Judgment delivered on the 7th March, 2012 by Denham C.J.
1. This is an appeal by John Joseph Kavanagh, trading as Kavanagh Art and Graphics, defendant/appellant, referred to as “the appellant” from the ex tempore judgment of the High Court (Quirke J.) delivered on the 27th May, 2009, and the order of the same date.
2. The facts were stated by the learned High Court judge, from which I take this summary. Noeleen Coffey, the plaintiff/respondent, referred to as “the respondent”, was employed by the appellant for seven and a half years, during the final five years of which she was employed as the shop manager within the appellant’s premises which was a shop on Camden Street in Dublin. The shop was a retail outlet for the appellant who was engaged in the sale and supply of art graphics, utensils and stationery to schools, colleges, artists and the public.
3. The respondent claimed damages from the appellant to compensate her for injuries which she suffered arising out of an incident on the 4th October, 2004. On that date, in the course of her employment, she was caused or permitted to trip over a box in the office area of the appellant’s premises and suffered a fracture of her right wrist.
4. The respondent claimed that the fall and consequent injuries which she suffered were caused by reason of the negligence and breach of duty of the appellant in failing to provide her with a safe place of work and in causing or permitting the office area of the premises to become cluttered, unsafe and dangerous, with consequent risk of injury of the kind she sustained.
5. The appellant denied that he was negligent and claimed that the respondent’s injuries were caused by her own negligence in failing to have adequate regard for her own safety. He claimed that the respondent suffered her injury while she was assembling art packs and placing them in boxes on the floor of the office area, and that she failed to perform the task in a careful manner and caused or contributed to her own injury.
6. The learned trial judge found the respondent to be a careful, conscientious and truthful witness and he accepted her evidence as to the events which occurred on the 4th October, 2004. He held as follows:-
“When the [respondent] returned from lunch on the 4th October, 2004, the office area within the [appellant’s] premises was cluttered with boxes and materials which were strewn in a most untidy and unsatisfactory manner, and in some parts of the room, it was necessary to virtually climb over boxes in order to go from one part of the room to another.
The [respondent] began to tidy the office area in order to address, to some extent, complaints from the shop staff which had been made earlier by the [respondent] to the [appellant].
I am satisfied, on the evidence and on the balance of probabilities, that, whilst she was tidying the office floor, the [respondent] was caused to trip and fall. Her trip and fall was caused by some article or hazard on the floor which caused her to fall over one of the boxes on the floor.
The box over which she tripped was full of heavy materials and was, consequently, solidly fixed to the floor. In order to break her fall, the [respondent] put out her right (dominant) hand and her hand, consequently, took the principal force of her fall and she suffered the fracture which has given rise to these proceedings.
I accept the unchallenged evidence of Mr. Culleton that, in the circumstances, the office area within the [appellant’s] premises was unsafe for the purpose of packing articles into cardboard boxes and represented a hazard to staff members who were required to pass to and from and to through the office area for various purposes associated with their employment.
I also accept Mr. Culleton’s evidence that a safe traffic route should, at a minimum, have been provided for staff members for such purposes as they might require in the course of their employment. I am satisfied, on the evidence of the [respondent] and on the evidence of Ms. Giles, that no such safe traffic route was maintained in the office area in October 2004, when this incident occurred.
I am also satisfied, on the evidence of Mr. Culleton, that the system of work which was maintained by the [appellant] on the premises for the packing of materials into cardboard boxes was unsafe and represented a hazard for staff members who used the office area and were required to pass through the office.
In particular, the work station which was provided for employees to pack orders for transmission and delivery to customers was most unsatisfactory and untidy and unsuitable for the purpose for which it was required. It exposed the staff members to a variety of tripping hazards by reason of its inadequate space, its location, and the method which was adopted for packing and for storage within the defendant’s premises.
I accept Mr. Culleton’s evidence that there was a serious problem in relation to the available space for storing, packing and delivering materials from the small storage space at the back of the first floor of the defendant’s premises, and I accept the evidence of the [respondent] and of Ms. Giles, that, particularly during busy periods between July and the end of October each year, the office area was constantly cluttered with articles which comprised tripping hazards which were and remained a risk to staff members and other persons who were expected to use the office area and its environs.
Finally, I accept the evidence of Mr. Culleton that the [appellant] was negligent and in breach of his statutory and other obligations by failing to carry out a risk assessment in respect of the office area and the remainder of his premises, and by failing to put in place a safe and appropriate system of work which would have reduced or eliminated the risk of injury of the type which was sustained by the plaintiff.
It follows from what I have found that the [respondent] has established, on the evidence and on the balance of probabilities, that the [appellant’s] premises were unsafe and the system of work which was provided for the [respondent] was unsafe in the circumstances.
I am satisfied, also, that this negligence and breach of duty on the part of the [appellant] caused the [respondent’s] injury because I am satisfied, on the evidence, that she was caused to trip or fall because of the presence on the floor of article or hazard which, in turn, caused her to fall over one of the boxes on the floor. The [respondent] was acting in the course of her employment with the [appellant] when she suffered her injury and I accept her evidence that she was, in fact, trying to tidy up the premises when she tripped over the hazard which caused her injury.”
Contributory Negligence
7. On the issue of contributory negligence the learned High Court judge held:-
“It has been contended, on behalf of the [appellant], that the [respondent] was guilty of contributory negligence in failing to keep a proper lookout and that this negligence caused or contributed to her injury.
