Matthews v. Irish Society for Autism [1997] IEHC 64 (18th April, 1997)

Judgment of Miss Justice Laffoy delivered on the 18th day of April 1997 1. In these proceedings, the Plaintiff, who is a 57 year old married woman, claims damages for personal injuries she sustained on 3rd September, 1992 while in the employment of the Defendants. 2. The Plaintiff and her husband, Pat Matthews, who are the parents of a 30 year old autistic son, were founding members of the defendant corporations, which are organisations which promote the welfare of persons suffering from autism. From 1983 onwards, the Plaintiff's husband was the executive director of the Defendants and the Plaintiff was employed by the Defendants as office manager. In September 1992, the business of the Defendants was managed and conducted from their offices on the third floor of No. 16 Lower O'Connell Street in the city of Dublin by the Plaintiff's husband, as executive director, the Plaintiff, as office manager, and two office girls. The Defendants also owned and operated a farm and centre for persons suffering from autism at Dunfirth, Enfield, Co. Kildare. 3. On 3rd September, 1992, in preparation for an open day at Dunfirth, the Plaintiff prepared approximately 50 information packs for distribution at the open day in the offices in O'Connell Street. The Plaintiff and her husband intended to travel to Dunfirth with this material. 4. On the evidence, I find that the Plaintiff sustained her injuries in the following manner. Shortly before 4.00 p.m. on the afternoon in question, which was a Thursday and which was a wet afternoon, the Plaintiff's husband went to fetch his car from behind the Gresham Hotel where it had been parked. The Plaintiff was watching out for him from a window in the offices. When she saw his car approaching, she ran to the lift, took the lift to the ground floor and proceeded through an inner hall through glass doors, through a lobby and through the main door of the building. On leaving the building, she was carrying the 50 information packs in her arms and she was carrying a large briefcase over her shoulder. As she rushed across the footpath to her husband's parked car, an unidentified woman who was coming along the footpath to her left slipped and fell and, in falling, she grabbed the Plaintiff who, in turn, lost her balance and fell heavily on her left arm and shoulder. The unidentified woman left the scene immediately. As a result of the fall, the Plaintiff sustained a four part fracture of the neck and head of the left humerus which necessitated a half shoulder joint replacement. 5. Although Mr. Pat Matthews testified that he did not see the collision taking place, I am satisfied that the outline of the circumstances of the accident which I have set out above is entirely consistent with the Plaintiff's own evidence to the effect that she was either pushed or grabbed by the unidentified woman coming from her left, the account of the accident which Mr. Matthews gave to Mr. Paul Walsh, the claims inspector of Church & General Insurance Company on 31st August, 1993, and the account of the accident which Mr. Matthews gave to Mr. Cathal Maguire, the engineer retained by the Defendants on 18th September, 1996. Moreover, I am satisfied it is consistent with the claim as pleaded in the Plaintiff's Statement of Claim, which was delivered on 12th October, 1993, in which it is alleged that "an unknown third party pedestrian collided with (the Plaintiff) and knocked her to the pavement ... ". 6. The Plaintiff contends that the Defendants were negligent in failing to provide a safe and proper system of working for her and in failing to provide appropriate equipment for the task she was required to do. The Plaintiff further contends that the Defendants were in breach of their statutory duty under Section 12 of the Safety, Health and Welfare at Work Act, 1989 in failing to prepare a safety statement and that, if such a statement had been prepared, the hazard to which the Plaintiff was subjected would have been identified and steps taken to avoid it. It was these defaults on the part of the Defendants which caused the accident and the Plaintiff's injuries, it was contended. 7. Mr. Pat Matthews, who is a mechanical engineer by profession and prior to his involvement with the Defendants had administration expertise in the confectionery sector, acknowledges that he was the person with responsibility for preparing a safety statement in connection with the Defendants' employees and that, while a safety statement was prepared for Dunfirth, no safety statement was prepared for the offices because he simply did not get around to doing it. 8. The basis of the Plaintiff's contention that the Defendants had failed to provide a safe system of working for her and proper equipment is that under the system in place at the time she was required to manually handle an excessive load or weight of material and, further, that the environment through which she