Court of Appeal limits application of the common sense principle

The Court of Appeal has held that a High Court judge “fell into significant error”, when he dismissed an employee’s claim on the basis that the employee should have used common sense.

The Court was delivering judgment in an appeal brought by Edward O’Connor, a water inspector with Wexford County Council, against the High Court’s dismissal of his personal injuries’ damages claim.

The basic fact of the case was that Mr O’Connor, who was checking water levels in a reservoir, slipped and injured himself as he came down a grassy embankment from where he had checked a manhole at the top of the embankment. The issue between Mr O’Connor and his employer was that he should have used a safer route, which was available.

The High Court held that he should and that he had failed to use common sense and to take reasonable care for his own safety. (For report on the High Court case, see HSR June 2018).

The ‘common sense’ principle was enunciated by Ms Justice Mary Irvine, in the Ardenheath case, when she was a judge on the Court of Appeal. Ms Justice Irvine said judges must use ordinary common sense in their assessments of reasonableness. That principle has been followed since in a number of cases.

Court of Appeal Judgment: Engineering Evidence

Reviewing the evidence in the case, Mr Justice Noonan, who delivered the judgment, noted that an engineer for Mr O’Connor said the slope (between 1:3 and 1:2.3) on the embankment was outside the guidance figures for any type of ramp. The slope was not a suitable place for walking. In order for the workplace to be safe, steps should have been installed.

In his evidence, the engineer referred to section 8(2) of the SHWW Act 2005 and the employer’s duty as regards the design and maintenance and the provision of a safe means of access. He said a risk assessment should have been carried out and re-carried out every two years. He also cited the General Application Regulations (Reg 23 in particular), which requires employers to ensure employees employed at outdoor workstations, cannot, insofar as possible, fall or slip. 

Mr Justice Noonan then went on to say, it is important to note that the Council called no independent expert. There was evidence from Mr O’Connor’s independent expert witness that the employer was in breach of its statutory duties as an employer by, not only failing to provide safe access but also by failing to carry out a proper risk assessment. He expressed the view that the trial judge effectively ignored that evidence.

The Common Sense Principle

Drawing a distinction between the Ardenheath case and the O’Connor case, Mr Justice Noonan made the point that the Ardenheath case was a public liability case in which the injured woman had elected to take a risk the occupiers (owners) of the land had no reason to anticipate. The duties owed by an occupier are entirely different to those owed by anemployer.

Commenting on the High Court’s judge’s basing his judgment on the Ardenheath case, MrJustice Noonan said that judgment had not been cited by either party. Therefore, the High Court judge, before relying on it, should have given both parties the opportunity to address the court on its relevance. He should have accepted the evidence of Mr O’Connor’s engineer.

Liability

Allowing Mr O’Connor’s appeal, Mr Justice Noonan said the trial judge fell into significant error in dismissing the claim. The “heavy onus” was on the employer to comply with its statutory and common law duties.

He apportioned liability, holding the Council 75% liable and Mr O’Connor 25%. He referred the case back to the High Court for the assessment of damages.

(O’Connor v Wexford County Council: Court of Appeal, July 2021)

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