High Court: Man who broke wrist at Cork City Fire Station awarded €62k

About this case:

• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Barniville

Finding that Cork City Council was in breach of s.12 of the Safety, Health and Welfare at Work Act 2005 by failing to cover the drain with a grate, Mr Justice David Barniville made a finding of contributory negligence due to the man’s failure to notice the drain and deducted 25% from the overall award.

Background

In July 2013, Ian McWhinney was requested to attend Cork City Fire Station on Anglesea Street to carry out repairs to the shutter of one of the fire trucks operating from the station. The fire station is under the control and responsibility of Cork City Council. When he arrived in his van, all of the designated parking spaces for visitors were occupied, and he was given permission by members of staff to park his van in one of the bays normally reserved for fire trucks.

When Mr McWhinney was retrieving tools from the back of the van, he stepped backwards from the rear compartment and his foot slipped down an uncovered drain which ran across the length of the yard. Mr McWhinney lost his balance and put his left hand out to protect himself from the fall – resulting in a very serious fracture to his left wrist.

In his evidence, Mr McWhinney stated that the drain did not ‘register’ with him at any point before he fell, accepting that he had been at the fire stations on about five or six occasions during that year. Mr McWhinney also accepted that he would have reversed over the drain when he was parking, but that he didn’t notice it then because he was more concerned with protection the mirrors on his van when reversing into the bay. In cross-examination he accepted that he ought to have noticed the drain, that it was a ‘fair comment’ that he should gave had ‘more of an eye out’ for the drain – but that he did not notice it. Justice Barniville accepted Mr McWhinney’s evidence, and said that his ‘fair and appropriate concession in cross-examination’ undoubtedly provided a basis for a finding of contributory negligence.

Liability

Assessing liability, Justice Barniville accepted the evidence adduced by and on behalf of Mr McWhinney that the open drain was a hazard to persons required to enter the yard on an occasional basis. Justice Barniville explained that the drain was uncovered and constructed using the same materials and colour as the surrounding areas of the yard. With a depth of at least 22mm, Justice Barniville stated that this amounted to a hazard for occasional visitors required to do work in the yard. Stating that he expressed no view on whether open drains across footpaths were unsafe, and that nothing in his judgment should be read otherwise, Justice Barniville said that such uncovered drains found on footpaths normally involved a clear distinction or separation between the footpath and the roadway.

Considering Boyle v. Marathon Petroleum (Ireland) Ltd. [1999] IESC 14, [1999] 2 I.R. 460, Justice Barniville said that the onus of proof passed to Cork City Council as the defendant to show that what it did was reasonably practicable. In the context of s.12 of the Safety, Health and Welfare at Work Act 2005, the onus was on the Council to show that it took such steps as were necessary to ensure that a person such as Mr McWhinney was not exposed to a risk to his safety, health or welfare. Justice Barniville said there was no engineering or design reason why the drain could not have been covered by a grate, and that if it had been so covered the accident would not have occurred and Mr McWhinney would not have sustained his injuries. Justice Barniville was also not satisfied that there was any good or acceptable reason why there were no markings around the edge of the drain which would have served to highlight it and differentiate it from the surrounding areas of the yard.

Justice Barniville said that the absence of a cover or a grate was the principle basis on which he concluded that the Council had not discharged the onus of proving that it took such steps as were reasonably practicable to ensure occasional visitors working at the yard such as Mr McWhinney were not exposed to risks to their safety – amounting to a breach of s. 12 of the Safety, Health and Welfare at Work Act 2005.

Justice Barniville was also satisfied that the Council was in breach of ss. 19 and 20 of the Safety, Health and Welfare at Work Act 2005 given the fact that no risk assessment or safety statement identified the open drain as a hazard or assess the risks associated. As such, Justice Barniville was satisfied that the Council had not complied with its duties under ss. 19 and 20.

Given Mr McWhinney’s failure to advert to the drain, which was ‘more than a mere minor error of judgment or inadvertence’, Justice Barniville assessed contributory negligence at 25%.

Damages

Describing Mr McWhinney’s injury as falling broadly under the heading of ‘moderately severe’ in the Book of Quantum; Justice Barniville awarded general damages for pain and suffering to date at €60,000, and general damages for pain and suffering into the future at €10,000. Adding special damages of €13,310, and deducting 25% from the total sum of €83,310 for contributory negligence – Justice Barniville awarded €62,482.50 to Mr McWhinney.