The High Court awarded Noel Kerr €12,500 in general damages after finding that boxes fell on his right foot while he was packing them into a transport container on 18 March 1999. The court found that the first defendant, Molloy and Sherry (Lough English) Limited, breached its duty of care and statutory duty. It made no finding on the plaintiff’s alternative common-law negligence claim and said it would hear the parties on costs.
Mr Justice Herbert accepted Kerr’s account that the final rows of boxes had been stacked without staggering the gaps between them, making the stack unstable. Kerr said he warned Peter O’Donoghue, an assistant operations manager, but continued working when the stacking method was not changed. The judge found the incident occurred on the balance of probabilities and that the resulting fracture was consistent with Kerr’s account.
The court rejected the first defendant’s contributory negligence argument. It had argued at the hearing that Kerr, who was a contract packer supplied by the second defendant, should have refused to continue because he had experience stacking the boxes. The judge found O’Donoghue had ample knowledge and experience, and said it would have been unreasonable to expect Kerr to leave the job and complain to another manager. The court therefore found no contributory negligence on the statutory-duty claim. A 2002 default judgment had already been entered against the second defendant, Onalis Limited.
The judgment also criticised Kerr’s evidence about the lasting effects of the injury. The judge found that he had seriously exaggerated his injuries and had given materially false evidence that he was unable to work and suffered constant pain. However, the court considered dismissal of the action disproportionate because Kerr had not pursued loss-of-earnings or reduced employment-capacity claims, and the medical evidence supported some pain when walking more than a mile.
The judge accepted that the fracture caused substantial pain initially, diminishing over time, and that intermittent pain on longer walks probably continued until December 2005. The award was €12,500 for pain, suffering and inconvenience to date. The court found no significant future pain or inconvenience was expected.