Court of Appeal overturns €110k award over ESB employee's slip

Man never mentioned leaking skylight may have caused steps to be wet, 'an extraordinary omission', says judge

Terence Morgan: ESB employee saw decision on fall overturned by Court of Appeal yesterday. File picture: Collins Courts

A €110,000 award to an ESB employee who slipped and fell on stairs as he was collecting post had been overturned by the Court of Appeal.

The High Court made the award in 2018 to network technician Terence Morgan, 63, who fell on a staircase while collecting post at the ESB offices, Avenue Rd, Dundalk, on April 30, 2013. The ESB denied negligence and contested the case.

Ms Justice Bronagh O'Hanlon awarded Mr Morgan €110,000, saying he did not get specific training in the task of collecting post, a duty which he had performed over a number of years.

Mr Morgan, of Drumnacarra, Ravensdale, Dundalk, Co Louth, fell on the stairs at the two-storey offices where, as part of his duties, he collected post to bring down to a franking machine, as well as carrying out technical duties.

The court heard he was stepping from a landing to the first step on the lower flight of stairs when his feet went from him and he slipped and fell down some more steps. He claimed the steps were wet.

Mr Morgan hurt his shoulder in the fall, was out of work for over four months, and was left with ongoing pain.

Ms Justice O'Hanlon found that a problem with the nosing on the steps, combined with the fact they were wet, whether from a leak in an overhead skylight or a spillage, caused Mr Morgan to slip and fall heavily.

While Mr Morgan had inadvertently carried parcels in both hands, the judge ruled it still did not amount to contributory negligence on his part in view of the absence of specific training. The incident was reasonably foreseeable, she said.

Overturning that decision, Mr Justice Seamus Noonan, on behalf of the three-judge Court of Appeal, said Mr Morgan never mentioned that a leaking skylight over the stairs may have caused it to be wet either when he had a chance to comment on an internal ESB investigation report or at an investigation meeting.

"That was, by any standards, an extraordinary omission and one that the plaintiff was entirely unable to explain," the judge said.

Similarly, his failure to refer to the fact that he had mopped up the wetness after the incident is almost equally extraordinary, he said.

It seemed to Mr Justice Noonan that the trial judge’s determination that Mr Morgan had not established that the skylight was leaking, in substance, had effectively disposed of the case.

He was also satisfied there was no credible evidence before the High Court to justify a finding that the nosing on the steps was in any way responsible for the incident.

He also found that training was never an issue in this case.

Training was mentioned only in "the most general terms" in the court summons and certainly not in any way that would alert the ESB to any complaint about his training, he said.

Mr Morgan himself conceded there was no issue as far as he was concerned about his training, he said.

There was no evidence to entitle the trial judge to conclude there was a breach of health and safety at work legislation, he said.

In a concurring judgment, Mr Justice Maurice Collins said he was of the view that the High Court's finding of liability was unsustainable and could not be allowed to stand.