McWhinney v Cork City Council

Factual and Procedural Background

This judgment concerns a personal injuries action heard before Judge Barniville in Cork on 9th and 10th July, 2018. The Plaintiff, a maintenance fitter employed offshore, was engaged during a break period to repair a shutter on a fire truck at the fire station controlled by the Defendant. The Plaintiff parked his van in a bay normally used by fire trucks, with permission, and while retrieving tools from the rear compartment of his van, he stepped onto the side of an uncovered drain in the rear yard, lost his balance, and sustained a serious fracture to his left wrist.

The Defendant disputed liability. The Plaintiff alleged breaches of statutory duties under the Safety, Health and Welfare at Work Act 2005 (the "2005 Act") and the Safety, Health and Welfare at Work (General Application) Regulations 2007 (the "2007 Regulations").

Following the hearing, the court found for the Plaintiff on liability, assessed contributory negligence at 25%, and awarded damages totaling €62,482.50 after deduction for contributory negligence. This document sets out the detailed reasons for that judgment.

Legal Issues Presented

1. Whether the Defendant owed a statutory duty of care to the Plaintiff under ss. 12, 19 and 20 of the Safety, Health and Welfare at Work Act 2005 despite not being the Plaintiff's employer.
2. Whether the uncovered drain in the rear yard of the fire station constituted a hazard and breach of the Defendant's statutory duties.
3. Whether the Defendant discharged its burden to show that it took all reasonably practicable steps to ensure the Plaintiff's safety.
4. The extent of any contributory negligence on the part of the Plaintiff.
5. The appropriate quantum of damages for the Plaintiff's injuries.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued that the open drain was a hazard that should have been identified and managed by the Defendant under the 2005 Act and 2007 Regulations.
• The Defendant breached its statutory duties by failing to cover or adequately highlight the drain, and by failing to conduct proper hazard identification, risk assessment, and prepare a safety statement.
• The Plaintiff contended that the Defendant did not take all reasonably practicable steps to ensure safety, particularly by not covering the drain with a grate or painting it for visibility.
• Contributory negligence should be minimal due to the statutory breach by the Defendant.

Appellee's Arguments

• The Defendant denied that the drain constituted a hazard and maintained that open drains of similar nature are common and not inherently unsafe.
• The Defendant relied on expert evidence that the drain was a sloping change in depth and did not require covering or highlighting.
• The Defendant argued that maintenance concerns justified not covering the drain.
• The Defendant contended that if contributory negligence was found, it could be as high as 50%.

Table of Precedents Cited

Court's Reasoning and Analysis

The court found that the uncovered drain in the rear yard of the fire station constituted a hazard to persons such as the Plaintiff, who were occasional visitors required to carry out work there. The drain was uncovered, visually indistinct from surrounding concrete, and sufficiently deep (at least 22mm) to present a risk of stumble or fall.

The court accepted the Plaintiff’s evidence of the accident and the expert opinion that the drain should have been identified as a hazard, with appropriate risk assessments and safety statements prepared by the Defendant, as required under ss. 19 and 20 of the 2005 Act. The Defendant failed to provide evidence of any such assessments or safety statements addressing the drain.

Applying the principles from Boyle, the court held that once the Plaintiff established a prima facie hazard, the burden shifted to the Defendant to demonstrate that it took all reasonably practicable steps to ensure safety. The Defendant did not discharge this burden, as it failed to cover the drain or take other measures to mitigate the risk, despite the feasibility of covering it with a metal grate, as evidenced by similar covered drains at other locations.

The court rejected the Defendant’s reasons for not covering the drain, finding them unsupported by evidence and unreasonable. While the Defendant’s expert did not accept the drain was a hazard, the court preferred the Plaintiff’s expert evidence on this matter.

The court also considered alternative measures such as painting the drain edges to highlight it, but found the Defendant’s objections to this unconvincing. The failure to cover the drain was the principal breach causing the accident.

Regarding contributory negligence, the court acknowledged the Plaintiff’s concession that he ought to have been more aware of the drain. However, given the statutory breach by the Defendant, contributory negligence was assessed at 25%, reflecting more than minor inadvertence but limited responsibility on the Plaintiff’s part.

On quantum, the court carefully evaluated the nature and severity of the Plaintiff’s injuries, treatment, ongoing symptoms, and impact on work and leisure activities, guided by established case law and the Book of Quantum. The injury was categorized as moderately severe, warranting general damages in the mid-range of the relevant scale.

Holding and Implications

The court found the Defendant liable for the Plaintiff’s injuries due to breach of statutory duties under ss. 12, 19, and 20 of the Safety, Health and Welfare at Work Act 2005.

The Plaintiff’s contributory negligence was assessed at 25%, reducing the damages accordingly.

Damages were awarded in the total sum of €62,482.50, comprising €70,000 for general damages (subject to the contributory negligence deduction) and €13,310 agreed special damages.

No broader legal precedent was established beyond the application of existing statutory duties and principles to the facts of this case. The decision underscores the obligation of persons in control of workplaces to identify hazards and take reasonably practicable steps to mitigate risks to non-employees carrying out work on their premises.