The Court of Appeal has overturned a personal injury award to a Dunnes Stores employee who slipped on a wrapper in the retailer’s Rathmines shop, finding that the trial judge’s decision to hold the company liable was not supported by the evidence.
The judgment, delivered by Mr Justice McGovern on 27 March 2019, allowed Dunnes Stores’ appeal. The court said the claim should have been dismissed and did not order a retrial. It left the question of what should happen to money already paid to the employee for counsel to address.
The employee, a checkout operator, fell in a beverage aisle on 20 September 2011 after stepping on what appeared to be wrapping from a roll of refuse bags. She injured her right arm, shoulder and elbow. At trial, the High Court found that a staff member, probably someone involved in cleaning, had discarded the wrapper and that Dunnes Stores was responsible for the resulting hazard.
The Court of Appeal said there was no evidence establishing who put the wrapper on the floor. The employee testified that supervisors used refuse bags to empty bins beneath checkouts during afternoon cleaning, but did not know where the wrapper came from. The court said a customer could just as likely have dropped it.
A security manager testified that he had inspected the area about five minutes before the fall and found no hazard. An engineer called by Dunnes Stores said the wrapper would have been conspicuous and that the store’s cleaning and inspection system was “first class”. Neither point was challenged at trial.
The appeal court said the trial judge had no evidential basis to suggest the security manager missed the wrapper during his inspection. The evidence instead supported the inference that it was dropped after the inspection, shortly before the fall. The court also said the trial judge had not properly considered the inspection system, employee training or the applicable legal duties.
The judgment said an employer is not an insurer of an employee’s safety. It concluded that Dunnes Stores had taken the steps reasonably practicable to protect the employee, meeting its common law and statutory duties. It therefore allowed the appeal without a retrial.
The court also commented on the earlier direction for payment to the employee as a condition of a stay pending appeal. It said such payment should not be directed where liability is disputed unless special circumstances exist, and none had been indicated to the trial judge. The court would hear counsel on the money already paid.