Man who hurt back delivering mattress awarded €380,000
A van driver who claimed he hurt his back when a mattress he was delivering was lifted by a gust of wind in to the air and carried him for twelve feet before he was thrown to the ground has been awarded a total of €380,000 by the High Court.
Declan Homan hurt his back when he was delivering the mattress to an apartment on the last of 16 deliveries that day when he was “ caught by a gust of wind.”
Mr Justice Kevin Cross said he accepted Mr Homan has not been able to work since the accident almost seven years ago but he assumed he will be able to do some work in the future.
The judge noted the 54 year old had, since the accident, been able to go on foreign holidays including, Florida, Spain, Corfu, and Tenerife and other holidays financed by his wife.
“Mr Homan was not asked about his pain on the flights to these destinations but neither did he volunteer the flights caused him particular pain."
The judge said he must conclude according to the medical evidence that Mr Homan has chronic pain but on most occasions his pain is in the range of three out of ten and though chronic is not usually severe. The judge also accepted Mr Homan's pain does flare up from time to time to a severe level.
He said Mr Homan was not making the case he has suffered catastrophic injuries but that he has longstanding pain.
When giving evidence the judge said Mr Homan was clearly in pain which could be seen from his facial expression and he would shift to stand from time to time and sit down again.
The injuries the judge said must be classed in a moderately severe category . The total award with loss of earnings included was €430,000 but the judge deducted illness related social welfare payments made to date bringing the total final award to €380,000.
The costs of the five day hearing were also awarded to Mr Homan.
Declan 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 13, 2011. The court heard one of Mr Homan’s brother is a director of Etmar.
He claimed he fell from a height of five feet about twelve feet away from the truck and he alleged he was obliged to unload the mattress without adequate training. Etmar denied all the claims 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 the day of the accident which was a windy day.
Etmar, he said he 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 a prohibition of Mr Homan doing the task.
Mr Justice Cross said he had come to the conclusion the accident occurred because of Etmar's breach of statutory duty and negligence and its failure to assess any risks as well as a failure to train Mr Homan and to warn him of the hazards especially from a height and in particular the failure of Etmar to train him to turn the mattress at right angles after exiting on to the truck tailgate.
The judge added: "That the particular gust of wind was unpredictable does not result in a successful defence of Acts of God on behalf of Etmar."
Mr Justice Cross said if Etmar's allegation of gross exaggeration in relation to his injuries had been accepted by the court it could have resulted in the entirety of Mr Homan's case being dismissed.
He said a party ought not hurl serious allegations of bad faith when they knew or ought to have known these allegations were not supported by the expert they intended to call to give evidence.
A stay in the event of an appeal was granted provided €175,000 was paid immediately to Mr Homan.
