Court dismisses claim for back injury from wheelbarrow mishap as everyday accident not employer liability.

THE HIGH COURT

CIRCUIT COURT APPEALS

[2025] IEHC 364

RECORD NUMBER 2017/00508

BETWEEN

MARK LAWLESS

PLAINTIFF/APPELLANT

AND

ADRIAN KEATLEY

DEFENDANT/RESPONDENT

JUDGMENT OF Mr. Justice Twomey delivered on the 26th day of June, 2025

INTRODUCTION

1. This case deals with an incident (i.e. the plaintiff felt a pain in his back when emptying a wheelbarrow), which, if it happened in a domestic setting would be regarded as an unfortunate everyday mishap or accident, in the sense that no one was to blame. This judgment considers whether incidents such as these should lead to compensation, simply because they occur on the premises of a third party with insurance, e.g. that of an employer, a businessperson or indeed the State.

2. This judgment also considers the usefulness, to the courts, of expert evidence from engineers when courts are considering unfortunate everyday mishaps, or whether the courts are capable of assessing those everyday mishaps by applying common sense.

3. These two very same issues were recently considered by the Court of Appeal in Nemeth v Topaz Energy Group Limited [2021] IECA 252 in the context of a person who brought a claim for compensation against her employer. It arose from the fact that Ms. Nemeth felt a pain in her knee when she stood up after doing the most everyday of tasks (i.e. bending down to access a press at ground floor level), while doing a stock-take at work.

4. In this case, as in Nemeth, we are also dealing with an everyday task, namely the emptying of a wheelbarrow (which wheelbarrow was perfectly fit for use). Similar to the plaintiff in Nemeth, the plaintiff in this case (“Mr. Lawless”) felt a pain (in this instance, in his back, rather than his knee) while undertaking this everyday task. It seems clear to this Court that if this incident had occurred in Mr. Lawless’ home/garden, it would be regarded as an unfortunate everyday mishap or an accident (in the true sense of that word, i.e. where no one was to blame). However, it happened when Mr. Lawless was working as a stable hand for the defendant, his former employer and racehorse trainer (“Mr. Keatley”).

5. For this reason, this unfortunate everyday mishap led to a claim by Mr. Lawless for compensation from Mr. Keately. It also led to this Court having to consider expert engineering evidence to support a claim that Mr. Lawless’ emptying of a wheelbarrow constituted an ‘unsafe system of work’, just as the Court of Appeal in Nemeth had engineering evidence on whether an employee bending down to access a ground-level press might or might not constitute a safe system of work. Common sense and a degree of scepticism needs to be applied to personal injury claims

6. In considering claims such as these, it is relevant to note that the Supreme Court stated in Rosbeg Partners v L.K. Shields [2018] 2 I.R. 811 at p 822 (per O’Donnell J., as he then was) that where one party is seeking damages from another for an alleged wrong (in that case damages for professional negligence):

“It is important to remind ourselves that courts should approach claims such as this not simply on the basis of the genuineness or plausibility of witnesses, but by applying common sense and some degree of scepticism.” Litigation inevitably shines a very bright light on the events the subject matter of a claim, but it is also a distorting process in at least two ways. First, there is an inevitable tendency to highlight and focus only upon the issues which are particularly relevant to the claim. Second, the light is being shone in retrospect, when we know the outcome of the events. Inevitably, there is a tendency to recall events and attribute to them a significance in the light of what is known to have occurred subsequently. This is not a reflection on the honesty of witnesses, rather it is human nature.” (Emphasis added)

7. It seems clear that O’Donnell J.’s reasoning applies equally to a person claiming damages for personal injuries, as it does to a person claiming damages for professional negligence. It follows therefore that in line with Rosbeg, the courts ‘should approach’ personal injury claims, where one person is seeking compensation from another, by applying common sense and some degree of scepticism. The application of ‘common sense’ and ‘scepticism’ to personal injury claims

8. The Court of Appeal case of Nemeth is a perfect example of this ‘common sense’ and ‘scepticism’ in action. In rejecting the plaintiff’s claim for damages for hurting her knee when she bent down to access a press in her employer’s premises, Noonan J. stated (at para 40) that when a court is dealing with expert evidence from engineers on ‘ordinary everyday matters with which most people would be expected to be familiar’ the court can bring ‘its own common sense to bear’. Thus, in that case, the court did not need expert engineering evidence on whether bending down to access a ground-level press constituted a safe system of work, it was able to apply common sense to assess this everyday incident.

