Philip Keane –v- Dermot McGann Groundworks Limited [2018] IEHC 747

Philip Keane –v- Dermot McGann Groundworks Limited

[2018] IEHC 747

 

The Plaintiff in this case suffered injury during the course of his employment as a general operative with the Defendant company at the private residence of a client of the Defendant company on 26th October 2017.  Judgement was delivered by Ms. Justice Bronagh O’Hanlon on 29th November 2018.   A tractor began leaking fluid and the Plaintiff was asked to find out where the leak was coming from.  The Plaintiff contended that he was invited to extend his left hand to clear his vision because there was dirt at the site of the leak.  There was a low intensity leak which turned into a spurt of hydraulic oil.  The Plaintiff believed that the steering of the tractor turned when reversing during his inspection of the leak.  The Plaintiff confirmed that he did not touch the oil leak but that he was near it and that he told the driver to stop reversing the tractor.  He was never asked to stay away from the machine.  He usually did not have anything to do with machinery while at work.  He did not realise that he was in any danger.

The Plaintiff’s injury ultimately lead to the loss of his left index finger.  In addition, when he was in hospital for the amputation of his finger, he was diagnosed with grade IV sarcoma of the axilla which required further treatment.  The Plaintiff’s injury is permanent and he has pain for which he will require one, if not two, surgeries.  He suffered psychiatric sequelae as a result of the accident.  His capacity to work as a groundsman was lessened due to the injury and he will therefore suffer loss of ongoing opportunity as a result.

The court preferred the evidence of the Plaintiff to that of the Defendant.  The court noted that the Plaintiff was not trained in driving or in servicing machinery.  The court held that the Defendant was in control of the tractor and should have been aware that the dangers of a hydraulic oil leak to the Plaintiff were reasonably foreseeable.  The Defendant should have instructed the Plaintiff to stand well back and a mechanic should have been called to deal with the problem. The onus was on the Defendant to maintain safe machinery and to supervise the Plaintiff. The Court found that the Plaintiff had been exposed to a danger/hazard in the workplace and that there was a failure to provide a safe place of work or a safe system of work.  The Court also noted that there was no particular risk assessment carried out for the particular job in question on the day of the accident and noted in particular the statutory obligation of S19 of the Safety, Health & Welfare at Work Act 2005.

The court awarded the Plaintiff €105,315.69, being €100,000.00 in general damages to include pain and suffering to date and into the future and an amount of damages to cover loss of opportunity and €5,315.69 for special damages.

This case highlights the duty of care owed by an employer to an employee and the necessity for an employer to take reasonable and prudent steps to take care for the safety of it’s employees.  It is also a reminder of the employer’s statutory obligations under the Safety, Health and Welfare at Work Act 2005 and the regulations applicable thereunder.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

 

Michelle Loughnane

Author Michelle Loughnane

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