The High Court’s recent decision in Smith v Health Service Executive will be of interest to both employers and those involved in litigation generally, for two reasons.

First, it confirms that although employers can be held liable for standing by and failing to intervene while employees engage in dangerous practices in the workplace, a court may reduce any award of damages given to an employee by reason of contributory negligence where the dangerous practice was commenced by the employee. This should serve as a reminder to employers of the importance of maintaining a robust health and safety at work policy and ensuring the compliance of its employees with it, but may also provide some comfort that employers may not be 100% liable for injury to employees as a result of their own dangerous actions.

Secondly, the decision highlights the high threshold required to be met in order to apply to the court to have a claim struck out due to false or misleading evidence being provided. In this instance, the court was less than impressed with the Defendant employer for making such an application without sufficient basis as an attempt to strike out the claim on a technicality. Employers should be cognisant that any unjustified attempt to make this argument in litigation with an employee could result in a larger award of damages being made against them.

Liability for condoning dangerous practice by employees

The Plaintiff was employed by the Defendant employer as a cleaner (or 'Household Assistant') at a rehabilitation institution for boys. While cleaning a shower area one day, the Plaintiff was required to prop the area’s door open with a broom handle, because the door's hinges were broken. In the process of cleaning, she backed into the door and tripped over the broom handle, causing her to suffer a serious spinal injury. She brought proceedings alleging negligence on behalf of her employer in allowing/condoning a dangerous practice of propping doors open with broom handles, which caused her injury.

The Defendant's position was that it was not aware of the practice of its employees holding doors open with broom handles and if it had been aware of it, it would have taken steps to prevent it. The Defendant agreed that the practice was dangerous. On the evidence, the court found that the employer had been aware of the practice or at least ought to have been aware of it. The Plaintiff was successful with her claim but the court did find that the employee contributed 25% to the accident.

The key point in this decision is that where it is common for employees to engage in a certain practice in the workplace (in this case, propping doors open with broom handles when cleaning), and the employer is aware of this practice, and that practice is dangerous, the employer condoning the practice/allowing it to continue constitutes a breach under section 8(1) of the Safety, Health and Welfare at Work Act 2005 and the employer's common law duty of care to its employees.

Section 26 Applications

Finally, in this case the Defendant employer made an application under section 26 of the Civil Liability and Courts Act 2004 to strike out the proceedings on the basis that the Plaintiff provided false or misleading evidence, on the following grounds.

As is normal in personal injury proceedings, the Defendant's Notice for Particulars sought details of any past injuries suffered by the Plaintiff employee, and the Plaintiff's Replies referred to a number of past injuries.

Later in the proceedings, the Defendant obtained the Plaintiff's medical records through discovery, which turned up various past injuries which the Plaintiff had not mentioned in her Replies to Particulars.

Counsel for the Defendant challenged the Plaintiff on this point in cross-examination and the Plaintiff's position was that she didn't include those injuries in her Replies to Particulars simply because she forgot about them.

Judge O'Neill dismissed the Defendant employer’s application to strike out the employee’s claim on the basis that the past injuries which the employee neglected to mention in her Replies to Particulars were so insignificant and unrelated to the injuries the subject matter of the proceedings that it was understandable that she would forget about them and this could not be considered misleading or false evidence.

Interestingly, Judge O’Neill was very critical of the employer for bringing the application in these circumstances, describing it as "a forensic assault” on the employee and an "opportunist attempt to evade liability by a misconceived invocation of section 26".

The decision clarifies the purpose of section 26 as being to dissuade fraudulent claims, rather than giving "an opportunity to prey on the frailty of human recollection or the accidental mishaps that so often occur in the process of litigation".

The result of the application would most likely have been different if the injuries which the Plaintiff withheld from her Replies to Particulars were injuries that were related to those allegedly sustained as a result of the Defendant's actions so as to genuinely give rise to a question over liability for those injuries (as was the case in, for example, Stacey Montgomery v The Minister for Justice, Equality and Defence and Eugene McCarthy [2012] IEHC 443)

The net point is that applications to strike-out proceedings under section 26 will only be entertained where there are substantial grounds and a Defendant may be liable for aggravated/exemplary damages for bringing such an application where there are no substantial grounds.