Delivering judgment in the case, Ms Justice Emily Egan held that the defendant acted negligently and in breach of statutory duty by failing to implement its own protocols and failing to supply the plaintiff with a mobile panic alarm. Further, the court held that the unforeseeable nature of the incident did not absolve the defendant of liability.
Background
The plaintiff was a young woman who worked for the defendant, Topaz Energy Group Limited. She was employed to work behind the deli counter at a service station in Caherdavin, Limerick. On 22 February 2010, the plaintiff began work at 6am with one other colleague, who worked behind the till.
At 6.34am, a bread delivery man, Mr Treacy, entered the shop and engaged in friendly conversation with the plaintiff. While in conversation, another man entered the shop, drew a gun and shot Mr Treacy in the head.
The plaintiff’s colleague immediately vaulted over the till and left the station without hitting the static panic alarm. As such, the plaintiff was left alone in the station with the assailant and could not move to activate the static panic alarm behind the till.
The plaintiff did not have her mobile phone at the time. She crawled to an adjacent cloakroom, retrieved her phone and call the emergency services. While doing this, the plaintiff heard further gunshots and could smell gunpowder.
The plaintiff called the emergency operator and attempted to explain the situation in a hushed tone so that the assailant would not hear her. The operator called the plaintiff back several times, which caused the plaintiff further stress as she was afraid the assassin would hear the incoming call and kill her.
The assailant left the shop after about two minutes, although the plaintiff did not know this. The gardaí arrived about five minutes after the shooting after they were alerted by a passer-by.
The plaintiff issued personal injuries proceedings against the defendant. Although the claim was pleaded in a general fashion, the main issue at the trial was whether the plaintiff should have been equipped with a mobile panic alarm.
Both parties agreed that it was the policy of the defendant that all members of staff should wear a portable panic alarm, not just those who handled money. As such, it was said that the plaintiff should have known to wear a portable panic alarm, which was located in the manager’s office. The defendant argued that the plaintiff was responsible for not wearing the alarm at the time in question.
The evidence showed that the plaintiff had received training from the defendant, which included that she should always have an alarm on her person. However, the safety statement was less clear, providing that “all staff that work with cash” should wear an alarm.
The plaintiff also provided uncontroverted evidence that she had never seen a deli worker wear an alarm and that it was only for till staff. Further, she stated that she had never been given a panic alarm and had only ever seen a photo of one.
The defendant provided the area manager as a witness, although did not call the plaintiff’s line manager to contradict the plaintiff’s evidence. The area manager stated that it was usual practice for alarms to be kept in the manager’s office or, alternatively, employees would get an alarm from their predecessor during a change of shift.
High Court
Ms Justice Egan began by outlining the case law relating to an employer’s duty to its employees. The court referred to the well-established principles from Martin v. Dunnes Stores Dundalk [2016] IECA 85, where it was held that an employer must act reasonably to ensure the safety of workers, having regard to their level of skill and experience.
The court noted that an employer has statutory obligations under section 8 of the Safety Health and Welfare at Work Act 2005 to provide inter alia, a safe system of work for employees, adequate training and risk assessments, as far as reasonably practicable.
The court also referred to the criteria for recovery in nervous shock cases under Kelly v. Hennessy [1995] 3 IR 253. The court noted that the defendant claimed that the injury was not caused by the defendant’s act and that the shooting was entirely unforeseeable.
Ms Justice Egan held that, notwithstanding her initial training in mobile panic alarms, it was reasonable for the plaintiff to think that they were only intended for staff who handled cash. The court noted the failure to call the line manager to give evidence on this issue. Further, the court commented that it was unclear if the manager’s office would have been open to retrieve an alarm at the time, since the plaintiff began her shift before the manager.
The court held that the defendant had identified the risk of robbery or security incidents Accordingly, it was necessary for the defendant to ensure that safety measures were complied with by staff. It was held that the defendant failed to implement its own system.
Further, the court held that the plaintiff’s pleaded case was for damages arising from the aggravation of her PTSD due to the failures of the defendant. Since she was not seeking damages for the totality of her injuries, the court held that the defendant could not rely on the unforeseeably violent nature of the incident to avoid liability. The court therefore distinguished cases such as Matthews v. Irish Society for Autism and the National Autistic Association [1997] IEHC 64 and Breslin v. Corcoran and the Motor Insurer Bureau of Ireland [2003] IESC 23.
Conclusion
The court considered the plaintiff’s previous diagnosis of PTSD and that she continued to suffer residual symptoms ten years after the event. She also required counselling, therapy and medication to deal with the aftermath of the attack. She eventually returned to working a four-day week.
The court held that the plaintiff’s terror would have been exacerbated by not having the panic alarm. The court awarded €10,000 for the first eighteen months of the nervous shock, €20,000 for the remaining period and €3,000 for special damages.
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