Sunday 26 March 2017

Court of Appeal overturns award of €67,500 damages to Dunnes worker over arm injury suffered when lifting potatoes

Stock photo
Stock photo

Tim Healy

THE Court of Appeal has overturned an award of €67,500 damages to a Dunnes Stores worker over an arm injury suffered when she was lifting a 10kg bag of potatoes.

Some €20,000 of the award was previously paid to Geraldine Martin (64) following the incident in Dunnes' Dundalk branch on August 10, 2011.

When a customer arrived at the checkout with a torn 10kg bag of potatoes, Ms Martin, then a Dunnes' employee of 26 years,  went to get a replacement pack from a pallet in the fruit and vegetable department.

She sued Dunnes Stores (Dundalk) after suffering a tear in the bicep muscle in her right arm when "yanking" out a the pack which was wedged between two other bags of potatoes.

Dunnes appealed the findings of the High Court that it failed to provide Ms Martin with a safe system of work or adequate training and also appealed the amount of the award.

While stressing it was "impossible" not to feel sympathy for Ms Martin, an undisputed hard-working loyal employee and credible witness who was trying to help a customer, the three judge Court of Appeal said on Monday the law was "very clear" and it must allow the appeal.

Ms Justice Mary Irvine said Dunnes had a system, including a tannoy system, where checkout staff could get other staff to assist them and staff were also regularly trained in, and tested about, manual handling techniques.

Dunnes' obligation as employer was to identify potential hazards likely to affect the employee's safety and health and then, whether through training or procedures, guard against those risk.

While the court could well understand Ms Martin's desire to help the customer, she did not follow the assistance system designed to best protect her interests, the judge said.

The High Court finding she had to leave the checkout to get the potatoes was not supported by the evidence as other staff were available to answer a call for assistance made over the tannoy.

Ms Martin had also accepted she had been trained how to lift heavy items, albeit with an empty cardboard box; that any stretching or twisting action might cause injury when pulling a load; and that she had been taught to look for help if she needed it.

This injury was sustained because Ms Martin leaned in sideways over the pallet and "yanked" the pack from between two other bags of potatoes which she left in situ.

"This precise scenario was unlikely to be covered by any manual handling course, practical or otherwise".

It was "obvious from the very start" the pack of potatoes could not easily be moved and, based upon her training, Ms Martin should have assessed the lift in such circumstances to be unsafe, she said.

Ms Martin took on a task contra-indicated by her training when she knew, or ought to have known, she might sustain an injury and also did not seek assistance at the checkout, the judge held.

Her injuries could not be ascribed to any negligence or breach of duty of Dunnes which had taken all reasonable precautions and implemented all reasonable practices to protect her against injury in such circumstances, the court ruled.

Any issues arising from the payment out of €20,000 to Ms Martin would have to be addressed by the parties themselves, it added.

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