact that the training in respect of safe lifting techniques may have been done using empty cardboard boxes or boxes with handles cannot, on the evidence, be considered to amount to a failure on the part of the defendant to meet its common law and statutory obligations to the plaintiff. Its obligation was to identify potential hazards and then implement procedures designed to protect the employee from the risks pertaining to such hazards, which it did“.

He further noted that the plaintiff was a “loyal and hard-working member of the defendant’s staff, because of her commitment to her employer and her desire to meet a customer’s needs, took on a task which was contra indicated by her training and did so in circumstances where she knew or ought to have known she might sustain an injury. She did not seek assistance at the checkout, as she might have done having regard to her training, and further, when faced with moving a heavy bag of potatoes which was obviously wedged in position such that it could not be easily extracted without force, proceeded to try to yank it free thus causing herself an injury”.

The judge concluded that whilst he had great sympathy for the plight and predicament of the plaintiff he was not satisfied that the plaintiff’s injuries “can be ascribed to any negligence, breach of duty or breach of statutory duty on the part of the defendant who, to my mind, had taken all reasonable precautions and had implemented all reasonable practices to protect the plaintiff from injuring herself in circumstances such as those which presented in the present case

He allowed the defendants appeal.

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