Award of damages for potato lifting injury overturned

About this case:

• Judgment:
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Ms Geraldine Martin, an employee of Dunnes Stores, had been working as checkout operator, when she left her till to replace a 10kg pack of potatoes for a customer.

The bag she attempted to life was wedged between two adjacent bags, leading to her sustaining a partial tear to her right bicep muscle as she tried to dislodge it.

The claim made on the plaintiff’s behalf in the High Court was first, that she had not been provided with a safe system of work on the day in question in that, in practical terms, there was nobody at the checkout that she could call upon to carry out the customer’s request. She had been indirectly pressurised into carrying out the errand for the customer and the defendant had thus been negligent in failing to provide her with proper assistance and a safe system of work.

Second, the plaintiff maintained that she had not received adequate training to allow her safely carry out the operation in question, namely, the lifting of a 10kg bag of potatoes from a pallet not much above floor level and where the bag concerned was wedged between other bags of potatoes.

The trial judge had found that while Dunnes generally had an adequate system in place for dealing with customer requests, on the day in question the store was short staffed and therefore the plaintiff had not been provided with adequate assistance.

Further, while the training Dunnes provided in relation to heavy lifting was adequate, it inadequately addressed the practicalities of what employees might be expected to lift.

This decision was appealed by Dunnes, who appeal both the quantum of the award and the finding of liability.

The Court of Appeal noted that: “Time and time again the courts, in personal injuries litigation, have stressed that the duty of the employer to their employee is not an unlimited one. The employer is not to be taken as an insurer of the welfare of their employees.”

The Court cited Bradley v. C.I.E. I.R. 217 at 223, where it was stated that “The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances.”

Further, the Safety, Health and Welfare at Work Act 2005, provides at s. 8(1) that:

“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”

The Court then noted that it was bound by the decision in Hay v. O’Grady I.R. 498, meaning that findings of fact made by the trial judge which are supported by credible evidence cannot be displaced by the appellate court.

However, it was noted that insofar as inferences are drawn from circumstantial evidence, an appellate tribunal is in just as good a position as the trial judge to reach its own conclusions.

In the context of this case it was found to be 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: see Quinn v. Bradbury IEHC per Charlton J.

In relation to the facts of the case, it was found that there was very little risk associated with working at the checkout and that the plaintiff had not followed her training when she chose not to seek assistance over the shop’s tannoy.

It was found that the system in place within the store was 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.

The Court also disagreed with the finding that the 10kg bag of potatoes was an excessive load, and found that the plaintiff had been adequately trained in how to life heavy items.

It was observed that: “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” this 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.”

Delivering the judgment, Justice Irvine found that: “Having considered all of the evidence that was before the High Court, I am 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.”

Thus, while it was impossible not to have sympathy for the plight of the plaintiff, the law was found to be clear, and the defendant’s appeal allowed.