High Court: €33,000 awarded for PTSD injury after plaintiff witnessed murder in service station

he High Court has awarded €33,000 to a plaintiff for psychiatric damage arising out of witnessing a murder at work. The plaintiff argued that her employer had failed to provide her with a mobile panic alarm pursuant to their policy and that this aggravated the plaintiff’s nervous shock reaction.

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.

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.

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.


Fisherman who worked over 17 hours a day awarded more than €20,000 compensation after WRC ruling

An Egyptian fisherman who worked over 17 hours a day while at sea has been awarded more than €20,000 compensation.

In a new decision, Workplace Relations Commission adjudication officer Eugene Hanly said it was “essential” that fishermen are protected against working excessive hours due to safety risks.

He found that Ali Rezk’s rights under working time and payment of wages legislation were breached while working for trawler owner Sean Doran.

The fisherman (63) told a hearing he worked 17 hours a day at sea and was on call for the remainder when he worked for Mr Doran between December 2016 and August 2019.

He said he was paid for eight hours a day.

The fisherman said no record of his working hours existed so he had to rely on fishing logs.

“I’m glad I took this step and encourage other fishers in a similar position to do something about it,” he said yesterday.

The Workplace Relations Commission heard he had a limited knowledge of English, was unaware of his employment rights and previously worked as an undocumented migrant fisherman.

He saw his work was very precarious while he was undocumented and felt wholly dependent on his employer for “all aspects of his life”.

Mr Doran rejected his claims that he was not paid for the hours he worked, was not compensated for public holidays, and did not get the correct holidays.

He said there were four employees on the boat, and he had a very good knowledge of English.

The employer said the boat did not operate to full throttle and the fish catch was very limited.

He said boredom was a factor due to the small amount of work and the skipper rejected Mr Rezk’s estimation of the hours he worked.

Mr Doran said he was facilitated with his religious practices and food, stopped working for prayers and was given time to watch football matches.

He said it was not a profitable business, but “washed its face”.

On shore, he said Mr Rezk could not work in the shop due to his poor English. He said he worked in a factory for three to six hours but was paid for eight.

He said he worked more than 39 hours some weeks, but some weeks less. Mr Doran said he was not charged for food, and only paid for cigarettes and the Lotto and was provided with non-beer batter food in restaurants. He said there was no work on the boat, except twice a month when nets would be checked and mended, which he said was a morning’s work.

The adjudication officer said organisation of working time legislation requires an employer to maintain records of hours worked so he was obliged to accept the complainant’s evidence.

He said on the balance of probabilities, he worked 77 days at 17 hours per day, and was paid eight hours so was due over €5,364 in addition to a smaller amount for public holidays.

Mr Hanly found his working hours exceeded a maximum of 72 hours a week under organisation of working time regulations.

“I find that this is an industry that is subject to some very challenging weather conditions and the safety of fishermen is of paramount importance,” he said.

“I find that it is essential that fishermen are protected against working excessive hours which may cause them to make errors in their work which could negatively impact on their safety and that of their colleagues.”

He said the employer should pay another €15,000 compensation for breaches of his rights “which is to serve as an effective, dissuasive and proportionate deterrent”.

Mr Rezk also claimed he was not paid in accordance with national minimum wage legislation. Mr Hanly said the claim was not well-founded as he did not seek a written statement of his hourly pay.

Michael O’Brien of the International Transport Workers Federation said there were deficiencies in law that prevented the adjudicator from ruling on the whole period the fisherman was employed.

He said the “cognisable period” unpaid wages can be retrieved is normally six months prior to a complaint being submitted, or 12 months in extenuating circumstances.

“Under the system we have, the odds are stacked against a migrant fisher pursuing justice, let alone keeping their job or ability to stay in this country if they speak up,” he said. “Hence the tendency for cases to be taken after the fisher parts company with the employer.”


Be aware of impersonation

Many colleagues use social media as a marketing tool, or to build their own personal networks. Some of our most active colleagues on social media have reported seeing fraudulent accounts impersonating them online.

Whatever the impersonator’s intent, there are obvious risks posed when an unauthorised person (or even a potentially malicious stranger) assumes your identity online. I encourage you to be vigilant about this – search your firm’s name and your own name periodically for potential impersonators. You can even quickly scan for unauthorised use of your own image or your firm’s logo: Google has published a useful article on how to do this.

If you find an impersonator, no matter how trivial the content, you should act. Social media networks have established quick procedures to report impersonation, while several legal tools are available for protecting your intellectual property and taking down imposter websites.

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