9. This statement that common sense can be brought to bear, in the context of an employee bending down to access a ground-level press, is equally relevant to how this Court considers expert engineering evidence on a ‘safe system of work’ when a person is emptying a wheelbarrow. Accordingly, this court does not need expert engineering evidence on emptying a wheelbarrow and can bring common sense to bear on this everyday activity.

An employer is not an insurer of an employee

10. Also relevant is the Court of Appeal’s statement in Nemeth (at para 48) that ‘an employer is not an insurer’ of an employee. This means that an employer is not liable for an injury resulting from an employee doing an everyday task, simply because he/she happened to do that task at work (where this is a task he/she could just as easily do at home in the same manner). To put it another way, just because an employer has an insurance policy for accidents at work does not mean that he/she (and more particularly his/her insurance company) should be regarded as being liable for unfortunate everyday mishaps.

11. In Nemeth, the employer was held not to be liable when an employee hurt her knee when she was bending down to a ground level press to do a stock-take in a shop. If this incident had occurred in the home, it is likely to have been described as an unfortunate everyday mishap, whereby she tweaked her knee while bending down to a press at floor level – no more and no less.

12. However, because this bending down to a ground-level press occurred at work, this unfortunate everyday mishap became a ‘workplace accident’ and more particularly, one which, it was claimed, would not have occurred, were it not for the employer’s alleged negligence in failing to provide a ‘safe system of work’. This then led to engineers being engaged to provide expert opinions in Nemeth on how the employer had allegedly been negligent in failing to provide a safe system of work by failing to provide a stool and a cushion (for an employee who felt a pain in her knee after bending down for a one or two minutes).

13. However, it is clear from Noonan J.’s judgement that the fact that the bending down to access a lower shelf was done in the workplace, rather than in the home, did not convert this unfortunate everyday mishap into an act of employer’s negligence. Noonan J. noted at para 41 that the: “task here being undertaken by [Ms. Nemeth] was an ordinary everyday activity of a kind undertaken very frequently by most people in a domestic and work setting. It falls to be considered as such.” (Emphasis added)

14. In light of Rosbeg and Nemeth therefore, one way in which to apply the ‘common sense’ and ‘scepticism’ (which a court is required by the Supreme Court to apply to such personal injury claims), is by the courts treating ordinary everyday activities (if that is what they are) ‘as such’, and not as anything more. This can be done by asking: if the same incident had happened in the home or other domestic setting, would it be regarded as an ‘accident’ (in the true sense of that word, i.e. where no one is to blame)? If so, it is difficult to see how an employer/businessperson/the State could be liable for that incident just because it happened on their premises.

15. In Nemeth, since the claim was dismissed, the employer did not have to pay damages. In addition, the employer did not have to pay the employee’s lawyers their High Court legal costs, which is often of much greater significance. This is because in many cases ‘prohibitive’1 High Court legal costs will dwarf2 the damages awarded. In financial terms3 therefore, this is Bourbon v Ward [2012] IEHC 30 at page 40, per Kearns P. The most recent example is provided by the case of Byrne & Anor v Abo Energy Limited & Ors [2025] IEHC 330, where the costs, of one side only, were estimated to be €2.3 million, which dwarfed the damages awarded in that case of €360,000 (Irish Times 23 June, 2025) Of course, this assumes that the plaintiff in a personal injuries case has the means to pay legal costs. If he/she does not, then it is not a level playing field between a plaintiff and a defendant, but a lose-lose situation for the defendant. This is because, in such cases, it will make financial sense for a defendant to pay say €20,000 in damages and legal costs to settle with a plaintiff, with a hopeless case, rather than spending €50,000 on legal costs winning such a case, as those costs will never be recovered from that plaintiff. In this regard, in Farrell v. The Governor and Company of the Bank of Ireland [2013] 2 ILRM 183 at para. 4.12, Clarke J. (as he then was) referenced the use of the threat of high legal costs, by litigants with no means, as a form of ‘blackmail’.

the real effect of the statement by the Court of Appeal that an employer is not the insurer of an employee.

