Even employees must use common sense!

Author: Killian O'Reilly and Aideen Farrelly

June 12, 2018

O’ Connor v Wexford County Council [2018] IEHC 232

Edward O’ Connor was employed by Wexford County Council as a Water Inspector. One of his daily tasks was to check the water level of the Ferns Water Reservoir. To do this, he would walk up a steep grassy slope adjacent to the reservoir and lift up the manhole cover, before descending the steep slope to ground level. On the day of his accident, Mr. O’ Connor had just checked the reservoir and was coming back down the steep, wet slope when he slipped and fell, injuring his back. He issued proceedings for compensation against Wexford County Council.

The Council defended the claim on the grounds that there was no need for the Plaintiff to reach the reservoir by climbing up the steep incline. The Council argued that there was an alternative route to reach the manhole with little or no incline, only 10 or 15 metres away.

The Plaintiff maintained that 16 years ago his predecessor had shown him the way to the manhole, and for this reason, this was the route he had always taken.

He also claimed that 8 months prior to his accident, a work colleague slipped on the same steep bank and that the Plaintiff reported this to his supervisor, Mr. Shaw. However, Mr. Shaw had no recollection of any such incident and the Plaintiff failed to mention this prior accident to his own Engineer at an inspection.


In his decision, Twomey J was highly critical of the Plaintiff employee and emphasised the duty of an employee to take reasonable care for his own safety under s13 of the Safety Health and Welfare at Work Act 2005. He found that there was no evidence to suggest that Mr. O’ Connor was actually required by his employer to use the steep route to reach the manhole.

He also did not find the Plaintiff to be a credible witness. He was highly critical of inconsistencies of the Plaintiff during medical examinations. At one examination the Plaintiff was able to toe and heel walk adequately, while at the next appointment he was completely unable to rise on his toes or rock back on his heels. The Plaintiff’s Replies also stated that he could only drive a maximum of 15 miles. However, Mr. O’Conner admitted that he had driven the round trip of 120km/h from his home for the part hearing of the case in Kilkenny.

Twomey J referred to the Court of Appeal decision of Byrne v Ardenheath[1] which dealt with a similar set of circumstances. In that case the Plaintiff also slipped down a wet, grassy slope having ignored the safe route a short distance away.  Twomey J opined that although Byrne was an Occupier’s Liability case, the same legal principles could be applied to the Plaintiff’s case i.e. the application of common sense principles as to what amounts to reasonable care. He concluded that the Plaintiff had simply failed to take reasonable care for his own safety.

In Twomey J’s view, ordinary common sense would have indicated to the Plaintiff that it would be “foolhardy” to continue up or down the steep slope route to the manhole.

The decision is a helpful confirmation of the statutory position that employees are under a clear duty to take reasonable care for their own safety.

A full copy of the judgement can be found here.

[1] [2017] IECA 293

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