Thursday 21 November 2019

Former supermarket worker who injured herself in cold room awarded €105k damages

Dunnes Stores (Stock image)
Dunnes Stores (Stock image)

Tim Healy

A former part-time supermarket worker who injured herself when she fell while operating a pallet truck to move stock has had a €105,000 award over the accident upheld by the Court of Appeal (CoA).

Pamela Phoenix (37), now living in Canada, and formerly of McDonnell Drive, Athy, Co Kildare, sued Dunnes Stores over the accident on September 18, 2006. She was trying to manoeuvre the pallet truck backwards in a cold room when she slipped and fell heavily on her bottom and back. 

The High Court, in 2016, awarded her €105,929 after that court accepted that as a result of the accident she suffered chronic back pain and depressive symptomatology such that by October 2007 she had put on a lot of weight. The judge also found her to be a credible witness who did not exaggerate her injuries.

Dunnes appealed arguing the award was excessive and disproportionate.

On behalf of a three-judge CoA, Mr Justice Gerard Hogan upheld the award saying while it was probably in the upper range of what is appropriate, given the role of an appeallate court in other case law, the CoA cannot interfere.

Mr Justice Hogan said Ms Phoenix, immediately following the accident, was taken by ambulance to St Lukes Hospital in Kilkenny where x-rays did not show any bone damage and she was later discharged with some pain relieving medication. She was on crutches in the immediate days after the accident.

She was unable to cope with the same store work she had been doing in Dunnes and got another job as a sales assistant in Elverys but there was also unable to cope with the continuing pain in her back and ultimately lost that job in January 2007.

She had been a student who found herself unable to work and had "ongoing struggles" with her education at Maynooth University where she ultimately obtained a Diploma in Drama and Theatre Studies.   She had hoped to go to do a masters in UCD but endured pain, lack of mobility and felt unable to cope with the requirements and physical demands of a full time course.

It was accepted, Mr Justice Hogan said, the accident significantly exacerbated an underlying depressive condition leaving her "significantly more psychologically vulnerable and more susceptible to emotional upheaval and depression on an ongoing basis".

In 2008, she found work in the UK, became pregnant, and suffered a miscarriage after three months. Her psychiatrist said this "tipped her over the edge" and considerably exacerbated this depressive illness.

In 2013, she emigrated to Canada where she obtained work in a retail outlet and settled in Edmonton where she also married in 2015 and in 2016 gave birth to a baby boy. "While life seems better and more promising for Ms Phoenix, she is still affected by the accident", Mr Justice Hogan said.

While the injury in this case was a routine, unexceptional, soft tissue injury, it was not so in a number of respects including her ongoing back pain for over a decade, that she became depressed as a result and that it significantly impacted on her quality of life, the judge said.

He did not find it necessary to resolve an argument from Finbarr Fox SC, for Dunnes, that the onset of more acute depression in the wake of the tragic miscarriage broke the chain of causation.  Even if this was resolved in Dunnes' favour, the award could still be upheld, he said.

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