Award of €53,000 to woman over knee injury sustained during stocktake set aside
Posted on 7th October 2021 at 20:41
The Court of Appeal has set aside a €53,000 damages award to a service station worker who injured her knee as she stood up after doing a stocktake.
Edina Nemeth (46) was employed as a trainee assistant manager in a Topaz garage in Clonshaugh, Dublin at the time of the incident on January 28th, 2017.
Ms Nemeth was carrying out a stocktake which included magazines stored in a press at ground level. She was squatting with her left leg and kneeling on her right knee as she scanned the magazines.
CCTV footage showed that after about a minute and seven seconds, she rose from the kneeling position and her knee popped out. She suffered a bucket handle tear of the lateral meniscus of her right knee.
She sued Topaz claiming she was caused or required to assume a squatting position for a sustained period of time in a congested workspace. She also claimed failure to provide adequate seating for the work she had to perform and a failure to ensure employees were physically suited to carrying out this kind of task.
Topaz denied liability.
In March of last year, the High Court’s Mr Justice Robert Eagar awarded Ms Nemeth €53,682 plus costs. He said there appeared to have been no measures addressed in her training with regard to lower limb injuries, apart from lifting weights.
He also found the employer failed to carry out its duty to identify risks for the task of stocktaking at a height or level that required kneeling or squatting and that appropriate equipment had not been provided to prevent injury.
Engineer Alan Conlan, who gave evidence on Ms Nemeth’s behalf, said her large build probably increased the risk to which she was exposed in squatting and lifting herself back up.
Topaz appealed the award and Mr Justice Séamus Noonan, on behalf of the three-judge Court of Appeal, set it aside on Thursday. He said there was no credible evidence before the trial judge which could have supported his finding of liability against Topaz.
CCTV footage of the incident was not viewed by the engineer, Ms Nemeth’s legal team or herself until the morning of the trial and it showed “something quite different from the case made by the plaintiff up to that point in time”.
It showed she squatted on her left knee but, critically, was kneeling on her right knee, he said.
Right up to the commencement of the trial, her case was premised solely and exclusively on an injury she suffered as a result of prolonged squatting, he said.
Topaz came to court to meet that case which was “entirely abandoned without a backward glance by the plaintiff when it emerged from a viewing of the CCTV that in truth, this is not how the accident happened at all”.
The logical consequence of the position adopted by her engineer was that every employer would have to have every employee or prospective employee medically vetted to decide whether they might be subject to particular risks requiring a bespoke risk assessment to be carried out, the judge said.
It cannot be seriously suggested that the employer, by looking at a person, is to decide whether special medical assessment is called for, he said.
“Such a proposition has only to be stated to demonstrate its absurdity.”
The conclusion of the trial judge as to the foreseeability of this injury was not unsupported by credible evidence, he held.
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