2026 IEHC 287

APPROVED THE HIGH COURT AN ARD-CHÚIRT [2026] IEHC 287 Record No. 2020/8108P BETWEEN/ NIALL GOVERS PLAINTIFF -AND- CANURIE LIMITED TRADING AS McGEOUGH’S BAR AND RESTAURANT DEFENDANT JUDGMENT of Mr. Justice Conleth Bradley delivered on the 8th day of May 2026 CONTENTS INTRODUCTION................................................................................................................................ 4 Preliminary ........................................................................................................................................ 4 THE PLAINTIFF’S EVIDENCE ....................................................................................................... 6 Use of the blender: the Plaintiff’s account ...................................................................................... 6 Initial period after the accident ...................................................................................................... 10 Current position .............................................................................................................................. 12 Work ................................................................................................................................................ 13 ENGINEERING EVIDENCE ON BEHALF OF THE PLAINTIFF............................................ 13 Mr. Seán Walsh ............................................................................................................................... 13 Weight of blender & no manual handling or risk assessment ..................................................... 14 The blending process on video .................................................................................................... 15 Congestion ................................................................................................................................... 16 Risk Assessment .......................................................................................................................... 17 The Blender .................................................................................................................................. 17 Pan supports for the blender ........................................................................................................ 17 Lug fitted to the blender ............................................................................................................... 18 The pots ........................................................................................................................................ 18 Corridor ........................................................................................................................................ 19 Inconsistencies ................................................................................................................................ 19 ENGINEERING EVIDENCE ON BEHALF OF THE DEFENDANT ........................................ 21 Mr. Robert Burke ............................................................................................................................ 21 EVIDENCE AS TO FACT ON BEHALF OF THE DEFENDANT ............................................. 23 Ms. Guntha Malone ........................................................................................................................ 23 Mr. Arvind Neyhaul ........................................................................................................................ 25 FINDINGS & LIABILITY................................................................................................................ 27 Employment History ....................................................................................................................... 27 The accident .................................................................................................................................... 30 MEDICAL EVIDENCE ON BEHALF OF THE PLAINTIFF ..................................................... 37 Mr. Jamal Nasser Consultant Orthopaedic Surgeon .................................................................... 37 Dr. Frank Chambers, Consultant in Pain Medicine ..................................................................... 39 MEDICAL EVIDENCE ON BEHALF OF THE DEFENDANT .................................................. 43 Evidence of Mr. David O’Brien Consultant Neurosurgeon .......................................................... 43 2 First Report from Mr. David O’Brien, Consultant Neurosurgeon 7th August 2021 ................... 44 Second Report from Mr. David O’Brien, Consultant Neurosurgeon 24th June 2024 ................ 45 Third Report from Mr. David O’Brien, Consultant Neurosurgeon 14th July 2025 ..................... 46 ASSESSMENT OF MEDICAL EVIDENCE & QUANTUM ........................................................ 47 Special damages .............................................................................................................................. 55 CONCLUSION .................................................................................................................................. 58 APPEARANCES ................................................................................................................................ 