Monday 23 July 2018

Water inspector loses claim for damages after slipping on embankment

The judge threw out McDonagh’s claim which meant the six other claims collapsed with it and were dismissed
The judge threw out McDonagh’s claim which meant the six other claims collapsed with it and were dismissed

Tim Healy

A water inspector who slipped on a steep embankment while carrying out a daily check on a reservoir has lost a High Court action for damages.

Edward O'Connor (62) sued Wexford Co Council over the accident on February 6. 2011, at the Ferns Reservoir in Wexford. 

He told the court he expected to be in a wheelchair because of his injuries. 

But Mr Justice Michael Twomey dismissed his case saying he was not a convincing witness and was obliged by law to take reasonable care of his own safety.

The judge said Mr O'Connor was at the time of the alleged accident employed by Wexford Council and one of his daily tasks was to check the water level in the  reservoir.

He had to lift a manhole cover which was part of the mainly grass covering of the reservoir..

Mr O'Connor said he climbed up a steep bank to access the manhole and it was while descending the bank, which was wet at the time, the accident occurred.

The council argued there was absolutely no need for him to go up the steep incline as there was a route along the grassy reservoir with little or no incline and which was much safer.

The judge said Mr O'Connor had said his predecessor, when showing Mr O'Connor 16 years earlier some of his tasks, had taken the steep incline route.  For this reason, Mr O'Connor claimed, the manner in which he did his job was an unsafe system of work.

Just because he predecessor did it "common sense would dictate that this does not mean he should take the same route when there was a less steep route, which was only metres away", the judge said.

It was also significant to note that only eight months earlier, Mr O'Connor said a work colleague had slipped on the same steep bank and he (O'Connor) reported it to his superior, the county council engineer.

The county engineer denied such a report was made to him, the judge said.  Mr O'Connor had also failed to mention that accident to his side's own expert called to give evidence on his behalf.

The judge said Mr O'Connor was not a convincing witness. For example, the judge said, he had stated he expects to be in a wheelchair because of his current condition.  However, when his own orthopaedic surgeon examined him he was able to "toe and heel walk" and single leg stand with both feet.

Six months later, in October 2017, when examined by the defendant's consultant neurosurgeon, he was completely unable to rise on his toes or rock back on his heels.  That consultant said, from a neurosurgical perspective, his clinical condition at the time was unexplained  and his disability appeared to be significantly more severe then than when immediately after the accident.

The judge said Mr O'Connor had said he had difficulty driving for more than 15 miles.  Yet he chose to drive to Kilkenny High Court for the hearing of this case, a round trip of 120km, even though his wife had full driving licence.

Mr O'Connor's claim he could not take the shorter route up to the manhole because it was overgrown at times and uneven due to cattle marks was also unconvincing. This was because it was his job to cut the grass on the reservoir and because fencing had been put up four years earlier to prevent cattle getting onto it, the judge said.

The Court of Appeal had previously ruled the High Court is obliged to bring ordinary common sense on what a reasonable amount of care to be taken is and the same principles applied here, the judge said.

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