Court of Appeal limits application of the common sense principle

The Court of Appeal has held that a High Court judge “fell into significant error”, when he dismissed an employee’s claim on the basis that the employee should have used common sense.

The Court was delivering judgment in an appeal brought by Edward O’Connor, a water inspector with Wexford County Council, against the High Court’s dismissal of his personal injuries’ damages claim.

The basic fact of the case was that Mr O’Connor, who was checking water levels in a reservoir, slipped and injured himself as he came down a grassy embankment from where he had checked a manhole at the top of the embankment. The issue between Mr O’Connor and his employer was that he should have used a safer route, which was available.

The High Court held that he should and that he had failed to use common sense and to take reasonable care for his own safety. (For report on the High Court case, see HSR June 2018).

The ‘common sense’ principle was enunciated by Ms Justice Mary Irvine, in the Ardenheath case, when she was a judge on the Court of Appeal. Ms Justice Irvine said judges must use ordinary common sense in their assessments of reasonableness. That principle has been followed since in a number of cases.

Court of Appeal Judgment: Engineering Evidence

Reviewing the evidence in the case, Mr Justice Noonan, who delivered the judgment, noted that an engineer for Mr O’Connor said the slope (between 1:3 and 1:2.3) on the embankment was outside the guidance figures for any type of ramp. The slope was not a suitable place for walking. In order for the workplace to be safe, steps should have been installed.

In his evidence, the engineer referred to section 8(2) of the SHWW Act 2005 and the employer’s duty as regards the design and maintenance and the provision of a safe means of access. He said a risk assessment should have been carried out and re-carried out every two years. He also cited the General Application Regulations (Reg 23 in particular), which requires employers to ensure employees employed at outdoor workstations, cannot, insofar as possible, fall or slip. 

Mr Justice Noonan then went on to say, it is important to note that the Council called no independent expert. There was evidence from Mr O’Connor’s independent expert witness that the employer was in breach of its statutory duties as an employer by, not only failing to provide safe access but also by failing to carry out a proper risk assessment. He expressed the view that the trial judge effectively ignored that evidence.

The Common Sense Principle

Drawing a distinction between the Ardenheath case and the O’Connor case, Mr Justice Noonan made the point that the Ardenheath case was a public liability case in which the injured woman had elected to take a risk the occupiers (owners) of the land had no reason to anticipate. The duties owed by an occupier are entirely different to those owed by anemployer.

Commenting on the High Court’s judge’s basing his judgment on the Ardenheath case, MrJustice Noonan said that judgment had not been cited by either party. Therefore, the High Court judge, before relying on it, should have given both parties the opportunity to address the court on its relevance. He should have accepted the evidence of Mr O’Connor’s engineer.

Liability

Allowing Mr O’Connor’s appeal, Mr Justice Noonan said the trial judge fell into significant error in dismissing the claim. The “heavy onus” was on the employer to comply with its statutory and common law duties.

He apportioned liability, holding the Council 75% liable and Mr O’Connor 25%. He referred the case back to the High Court for the assessment of damages.

(O’Connor v Wexford County Council: Court of Appeal, July 2021)

Follow us for the latest updates & news

Recent News

Autistic cinema manager wins €12k over discrimination in roster row

An autistic cinema manager who quit when his employer was unable to guarantee him two days off in a row following a months-long dispute over rostering arrangements has secured €12,000 in compensation for disability discrimination. The complainant's wife gave evidence...

Northern Ireland exam board boss wins £100,000 settlement

Northern Ireland’s Council for the Curriculum, Examinations and Assessment (CCEA) has paid a substantial settlement to its former interim chief executive who complained of sex, race and age discrimination and constructive dismissal. The sum paid to Margaret Farragher,...

Recent Articles

Psychological Injury

Nervous Shock I The law allows recovery of damages for so called nervous shock, within certain parameters and subject to limitations.  Nervous shock is the most commonly used legal label for psychiatric or psychological injury. Psychiatric injuries include...

Public Authorities and Negligence

Powers and Duties In broad terms, public authorities are subject to civil liability for negligence and other civil wrongs, in the same way as private individuals and companies.  The State and other public bodies are responsible for the actions and omissions of...

Duty of Care (Part 2)

Limits to Neighbour Principle The famous neighbour principle re-stated the general basis of liability in negligence. It stated, that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your...

Duty of Care (Part 1)

Meaning of Negligence I Negligence is used in a number of senses.  In one sense, it refers to a person’s state of mind.  An act is negligent, where it is done without giving due weight to the risks involved.  A person  (and his state of mind) may...

Join our Panel

You May Also Like...