No absolute duty of care owed to employee


By McDowell Purcell \ In All Posts, Litigation & Dispute Resolution

The High Court has confirmed that there are limits to an employer’s duty of care.

Kieran Fagan was employed by Dunnes Stores from 2011 as a hygiene operative in their Cornelscourt Store, Dublin. It was his job to carry out cleaning and inspection duties in the grocery department. Mr. Fagan slipped and fell in the entrance area of the store on 29 April 2014 and brought an action for damages as a result.

The Accident

Both parties accepted that Mr. Fagan slipped and fell on liquid. CCTV showed that the Plaintiff had entered and exited the area on numerous occasions prior to the accident, but that just before his fall, liquid had been deposited on the floor, causing him to slip and fall.

Dunnes Stores’ Defence

Dunnes Stores maintained that Mr Fagan had been properly trained and provided evidence of his training in induction and accident prevention. They maintained that it was part of his responsibilities to keep an eye out for spillages and his failure to clean up a spillage amounted to a want of care on his part. They also argued that the spillage that Mr. Fagan had slipped on had taken place only 1 minute before he fell.

Decision

Justice Barton focused on the individualised nature of the duty of care owed between a particular employee and a particular employer.

He emphasised that each case requires an individual analysis of all the relevant factors in the particular circumstances of the case which include factors such as “age, knowledge, experience, expertise, physical or mental disability, training, information and instructions”.

He also recognised that some of the most common assessments are in relation to the provision of “competent co-employees, proper appliances and work equipment together with a safe system and place of work.”

Barton J found that the failure of Dunnes Stores to carry out a risk assessment of the entrance area or to specifically incorporate the entrance area into the grocery department over which the Plaintiff was responsible, was not of itself a causative factor to the accident.

Ultimately, the Court decided that to find Dunnes Stores guilty of negligence where it was likely that the spillage had occurred within a minute of the Plaintiff leaving the entrance area would amount to a finding that Dunnes Stores was an insurer for the Plaintiff’s in all circumstances. The Court felt that this was going too far and that there must be a limit to an employer’s duty of care.

The Court dismissed the Plaintiff’s claim on the basis that such an obligation is too onerous.

Kieran Fagan v Dunnes Stores 2017 IEHC 430

A full text of the judgement can be accessed here.

Authors: Mark Kelly and Aideen Farrelly