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Trial judge fell into significant error in dismissing personal injuries claim

By: James Cross BL

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Court of Appeal allows appeal from the dismissal of personal injuries action arising from a council employee’s slip and fall in the course of his employment, on the grounds that the trial judge fell into significant error in finding that the claim failed because the plaintiff failed to take care for his own safety where the evidence established that a clear breach of statutory duty occurred which was causative of the plaintiff’s accident; but the court finds that the plaintiff was contributorily negligent as he was an experienced employee and ought to have appreciated the risks inherent in the route he habitually adopted; and accordingly, it finds that appropriate apportionment of liability in this case is 75% against the council and 25% against the plaintiff.

Personal injuries – appeal from the High Court – High Court dismissed proceedings – water inspector making a daily visit to Ferns Reservoir for the purpose of checking the water level and carrying out other checks and observations – slipped and fell down embankment - did not seek medical assistance for some three weeks after the accident – shown the route by his predecessor - well-worn path - raised the issue of steps with the Council – employees continued to use same route after accident - consulting forensic engineer - Council’s case was that the plaintiff should have used the alternative route that was available to him and which was safe - training, instruction and supervision - Council called no independent expert corresponding to the engineer – no independent evidence - employer’s liability - employer is not an insurer and is only required to do what is reasonable in the circumstances – judgment of the High Court – relied on an authority not referred to by either party – request further submissions by the parties – relevance of expert evidence - s undisputed evidence from the plaintiff’s expert that there was a clear breach of statutory duty by the plaintiff’s employer - not open to the trial judge to effectively ignore that evidence - where the evidence establishes that a clear breach of statutory duty occurred which was causative of the plaintiff’s accident, which it does here, it is in my view simply not open to the court to say that the plaintiff failed to take care for his own safety and therefore his claim fails – primary responsibility always rests on employers to ensure that they have a safe system of work for the benefit of their employees - trial judge fell into significant error in dismissing this claim on the basis he did - experienced employee and ought, on reflection, to have appreciated the risks inherent in the route he habitually adopted - finding of contributory negligence against the plaintiff - appropriate apportionment of liability in this case is 75% against the Council and 25% against the plaintiff – remit to the High Court for the assessment of damages on this basis –

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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