16. To put it another way, the presence (or indeed absence) of insurance has absolutely no relevance to the key issue in personal injuries cases. An unfortunate everyday mishap does not become someone’s fault because it happens on the premises of an employer with insurance (or on the premises of a person with means). The test remains has the employer failed to exercise reasonable care? This is the key principle to be taken from the Nemeth case for all businesses, but particularly small businesses, like the individual horserace trainer in this case (who was operating personally and not through a company), when faced with claims for unfortunate everyday mishaps from employees (or indeed members of the public that happen to occur on their premises.)

BACKGROUND

17. Mr. Lawless injured himself when emptying a wheelbarrow, which is, in this Court’s view, an ‘ordinary everyday activity’, to use the expression used by Noonan J. in Nemeth (at para 48). It is also the case that Mr. Lawless was using the wheelbarrow in a most unorthodox manner (and there is no suggestion that he was told to do so, by his employer). This is because Mr. Lawless decided to empty the wheelbarrow, not when it was on the flat, but when it was on an upward incline.

18. Because Mr. Lawless was doing this everyday task on his employer’s premises, Mr. Lawless claims that he is entitled to damages from his employer, Mr. Keatley, for the resulting pain and suffering he endured as a result of the injury he sustained, namely the back spasm which he suffered at the time of the incident and the resulting injury to his back.

19. Mr. Lawless is no longer employed by Mr. Keatley as he left his job as a stable hand with Mr. Keatley after only 6 to 8 weeks of work. He now works as an auctioneer.

The actions which led to the alleged injury

20. Mr. Lawless claims that on 9 March 2016 he was injured when he was cleaning-out soiled hay from the horse boxes at Mr. Keately’s stables at Rossmore Cottage Stables in The Curragh, Co. Kildare, and in particular when he was emptying a wheelbarrow of soiled hay into a dungstead. The dungstead was a specially constructed three-sided structure, with concrete flooring and concrete walls. The walls of the dungstead are 2 metres high and it is approximately 9 metres long and 9 metres wide.

21. Mr. Lawless’ job was to fill 10 to 15 full wheelbarrows of soiled hay from the horse boxes and then to empty those wheelbarrows in the dungstead between 7.30 am to 1 pm each day. According to Mr. Lawless’ oral evidence to this Court, the injury occurred when he pushed the wheelbarrow up an incline of the soiled hay and proceeded to tip out the wheelbarrow while the wheelbarrow was on the incline. However, it is relevant to note that Mr. Lawless was tasked with throwing loose soiled hay from the floor of the dungstead, with a fork or shovel, onto the higher mounds of soiled hay, so as to keep the concrete floor of the dungstead clean, and so also flat. This procedure enabled the wheelbarrow to be tipped out on a flat surface, rather than on an incline.

22. It is also relevant to note that Mr. Lawless had two horses of his own and so was well familiar with emptying horse boxes of soiled hay by means of a wheelbarrow and a fork (the implements provided to him by Mr. Keatley).

23. However, even if this were not the case, this is a case which is similar to Nemeth, in that it involves an everyday task, emptying a wheelbarrow, which does not require any particular training. To quote Noonan J. (at para 41), it is an ‘ordinary everyday activity’ and so it ‘falls to be considered as such.’

24. Evidence was provided by Mr. Peter Keatley (no relation to the defendant) that he provided contracting services to empty the dungsteads, which he did every 2 or 3 weeks. He also said that he would empty the dungstead when it was ⅔ full. In this regard, since he got paid each time he emptied it, he accepted that it was in his financial interests to do so when it was ⅔ full, rather than waiting for it to be full. He also provided evidence that he attended with mechanical machinery every 4 to 6 days to push the soiled hay towards the back of the dungstead. This operation took approximately 5 minutes and it had the effect of making the concrete floor at the front part of the dungstead completely clear. This then led to a greater area of flat surface, from which to empty the wheelbarrow.

