Quinn v Topaz Energy Group LTD (Approved)

Factual and Procedural Background

The Plaintiff brought proceedings against the Defendant, her employer, seeking damages for nervous shock resulting from a murder that occurred at the Defendant's service station where she worked. The Plaintiff alleged that she suffered avoidable trauma and psychiatric injury because she lacked a safe means to summon assistance, specifically the absence of a mobile panic alarm, despite the Defendant's health and safety protocols mandating such alarms for staff. The Plaintiff also claimed that inadequate training on emergency response aggravated her injury.

The Defendant contended that the murder was unforeseeable and that liability could not be imposed. It argued that the Plaintiff should have been wearing a panic alarm as per the Defendant's protocols and that the absence of such an alarm did not cause or prevent the incident or the nervous shock.

The incident occurred on 22 February 2010 at the Defendant's service station. The Plaintiff was working at the deli counter, which was not equipped with a static panic alarm, unlike the till area. A known delivery man was shot in front of the Plaintiff by an assailant armed with a gun. The Plaintiff's colleague fled without activating the static alarm. The Plaintiff, unable to access a panic alarm and prohibited from carrying a mobile phone on her person, crawled to a cloakroom to retrieve her phone and called emergency services in fear for her life. The assailant remained in the shop during the call, and the Plaintiff was terrified that her phone ringing would reveal her location. The Gardaí arrived approximately five minutes after the assailant entered.

The Plaintiff pleaded that the Defendant failed to take reasonable safety precautions and breached statutory duties under the Safety, Health and Welfare at Work Act 2005. Discovery and expert reports were exchanged, including a late report from a security consultant which advanced the criticism regarding the absence of a mobile panic alarm. The Defendant did not object to this late case and retained its own expert. The case was fully defended on this basis.

Certain matters were undisputed: the Defendant's policy required all employees to wear portable panic alarms; the policy was reasonable and practicable; the violent incident was unforeseeable; the Plaintiff developed recognisable post-traumatic stress disorder (PTSD) as a result; and some psychiatric injury was unavoidable. The Plaintiff contended that her injury was aggravated by her inability to summon help safely.

Legal Issues Presented

1. Whether the Defendant breached its common law and statutory duty by failing to provide the Plaintiff with a mobile panic alarm in accordance with its health and safety protocols.
2. Whether the Plaintiff's psychiatric injury was caused or aggravated by the Defendant's breach.
3. Whether the Defendant owed the Plaintiff a duty of care to prevent the nervous shock sustained, given the unforeseeability of the violent incident.
4. The extent to which the Plaintiff's failure to wear a panic alarm affects liability.
5. The appropriate quantum of damages for the aggravated psychiatric injury.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued that the Defendant failed to implement its own health and safety protocols by not providing her with a mobile panic alarm.
• She maintained that the absence of the alarm and lack of training aggravated her psychiatric injury.
• The Plaintiff contended that she reasonably believed panic alarms were only for till staff and that responsibility for her lack of access lay with the Defendant.
• The Plaintiff sought damages only for the aggravation of her PTSD attributable to the inability to summon assistance safely, not for the entire injury from witnessing the murder.

Appellee's Arguments

• The Defendant contended the murder was an unforeseeable event and thus not liable for the consequences.
• The Defendant argued that the Plaintiff should have been wearing a panic alarm as per the protocols, and her failure to do so absolved the Defendant of liability.
• The Defendant maintained that the absence of a panic alarm did not cause or prevent the incident or the nervous shock.
• The Defendant relied on precedent to argue that unforeseeability negates duty of care for the injury sustained.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged that the Defendant's health and safety protocols required all employees, including deli assistants, to wear portable panic alarms as a reasonable and practicable safety measure against criminality. However, the Court found that the Defendant failed to implement these protocols effectively at the Plaintiff's workplace. The Plaintiff was never provided with a panic alarm, nor informed or trained on their use, and the practical implementation indicated that panic alarms were effectively reserved for till staff handling cash.

The Court accepted the Plaintiff's evidence that she reasonably believed panic alarms were not intended for deli staff and found the Defendant responsible for this failure. The Defendant's failure to call relevant witnesses to rebut this evidence further strengthened the Plaintiff's position.

Both parties' security experts agreed on the reasonableness of the Defendant's policy but differed on the extent of training required. The Court concluded that basic training and instruction on panic alarm use was required but rejected the need for regular drills.

Regarding causation, the Court distinguished the Plaintiff's claim for aggravation of injury due to the lack of a panic alarm from claims based solely on the unforeseeable violent act. The Defendant’s failure to implement safety measures foreseeably increased the Plaintiff’s trauma and psychiatric injury, even though the specific violent event was unforeseeable.

The Court rejected the Defendant's argument that the Plaintiff's failure to wear a panic alarm absolved it of liability, finding that the Plaintiff had no access or instruction to do so. The Court also distinguished relevant precedents relied upon by the Defendant, emphasizing that the Plaintiff's injury was aggravated by the Defendant's breach rather than caused solely by the third party’s unforeseeable act.

On quantum, the Court accepted that the Plaintiff would have developed PTSD regardless but found that the Defendant's breach aggravated the injury for approximately the first eighteen months to a year post-incident and during the following decade. The Court assessed damages for this aggravation at €30,000 plus €3,000 in special damages, totaling €33,000.

The Court clarified that its findings were specific to the facts of this case and did not establish a general rule that all employees in all premises must have access to panic alarms or that failure to implement health and safety measures automatically results in liability.

Holding and Implications

The Court held that the Defendant breached its common law and statutory duty of care by failing to implement its health and safety protocols effectively, specifically by not providing the Plaintiff with a mobile panic alarm and adequate training.

The Court further held that the Defendant’s breach caused an aggravation of the Plaintiff’s psychiatric injury and awarded damages accordingly.

The direct effect of this decision is an award of €33,000 in damages to the Plaintiff. The Court emphasized that the ruling is fact-specific and does not create a broad precedent requiring all employers to provide panic alarms in all circumstances. The decision underscores the importance of not only devising but also implementing and training employees in safety protocols.