The Court of Appeal has set aside the dismissal of a water inspector’s personal injuries action against Wexford County Council, assigning 75% of responsibility for his fall to the Council and 25% to the inspector. It remitted the case to the High Court for damages to be assessed; the appeal judgment did not set an amount of damages.
Edward O’Connor fell on 6 February 2011 while descending a steep grass bank at Ferns Reservoir during his work for the Council. He had routinely used a well-worn path up the bank to check a manhole. The route had been used by his predecessor and successor. A Council colleague had also slipped there about eight months earlier, without injury. The Council argued that O’Connor should have used an alternative route across the reservoir’s flatter southern end.
A consulting forensic engineer called by O’Connor described the slope as unsafe for walking and said steps should be installed. He also said the Council should have identified the route through a risk assessment. The Court of Appeal noted that the Council called no independent expert to contradict that evidence. The judgment records a dispute over whether a Council engineer had agreed to install steps; the appeal decision did not resolve that disagreement.
The High Court dismissed the claim in 2018, finding that O’Connor had failed to take reasonable care by continuing to use the steep path when a flatter route was available. The trial judge preferred the Council engineer’s evidence in a disputed matter and was not convinced by O’Connor’s evidence. The Court of Appeal said the High Court judgment had not engaged with the engineer’s largely unchallenged evidence about the unsafe access and the risk assessment, and had erred in its application of the law.
The appeal court found that the evidence established a breach of the Council’s statutory duty that caused the accident. It said O’Connor’s experience and the earlier fall by his colleague supported a finding of contributory negligence, but did not absolve the Council of its obligations as employer. It allowed the appeal, set aside the High Court order and directed that damages be assessed in accordance with its 75-to-25 apportionment.