25. In this regard, it was clear from the evidence that Mr. Lawless was aware that he could ask for Mr. Peter Keatley to attend the stables with his machinery to push back the soiled hay, as and when Mr. Lawless felt it was needed. In this context, Mr. Lawless gave evidence that he was filling the dungstead on his own. For this reason, it is clear that he was the person best positioned to decide whether or not he needed to have the soiled hay pushed back to clear the flat concrete floor, so as not to necessitate the emptying of the wheelbarrow on an incline of soiled hay.

26. It is also to be noted that the intervals at which the soiled hay was mechanically pushed back in practice were well within what Mr. Lawless’ engineer, Mr. Colin Gamble (“Mr. Gamble”) thought would be appropriate. He had estimated that it should be done every 10 days (based on the number of horses and the size of the dungstead) and Mr. Peter Keatley’s evidence was that it was done, well within this recommendation, since it was done every 4 to 6 days.

27. In claiming that Mr. Keatley should pay him compensation for the injury to his back, Mr. Lawless does not claim that that the wheelbarrow, provided by Mr. Keatley, was defective. Instead, he claims that he injured his back after rolling the wheelbarrow up an incline of soiled hay/dung and then from this position on the incline, emptying the wheelbarrow. At the hearing, it was this action of emptying the wheelbarrow on an upward incline which Mr. Lawless said led to his back going into a spasm on the day of the incident.

Emptying a wheelbarrow on an upward incline

28. It is important to note therefore that the essence of Mr. Lawless’ claim that Mr. Keatley owes him money, in the form of damages, is that firstly Mr. Lawless injured his back, after rolling a wheelbarrow up an incline of material of soft density (soiled hay/dung) and secondly in his trying to empty a wheelbarrow on that upward incline.

29. There are a number of points that can be made about this key claim, which was at the core of this case

(i) Emptying a wheelbarrow on upward incline appears nowhere in pleadings

30. The first point is that it is curious that this claim, which was at the core of Mr. Lawless’ claim for damages at hearing (i.e. emptying of a wheelbarrow on an upward incline) appears nowhere in the pleadings. Instead, in his Personal Injury Summons, he states that ‘in the course of pushing the heavy wheelbarrow and tripping its contents out into a dung heap’, he injured his neck and back. Similarly, in his Replies to Particulars, he outlines the claim he is making by stating that he ‘was obliged to over-fill the wheelbarrow’. It is important to note that this was the claim which Mr. Keatley was required to meet.

31. It was not a surprise therefore that Mr. Keatley’s engineer, Mr. Peter Johnston (“Mr. Johnston”) in seeking to provide expert evidence regarding this claim, only dealt in his report with the fact that the wheelbarrow was not defective as it was perfectly fit for purpose (a fact which is not disputed by Mr. Lawless).

32. Indeed, the engineering evidence was clear (and this also was not disputed) that the wheelbarrow in question, had pneumatic wheels which were set further back than a traditional wheelbarrow and the container part of the wheelbarrow was on its own axis at the front of the wheelbarrow, which made it particularly easy to empty. Indeed, Mr. Johnston stated that he was able to operate it with the power from just his fingers, rather than his hands.

(ii) Courts can apply common sense to emptying of a wheelbarrow on an incline

33. The second point to note is that the Court of Appeal in Nemeth states that courts are entitled to bring common sense to bear on ordinary everyday matters. Emptying a wheelbarrow is an ordinary everyday matter. It is not, in the words of Noonan J. (at para 40 of Nemeth) one of the ‘highly specialised areas of, for example, medical or scientific expertise’ which might require engineering or other expert evidence.

34. Accordingly, a court does not require an engineer to tell it that one should empty a wheelbarrow on the flat, and not try to empty a wheelbarrow on an upward incline, since this is basic common sense.

