Accidents Can Happen

by Neil Cahill, Associate in the Litigation and Dispute Resolution team at Fieldfisher, Dublin

The Court of Appeal recently reiterated the position that is sometimes forgotten that an employer’s liability is not a strict liability and that it is possible to successfully defend employer’s liability claims.

In the case of Edina Nemeth v Topaz Energy Group Limited [2021] IECA 252.  The Court of Appeal overturned the High Court’s decision to find the defendant’s liable reiterating, “an employer is not an insurer”.

The Plaintiff sustained injury to her right knee when carrying out routine stocktaking.  The pleaded case was that that she had to assume a squatting position for a sustained period time and sustained injury when attempting to return to a standing position.  Somewhat surprisingly, despite there being CCTV footage of the incident, this was not viewed by the Plaintiff’s until the morning of the hearing where it was apparent that the Plaintiff had actually squatted onto her left leg and knelt onto her right leg for just over a minute and had not simply squatted as suggested in her pleadings.

High Court decision

Despite the circumstances being different than the pleadings suggested, the High Court held that the defendants had failed to take proper regard for the Plaintiff’s health and safety by failing to properly risk assess the task.  It also inferred that the fact that the defendant had changed the work practice following the incident was a tacit acceptance that the old method was incorrect.

Overturned in the Court of Appeal

The Court of Appeal overturned the High Court’s decision. Firstly, it pointed out that many of the engineering and medical findings were based on the contention that the Plaintiff was in a squat position for some time, which was not borne out by the CCTV footage.  The Court considered that the task the Plaintiff was undertaking was an ordinary everyday activity of the kind undertaken in a domestic and working setting and it should have been considered as such.  The Court also found there was no credible evidence that additional training or a risk assessment was required.

Usefully for employers, the Court also considered that if a defendant changes their procedure post incident this does not, of itself, amount to an admission of liability.

Conclusion

This is another welcome “common sense” decision from the Court of Appeal.  It is a cautionary tale for Plaintiff solicitors to ensure they have appropriately pleaded their case but most importantly shows that it is possible to defend employers’ liability cases and that accidents do happen.

About the author
Neil Cahill is an Associate in the Litigation and Dispute Resolution team of Fieldfisher, based in their Dublin office. Neil has over twenty years of experience in litigation and dispute resolution. Neil has acted for a wide variety of insurers and self-insureds on matters relating to both personal injury and commercial litigation.
Neil specialise’s in insurance litigation acting for both major insurers and self-insured’s in defending personal injury claims, and has significant experience in acting in catastrophic injury cases and running volume claims. Neil has represented clients in claims arising from road traffic accidents, employer’s liability, public liability, product liability and travel claims (successfully defending a case for a leading tour operator in one of the leading cases on local standards defences).
Neil has acted for both insurers and companies in commercial litigation matters in respect of damage to their property on foot of negligence, breach of contract and statutory schemes and also has expertise in dealing with large business interruption claims for clients in many sectors including renewable energy