Dunnes loses appeal against €106,000 award to injured worker

Former part-time supermarket staff hurt her back while using pallet truck to move stock

Dunnes Stores argued  the award was excessive and disproportionate. Photograph: Dara Mac Donaill

Dunnes Stores argued the award was excessive and disproportionate. Photograph: Dara Mac Donaill

 

A €105,929 award to a former part-time supermarket worker who injured herself when she fell while operating a pallet truck to move stock has been upheld by the Court of Appeal.

Pamela Phoenix (37), now living in Canada, and formerly of McDonnell Drive, Athy, Co Kildare, sued Dunnes Stores over the incident on September 18th, 2006. She was trying to manoevure the pallet truck backwards in a cold room when she slipped and fell heavily on her bottom and back.

In 2016, the High Court awarded her €105,929 after accepting that as a result of the incident, she suffered chronic back pain and depressive symptomology such that by October 2007 she had put on a lot of weight. The court found she was a credible witness who did not exaggerate her injuries.

Dunnes appealed, arguing the award was excessive and disproportionate.

On behalf of a three-judge Court of Appeal, Mr Justice Gerard Hogan upheld the award saying, while it was probably in the upper range of what is appropriate, the appeal court, given the role of an appeallate court, cannot interfere.

Crutches

Ms Phoenix was taken by ambulance to St Lukes Hospital in Kilkenny after the incident. X-rays did not show any bone damage and she was later discharged with some pain-relieving medication. She was on crutches in the immediate days after the incident.

She was unable to cope with the same store work she had been doing in Dunnes and got another job as a sales assistant in Elverys.

However, she was unable to cope with the continuing pain in her back and ultimately lost that job in January 2007.

She had been a student who found herself unable to work and had “ongoing struggles” with her education at Maynooth University where she ultimately obtained a Diploma in Drama and Theatre Studies. She had hoped to do a masters degree in UCD but endured pain, lack of mobility and felt unable to cope with the requirements and physical demands of a full time course.

Mr Justice Hogan said it was accepted the accident significantly exacerbated an underlying depressive condition leaving her “significantly more psychologically vulnerable and more susceptible to emotional upheaval and depression on an ongoing basis”.

Depressive illness

In 2008, she found work in the UK, became pregnant, and suffered a miscarriage after three months. Her psychiatrist said this “tipped her over the edge” and considerably exacerbated this depressive illness.

In 2013, she emigrated to Canada where she obtained work in a retail outlet and settled in Edmonton where she married in 2015 and in 2016 gave birth to a baby boy. “While life seems better and more promising for Ms Phoenix, she is still affected by the accident,” Mr Justice Hogan said.

While the injury in this case was a routine, unexceptional, soft tissue injury, it was not so in respects including her ongong back pain for over a decade, she became depressed as a result and it significantly impacted on her quality of life, the judge said.

The judge said it was not necessary to resolve an argument from Finbarr Fox SC, for Dunnes, that the onset of more acute depression in the wake of the tragic miscarriage broke the chain of causation. Even if this was resolved in Dunnes’ favour, the award could still be upheld, he said.