Month: December 2021

The Court of Appeal has allowed an appeal to reduce a general damages award from €155,000 to €95,000 on the basis that the trial judge did not properly assess general damages under the Book of Quantum. Further, the court held that the plaintiff was liable in contributory negligence for his accident and therefore had his total award reduced to €83,000.

Delivering a majority judgment in the case, Mr Justice Seamus Noonan held that the trial judge’s findings of fact indicated that the plaintiff was partly responsible for the accident. The court also applied recent case law and said that €155,000 was not a proportionate award compared to other similar injuries.

Background
The plaintiff had been driving his car on a road in the Ring of Kerry in November 2014. He was 21 years old at the time and training to be an electrician. It was a dark morning and the road was damp.

The road was relatively narrow and the plaintiff was driving at approximately 75 km/h. As he rounded a right-hand curve in the road, the plaintiff claimed to be met by a “wall of light” coming in the opposite direction from the defendant’s lorry. The plaintiff claimed to have been dazzled by the full beam lights and crashed into the lorry on the defendant’s side of the road.

The plaintiff suffered significant injuries to his knee and shoulder and brought personal injuries proceedings against the defendant. At trial, the defendant contested the plaintiff’s version of the events.

In particular, the defendant argued that the plaintiff failed to brake when he claimed to be dazzled, despite the plaintiff claiming that he did brake. The expert evidence stated that the accident occurred at about 100 km/h, which was consistent with the plaintiff failing to brake before the accident.

Further, it was argued that the plaintiff failed to stay in his own lane and swerved onto the defendant’s side of the road. The defendant relied on photographic evidence of the crash to show that the plaintiff’s vehicle was fully in the defendant’s lane at the time of impact. The plaintiff had maintained in evidence that he stayed in lane. The evidence also established that the lorry was a few inches inside the plaintiff’s side of the road.

The defendant also argued that the plaintiff should have seen the lights of the lorry from a distance and reacted appropriately by slowing down. As such, it was argued that the defendant had enough time to stop his vehicle and avoid the accident entirely.

The trial judge held that the defendant was fully liable for the accident and assessed general damages at €155,000, with €85,000 for pain and suffering to date and €70,000 into the future. In reaching this conclusion, it was held that the defendant’s lights were on at the time and that they caused the plaintiff to be dazzled. It was accepted that the accident occurred on the defendant’s side of the road and that the plaintiff was travelling at 75 km/h.

Finally, the court also relied on the evidence of the plaintiff’s expert engineer, who gave evidence about the how the dazzling lights would impair the decision-making capacity of the plaintiff. The defendant appealed the decision to the Court of Appeal on both causation and quantum.

Court of Appeal
Delivering a majority judgment in the case, Mr Justice Noonan held that the trial judge had erred in his assessment of the evidence and, in particular, failed to engage with certain aspects of the evidence. The court noted that the trial judge had implicitly rejected the plaintiff’s evidence that he had stayed in his lane or that he had applied the brakes prior to the accident.

Further, the court noted that the accident could have been entirely avoided if he had stopped when he first saw the light. The court held that the expert evidence established that the plaintiff could have stopped in time. The court held that “it was simply not credible” that the plaintiff failed to slow down due to being dazzled by the lights.

It was held that the trial judge failed to engage meaningfully with this evidence. Had the plaintiff acted by slowing down or staying in lane, he would have simply passed by the lorry, the court said. It was therefore held that the plaintiff was partially liable for the accident.

Further, Mr Justice Noonan held that the trial judge erred in law by relying on the expert evidence regarding a person’s reaction to being dazzled. The court held that the expert was an engineer who had no basis to provide this opinion of behavioural psychology.

The court held that the trial judge was correct to find that the primary cause of the accident was the defendant driving with full beam headlines into oncoming traffic, the court held that the plaintiff was negligent. As such, the court applied a one-third contributory negligence finding against the plaintiff.

On the issue of quantum, Mr Justice Noonan held that the trial judge had erred by awarding €155,000 for general damages. There was no dispute about the injuries suffered by the plaintiff. It was noted that the plaintiff had multiple surgeries, had ongoing pain in his knee from the accident and could not work as an electrician.

