A sudden gust of wind which lifted the mattress and injured a delivery man could not be relied on as the defence of an act of God on behalf of a delivery company. Declan Homan (54) of Island Lodge, Walshisland, Co. Offaly sued Etmar Ltd, with offices at Glen Easton Point, Leixlip, Co Kildare as a result of an accident on the 13^th of December 2011. Mr. Homan was delivering a mattress to an apartment being the last of his 16 deliveries that day. He was caught by a gust of wind when he was unloading a mattress from a delivery truck. The plaintiff fell from a height of 5 feet about 12 feet away from the truck. Mr. Homan claimed that he was obliged to unload the mattress without adequate training. He suffered quite severe injuries and was in constant pain but was in a position to go on holidays in the intervening period.

Mr. Kevin Cross, the Judge in the matter classed his injuries as being in the moderately severe category. While the Court said that the plaintiffs employer did not have a duty to be watching the weather at all times he felt that the employer did however fail to assess any risks and also failed to train Mr. Homan and warn him of hazards especially from a height. In particular, the Court stated that Mr. Homan’s employer’s failure to train him to turn the mattress at right angles after exiting on to the truck tailgate was a significant factor that led to his injuries. The employer claimed that Mr. Homan was exaggerating his injuries and the Judge in the case categorically rejected that line of argument. He said that defendants and their insurance companies should not hurl serious allegations of bad faith particularly if those allegations were not supported by the expert that they called to give evidence. While the matter is being appealed the Judge ordered that at least €170,000 would be immediately paid to Mr. Homan.

For any more information on personal injury cases please contact Colm Kelly on 066 9761295 or email ckelly@hcalaw.ie