35. Indeed, Mr. Paul Barrett, who was a stable hand of Mr. Keatley’s at the time of the incident (but has since left), made it clear that, in his view, it would defy all logic for a person to try to go up an incline to empty a wheelbarrow. He also gave evidence that Mr. Keatley took particular pride in keeping his yard clean.

36. Mr. Keatley stated that it would be impossible to push a full wheelbarrow up a soft surface, such as the soiled hay and dung, as the axle would get caught in the surface. Mr. Johnston gave similar evidence regarding how hard it would be to push a wheelbarrow up an incline of material of low density and to empty a wheelbarrow on an incline, but again a court does not need expert engineering advice to reach this conclusion. This is basic common sense.

37. Indeed, Mr. Barrett put it most colourfully when he stated that attempting to empty a wheelbarrow on an incline of dung would require the ‘strongest man in the world’.

38. It is clear to this Court that pushing the wheelbarrow up a slope of low density material, such as spoiled hay and dung, would be very difficult because the bottom of the wheelbarrow would come into contact with the material. Furthermore, once up the slope, on an upward incline, raising the wheelbarrow to tip out the material would be particularly difficult, compared with doing so on the flat, since one would have to apply much greater force to lift the wheelbarrow from below one’s waist to above one’s waist.

39. Yet the very basis of Mr. Lawless’ claim for damages from Mr. Keatley is that he emptied a wheelbarrow on an upward incline in this manner.

(iii) Reference to incline only surfaces after engineer report

40. Considering that emptying a wheelbarrow on an upward incline is the basis of Mr. Lawless’ claim for negligence, and bearing in mind how unorthodox a manner, this is, in which to empty a wheelbarrow, it is strange that this way of using the wheelbarrow never appeared in Mr. Lawless’ pleadings. In fact, it only surfaced for the first time in 2023, some 6 years after the proceedings issued in 2017.

41. This is because the reference to emptying the wheelbarrow on an incline only surfaced for the first time after Mr. Lawless’ engineer, Mr. Gamble, issued his report, in which he referred to emptying a wheelbarrow on an upward incline.

42. Furthermore, Mr. Gamble’s report and photographs were of limited assistance since it contained photographs of the dungstead, with inclines of material in the dungstead (albeit resembling sawdust, rather than soiled hay) to which Mr. Gamble referred in giving evidence. However, these were photographs of the dungstead, not when it was operated by Mr. Keatley (as he had ceased operating there), but some seven years after the incident, when it was operated by a completely different racehorse trainer.

43. Bearing in mind that the physical structure of the dungstead is not an issue in the case, but rather how it was operated (i.e. the presence of inclines of soiled hay and the emptying of wheelbarrow on those inclines), photographs of how a dungstead was mainatined by a later operator of the dungstead were of limited relevance to a claim of how an earlier operator of the dungstead maintained the dungstead.

44. In summary therefore, Mr. Lawless’ claim that he was injured when emptying a wheelbarrow in a most unorthodox manner (i.e. on an upward incline), which is the core of his case, only surfaced

• for the first time six years after he issued the proceedings and then,

• only after an engineer took photographs showing inclines of material in the dungstead operated by a different racehorse trainer. This is curious to say the least. However, it is even more curious that any person would

• decide firstly to push a wheelbarrow up any incline, let alone an incline of material of soft density, into which the wheelbarrow would sink, and

• then secondly, once on the incline, try and tip out the wheelbarrow by having to expend considerable amounts of energy to lift up the wheelbarrow from below the horizontal level (as it was on an incline) to above the horizontal level, in order to effect the emptying of the wheelbarrow. Rolling a wheelbarrow, up an incline in order to empty it, defies common sense

45. In this Court’s view, if Mr. Lawless did what he said he did (and what his engineer, some 6 years after the proceedings issued, believes amounted to an unsafe system of work on the part of the employer), this would defy all ‘common sense’ – something which the Court of Appeal has stated may be brought to bear by a court in determining issues involving ordinary everyday matters, such as the emptying of a wheelbarrow.