Mr Justice Noonan considered cases such as Leidig v. O’Neill [2020] IECA 296 and McKeown v. Crosby [2020] IECA 242, in which he had held damages must be proportionate to the general cap on damages. The court also outlined that it must be satisfied that no reasonable proportion existed between the original award and general damages cap before it could interfere with an award (Nolan v Wirenski [2016] 1 IR 461 considered).

The court held that it was acceptable to compare awards between cases in order to reach a conclusion on the proportionality of an award, although a court had to be aware that no two cases were exactly alike (see McKeown v. Crosby). The court compared the present case to Leidig, which had some similar features regarding the injuries to the plaintiff. The court noted that an original award of €115,000 for general damages was reduced to €65,000 on appeal.

The court had reference to the Book of Quantum and held that the trial judge’s award was so disproportionate that it amounted to an error of law. The court held that the plaintiff’s injury fit into the severe category of patella fractures at the upper end. The shoulder injury was described as being at the lower end of the scale.

The court therefore decided that general damages should be assessed as €60,000 for pain and suffering and €35,000 for future pain and suffering. The court also held that the trial judge failed to separately assess the plaintiff’s loss of opportunity due to no longer being able to work as an electrician. The court assessed loss of opportunity at €25,000 and special damages at €5,968.

Conclusion
The court applied the one-third contributory negligence finding to the total award, which left the plaintiff with €83,000.

Notably, Mr Justice Seamus Woulfe delivered a judgment in which he held that the plaintiff should only be held 20 percent liable for the accident. Mr Justice Woulfe also held that his personal assessment of the case totalled €140,000, which was not so disproportionate to overturn the trial judge. Accordingly, Mr Justice Woulfe would have awarded the plaintiff €128,000.

https://www.irishlegal.com/articles/court-of-appeal-personal-injuries-award-reduced-from-eur155000-to-eur83000-for-accident-arising-from-dazzled-driver

The walk from your bed to your desk could now count as a commute, according to a recent ruling from a German court.

The court ruled that a man should be covered by his company’s insurance after he suffered a fall on the way to his home office.

According to the decision issued last week by Germany’s Federal Social Court, known as the Bundessozialgericht, the unnamed man slipped on a spiral staircase and broke his back.

The court said the man should be protected by his employer’s statutory accident insurance because he walked straight from his bedroom to his desk in the morning, adding that he did so without having breakfast.

The employer’s insurer had refused to cover the accident claim. A regional social court had judged that the claimant’s walk from his bedroom to his home office was an “uninsured preparatory act that only precedes the actual activity,” according to a translation of the ruling.

However, a higher social court then said it viewed this “first morning journey from bed to the home office as an insured work route” and the Federal Social Court then confirmed the decision.

The German Federal Social Court explained that if the “insured activity is carried out in the household of the insured person or at another location, insurance cover is provided to the same extent as when the activity is carried out at the company premises.”

It said that the law applied to teleworking positions, which were considered as “computer workstations that are permanently set up by the employer in the private area of ​​the employees.”

There has been an increasing focus on improving the rights of remote workers, with many having been forced to work from home due to the coronavirus pandemic. In October, Portugal passed new labor laws, which included a ban on bosses contacting employees outside of working hours.

The rules also required employers to contribute to their staff’s work-from-home expenses, such as internet and electricity.

In January, lawmakers in European Parliament also voted in favor of putting forward a “right to disconnect” law to implement across the bloc, enabling workers to turn off their work devices at the end of the day.

https://www.cnbc.com/2021/12/13/german-court-rules-the-walk-from-your-bed-to-desk-counts-as-a-commute.html

The High Court has refused an application by a hospital worker to quash a decision that prevented her from working from home. The applicant claimed that she was at high risk from Covid-19 due to her health history and that the hospital failed to comply with HSE requirements in making the decision.

Delivering judgment in the case, Ms Justice Miriam O’Regan held that the case arose solely from the individual contract of employment between the applicant and the hospital. As such, the court held that the case was a matter of private law and was not amenable to judicial review.

Background
The applicant worked for a hospital as an Attendant Team Leader. She retired from her position in October 2020 on her 65th birthday. However, she had not worked in the hospital since 2 April 2020, when she was advised that she was a close contact of a staff member who had tested positive for Covid-19.

