Thursday 26 April 2018

Gravedigger is awarded €50,000 after slipping on ice at cemetery

Nicky O'Brien Picture: Collins Courts
Nicky O'Brien Picture: Collins Courts

Tim Healy

A gravedigger who slipped on ice and fractured his ankle at a funeral has been awarded more than €50,000 by a High Court judge.

Mr Justice Kevin Cross said gravedigger Nicky O'Brien struck him as a most decent individual who did not exaggerate his injuries and did not even mention to the court he has been left with scars.

Grave digging, the judge said, is a noble vocation and the graveyard where the accident occurred - St Ibar's Cemetery in Crosstown, near Wexford town - is a typical old Irish graveyard which has hazards and is not laid out with precision like those in continental Europe.

The judge believed the accident was caused by the "slippy" nature of the ground, which was sheltered by a headstone.

If there had been grit, the judge said, this accident would have been avoided.

Mr Justice Cross also rejected there was contributory negligence on the part of Mr O'Brien.

"He was not running. He was wearing his work boots. He did nothing inappropriate," Mr Justice Cross stated.

Mr O'Brien (56), of Windmill Heights, Co Wexford, had sued his employer at the time, Wexford Borough Council, as a result of the accident on January 8, 2009.

Mr O'Brien had told the court he was walking away after the grave of an elderly woman had been covered to be filled in later when his foot went and he fell.

"I felt a crack in my foot. The path was slippy. It should have been salted," he said.

He later had to have reconstruction surgery on his right ankle and said he was out of work for about eight months after the accident.

Mr Justice Cross said the issue was what caused Mr O'Brien's fall and whether it was because of the slippy nature of the ground due to frost and ice.

The judge accepted that salt had been requested and a bag of sand at the cemetery had been exhausted. Mr O'Brien's evidence, he said, was supported by the cemetery caretaker at the time and a funeral mourner.

Mr Justice Cross said he was asked by the Wexford Borough Council side to prefer the theory offered by a witness from the Met Office who had examined the reports and the data for the date in question over the evidence of witnesses to the accident. Mr Justice Cross said he believed the witnesses to the accident.

He awarded €40,000 for pain and suffering to date and a further €10,000 for pain and suffering into the future, and with special damages, the total came to €50,850.

Mr O'Brien had claimed the council permitted the footpath to be and remain in a dangerous and unsafe condition. The council denied the claims.

Irish Independent

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