46. Furthermore, if Mr. Lawless did these two manoeuvres (rolling a wheelbarrow up an incline of soft density material and when on the incline tipping the wheelbarrow), this would or should have been front and centre of his claim, when he issued proceedings and replied to particulars, since these actions were so unorthodox.

47. Instead, this most unorthodox manoeuvre, which was front and centre of the hearing, only appeared in the case after Mr. Gamble’s report with photographs of how the dungstead was operated, not by Mr. Keatley, but by an unrelated third party.

48. In all these circumstances, on the balance of probabilities, this Court does not find it credible that Mr. Lawless, who had plenty of experience using wheelbarrows and emptying out soiled hay from horse boxes in his own home, and presumably in an orthodox manner, operated the wheelbarrow in the unorthodox manner suggested.

49. It seems to this Court that, on the balance of probabilities, Mr. Lawless’ recollection of the events is not accurate. As noted by O’Donnell J. in Rosbeg at p 823, litigation is ‘a distorting process’ and: “memories and consequently accounts [..] become subtly and unwittingly adjusted under the focus of a case, and in the light of the consequences of failure”.

50. As noted by O’Donnell J. this is ‘not a reflection of the honesty of witnesses, rather it is human nature.’ Similarly, in this Court’s view, Mr. Lawless’ recollection of events has become subtly and unwittingly adjusted. In support of this conclusion, it is relevant to note that this is not the only apparent inconsistency in Mr. Lawless’ account of the incident. This is because there are several inconsistencies between Mr. Lawless’ version of events and what was recorded by medical professionals treating him. For example, Dr. Mishra’s note of 21 April 2016 states that Mr. Lawless’ problem arose, not from the use of the wheelbarrow, but rather from a fall ‘while looking after horse’ since it states: “Back pain – upper and lower. Since fall 1 ½ month ago while looking after horse.” Similarly, while Mr. Lawless gave oral evidence that he went into back spasms as he was emptying the wheelbarrow, Dr. Paul Kelly’s letter states that he had no symptoms until about

2 to 3 days following the incident. Similarly, in the admission note done by Dr. Leah Rooney at the Hermitage Clinic, it is stated that ‘no symptoms immediately after injury 2 days later developed pain in neck and reports spasm’.

51. For this reason, this Court concludes that Mr. Lawless did not damage his back while emptying the wheelbarrow on an upward incline, which would be a most unorthodox manner in which to empty a wheelbarrow. Instead, it seems to this Court that Mr. Lawless’ injury to his back, if it happened as a result of his emptying the wheelbarrow, was an unfortunate everyday mishap when doing the everyday task of emptying a wheelbarrow in the usual manner, i.e. for a flat surface, and for which his employer has absolutely no liability. In any event, it was Mr. Lawless’ task to ensure that the concrete floor was clear

52. However, even if this Court is wrong in relation to how the incident occurred, and Mr. Lawless did in fact use the wheelbarrow as he claimed, it seems to this Court there could be no liability on the part of the employer, for not providing a safe system of work.

53. This is because it was Mr. Lawless’ task to ensure that the concrete floor was clear, so that a flat surface was available from which to empty the wheelbarrow, whether that was by him using the fork or shovel to clear that area or by him requesting that Mr. Peter Keately be asked to clear the area by machine (which, this Court was told only takes 5 minutes). Mr. Lawless, as the only person filling the dungstead, was the person who knew best when this machine clearing was required. Thus, if because he did not clear the area himself, or if because he failed to request that Mr. Peter Keatley be asked to clean it, this was his responsibility. If he failed to do this, but instead chose to do a most unorthodox manoeuvre with the wheelbarrow, this is not an unsafe system of work, but rather an employee who has no regard for his own safety. This is therefore a second ground upon which to dismiss Mr. Lawless’ claim. Dismissal of case because claim that wheelbarrow emptied on incline was not pleaded

54. Furthermore, even if this were not the case, this Court believes that this is a case where the claim which Mr. Lawless made at the hearing was not made in in his pleadings. In this regard, the comments of the Court of Appeal (per Collins J.) in Morgan v ESB [2021] IECA

