Monday 21 January 2019

Gardener awarded €100,800 after he sued employer over wrist injury

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Tim Healy

A man who suffered a serious wrist injury when he fell from a step ladder while working as a gardener has been awarded €100,500 by the High Court.

Slawomir Marek, a Polish national who lives in Castlerea, Co Roscommon, sued his employer, Agatha Mocior, trading as Summitto Garden Architecture and Landscape Design, over the accident in the garden of a house at Neville Road, Rathgar, Dublin, on September 17, 2012.

He also sued the householder, Kevin O'Higgins, but the court found Ms Mocior liable for the award as she had failed to provide a safe system of work as Mr Marek's employer. 

Mr Justice Bernard Barton ruled Mr O'Higgins cannot bear responsibility at law for the accident in circumstances where he was never asked or gave permission for the ladder to be used in the work to remove a dead branch from a tree in the O’Higgins’ garden.

Ms Mocior, who is living abroad and said she could not afford to defend the case, had been providing gardening services to Mr O’Higgins and his wife.

On the morning of the accident, a ladder in the O'Higgins garage was used for Mr Marek to get up the tree and look at whether the dead branch could be pulled down or needed to be cut.  A colleague was holding the ladder for a time but let go without Mr Marek knowing and when he (Marek) tried to pull the branch, the ladder fell and he ended up on the ground with a broken wrist.

Mr Justice Barton said while the apparently poor condition of the ladder may well have contributed to the cause of the accident, he was satisfied from the expert evidence that if the co-worker continued to hold it, the accident would have been avoided.

Not only was Ms Mocior required to provide a safe system of work for her employees, it was also her responsibility to ensure the equipment selected was suitable for the task, whether purchased, hired or borrowed, the judge said.

The kernel of the case against Mr O’Higgins was that he supplied or permitted the use of a defective ladder which Mr O'Higgins had previously borrowed from a local community organisation, the judge said.

He accepted that Mr O’Higgins, who had given evidence "in a straightforward and truthful manner", had not given permission to use the ladder and had gone on the school run by the time the gardeners arrived.

Although it may be inferred that Mr O'Higgins' wife knew the ladder was to be used, it did not follow from a conversation that took place that morning, the content of which is unknown, that she had sanctioned its use for any particular task, the judge said.

In relation to law on occupier's liability, the judge said that every day householders leave independent contractors they have retained to "get on with the work".

Other than an interest in satisfying themselves as to what is on offer and whether that can be delivered, "a householder would be surprised, if not astonished" at the proposition they should also ascertain the experience or qualifications of the contractor or his/her employees or to direct and control the work and ensure there was appropriate training and equipment, he said.

He was satisfied the case against Mr O'Higgins must be dismissed.

The judge said Mr Marek suffered serious bilateral wrist injuries and a minor head injury in the fall.

He required surgery under general anaesthesia and wore a wrist cast for seven weeks.

His employment was terminated shortly after the accident and with the exception of one short period, he was unemployed from the day of the accident to the beginning of February this year when he secured a job in light manufacturing.

He was impressed by Mr Marek's fortitude and commitment to get on with his life as best he can. 

He awarded €5,000 in special damages, €800 for medical expenses and €95,000 for past and future pain and suffering.

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