by Damian McGeady
The Supreme Court in Coffey v Kavanagh  IESC 18 http://bit.ly/zlQNvr has allowed an Appeal in a claim for personal injuries arising out of an accident at work where The High Court awarded damages in full to the Plaintiff.
The Plaintiff was employed by the Defendant/Appellant as a Shop Manager. She alleged she was caused to trip over a box in the office area of the Defendant/Appellant’s premises and suffered a fracture to her wrist. She sued her employer by reason of the negligence and breach of duty in failing to provide her with a safe place of work and in causing the office area of the premises to become cluttered, unsafe and dangerous.
The Defendant/Appellant denied negligence and claimed that the injuries were caused at the Plaintiff’s own negligence in failing to have adequate regard to her own safety. The Trial Judge found entirely against the Defendant employer. On the issue of contributory negligence the Trial Judge held that the Plaintiff/Respondent was not guilty, and said;
“It has been contended on behalf of the [Appellant], that the [Respondent] was guilty of contributory negligence in failing to keep a proper lookout and that this negligence caused or contributed to her injury. I do not accept that contention. I accept the evidence of the [Respondent] … that during busy periods, the floor of the office area within the [Appellants] premises regularly became cluttered. I also accept [the Respondent] that she drew this to the [Appellants] attention from time to time and that nothing was done by the [Appellant] to reduce the risk of injury to the staff members by adopting a safe system. I do not accept on the evidence that the [Respondent] failed to keep a proper lookout. I accept her evidence that a hazard on the floor, which she could not identify, but which caused her trip, was probably either packing material or a tear in the carpet which caused her to trip and that she then fell over a box which was lying on the floor in an inappropriate place. I cannot see how she can, in those circumstances, be found to have caused or contributed to her own injury. Accordingly, I am satisfied that the [Respondent] is entitled to recover the full value of her claim”.
The Supreme Court noted that whilst the Trial Judge did not accept the contention that the Respondent was guilty of contributory negligence, he did accept the evidence of the Respondent that the floor of the premises regularly became cluttered and that she herself had drawn the problem to the attention of the Appellant.
It was submitted on Appeal by the Defendant/Respondent that insufficient weight was given by the Trial Judge to the evidence of the Appellant and his witnesses and that the Plaintiff/Respondents evidence was accepted uncritically and with an excess of weight in contrast to the treatment of corroborated evidence of the Defendant/Appellant. Further on the issue of contributory negligence that the Trial Judge failed to give adequate weight to the Defendant/Respondents role in the ongoing management of the office.
This is an interesting case. The Supreme Court was being asked to deal with the role of an Appellate Court in reviewing oral evidence given in The High Court. The Supreme Court relied on the decision by McCarthy Jury in Hay .v. O’Grady  1I.R. The Court had to deal with the issue of not having had the opportunity of seeing and hearing witnesses.
In Hay .v. O’Grady McCarthy J. said;
“In my judgment an Appellate Court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the Trial Judge. In the drawing of inferences from circumstantial evidence, an Appellate Tribunal is in a position as the Trial Judge”.
The Supreme Court in this instance was in a good position given the accepted facts of the case. The Plaintiff was familiar with the office. She had responsibility to keep her desk and area around it tidy. She knew of clutter. She had made a complaint previously. She knew of potential danger. She was clearing the office when the accident occurred. She had started packing and unpacked two of the boxes and while working something on the floor caused her to trip and she fell.
On the basis of the accepted facts alone and without the opportunity of hearing the evidence heard by the Trial Judge, The Supreme Court held that the Respondent was 25% contributory negligent, allowing the Appeal and consequently reducing the Plaintiff/Respondents award.