In the case of Edina Nemeth v Topaz Energy Group Limited  IECA 252. The Court of Appeal overturned the High Court's decision to find the defendant's liable reiterating, "an employer is not an insurer".
The Plaintiff sustained injury to her right knee when carrying out routine stocktaking. The pleaded case was that that she had to assume a squatting position for a sustained period time and sustained injury when attempting to return to a standing position. Somewhat surprisingly, despite there being CCTV footage of the incident, this was not viewed by the Plaintiff's until the morning of the hearing where it was apparent that the Plaintiff had actually squatted onto her left leg and knelt onto her right leg for just over a minute and had not simply squatted as suggested in her pleadings.
High Court decision
Despite the circumstances being different than the pleadings suggested, the High Court held that the defendants had failed to take proper regard for the Plaintiff's health and safety by failing to properly risk assess the task. It also inferred that the fact that the defendant had changed the work practice following the incident was a tacit acceptance that the old method was incorrect.
Overturned in the Court of Appeal
The Court of Appeal overturned the High Court's decision. Firstly, it pointed out that many of the engineering and medical findings were based on the contention that the Plaintiff was in a squat position for some time, which was not borne out by the CCTV footage. The Court considered that the task the Plaintiff was undertaking was an ordinary everyday activity of the kind undertaken in a domestic and working setting and it should have been considered as such. The Court also found there was no credible evidence that additional training or a risk assessment was required.
Usefully for employers, the Court also considered that if a defendant changes their procedure post incident this does not, of itself, amount to an admission of liability.
This is another welcome "common sense" decision from the Court of Appeal. It is a cautionary tale for Plaintiff solicitors to ensure they have appropriately pleaded their case but most importantly shows that it is possible to defend employers' liability cases and that accidents do happen.
Written by Neil Cahill
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