29 at para 3 et seq have particular relevance to this case: “The Plaintiff’s action here was a “personal injuries action” within the meaning of the Civil Liability and Courts Act 2004 (“the 2004 Act”) and was therefore subject to the provisions of Part 2 of that Act. Part 2 contains important provisions regarding pleadings in personal injuries actions. Focusing on those applicable to pleadings by a plaintiff, section 10(2) sets out various matters which a personal injuries summons shall specify, including: ‘(f) full particulars of the acts of the defendant constituting the .. wrong and the circumstances relating to the commission of the said wrong’ ‘(g) full particulars of each instance of negligence by the defendant.’ The need for clarity and specificity is further reinforced by section 13(1)(a), which provides as follows:

‘(1) All pleadings in a personal injuries action shall—

(a) in the case of a pleading served by the plaintiff, contain full and detailed particulars of the claim of which the action consists and of each allegation, assertion or plea comprising that claim’. Corresponding obligations are imposed on defendants by sections 12 and 13(1)(b) of the 2004 Act. I considered the effect of those sections in Crean v Harty [2020] IECA

364 and in the course of my judgment noted that ‘the provisions of sections 10-13 of the Act are clearly intended to ensure that parties (including defendants) plead with greater precision and particularity so that, in advance of trial, the actual issues between the parties will be clearly identified’ (at para 23).

[…]

The intended effect of section 14 would be greatly undermined if parties were permitted to continue to plead claims in wholly generic terms. Thus – unsurprisingly

– the provisions of Part 2 relating to pleadings, and the requirement for verification introduced by section 14, operate coherently. Plaintiffs (and defendants) are required to state clearly and specifically what their claim (or defence) is and identify the basis for it in their pleadings and must then verify that claim (or that defence) on affidavit. Where further particulars are furnished, such must also be verified on affidavit. Unless pleadings are clear and meaningful, the value of section 14 verifying affidavits will be significantly diluted.” (Emphasis added)

55. Similarly in Begley v Damesfield Ltd & Ors [2020] IECA 171 at para 82, Donnelly J. stated that: “[T]he purpose behind the requirement to plead one’s case is so that the real questions of controversy between the parties will be determined in the litigation and the other party will know and will have the opportunity to meet the case against them.” In this case, Mr. Keatley was not provided with sufficient precision in the pleadings regarding the case he had to answer. Based on the pleadings, Mr. Keatley would have had no idea that the key issue in the trial was going to be the claim that the system of work, which was alleged to be unsafe, involved Mr. Lawless emptying a wheelbarrow in a most unorthodox fashion, namely pushing a wheelbarrow up an incline and then emptying that wheelbarrow on an incline. This is because the whole basis of Mr. Lawless’ case, on the pleadings, was simply a claim that he injured himself while pushing a heavy wheelbarrow with a very generic claim that Mr. Keately had failed to devise a ‘proper and safe system’ for the cleaning out of the stables.

56. All of this means that, if this Court had not found, on the facts, that there was no emptying of a wheelbarrow on an upward incline, it would have found that Mr. Lawless was not permitted to make this claim at the hearing, as this was never his pleaded case.

57. In this regard, this case has similarities with the case of McCeoghan v Kelly & Ors [2021] IECA 123, where at para 29 Noonan J. noted that, similar to this case, ‘the essential basis’ of the plaintiff’s claim in that case was never pleaded. He noted that the provisions of the 2004 Act (to which Collins J. referred in Morgan) would be ‘robbed of any meaningful effect if courts were at large to determine the outcome of litigation’ without reference to the pleadings.

58. More relevant still is the case of Ahmed v Castlegrange Management Company [2022] IECA 269. This is because at para 27, Noonan J. stated that ‘expert reports are not pleadings’ and that the fact that some particular case is made by an expert (as in this case, by Mr. Gamble), that the plaintiff had emptied the wheelbarrow on an upward incline does not ‘relieve a party from the obligation to plead the case clearly and specifically’. Noonan J. went on to note that the provisions of the 2004 Act would be ‘significantly undermined were cases to be run on the basis of information contained in expert reports rather than pleadings’.