I do not accept that contention. I accept the evidence of the [respondent] and the evidence of Ms.Giles and that during busy periods, the floor of the office area within the [appellant’s] premises regularly became cluttered. I also accept the [respondent’s] evidence that she drew this to the [appellant’s] attention from time to time and that nothing was done by the [appellant] to reduce the risk of injury to the staff members by adopting a safe system.
I do not accept, on the evidence that the [respondent] failed to keep a proper lookout. I accept her evidence that a hazard on the floor, which she could not identify, but which caused her to trip, was probably either packing material or a tear in the carpet which caused her to trip and that she then fell over a box which was lying on the floor in an inappropriate place.
I cannot see how she can, in those circumstances, be found to have caused or contributed to her own injury. Accordingly, I am satisfied that the [respondent] is entitled to recover the full value of her claim.”
8. Thus, the learned trial judge did not accept the contention that the respondent was guilty of contributory negligence. He accepted the evidence of the respondent and Ms. Giles that the floor of the premises regularly became cluttered, and that she had drawn the problem to the attention of the appellant. He accepted her evidence that a hazard on the floor caused her to trip and that she fell over the box which was lying on the floor in an inappropriate place.
Damages
9. On the issue of damages, the learned trial judge described her injury as a fracture to her right wrist which resulted in crushing and some shortening of the bone, and there was an obvious deformity of the wrist. He held that the respondent suffered significant injury to her right wrist which has caused her distress, inconvenience, pain and discomfort. He awarded damages as follows:
Special damages €2,400.00
General Damages
(i) Pain and Suffering to date €27,500.00
(ii) Pain and suffering in the future €25,000.00
Notice of Appeal
10. The appellant filed a Notice of Appeal in the following terms:-
(i) That the learned trial judge erred in law in finding for the respondent;
(ii) That the learned trial judge erred in law in failing to find any contributory negligence on the part of the respondent;
(iii) That the learned trial judge failed to give sufficient weight to the evidence of the appellant;
(iv) That the learned trial judge failed to give sufficient weight to the evidence of Mr. Imran Khan who was in a position to observe the circumstances of the incident;
(v) That the learned trial judge failed to give sufficient weight to the evidence of Ms. Siobhan Collins and in particular to the conflicting evidence of the respondent and Ms. Collins regarding the alleged conversations that the respondent said had taken place on the morning of the incident with Ms. Collins;
(vi) That the learned trial judge failed to give sufficient weight to the role that the respondent had within the organisation as manager and also to the authority that she possessed contrary to the evidence;
(vii) That the finding of the learned trial judge was wrong in law by failing to grant due and sufficient weight to the submissions of the appellant;
(viii) That the finding of the trial judge in favour of the respondent and in not finding any element of contributory negligence was erroneous and contrary to the weight of the evidence.
Notice of Motion
11. The appellant brought a Notice of Motion seeking an order permitting him to adduce new evidence. The application was grounded on the affidavit of John Kavanagh sworn on the 13th December, 2011. However, at the hearing of the appeal counsel, very wisely, did not proceed with the motion.
Submissions
12. Written and oral submissions were presented to the Court on behalf of the appellant and the respondent, which I have considered carefully.
13. In essence, it was submitted on behalf of the appellant that insufficient weight was given to the evidence of the appellant and his witnesses. It was submitted that the uncorroborated evidence of the respondent was accepted uncritically and with an excess of weight, in contrast to the treatment of the corroborated evidence of the appellant.
14. On the issue of contributory negligence, it was submitted, inter alia, that the learned trial judge failed to give any or any adequate weight to the respondent’s role in the ongoing management of the business. It was submitted that if the finding of liability was upheld that there should be an adequate apportionment of liability to reflect the evidence of the respondent’s ongoing participation and necessary supervision of the “system of work” and control.
Decision
15. This appeal raised the issue of liability for the injury caused. Essentially there was one issue, and that was whether the respondent was guilty of contributory negligence. It was submitted that she had failed to keep a proper lookout, that there were special circumstances in that the accident occurred in her office, that she was manager and that she had a duty of care. It was further submitted that there was a strong case for a finding of contributory negligence.
16. The law as to the role of this Court in reviewing oral evidence given in the High Court was stated by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at p. 217:-
“(i) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
(ii) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
(iii) Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See judgment of Holmes L.J. in “ Gairloch”, The S.S., Aberdeen Glenline Steamship Co. v. Macken 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
(iv) A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
(v) These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.”
17. This Court did not have the opportunity of seeing and hearing the witnesses in the High Court. The learned High Court judge did hear and see the witnesses and made primary findings of fact that are supported by credible evidence. Thus, this Court is bound by those findings. However, the High Court also drew inferences, and this Court may review those inferences.
18. The primary duty of care is on the employer, the appellant in this case, which has been established on the evidence. However, all the circumstances of the case have to be taken into consideration when considering the issue of contributory negligence.
19. The circumstances of this case include the following: the respondent was the manager of the shop. This role required her to work from a desk in the office. She was very familiar with the office. She had a responsibility to keep her desk and the area around it tidy. She knew of the clutter in the office; she had made a complaint previously; she knew of the potential danger; she was clearing the office when the accident occurred. She had started packing and unpacked two of the boxes and put them in the store room, and while walking, something on the floor caused her to trip and she fell. In all the circumstances I am satisfied that a degree of contributory negligence was established. I would hold that the respondent was 25% contributory negligent. Consequently, the award of damages for the respondent would be reduced to €41,175.00.
Conclusion
20. I would allow the appeal to the degree indicated in this judgment.