59 3 INTRODUCTION Preliminary 1. The Plaintiff was employed formally by the Defendant as a commis chef in its restaurant and bar from on or about 20th August 2019, after having been in casual employment there from August of that year. 2. He alleges that an accident occurred on 7th November 2019 when he and a kitchen porter were carrying out the blending of a marinara sauce by the use of an electrical 5kg commercial blender, in a nook or alcove off the hallway immediately adjacent to the kitchen in the Defendant’s premises. 3. The Plaintiff claims that he injured his back and seeks damages. 4. A personal injuries summons issued on 2nd December 2020 (which included a certificate of authorisation from PIAB dated 20th May 2020). 5. The Defendant entered an Appearance in or around March 2021. 6. The Defendant raised a Notice for Particulars on 22nd March 2021 and Replies to these particulars were issued on behalf of the Plaintiff on 14th April 2021 (and included a Schedule of Special Damages, Family Assistance or Help, and details of loss of earnings). 7. A full denial Defence was delivered on 18th June 2021 (which inter alia included a claim of contributory negligence). 4 8. Further particulars of negligence were issued on behalf of the Plaintiff on 1st March 2022. 9. A letter seeking voluntary discovery and reasons for same was issued on behalf of the Plaintiff by his Solicitor on 22nd February 2022, followed by a reminder on 4th May 2022. 10. A motion for discovery on behalf of the Plaintiff was issued on 7th June 2022 grounded on the Affidavit of Tara Matthews Solicitor sworn on 7th June 2022. 11. An order was made on consent by the High Court (Barr J.) on 10th October 2022, whereby discovery was ordered of: (

1. a)any accident report form, statements, entries in incident books or any other records or documents recording the occurrence of the accident the subject matter of these proceedings; (
2. b)all documents recording training and/or instruction given to the Plaintiff in manual handling, both generally and specific to the task of operating the food blender, for a period of three months prior to the accident the subject matter of the proceedings; and (
3. c)any risk assessment and/or safety statement in place, as of 7th November 2019, relating to the operation of the food blender the subject matter of the proceedings. 12. A Notice of Trial issued dated 14th October 2022. 13. A Notice of Change of Solicitor on behalf of the Plaintiff issued on 11th June 2024. 14. Updated Particulars of Loss issued on behalf of the Plaintiff (these were undated but were understood to be issued in or around June 2024) 5 15. Updated Particulars of Personal Injury dated July 2024 issued on behalf of the Plaintiff. 16. The Plaintiff swore an Affidavit of discovery on 9th July 2025 in relation to medical records. THE PLAINTIFF’S EVIDENCE Use of the blender: the Plaintiff’s account 17. On the date of the accident on 7th November 2019, the Plaintiff had been working for the Defendant for a period of approximately 6 weeks. 18. The Plaintiff’s evidence was that neither he nor the kitchen porter had carried out the blending process previously and that the sauce was needed urgently that day for use in the restaurant and bar. 19. On 7th November 2029, somewhere between 11.00am and 11.30am, the Plaintiff and a male kitchen porter were asked by one of the junior chefs in the kitchen to prepare a marinara sauce for use at lunchtime that day. The Plaintiff and the kitchen porter had initially set up in the kitchen but were told by another employee, by the use of expletive language, to get out of the kitchen as it was busy. 20. The Plaintiff and the kitchen porter then commenced the blending of the sauce in a nook or alcove off the corridor/hallway which was adjacent to the kitchen. 6 21. He states that the blending process was one continuous process which took about 15-20 minutes to complete. The Plaintiff was operating a large commercial electric blender which was plugged in to the electrical socket behind the deep freeze fridge located in the nook or alcove. 22. The singular process which was carried out involved the kitchen porter pouring the unblended cooked sauce from the first pot into a second pot through a sieve (placed in the second pot) and the Plaintiff blended the material as it was being poured into the second pot. 23. The Plaintiff alleges that he had to squat in using the blender and could not stand straight. He stated that he was in a squatting position throughout when carrying out the blending. He described that he was half squatting over a stool (but not sitting on
4. it)with his knees and back bent, leaning forward, holding the blender in an elevated or suspended position with the turning part which was at the end of the blender in, but not resting on, a sieve to ensure the material would blend and be able to pass through the sieve. During this process he states that all of the cooked unblended thicker viscosity material was poured slowly, bit by bit, by the kitchen porter directly from the first pot into the second pot, through the sieve, and the Plaintiff carried out the blending exercise. The end product was then ready for use as marinara sauce. 