A van driver who claimed he hurt his back when a mattress he was delivering was lifted by a gust of wind into the air, draggging him four metres, has been awarded €380,000 damages.
Declan Homan was delivering the mattress to an apartment on the last of 16 deliveries when he was "caught by a gust of wind", the High Court heard.
Mr Justice Kevin Cross dismissed claims by Mr Homan's employer the incident occurred due to an "Act of God" and found negligence for reasons including training failures in relation to lifting mattresses.
The fact the particular gust of wind was unpredictable does not result in a successful defence of Acts of God, he held. He put a stay on the €380,000 award pending any appeal on condition €175,000 is paid out now.
The judge accepted Mr Homan has not been able to work since the incident in December 2011 but assumed Mr Homan will be able to do some work in the future.
Foreign holidays
Since the incident, Mr Homan has been able to go on foreign holidays including, Florida, Spain, Corfu, and Tenerife and other holidays financed by his wife, he noted.
Mr Homan was not asked about his pain on those flights but also had not said the flights caused him particular pain.
Mr Justice Cross said he must conclude, from medical evidence, Mr Homan has chronic pain and on most occasions his pain is in the range of three out of 10 and, though chronic, is not usually severe.
He acccepted the pain flares up from time to time to a severe level. Mr Homan was not contending he has suffered catastrophic injuries but rather has longstanding pain.
When giving evidence, Mr Homan was clearly in pain, he added.
The judge ruled the injuries must be classed in a moderately severe category and awarded a total €430,000, to include loss of earnings, but deducted illness related social welfare payments to date, bringing the award to €380,000, plus costs of the five day hearing.
Mr Homan (54), Island Lodge, Walsh Island, Co Offaly had sued Etmar Ltd, with offices at Glen Easton Point, Leixlip, Co Kildare as a result of the accident on December 13th, 2011.
Dragged along
The court heard one of Mr Homan’s brothers is a director of Etmar.
Mr Homan claimed he fell about two metres and was dragged for four metres and also that he was obliged to unload the mattress without adequate training.
Etmar denied liability and contended the incident was an Act of God.
Mr Justice Cross said he did not accept Etmar was in any sense negligent in requiring Mr Homan to work on a windy day.
Etmar did not have a duty to be watching the weather at all times and, given the sudden nature of the gust no reasonable system would have resulted in prohibition of Mr Homan doing the task.
Mr Justice Cross concluded the accident occurred due to Etmar’s breach of statutory duty and negligence. He found it failed to assess any risks, to train Mr Homan and warn him of the hazards, especially from a height, and particularly to train him to turn the mattress at right angles after exiting on to the truck tailgate.
If Etmar’s allegation of gross exaggeration in relation to Mr Homan’s injuries been accepted by the court, it could have resulted in the entire case being dismissed, he said. A party should not hurl serious allegations of bad faith when they knew or ought to have known these allegations were not supported by their expert witness, he said.