Court awards reduced damages for farm worker's neck injury due to pre-existing conditions and lack of evidence for specific work methods.

Record No: 2020/02996

Neutral Citation: [2024] IECC 9

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT CIVIL COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF

DOROTA REJNIN

Plaintiff

and

KEELINGS SOFTFRUITS UNLIMITED COMPANY AND WILLIAM P. KEELING

& SONS UNLIMITED COMPANY

Defendant(s)

Judgment of Her Honour Judge Jennifer O’Brien delivered this 19th day of July 2024

1. This case comes before the Court by way of personal injuries summons issued on 26 May 2020. The plaintiff is a farm worker who previously resided in Dublin but has now returned to Poland. The first named defendant is an unlimited company with its registered offices in Food Central, St. Margaret’s, County Dublin. The second named defendant is an unlimited company with its registered offices at the same address. The plaintiff alleges negligence and breach of duty as against the defendants, their servants and/ or agents, as a result of which the plaintiff has sustained and incurred a personal injury. The plaintiff was employed by the defendants from June 2009 and claims that by reason of her employment with the defendants as a farm worker, she suffered pain syndrome to her neck and cervical spine, right upper limb and right shoulder, as a result of working conditions. She alleges that she was caused to work in an unsafe manner, being required to work on an uneven system of work and being put under constant pressure in having to carry out repetitive tasks, in particular when she was planting strawberries at a level above her shoulder height, which required significant force to push through the soil and thereby caused the said injuries. The plaintiff claims that she was required to plant a certain amount of strawberries every hour and was put under considerable pressure to do so. The defendants have filed a full defence to the matter.

Special damages are agreed in the sum of €336.75 and the medical reports are also agreed.

2. Essentially the plaintiff's claim is that she has a right shoulder and neck injury caused by repetitive strain from a harvesting and planting job with the defendant. She complains that the ergonomics were not properly worked out, resulting in her working with her arms above shoulder height and above her head for hours on end, sometimes for 13 to

14 hours each day. The plaintiff claims that the symptoms commenced at the beginning of 2016 although it was acknowledged that her affidavit of discovery refers to the symptoms commencing in mid-2017. A supplemental affidavit of discovery disclosed that the issues commenced prior to 2017. The plaintiff left employment in April 2017 having been diagnosed with a brain tumour (left hemisphere) for which she attended for surgery. It is submitted that there is an overlap with her symptoms from each of these events. Unfortunately, the plaintiff has developed a second tumour in the right hemisphere of her brain and counsel agreed that neither of these developments are the fault of the defendants.

3. The plaintiff alleges that there was an increase in the intensity of work and that she had to hit increased targets on an ongoing basis. The defendants allege contributory negligence in that they say the plaintiff did not complain, which she says is not true. The defendant claims that the plaintiff did not follow her manual handling training. It was acknowledged that the work being carried out by the plaintiff for the purpose of her claim was mainly conducted in the new glass area and in the Brazil section of the defendant’s workplace. The Court was brought through various photographs of the work carried out by the plaintiff and the setup at the defendant’s premises. The Court heard the evidence of the plaintiff and of the witnesses for the defendant, including the expert witnesses. The Court has also had regard to the various medical reports and to the reports of PLC Engineering and Donal Terry & Associates Consulting Engineering and to the reports of Professor Leonard O'Sullivan, Ergonomist Limited.

4. Having heard the evidence and what counsel for each party offered in relation to the matter, the Court is satisfied that the plaintiff suffered a personal injury on account of the manner in which she was caused to work at the defendant’s premises. While the defendant claimed to have appropriate systems in place to ensure safe working, there was no evidence before this Court that any genuine steps were made to ensure that this plaintiff adhered to the guidelines, in the sense that there was no evidence of adequate supervision in place for the purpose of the particular plaintiff. The Court accepts the plaintiff’s evidence regarding the manner in which she found herself having to work and the conditions, which included adhering to piece rates, which was linked to the payment that the plaintiff received for the work.

5. It is clear from the medical reports that the plaintiff developed serious arm and back problems, and that she gradually developed pain in her neck and shoulder, which came to a head in the springtime of 2017. There was also evidence of mild degenerative disc disease in an MRI scan. Symptoms were getting worse, and she was feeling weakness in her right arm and hand and had received some physiotherapy. The defendant’s doctor states that the ongoing symptoms were worse in recent times, indicating that same were not work related, given that the plaintiff has ceased working. He says that no long-term complications are anticipated. It is noted that the plaintiff is dealing with significant other medical issues in terms of the brain tumour and prolonged treatment required for same and that she suffered from postoperative seizures and blackouts. He also notes that from a neurological perspective this lady has a comorbid medical history diagnosed with a left side meningioma, which caused distortion of her brain and most likely resulted in a weakness of her right upper limb with variable sensory changes involving her right arm and most likely leading to weakness and disuse with extending adverse effects on the mechanical function of her right shoulder. He states that the left side brain tumour in all probability contributed significantly to the right upper limb symptoms. The other reports note that the patient requires constant rehabilitation and treatment with antiinflammatory and analgesic drugs. The plaintiff suffers from pain syndrome of the right shoulder, cervical spine, and right upper limb with weakness of the right hand. The PIAB assessment notes that the plaintiff’s symptoms were caused by soft tissue job related loadings that also triggered chronic neck pain. Neck and right shoulder investigations haven't revealed any findings other than age related degeneration. Typical expectation would be that rest, oral medication and physiotherapy would settle down her symptoms.

Unfortunately, she reports her condition deteriorated over time and even right upper limb neurological deficits occurred several years later. It definitely means that there were other factors which caused her deterioration and new neurological symptoms several years after she stopped working and stopped being exposed to work loading. This factor was very likely her left hemisphere brain tumour, diagnosed and operated on in April 2017. The most recent reports state that her current condition is mostly related to her brain tumour history and age-related degeneration. The injury she suffered was soft tissue overloading and overuse caused by a non-ergonomic work environment.

6. The Court has read the engineers reports and notes the evidence that was given in Court.

However, the Court is satisfied with the plaintiff’s evidence with regard to the manner of her working conditions and there has been no evidence to the effect that the plaintiff worked in a different way than that which she put forward in evidence. There was merely evidence that there were trollies available and other equipment available to ensure that she wouldn't have to work with her hands overhead at a height but at no point was evidence given that that is in fact what occurred.

7. In summary the medical reports indicate that these injuries were superimposed onto the plaintiff’s degenerative injuries and also the problems that she has suffered with the brain tumours. For shoulder pain the claim is made that this is the main injury. The Court can award up to €33,500 under this heading.

The Court makes the following orders:

1. In light of the pre-existing and subsequent complications in the plaintiff’s case the Court is minded to reduce this figure to the sum of €22,000.

2. With regard to an uplift for neck pain, the amount claimed is in the moderate range in the sum of €30,400. The Court reduces this figure to the sum of €15,200.

3. In addition, the special damages are awarded in the sum of €336.75.

4. The total sum of damages awarded amounts to €37,536.75.

5. The Court also makes an order directing the defendants to discharge the plaintiff’s costs, including reserved and discovery costs to be taxed in default of agreement.

Appearances

Niall O’Driscoll BL for the plaintiff instructed by Boino Solicitors.

Michael Binchy BL for both defendants instructed by ByrneWallace LLP.