Friday 2 December 2016

Builder's claim over lost thumb rejected

Tim Healy

Published 19/11/2010 | 05:00

A CONSTRUCTION worker has lost an action for damages over an accident in which he lost a thumb after a judge was shown video evidence of him still working years after the accident.

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The judge also said he gave false information about loss of earnings.

The man, Patrick Higgins, was recorded on five occasions between October 2005 and February 2008, carrying out work on behalf of his brother's company on building sites in Dublin and Longford and those recordings were part of the evidence before the court, the judge said.

While most of the work appeared to be supervisory in nature, he was seen to be capable of lifting planks, scaffolding and metal fencing using both hands.

He also operated a mechanical mini-digger for significant periods of time and was using a lump hammer and chisel to break up part of a roadway.

Mr Higgins, of Fennor, Oldcastle, Meath, was a hardworking and likeable man but misleading affidavit evidence he gave was not trivial and was intended to support a claim for substantial damages, a High Court judge said.

Mr Higgins sued over an accident on March 19, 2002, when his coat sleeve got entangled in the shaft of a tractor he was looking to buy on behalf of his brother John Higgins' company, Caldark Ltd. Despite emergency surgery, his right thumb had to be amputated.

Mr Higgins sued Caldark because another Higgins brother, also employed by the company, had activated the tractor when it was unsafe to do so.

He also sued the owner of the tractor, who the court heard, had been indemnified by Caldark in relation to court costs.

Dismissing the claim yesterday, Mr Justice John Quirke said Mr Higgins had suffered a similar injury some years previously in circumstances quite similar to the tractor accident.

Severe

On that occasion, he was bending or crouching behind a lawnmower which was started unexpectedly and he suffered a severe injury to his left hand.

The judge was satisfied in this (tractor) case the defendants were negligent but Mr Higgins contributed to his injury by failing to keep a proper lookout.

Given his previous hand injury in similar circumstances, he had reason to take care when he was bending at the rear of a tractor, the judge said.

During the hearing of the case, it was established Mr Higgins had not stated he had been paid more than €40,000, along with expenses, by his brother's company between 2002 and 2004.

Mr Higgins had also told an occupational therapist in May 2005 he was "virtually confined to the house".

The judge could not accept Mr Higgins' lawyer's contention that the affidavit he swore was made without any intention to mislead.

He disagreed the court should still award damages for the valid part of his claim (the accident itself) in the context of the 2004 law which provides that sanctions for false claims must be imposed unless it "would result in injustice being done".

Irish Independent

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