High Court: Employee who slipped in Tesco warehouse toilets awarded €65k

About this case:

• Judgment:
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Finding that Tesco was liable for the man’s injuries, Mr Justice Anthony Barr found that the floor was in a dangerous and unsafe condition due to the fact that it was not dry when the cleaner had removed the cleaning barrier, that the tiles were not non-slip, that there was a broken tile which contributed to the man’s injuries, and that the warning sign being permanently there served no purpose to those frequenting the area.

Background

In April 2015, Damien Jedruch was working a shift at a Tesco Ireland Ltd warehouse in Donabate Distribution Centre, Dublin; when injured his elbow and wrist after slipping on the tiles in the gent’s toilet.

Mr Jedruch explained that he fell forward onto his outstretched hands, which slid until his right hand came to a halt on an AJ cover, the tiled surface of which had been broken. Mr Jedruch suffered fractures to his right elbow and wrist.

Water on the floor

It was agreed that the cleaner entered the general toilet area and erected the cleaning barrier in the hallway at 7am, leaving at 7.15am and removing the cleaning barrier sign. Mr Jedruch entered the area moments later, emerged at approximately 7.19am, and photographs were taken of the area by management at 7.24am. These photographs showed a significant amount of water on the floor.

Tesco “resolutely defended the action on the basis that the toilet floor was in a clean and dry condition” when the cleaner concluded her cleaning of the area; and said that the significant amount of water shown in the photographs was “not due to any negligence, or want of care on the part of it, its servants or agents”.

Tesco did not make the case that the water was put on the floor by Mr Jedruch, and as per Browne v Dunn (1893) 6 R 67 HL and McDonagh v Sunday Newspapers Ltd IESC 46, if the court was going to be invited to make such a finding against Mr Jedruch, such an assertion would have had to have been put to him for comment in the a course of cross examination.

In any event, Justice Barr was satisfied that Mr Jedruch’s conduct immediately after the accident was not consistent with him having staged a fraudulent accident. Justice Barr explained that it was clear from all of the evidence that Mr Jedruch did not seem to make any great issue about his injuries, and that it was management who sent him in a taxi Beaumont hospital. Justice Barr said that if the accident had been set up, Mr Jedruch would have at least made considerably more of his injuries.

Evidence open to question

On the evidence given by the cleaner, Justice Barr said that having regard to the timings given in the CCTV recording, her recall of events was open to question.

Justice Barr explained the inconsistencies in her evidence and concluded that it had to be approached “with some care”. Justice Barr accepted that she had “done her best to tell the truth” and assumed the area was dry when she left, but was not satisfied that she had checked that the area was dry before she removed the cleaning sign.

This explained the considerable amount of water which was on the floor surface at the time of Mr Jedruch’s fall and at 7.24am when photographs taken by management. Justice Barr said that the existence of the boot marks or footprints on the floor surface as shown in the photographs supported this conclusion.

Justice Barr was also not convinced by the evidence of the cleaning supervisor; that from the CCTV evidence his inspection of the toilets lasted less than 1 minute, and was “perfunctory at best”.

Negligence

Justice Barr was satisfied that the floor was in a dangerous and unsafe condition due to the presence of a considerable quantity of water on the floor surface following the cleaning process, and that the cleaning barrier was removed before it was dry.

As such, Tesco was liable for the injuries sustained by the plaintiff.

Justice Barr also said that the use of smooth ceramic tiles in a toilet, used by three hundred employees in the warehouse, was unsafe and dangerous, given the high risk of slipping on these tiles when wet. Had Tesco taken reasonable care for the safety of its employees, it would have used slip-resistant or non-slip tiles in the toilet area. Accordingly, Tesco was negligent in the choice of tiles that it used at this locus.

Furthermore, the broken tile contributed to the causation of Mr Jedruch’s injuries, and therefore Tesco was negligent in failing to repair and/or replace the broken tile on the AJ cover.

Finally, Justice Barr said that the efficacy of the warning sign, being permanently in the toilet area, was largely diluted – and that it served no purpose at all to warn persons commonly using the area. As such, Justice Barr was satisfied that Mr Jedruch was not guilty of contributory negligence.

Quantum

Justice Barr was satisfied that Mr Jedruch did not try to exaggerate his injuries in any way, and accepted that being right hand dominant, was out of work for a period of 44 weeks.

While he still had some discomfort in the elbow in May 2017, this was not limiting, and there was no increased risk of arthritis.

Assessing general damages, the court was assisted by the guidelines set down in Nolan v Wirenski IECA 56 and Shannon v O’Sullivan IECA 93; having regard to the dicta in Fogarty v Cox IECA 309.

Accepting Mr Jedruch’s evidence in relation to his injuries, Justice Barr awarded €45,000 for general damages, together with the agreed sum for special damages of €20,000, making an overall award of €65,000.