Man awarded damages for quarry injury, despite originally submitting false information
A man has been awarded €453,000 in damages after a digger ran over his foot in a quarry in Co. Donegal in June 2003, ultimately leaving him without most of it.
Mr David McLaughlin had initially brought an action against Damien McDaid, Michael McDaid, Charles McDaid and McDaid quarry in January 2004. However, those proceedings were discontinued, and the current proceedings commenced on 30 April 2004.
Significant controversy surrounded the alleged incident, with disputes centring around the plaintiff’s entitlement to be on the premises, and the nature of and legal status of his relationship with the defendants. A central question arises as to how the plaintiff came to be injured in the first place.
The initial statement of claim delivered in 2006 alleged that the incident occurred during the course of the plaintiff’s employment at the quarry, and involved Damien McDaid running over the plaintiff’s foot with a lorry.
The Motor Insurers Bureau of Ireland was initially also cited as a defendant, however, the case against them was struck out in 2009.
The Bureau had submitted that the plaintiff’s description of what happened did not appear to match the description of the accident noted at the accident and emergency department in Derry where the plaintiff first went for treatment.
The report instead stated that the plaintiff was working in the quarry, and had caught his right foot on a digger, which had run over his right foot. This story was corroborated by a statement by a member of An Garda Síochána, who stated that he had encountered the plaintiff on duty one night, who had told him the same story.
As the Court took the view that the accident had not occurred on a public highway, and did not involve a vehicle which attracted compulsory insurance, the case against the Bureau was struck out.
In 2014, an amended statement of claim was submitted by the plaintiff, which followed the story given to the accident and emergency department and Garda.
This changed the case to one concerning a minor employed in a quarry in circumstances governed not only by common law but by a body of statutory and regulatory law designed to afford protection to the plaintiff as a minor, as an employee and a member of the public.
The facts surrounding the incident were strongly disputed. In summary, the plaintiff alleged that he was employed in the quarry, and while approaching a fellow worker (also a minor), the latter had run over his foot with heavy machinery.
His explanation for the initial claim was that it was a fiction invented by the defendants in order for them to be able to use an insurance company to meet any claims for damages.
The defendants instead asserted that the plaintiff was not employed by them, but had occasionally been allowed to do some light work around the quarry. He was not authorised to deal with machinery, and the quarry was closed at the time of the incident, meaning he should not be there.
Two of the defendants had been away at a trade show, and the plaintiff and his friend were messing around on the machines, leading to the injury.
They further submitted that even if the Court were to find in the plaintiff’s favour, the Court should dismiss the claim pursuant to section 26 of theCivil Liability and Courts Acts 2004 due to the false and misleading evidence that the plaintiff brought before the Court.
Delivering the judgment, Mr Justice Hanna first summarised the evidence. Evidence for the plaintiff’s case was given by the plaintiff, the plaintiff’s mother, a consultant engineer, an official from the Department of Social Protection, an inspector with the Health and Safety authority, and a solicitor who worked in insurance.
Evidence for the defence was given by a number of employees at the quarry, the first named defendant, a brother of the defendants and a chartered engineer.
In their submissions, counsel for the plaintiff argued that the witnesses had demonstrated that the plaintiff was an employee, and that liability arose under s. 27 and s.109 of the Mines and Quarries Act 1965, sections 6 and 7 of the Health and Welfare at Work Act 1989, theOccupiers Liability Act 1995 and the common law. Even if he were not employed, the defendants were negligent in allowing two teenagers access to heavy machinery.
On the issue of the plaintiff’s false information, this was attributed to his immaturity at the time, and the influence of the defendants, and that an injustice would result if his claim was dismissed.
Counsel cited Looby v Fatalski IEHC 564 and Mulkern v Flesk IEHC 48 as examples of cases where applications were made under Section 26 to strike out plaintiff’s claims and which were refused. Both cases concerned untruths authored by plaintiffs but which were not found to be sufficient to effect the dismissal of the plaintiff’s claim.
Counsel for the defendants argued that the plaintiff was not an employee. The Quarry was closed on the day of the accident. The plaintiff was a trespasser. The plaintiff prompted Declan Doherty to track the digger over the plaintiff’s foot to test his steel capped boot.
Further, his case should be dismissed under s.26, citing Peart J inCarmello v Casey 3IR 524 and Higgins v Caldark and Quigley IEHC 527.
The Judge noted that there was no dispute about the serious nature and extent of the plaintiff’s injuries or the consequences for him in the future. Indeed, he was in a life threatening condition, and went on to lose a large part of his foot.
It was noted that despite, the severity of the injuries, and despite significant educational disabilities, the plaintiff had formed a life in the USA, held down employment and coped well. However, he was conscious of his foot, had bad balance, was unable to walk a few hundred yards, requires prosthesis, experiences swelling and pain and is unable to carry out a variety of domestic chores.
Concluding, the Judge made some short observations about the witnesses who were personally involved in the case.
He found that the plaintiff had made the initial false claim at the behest of and under the influence of the second and third named defendants.
However, the evidence he had brought before the court was truthful, as was that of his mother’s.
The evidence brought by the defence was found unsatisfactory. The evidence was described as partisan and cagey, and in places implausible.
He therefore found that the plaintiff was employed by the defendants, which occasionally involved him operating machinery. While he accepted that some of the defendants were absent on the day of the injury, he did not accept that the quarry was closed.
The machinery was inadequately secure, and that the the gravely deficient and uncontrolled system of work which was permitted at the quarry was such that the plaintiff had no cause to be alarmed or to be on particular guard by the fact that he was operating machinery without supervision or a means of communication with the digger.
The Judge was satisfied that the digger driver was unable to observe the plaintiff, and ran over his foot. He did not accept that the plaintiff agreed to a story with the defendants, rather, they had concocted it to bring a false claim against an insurance company.
Liability was found under a. The Mines and Quarries Act 1965 sections 12, 27, 109 and 110.
b. The Safety, Health and Welfare at Work (General Application) Regulations Statutory Instrument 44 of 1993. In particular, regulations 13 and 19 thereof; c. The Safety, Health and Welfare at Work (Construction) Regulations Statutory Instrument No. 481 of 2001 and, in particular, regulation 41(d) thereof.
Further, the defendants were in breach of their common law duties as employers and negligent.
The plaintiff was therefore awarded €100.000.00 for pain and suffering to date, €150,000.00 for future pain and suffering, €3,000.00 for special damage to date (including loss of earnings and allowance for prosthesis to date), and €200,000.00, for special damage into the future.
- by Rachel Killean for Irish Legal News