The High Court found Etmar Limited liable for injuries suffered by its employee, Declan Homan, when a gust of wind blew him and a mattress from a lorry’s tail lift during a delivery in Dublin in December 2011. The court awarded €430,327.98 before deducting €50,230.82, leaving a net award of €380,097.16.
Mr Justice Cross delivered judgment on 20 April 2018 after a five-day hearing. The court allowed the case to proceed on allegations that the company failed to train Mr Homan and negligently permitted the unloading to take place in windy conditions. It refused to allow a separate allegation about the position of the tail-lift remote control, ruling that it had been raised too late and would unfairly prevent the company from investigating the claim or considering whether to join the lorry’s owner as a third party.
The judge rejected the weather-related negligence allegation. Although the day was windy, the particular gust was sudden and exceptional, and Mr Homan had made no complaint about the conditions. The company was not negligent simply for requiring him to work that day, the court found.
However, the judge held that the company breached its statutory duties by failing to assess the risks and provide adequate training and safety instructions for unloading furniture from a height. An engineer called for Mr Homan said a safer method was to turn the mattress 90 degrees on the tail lift, presenting its narrow side to the wind. The judge accepted that, with appropriate training, Mr Homan would likely have used that method and the accident was unlikely to have happened. The company’s “Act of God” defence therefore failed. The judge also rejected contributory negligence, finding Mr Homan had no practical alternative to where the lorry was parked.
Mr Homan suffered chronic back pain and had not returned to work. The judge assessed special damages at €350,327.98, including €30,086.98 in out-of-pocket expenses and future medication, €160,241 for past earnings loss, and €160,000 for future earnings loss. The future loss figure was reduced from the agreed claim because the judge assumed Mr Homan would be able to do some work.
The court also awarded €50,000 for pain and suffering to date and €30,000 for future pain and suffering. The judgment records a total award of €430,327.98, less the stated €50,230.82 RBA figure, producing the net award.