High Court: Sales assistant who fell from ladder has personal injuries claim against Dunnes Stores dismissed

About this case:

• Citation:
  [2018] IEHC 679
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Keane

Finding that the woman’s testimony was “fundamentally undermined” by CCTV footage shown in Court, Mr Justice David Keane concluded that there was no material defect in the step-ladder and that the proximate cause of the accident was that the woman missed a step when descending the ladder.  

The accident

In June 2014, Ms Jean Falsey, who was employed as a sales assistant in Dunnes Stores in Kilkenny City, fell off the second step of a step-ladder after using it when adjusting stock on the shelves.

Immediately after the accident, Ms Falsey presented at the Emergency Department at St Luke’s Hospital, Kilkenny, complaining of pain in her chest and pelvis, with tenderness over her right thigh and her right side. She was sent home with painkillers, and continued to suffer headaches. A few days later, she attended her GP who prescribed painkillers and anti-inflammatories. She suffered pain and stiffness in her neck, shoulder, and lower back, and underwent nine sessions of physiotherapy.

Ms Falsey did not return to work for 13 weeks.

Personal injuries

Ms Falsey claimed damages from Dunnes Stores for personal injuries, citing nuisance, negligence, breach of duty (including breach of statutory duty) and breach of her employment contract.

Ms Falsey argued that Dunnes was guilty of the above by allowing unsafe work practices and by providing a defective ladder, so that, in the course of her employment, “the ladder she was standing on went from under her feet causing her to fall heavily to the ground”.

Counsel for Ms Falsey drew specific attention to the allegation that Dunnes Stores provided Ms Falsey with a ladder that was dangerous or defective or both, and the allegation that Dunnes Stores failed to provide Ms Falsey with any, or any sufficient training in the use of ladders; in the risks of such use or of working above ground level; or in the checks to be carried out on ladders before using them.

Ms Falsey testified that she felt the latter “just give way” as she was coming down from straightening a box on the top shelf.

Conflicting evidence

Counsel for Dunnes Stores said that Ms Falsey’s account could not be reconciled with the footage of the accident captured by CCTV. The footage, shown in court, depicted Ms Falsey falling from the step-ladder – notably the step ladder did not move at all, contrary to Ms Falsey’s allegation that it gave way.

Evidence from witnesses called by Dunnes included a security manager on duty at the time of the accident, who said that immediately after the accident Ms Falsey said it was her own fault. Another witness was an employee who was called to the scene as a trained first-aider, who contradicted Ms Falsey’s testimony that he had fallen from the same ladder the previous week. The first-aider said that he had fallen from a similar ladder the previous month, but that he considered the fall to be his own fault and did not report it. Dunnes also called a human resource manager who gave evidence that Ms Falsey attended training which included the safe use of step-ladders, and that Ms Falsey had signed the training certificate.

Another sales assistant called by Ms Falsey testified that Ms Falsey had not said after the accident that it was her own fault; however, this conflicted with a statement the witness had signed a few days after the accident.

Expert engineers called on behalf of Ms Falsey and Dunnes Stores acknowledged that there was “a slight asymmetry” between the four legs of the step-ladder, however the expert on behalf of Dunnes Stores said that the asymmetry was “eliminated as soon as the ladder is weighted by the person using it” and Mr Justice Keane said that “the notion that a wobble in the ladder caused Ms Falsey’s fall entered the case for the first time after the joint engineer’s inspection”.

Conclusions

Mr Justice Keany said that he found the witnesses called by Dunnes Stores to be forthright, consistent, and credible, and that he preferred the evidence of Dunnes’ expert engineer over that of Ms Falsey’s expert engineer. Further, Mr Justice Keane said that the credibility of Ms Falsey’s testimony was fundamentally undermined by the CCTV footage.

Dismissing Ms Falsey’s claim, Mr Justice Keane concluded that, on the balance of probabilities:

1. The proximate cause of the accident was that Ms Falsey missed a step while descending the ladder;
2. Ms Falsey did receive training in the proper use of step-ladders in July 2012;
3. The provision of such training was not part of any applicable statutory duty or duty of care on the part of Ms Falsey’s employer, since its contents represented “no more than the dictates of common sense”;
4. Ms Falsey put herself at risk in the manner in which she used the step-ladder;
5. There was no failure to properly supervise Ms Falsey as “her use of the step-ladder was the result of a spontaneous impulse on her part and there was no suggestion that she had ever used it in the same inherently risky way in the presence of management previously”;
6. There was no material defect in the step-ladder.

• by Seosamh Gráinséir for Irish Legal News