The applicant had previously been diagnosed and treated for breast cancer in 2016 and also suffered from diabetes. As such, she argued that she did not wish to physically return to work and wanted to work from home.

A doctor in the hospital’s Occupational Health department deemed the applicant as fit to return to work in the hospital. The doctor took the view that the applicant did not qualify as at “very high risk” from the virus and that she did not need to cocoon.

The hospital argued that it had put in place adequate precautions for employees who had to work in person. The hospital stated that the applicant was only at “high risk” rather than “very high risk” of Covid-19 and therefore was required to attend work.

The applicant filed a grievance with the hospital HR department in July 2020. The applicant complained that the hospital was not complying with HR Circular 34/2020, which she said gave rise to a duty of care. Further, she provided two expert reports which supported her request to work from home.

The applicant and a SIPTU representative met with a hospital representative in October 2020. A month later, the decision-maker wrote to the applicant, stating that there was no suitable, alternative employment available to her during the relevant period. Further, the decision-maker said that the doctor in the Occupational Health department had considered the applicant’s medical reports but did not think that cocooning was warranted.

The decision-maker concluded that the applicant’s health status was “appropriately and professionally reviewed” and the grievance was not upheld. Subsequently, the applicant issued judicial review proceedings against the HSE and the hospital, claiming that the decision was irrational, that she had not been given adequate reasons for the decision and that the hospital failed to comply with HSE requirements.

The respondents defended the proceedings on the basis that the matter related to the private employment dispute and, accordingly, the case was not amenable to judicial review. The respondents also contested the merits of the application and submitted that the hospital was correct to not allow the applicant to work from home.

High Court
The court began by considering whether the case was appropriate for judicial review. The court outlined the well-established principle that private law matters are generally not amenable to judicial review (Beirne v. The Commissioner of An Garda Síochána [1993] ILRM; Geoghegan v. Institute of Chartered Accountants in Ireland [1995] 3 IR 86). Ordinarily, a decision-maker must exercise a public statutory function in order for judicial review to apply to their decisions.

The court also considered Bloxham v. Irish Stock Exchange [2013] IEHC 301, and held that: “Judicial review remedies are addressed to persons or bodies who can be held answerable in respect of the performance of their duty or function, the origins of such function, jurisdiction or authority deriving directly or indirectly from the State.”

In O’Donnell v. Tipperary (South Riding) County Council [2005] IESC 18, it was noted that the burden was on a respondent to prove that a case was a private law matter and that a court would exclude judicial review only if the case arose “solely and exclusively from the individual contract and private law.”

Additionally, Ms Justice O’Regan held that the wider consequences of a decision were important factors to be taken into account (Kelly v. Board of Management of St. Joseph’s National School [2013] IEHC 392).

Having considered the case law, the court was satisfied that the matter was not amenable to judicial review. The court held that the case was not a disciplinary matter and clearly related to the individual working conditions of the applicant. The court noted that the employment was governed by contract rather than by statute. As such, the court held that the respondents had discharged the burden of proof that the case related to a private law matter.

The court also went on to consider the merits of the application and held that the applicant would have failed on this issue as well. The court held that the applicant failed to demonstrate a breach of fair procedures. It was appropriate for the hospital to seek the views that it did and the applicant was given an opportunity to present her position on the matter.

Further, the court held that the medical reports relied on by the applicant did not appear to recommend cocooning. The oncological expert stated that the applicant’s exposure to Covid-19 should be minimised and that “everything should be done to avoid possible contact with the virus at work”.

Similarly, the endocrine expert stated that the applicant should “continue to self-isolate as much as possible in order to avoid contact as her immune status is compromised by her condition”.

The court held that the applicant failed to establish that the reports required her to cocoon or self-isolate. Further, the reports did not establish that the applicant was at “very high risk” of Covid-19. Accordingly, the decision of the hospital was not irrational or unreasonable.

Conclusion
The court refused to grant the reliefs sought.

https://www.irishlegal.com/articles/high-court-worker-fails-to-quash-hospitals-refusal-to-let-her-to-work-from-home