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Mohammad Aldasouqi failed to establish a breach of duty of care, judge rules

https://www.irishtimes.com/news/crime-and-law/courts/high-court/security-man-loses-action-against-dunnes-over-fall-while-trying-to-fix-camera-1.4822726

The High Court has dismissed an action against Dunnes Stores over an incident in which a security manager claimed he fell off a defective ladder when attempting to fix a security camera in a store.

Mohammad Aldasouqi, who was a security manager at the Briarhill branch in Galway at the time of the incident on January 18th, 2014, got up on the ladder to fix the position of a camera covering the “goods inwards” area of the store, the court heard.

He claimed Dunnes was in breach of its duty of care to him by, among other things, requiring him to use a ladder that was defective and exposed him to risk. It was alleged the ladder collapsed underneath him.

Mr Aldasouqi claimed he suffered injuries including to his right lower chest, right abdomen, right arm, right wrist, and left knee, some pain to his right hip as well as soft tissue injuries.

Dunnes denied all his claims and also pleaded contributory negligence.

Dismissing the case, Mr Justice Tony O’Connor said one of the main issues was whether the store manager had directed him to fix the camera. Dunnes denied the manager told him to do so.

From hearing the evidence of Mr Aldasouqi, the judge said he was left with the impression the store manager “merely told the plaintiff to fix the camera” but that did not necessarily convey that Mr Aldasouqi had to do it himself or to adopt any means to do it and, particularly, without regard to his own safety.

Emergency
The judge said Mr Aldasouqi candidly explained that in the normal course of events defective equipment had to be reported to the head office which would send out a contractor but, in this case, Mr Aldasouqi believed there was an “emergency to fix it”.

In his evidence, Mr Aldasouqi tried to recall events that occurred eight years ago and after a traumatic event at that time, the judge said.

However, he said, there was no evidence the store manager exerted undue pressure or intimated that the safety of Mr Aldasouqi should be ignored.

It was also apparent during the trial, which took place in Galway, that Mr Aldasouqi was, and remains, “quite exercised” about not having had his contract of employment made permanent in 2014.

“That affected his objectivity in recalling events”, he said.

Mr Aldasouqi failed to persuade the judge that he was instructed expressly or implicitly to bypass the safety standards of Dunnes.

He acknowledged that he could not remember whether the store manager thought fixing the camera was urgent on that Saturday.

On the day of the fall it was solely his choice “to grab a most unsuitable ladder” and not to investigate other ways of replacing the camera, the judge said.

He failed to establish a breach of duty of care on the part of the defendant to him, he said.

In the Circuit Civil Court last week Judge Catherine Staines dismissed a €60,000 claim for damages on behalf of a 17-month-old child who sustained a number of wasp stings at Dublin Zoo.

While the zoo did not deny that Aimee Tobin, now 7, Judge Staines said that witnesses for the plaintiff had failed to convince the court that there had been any negligence on the part of the wildlife park. An allegation that a wasp’s nest had fallen from an overhanging tree was challenged as there was no evidence of same and the number of stings sustained changed from what was initially reported.

Judge Staines said that while she felt sorry for the pain that Aimee had suffered, and for her family, she believed that no case of negligence against the zoo had been established. The case was dismissed with an order for costs.

Facts: The Plaintiff was employed by the Defendant as a customer service manager from 22nd April 1998, until her employment was terminated by reason of redundancy on 11th August 2015. Following this, the Defendant and the Plaintiff signed a compromise agreement on 17th July 2015 (“Waiver Agreement”). On 12th May 2016, a personal injury summons was issued where the Plaintiff claimed that she was repeatedly required to engage in repetitive movements to work and due to the Defendant’s negligence, she was repeatedly made work in awkward and unsuitable conditions. The Plaintiff claimed that she developed pain in her right shoulder in 2009 and didn’t develope further symptoms until February 2016.

This Interlocutory Injunction application was filed by the Defendant seeking to dismiss the Personal Injuries proceedings on the basis that the proceedings are bound to fail on 3 grounds:

Plaintiff signed the Waiver Agreement,
Claims are statute barred, and
Plaintiff’s inordinate and inexcusable delay in the commencement and conduct of proceedings would have a real risk of an unfair trial.

