Wednesday 18 July 2018

Man 'caught by gust of wind' when delivering mattress gets €380k

Declan Homan said he was carried 12ft by the gust
Declan Homan said he was carried 12ft by the gust

Tim Healy

A van driver who claimed he hurt his back when a mattress he was delivering was lifted into the air by a gust of wind has been awarded a total of €380,000 by the High Court.

Declan Homan (54) hurt his back when he was delivering the mattress to an apartment on the last of 16 deliveries that day, when he was "caught by a gust of wind" that carried him 12ft before he was thrown to the ground.

Mr Justice Kevin Cross said he accepted Mr Homan had not been able to work since the accident almost seven years ago but he assumed he will be able to do some work in the future.

The judge noted that, since the accident, Mr Homan had been able to go on foreign holidays, including to Florida, Spain, Corfu and Tenerife, as well as other holidays financed by his wife.

"Mr Homan was not asked about his pain on the flights to these destinations but neither did he volunteer the flights caused him particular pain," he said.

The judge accepted that his pain does flare up from time to time to a severe level.

He said Mr Homan was not making the case he has suffered catastrophic injuries but that he has long-standing pain.

When giving evidence, Mr Homan was clearly in pain, which could be seen from his facial expressions, and he would shift to stand from time to time and sit down again, he said.

The injuries, the judge said, must be classed in a moderately severe category.

The total award with loss of earnings included was €430,000 but the judge deducted illness-related social welfare payments made to date, bringing the total final award to €380,000. The costs of the five-day hearing were also awarded to Mr Homan.

Training

Mr Homan, of Island Lodge, Walsh Island, Co Offaly, had sued Etmar, with offices at Glen Easton Point, Leixlip, Co Kildare, as a result of the accident on December 13, 2011.

The court heard one of Mr Homan's brothers is a director of Etmar.

He claimed he fell from a height of 5ft, about 12ft from the truck, and alleged he was obliged to unload the mattress without adequate training.

Etmar denied all the claims and contended the incident was an act of God.

Mr Justice Cross did not accept Etmar was in any sense negligent in requiring Mr Homan to work on the day of the accident, which was a windy day.

Etmar, the judge said, did not have a duty to be watching the weather at all times.

However, Mr Justice Cross added he had come to the conclusion the accident happened because of Etmar's breach of statutory duty and negligence, and its failure to assess any risks, as well as a failure to train Mr Homan and to warn him of the hazards, especially from a height.

In particular, there was a failure of Etmar to train him to turn the mattress at right angles after exiting on to the truck tailgate.

"That the particular gust of wind was unpredictable does not result in a successful defence of acts of God on behalf of Etmar," he added.

A stay in the event of an appeal was granted, provided €175,000 was paid immediately to Mr Homan.

Herald

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