KELLY .V. BON SECOURS HEALTH SYSTEM LTD [2012] IEHC 21 HIGH COURT AWARDS PLAINTIFF PERSONAL LITIGANT €90,000.00 IN PERSONAL INJURY ACTION AGAINST EMPLOYER

The Plaintiff who represented herself in these proceedings claimed damages for personal injury in respect of an incident in August 2004 when she twisted her back at work whilst carrying files. In addition the Plaintiff’s claim for injury included the loss caused by harassment, bullying, abuse, intimidation and discrimination in the course of her employment.

On the issue of the incident causing low back injury the Plaintiff claimed that she was forced to carry bundles of charts which were excessively weighty. The Defendant did not call evidence from the employer but from an Engineer who gave evidence that the volume in weights being carried by the Plaintiff was not excessive. The Engineer did agree however that the Manual Training Regulations were mandatory and that it was a breach of the statutory duty not to adhere to such Regulations (it appears that they did not so adhere).

Mr Justice Cross held that the Defendant was negligent and in breach of statutory duty in respect of this part of the claim. In terms of the claim for bullying and harassment the Court first sought to clarify some terms. It acknowledged that there was no separate tort of bullying or harassment and that the Defendant as an employer of the Plaintiff owed a duty of care not to expose their employee to injury and that one of the sub-aspects of this may be a question of bullying and harassment. The Court referred to the Judgment of Fennelly J. in Quigley .v. Complex Tooling and Moulding Limited [2009[ 1 IR where it was agreed between the parties to adopt the definition of “workplace bullying” contained at paragraph 5 of the Industrial Relations Act 1990 (code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 which states:-

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying”.

The Court also referred to the helpful decision of Herbert J. in Sweeney .v. Board of Management Ballinteer Community College (Unreported High Court, 24th March 2011) in which the Judge analysed a number of the instants which the Plaintiff relied on in her claim for personal injuries. Some were upheld and others not. The analysis which Cross J. in this case found to be most helpful was the following passage:-

“In my judgment a particularly vicious form of bullying involves isolating the victim in the workplace by influencing others by actual or suggested threats to their own interest and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr C to brook no positive interference, as he saw it, by the Plaintiff in his management of the College”.

The Court also considered the United Kingdom Court of Appeal decision in Sutton .v. Hatton [2002] 2 AR 1, where the Court placed considerable emphasis on the employees obligations to inform the employer of difficulties being experienced and set out sixteen propositions for dealing with cases of bullying and harassment.

The sixteen propositions were adopted by Laffoy J in the case of McGrath .v. Trintech Technologies Limited [2005} IR 382.

In conclusion in setting out the law to be adopted when dealing with bullying and harassment cases Mr Justice Cross in this case found the best summary of the questions to be addressed where set out by Clarke J in Maher .v. Jabil Services Limited [2005] 16 ELR 233 which states as follows:-

“(a) had the Plaintiff suffered an injury to their health as opposed to ordinary occupational stress; (b) If so, was that injury attributable to the workplace and; (c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances”.

The Court in this instance then examined the Plaintiff’s work history, her grievances, the grievance procedure and how it was dealt with by the employer to include post-suspension grievance procedures and ultimately mediation between the parties. The Court found and concluded that the Plaintiff believed that virtually every step taken by the Defendant was an attempt to bully, harass and intimidate her and that her view was coloured by her personality but that the Defendant’s were aware or ought to have been aware of this fact from a very early stage and ultimately that the Defendant’s must, subject to any defences that they may have be prima facia liable in the circumstances.

The Defence argued that the Plaintiff was guilty of contributory negligence, that she had failed to engage in the grievance procedure, that the Plaintiff had failed to mitigate her loss and that the Plaintiff’s case could not proceed for a number of her grievances due to findings made by the LRC and others. The Court found that there was no question of estoppel or res judicata arising and that there was no element of contributory negligence attaching to the Plaintiff in this instance.