Decision: Ms Justice Bolger considered the above three preliminary issues in detail in light of the facts of the case and she held as follows:

Waiver agreement: The Defendant contended that the Plaintiff had signed a Waiver Agreement which precluded her from issuing any claims against the Defendants. Ms Justice Bolger noted the relevant clauses of the Waiver Agreement i.e., clauses pertaining to waiver of rights, in particular personal injury claims and that the Agreement stated that the Plaintiff received independent legal advice prior to signing. The Plaintiff in her replying affidavit stated that she had not availed any legal advice as she was not advised to do so. She said that she was under pressure to sign the document as she was keen to leave her employment due to the stressful work environment. As there were no documentation to show otherwise, Ms Justice Bolger observed that the Plaintiff was neither advised to get independent legal advice nor was she offered any opportunity to do so. The Defendant, instead, stated in the Waiver Agreement that she had taken legal advice. Ms Justice Bolger relied on Board of Management of Malahide Community School v Conaty [2019] IEHC 486, where Simons J found that

“…as a matter of contract law, an employer who requests an employee to agree to inferior terms and conditions, which involve the loss of statutory rights, is required to explain the precise legal effect of those changes to the employee. This implied term is part of the implied obligation of mutual trust and confidence between an employer and employee. It is also necessary to reflect the unequal bargaining power between an employer and employee.”

Ms Justice Bolger observed that the existence of the implied obligation of mutual trust and confidence is well established in Irish Law and on that basis rejected the Defendants’ reliance on case law involving mortgage agreements. Ms Justice Bolger noted that the Plaintiff contended that she was pressured to sign the Waiver Agreement and therefore considered it appropriate for this aspect of the Defendants’ application to be heard by the trial judge with the benefit of oral evidence.

Statute of Limitation: The Defendant contended that the Plaintiff had knowledge of an injury sustained due to alleged work practices prior to 5th February 2014, i.e. 2 years before the issuance of the Personal Injury Claim and hence the claim is statute barred. The Plaintiff sought to rely on an alleged change in her working conditions in early 2014 which may have led to a deterioration in her symptoms such that she required surgery in September 2015 and then a further surgery in January 2016. To determine the Plaintiff’s date of knowledge as per Section 2(1) of the Statute of Limitation Amendment Act, 1991, Ms Justice Bolger noted that the letter between Dr Anjun and Dr Clooney of January 2014 (that the Defendant relied on) did not sufficiently constitute clear evidence and hence should be determined by the trial judge as a preliminary issue but with the benefit of oral evidence.

Delay: Ms Justice Bolger noted that the Plaintiff did not seek to excuse the delay but contended that they were not inordinate periods of delay. The Defendant did not provide any evidence of how this delay would have serious prejudice. Ms Justice Bolger relied on Mangan v Dockeray [2020] IESC 67 and Calvart v Stollznow [1980]2 NSWLR 749 as approved in Hogan v Jones [1994]1 ILRM 512 and stated that the Defendant did not establish that the Plaintiff was guilty of inordinate and unreasonable delay which would give rise to substantial risk of an unfair trial and/or serious prejudice to the defendant, and therefore refused the application to dismiss for delay.

Ms Justice Bolger stated that she was not satisfied that the Plaintiff’s claim was bound to fail in the light of the above. Ms Justice Bolger concluded that the issues in relation to the Waiver Agreement and Statute of Limitation should be dealt with by the trial judge as a preliminary issue with the benefit of oral evidence and dismissed the proceedings in relation to the delay.

Takeaway for the Employers: It cannot be emphasised enough that employers must encourage an employee to get legal advice before signing any agreement waiving his/her statutory rights and to have this encouragement noted in writing. Furthermore, if the employee refuses to get legal advice then the employer must go through the meaning and consequences of the waiver in front of a witness before he/she signs it and have a memo signed by the employee and witness noting that the employer fully explained the waiver and its consequences to the employee prior to signing it. Also, do not put an employee under pressure to sign the agreement on the same day as presenting it to the employee.

Link–https://www.courts.ie/viewer/pdf/6c2cf96f-25ae-4123-9f9a-20de9c42bcee/2022_IEHC_60.pdf/pdf#view=fitH