59. Yet this is what happened in this case, where the ‘essential basis’ of the claim was not in the pleadings, but was made out by the engineer, who was engaged some 6 years after pleadings issued. If this were to be permitted, it would undermine the obligation under the 2004 Act on the plaintiff to plead his case ‘clearly and specifically’. This therefore is a third ground upon which to dismiss the claim.

CONCLUSION

60. The Court of Appeal has made it clear that an employer is not an insurer when it comes to his/her employees. In practical terms, this means that an employer is not liable for everyday unfortunate mishaps that occur to employees, that could just as easily occur in the home, just because they happen at work.

61. There could be nothing more ordinary than bending down to access a ground floor press (as in Nemeth) or emptying a wheelbarrow (as in this case), which can be done just as easily in one’s own home/garden as it can be done on an employer’s premises. Accordingly, if an injury occurs to a person emptying a wheelbarrow at work, rather than at home, it does not become the liability of an employer, simply because the employer benefits from the activity or because the employer is insured. This is because unfortunate everyday mishaps do not revert from being an accident (where no one is to blame) into to an ‘accident at work’, for which the employer is liable, just because they occur on the premises of someone with insurance (or on the premises of someone with the means to pay compensation).

62. In particular, the fact that the employer, or owner of the premises, had the foresight to take out insurance has no bearing on the legal treatment of the accident and that person is not held to be at fault for an unfortunate everyday mishap that could just as easily happen in the home as on his/her premises.

63. In this case, this Court concludes that:

• On the balance of probabilities, Mr. Lawless is mistaken in his recollection of events. In this Court’s view, he did not roll a wheelbarrow up an incline of soiled hay and once on the incline attempt to empty the wheelbarrow. This is because this is such an unorthodox manner in which to empty a wheelbarrow, that if he had done so, in this Court’s view, he would have made that claim in his pleadings.

• Instead, it is this Court’s finding that on the balance of probabilities Mr. Lawless emptied the wheelbarrow from a flat surface and unfortunately felt a pain his back while doing so. This is an everyday misfortunate mishap for which his employer, Mr. Keatley, is not liable.

• Even if this Court is wrong and Mr. Lawless did empty the wheelbarrow in the unorthodox manner he described, he is not permitted to make that claim at the hearing of this action, since it was never pleaded. This is because all defendants are entitled to know the case which was being made against them and Mr. Keatley was not provided with sufficient precision in the pleadings regarding the case he had to answer.

• Even if this Court is wrong and Mr. Lawless is permitted to make this claim, it is clear from the evidence that it was his responsibility to ensure that the surface from which he was emptying the wheelbarrow was flat. If he failed to do so and then decided to roll a wheelbarrow up an incline and seek to empty it on that incline, any injury to his back is not the responsibility of his employer.

64. Finally, it is to be noted that the Supreme Court in Rosbeg requires courts dealing with personal injury claims to apply ‘common sense’ and ‘some degree of scepticism’ to those claims. This can be done by asking if the pain which Mr. Lawless felt in his back unloading the wheelbarrow would be regarded as an ‘accident’ (in the true sense of that word, i.e. where no one is to blame), if it happened in his own garden? In this court’s view, it would be so regarded. Accordingly, it is not something for which his employer, Mr. Keatley is liable, simply because it happened on Mr Keatley’s premises and/or when Mr. Lawless was working for him.

65. For all the foregoing reasons, Mr. Lawless’ claim is dismissed and this Court’s preliminary view is that the costs of the proceedings, in this Court and in the Circuit Court, should be awarded against Mr. Lawless, subject to this Court hearing the views of the parties.

66. This case will be provisionally put in for mention at 10.45 a.m. a week from its delivery to deal with any final orders and costs. However, in order to facilitate the parties agreeing all outstanding matters, the parties have liberty to notify the Registrar if such a listing proves to be unnecessary. This is particularly so in light of the clear implication from Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189 at para 94, that there is an onus on lawyers to take a broad-brush approach to costs and not to engage in the inefficient use of court resources and costly ‘nit-picking’.