The issue of quantum is very interesting and in particular how the Court dealt with the injury to the back. The Plaintiff had suffered a previous injury to her back in 1998 which lasted a few weeks and up to the accident in August 2004 the Plaintiff was an active person, swimming every day and dancing once a fortnight, doing gardening and generally participating in physical work. The Plaintiff was examined in May 2011, six years after the incident and was still complaining of pain in the lumbar region, the view being that the Plaintiff had pre-accident degenerative changes consistent with her age which were rendered symptomatic prematurely. The medical evidence was that if it were not for the accident the symptoms would likely to have arisen spontaneously within a number of years. The Court held that the Plaintiff was likely to go through the rest of her life with the knowledge of a back that was less than perfect and that it was quite possible that were it not for this instant that she would have had some flare up of symptoms at some stage and in those circumstances cross J. said;

“Doing the best that I can I would assess in respect of the Plaintiff’s back complaint, damage to include some damages for limitation for work availability at a modest level in the sum of €30,000.00”.

When dealing with the issue of the psychiatric injury the Court found that some of the symptoms were not related to the bullying but acknowledged that those attributable to the finding against the Defendant amounted to €60,000.00. The Court awarded €90,000.00 together with the Plaintiff’s expenses and outlays (no costs of course).

by Damian McGeady

The Supreme Court in Coffey v Kavanagh [2012] IESC 18 has allowed an Appeal in a claim for personal injuries arising out of an accident at work where The High Court awarded damages in full to the Plaintiff.

The Plaintiff was employed by the Defendant/Appellant as a Shop Manager. She alleged she was caused to trip over a box in the office area of the Defendant/Appellant’s premises and suffered a fracture to her wrist. She sued her employer by reason of the negligence and breach of duty in failing to provide her with a safe place of work and in causing the office area of the premises to become cluttered, unsafe and dangerous.

The Defendant/Appellant denied negligence and claimed that the injuries were caused at the Plaintiff’s own negligence in failing to have adequate regard to her own safety. The Trial Judge found entirely against the Defendant employer. On the issue of contributory negligence the Trial Judge held that the Plaintiff/Respondent was not guilty, and said;

“It has been contended on behalf of the [Appellant], that the [Respondent] was guilty of contributory negligence in failing to keep a proper lookout and that this negligence caused or contributed to her injury. I do not accept that contention. I accept the evidence of the [Respondent] … that during busy periods, the floor of the office area within the [Appellants] premises regularly became cluttered. I also accept [the Respondent] that she drew this to the [Appellants] attention from time to time and that nothing was done by the [Appellant] to reduce the risk of injury to the staff members by adopting a safe system. I do not accept on the evidence that the [Respondent] failed to keep a proper lookout. I accept her evidence that a hazard on the floor, which she could not identify, but which caused her trip, was probably either packing material or a tear in the carpet which caused her to trip and that she then fell over a box which was lying on the floor in an inappropriate place. I cannot see how she can, in those circumstances, be found to have caused or contributed to her own injury. Accordingly, I am satisfied that the [Respondent] is entitled to recover the full value of her claim”.

The Supreme Court noted that whilst the Trial Judge did not accept the contention that the Respondent was guilty of contributory negligence, he did accept the evidence of the Respondent that the floor of the premises regularly became cluttered and that she herself had drawn the problem to the attention of the Appellant.

It was submitted on Appeal by the Defendant/Respondent that insufficient weight was given by the Trial Judge to the evidence of the Appellant and his witnesses and that the Plaintiff/Respondents evidence was accepted uncritically and with an excess of weight in contrast to the treatment of corroborated evidence of the Defendant/Appellant. Further on the issue of contributory negligence that the Trial Judge failed to give adequate weight to the Defendant/Respondents role in the ongoing management of the office.

This is an interesting case. The Supreme Court was being asked to deal with the role of an Appellate Court in reviewing oral evidence given in The High Court. The Supreme Court relied on the decision by McCarthy Jury in Hay .v. O’Grady [1992] 1I.R. The Court had to deal with the issue of not having had the opportunity of seeing and hearing witnesses.

In Hay .v. O’Grady McCarthy J. said;

“In my judgment an Appellate Court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the Trial Judge. In the drawing of inferences from circumstantial evidence, an Appellate Tribunal is in a position as the Trial Judge”.

The Supreme Court in this instance was in a good position given the accepted facts of the case. The Plaintiff was familiar with the office. She had responsibility to keep her desk and area around it tidy. She knew of clutter. She had made a complaint previously. She knew of potential danger. She was clearing the office when the accident occurred. She had started packing and unpacked two of the boxes and while working something on the floor caused her to trip and she fell.

On the basis of the accepted facts alone and without the opportunity of hearing the evidence heard by the Trial Judge, The Supreme Court held that the Respondent was 25% contributory negligent, allowing the Appeal and consequently reducing the Plaintiff/Respondents award.