The High Court dismissed a personal injuries claim by Wexford County Council water inspector Edward O’Connor, who alleged that he injured his back in a workplace fall at Ferns Water Reservoir in February 2011.
In an ex tempore judgment delivered on 2 May 2018, Mr Justice Twomey held that O’Connor had not taken reasonable care for his own safety. The court found that he chose to use a steep bank to reach a reservoir manhole when a nearly flat route was available a short distance away.
O’Connor said he slipped while descending the grassy bank on 6 February 2011. He was checking the water level, a daily task that required lifting the manhole cover. The bank was wet and had a steep incline. There were no witnesses to the alleged fall, but he completed an accident report some days later.
The council argued there was no need to use that route because a safer path ran along the reservoir, only 10 or 15 metres away. O’Connor said a predecessor had shown him the steep route when he began the job about 16 years earlier, and that he had followed that practice. The judge said there was no evidence the council required him to take the steep route.
O’Connor also alleged that a colleague, Michael Kavanagh, had slipped on the same bank eight months earlier and that he reported it to council engineer Neville Shaw. Shaw denied receiving a report, and the judge found him a convincing witness. The judgment also noted that O’Connor had not told his own engineering expert about the alleged earlier fall.
The judge said the court did not find O’Connor a convincing witness, referring to differences in accounts of his physical abilities and driving. The judgment contrasted his claim that he expected to need a wheelchair with examination findings that he could walk on his toes and heels and stand on one leg. It also noted that he had driven a 120-kilometre round trip to court despite saying he could drive no more than 15 miles.
Applying the Court of Appeal’s decision in *Byrne v Ardenheath*, the judge said ordinary common sense was relevant to assessing reasonable care in this workplace case. He concluded that the steep, wet bank was plainly riskier than the nearby flatter route, and rejected O’Connor’s explanation that the flatter route could be overgrown or uneven. The court therefore dismissed the claim.