had to carry it exposed her to risk. The evidence establishes that 40 of the information packs would have weighed 30 lbs and 50 would have weighed 37½ lbs. The briefcase the Plaintiff was carrying on her shoulder weighed in excess of 5½ lbs. The weight which the Plaintiff was carrying exceeded the limit prescribed for female employees under Article 3 of the Factories Act (Manual Labour) (Maximum Weights and Transport) Regulations, 1972, although it is conceded that those regulations had no application to the instant case. The load, it was contended, was too heavy for one female. Moreover, given that the information packs were loose and that they had to be "cradled" by the Plaintiff in her arms, her observation and her ability to deal with problems she encountered while walking were impaired. The main door of the office building was recessed some 8 ft 6 ins from the back of the footpath and the width of the footpath was 16 ft, so that the Plaintiff had to traverse a distance of 24 ft 6 ins from the main door to the waiting car against the flow of heavy mid-afternoon weekday pedestrian traffic on a wet afternoon when pedestrians tended to rush. This, it was contended, was not a safe way to transport material, even if the weight was acceptable. 9. It was submitted on behalf of the Plaintiff that a safe system of work and of transporting material from the headquarters in O'Connell Street to Dunfirth would have involved utilising a loading bay just around the corner in Sackville Place and a load of the weight which the Plaintiff was carrying on the day being carried by a male rather than a female employee, or the chore being shared, or a trolley being used. This approach, it was submitted, would have obviated the pressure created by the strict enforcement of the parking laws and the traffic regulations along O'Connell Street. 10. The Defendants' response to the Plaintiff's claim is that the Plaintiff's accident was caused by the unidentified woman pedestrian who collided with the Plaintiff and not by reason of any breach of duty on the part of the Defendants. In short, it is contended that the accident was not one which the Defendants could have taken measures to avoid. Furthermore, it was submitted that the hazard which the Plaintiff encountered on the footpath in O'Connell Street was the type of hazard one encounters as part and parcel of every day living and that the risks inherent in walking across a busy footpath on a wet afternoon while carrying material are not of a type which require to be addressed in a safety statement under Section 12 of the 1989 Act or which, in the absence of something untoward having happened in the past, would be reasonably anticipated by a person addressing his mind to the preparation of a safety statement. 11. On the evidence, I am satisfied that the accident is entirely attributable to the fact that the unidentified woman pedestrian collided with the Plaintiff and the fact that the Plaintiff was carrying a heavy and an awkward load did not contribute to her fall. It is to be inferred from her own evidence that when her "assailant" came in contact with her she abandoned her load instantly. In my view, there is a high degree of probability that the accident would have happened in the same way and with the same consequences if the Plaintiff had not been encumbered by the information packs or the briefcase and if she had not been rushing. Moreover, I think it is probable that the same result would have ensued if she had been going with the flow of traffic in front of her "assailant". 12. The hazard which this unfortunate accident has highlighted - that if one is crossing a pavement to a parked car in a hurry carrying a load and against the flow of pedestrian traffic, a pedestrian coming along the pavement may collide with one and knock one to the ground - in my view, is not the type of hazard which would reasonably be anticipated by a person in the position of Mr. Pat Matthews who was preparing a safety statement in relation to the employment of persons in the Defendants' office in O'Connell Street and it is not something which would have required to have been identified and addressed in the formulation of such a safety statement, had there been one. 13. Accordingly, in my view, the Plaintiff has not established on the balance of probabilities that her fall and her injuries were caused either by negligence or breach of statutory duty on the part of the Defendants. Therefore, the Plaintiff's claim must regrettably be dismissed. I say regrettably because it is quite clear from the evidence that the Plaintiff and her husband are remarkable people who have unselfishly devoted their lives to one of the least fortunate groups in society and because it is also clear from the medical reports put in evidence that the Plaintiff suffered a serious injury and disability and may suffer further consequences of that injury in the future. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII