The Court of Appeal has allowed Dunnes Stores’ appeal against a negligence finding over an employee’s foot injury in a freezer room, concluding that the claim should have been dismissed. The court left unresolved whether €15,000 in damages and €5,000 in costs paid under a stay should be repaid or the issue sent back to the trial judge.
The judgment, delivered by Mr Justice McGovern on 25 March 2019, concerned an accident at the store in The Mill Shopping Centre, Clondalkin, on 20 October 2013. The employee, whose name was amended by court order from Kevin Keegan to Kevin Duke, entered the freezer room to collect pizzas. As he stepped off a pallet, shrink wrap on the pallet and adjacent floor became entangled with his foot, fracturing a bone in his right foot.
At trial, Barr J found Dunnes Stores liable in negligence, assessed damages at €45,000 and reduced the award to €36,320 for 20 per cent contributory negligence. The appeal was confined to liability; the assessment of damages was not challenged. The trial judge had also ordered a stay on execution on the undertaking that the store pay €15,000 in damages and €5,000 in costs.
The Court of Appeal accepted the trial judge’s finding that another employee had left the shrink wrap, making the store vicariously liable for that employee’s negligence. But it said the trial judge had not properly considered whether the store had taken reasonably practicable steps to protect the employee, or the employee’s own duty to take reasonable care and follow his training.
The judgment noted that the employee had received induction and refresher training, including instructions to “clean as you go” and remove hazards. He accepted that the shrink wrap was obvious and that the freezer was well lit and not cluttered. The Court of Appeal said the employee regularly retrieved stock from the freezer and should have kept a proper lookout. On the evidence, it concluded the store had taken reasonably practicable safety steps and that the immediate cause of the accident was the employee’s failure to see the hazard and follow his training.
The court said the trial judge’s 20 per cent contributory-negligence finding was against the weight of the evidence. It also questioned the order requiring payment while liability was under appeal, finding no special circumstances identified to justify it. The court heard further submissions on whether it could order repayment or should remit that issue to the trial judge. The judgment does not decide that question.