A supermarket security guard has failed to convince a High Court judge that a trip from catching his foot on a trolley was accidental.
Mr Justice Paul Coffey expressed “unease” about the way the June 2020 incident occurred and said he “cannot be satisfied” Ivan Bubak established, on the balance of probabilities, that the event was an accident.
To succeed in his case for damages for alleged personal injuries, Mr Bubak (46) had to prove not only that his injuries were caused by the defendants’ negligence but also that what occurred was “in fact an accident and not an intentional act on his part”, said the judge.
Mr Justice Coffey concluded that Mr Bubak, of Killegland Crescent, Ashbourne, Co Meath, had seen the trolley and had sufficient space to pass it safely such that the incident could have been avoided by exercising ordinary care.
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The judge dismissed Mr Bubak’s damages claim against his employer, OCS One Complete Solution Limited, with a registered office at Airways Industrial Estate Dublin, and Tesco Ireland Limited, operator of the store in Drogheda, Co Louth, where Mr Bubak was stationed.
His case alleged he caught his foot on the wheel of a trolley and fell forward to the ground, injuring his head, chest, lung, knee and lower back. He claimed he continues to suffer constant pain.
The incident occurred on the evening of June 10th, 2020, as Mr Bubak walked from a storeroom into a narrow passageway which, he alleged, was cluttered with columns of shopping trolleys. He alleged the exit route was hazardous.
The defendants denied they were liable and contended the trip was either intentional or, if not, Mr Bubak had a clear and unobstructed path that he negligently failed to take.
Mr Justice Coffey said CCTV footage showed Mr Bubak face the direction of the trolley that he moments later caught his right foot on. From this, the judge said, it can be inferred he saw the trolley and was fully aware of its presence.
The footage showed that, instead of sticking to the path available to him, the plaintiff extended his right leg away from his line of travel and “hooked it” around the trolley’s rear left wheel, resulting in his forward fall, the judge said.
A consulting engineer for the plaintiff accepted under cross-examination that the footage revealed no obstructions hindering access to the storeroom, the judge said.
Lawyers for the defence put it to Mr Bubak during cross-examination that he deliberately hooked his leg on the wheel, “dragging it like a football player looking for a penalty”. Mr Bubak denied any deliberate intent but acknowledged what he did was “really dangerous”, the judge said. He failed to explain the action, the judge said.
Mr Justice Coffey said his concern about the extension of Mr Bubak’s foot was “not allayed” by his earlier action of moving the rear of the trolley towards him as he entered the storeroom.
The judge was also concerned by the “evasive and obfuscating responses” Mr Bubak gave to simple and direct questions about his history of intermittent lower back pain.
He dismissed the claim.
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