24. The Plaintiff stated that he could not stand straight to do the blending because of the weight of the blender and the position that he had to hold the blender at. He stated that he was not able to rest the bottom of the blender or the turning part of the blender on either the sieve or the pot. He stated that he had to hold the blender in an elevated position as the sauce went through and that he had to stay in that position for a period of approximately 15-20 minutes while he was squatting with his knees bent beside the two pots as the blending was being carried out. He stated that they succeeded in getting the required quantity of sauce blended. 7 25. The Plaintiff states, and it is common case, that the Defendant did not provide training in manual handling in relation to these duties during his employment with the Defendant and that no risk assessment of these matters had been carried out by the Defendant. 26. On the Plaintiff’s evidence, the blending process which he carried out, comprised a single process and was not a two-stage process. There were two steel pots located in the alcove of the hallway or corridor. The kitchen porter was pouring the thick chunky sauce through the sieve which was in the second pot and the Plaintiff was holding the blender up inside the second pot in a suspended or elevated position in the middle of the pot to make sure that the material was blended. There was no pre-whisk or pre-sieving and there was no use of a jug to, for example, pour the material from the first pot into the second pot. His evidence was that the kitchen porter was holding the pot from which he repeatedly poured the material and he would then rest the pot, after each pour, on the deep freeze fridge located beside them in the alcove/nook. 27. The Plaintiff states that towards the end of the process the kitchen chef came out of the kitchen to hurry them along and held the sieve as the process was being completed, repeated to them to ‘come on’ and then grabbed the second pot which contained the (now) blended sauce and ran back into the kitchen with the sauce which was ready for use. 28. Under cross-examination, the Plaintiff stated that the reason he was in the position of squatting, knees bent and leaning forward, was because of what he stated were obstructions in the nook or alcove area of the hallway and he described these obstructions as the bench in the hallway and large packs of blue tissue rolls situated on either side of him. 8 29. The gist of the Plaintiff’s evidence is that the nook or alcove was a confined congested space, adjacent to and leading from a narrow hallway, with what he described as obstructions which were around him, i.e., the presence of big packs of blue tissue rolls (including on a stool) on either side of him in the alcove and that these obstructions caused him to adopt a squatting position, with knees bent leaning forward during the blending process. 30. The Plaintiff states that he did not sit on the stool which was located in the nook at any time and that there were also blue tissue rolls on the stool. He stated that he squatted during the process of blending in order to achieve better stability because he was holding the blender in place suspended up from the sieve (and not touching the sieve) seeking to ensure that all the material would be blended before making contact with the sieve. He states that he was half squatting over a stool (but not sitting on
5. it)with his knees and back bent, leaning forward, holding the blender in an elevated position in the middle of the sauce while the kitchen porter was pouring material in. The Plaintiff stated that the blender was not resting on the bottom of the sieve because the material was too big and he denied the suggestions when it was put to him that common sense would have suggested that he place the blender at the bottom of the sieve and that the evidence on behalf of the Defendant was that he was shown how to do it that way or that he should have known that himself. 31. The Plaintiff stated that he felt no pain when he was carrying out the process of blending. He states that when he had completed the blending, after about 15-20 minutes, he straightened and stood up, turned to the right to put the blender on top of the freezer and heard and felt his back pop and an immediate pain. He said that when walking back into the kitchen he informed the other commis chef that his back was sore and he states that he was informed that it happens ‘all the time’ and it was suggested that he take some paracetamol. 9 32. The Plaintiff stated that he did not think that he had a muscle strain. 33. In carrying out shift work, the Plaintiff stated that he was on a split shift and would usually finish at 12 noon and return to work at 2.00pm. 34. On the day of the accident, he states that he limped home in pain to Nicholaus Court which usually was a 5 or 6 minute walk from the Defendant’s restaurant in Dundalk. 35. However, on that day, 7th November 2019, he stated that it took him approximately 25 to 30 minutes to get home as he stated that he had to keep stopping and was holding on to buildings as he walked. He stated that the pain was excruciating. When at home he lay on the bed and closer to the time to return to work, he stated that he telephoned the Defendant restaurant to say that he was injured and was not able to return to work, so that the restaurant could get some cover for the rest of his shift. Initial period after the accident 36. The Plaintiff states that he remained in bed on the day of the accident. He states that his then partner went to the chemist and got him some painkillers. 37. The Plaintiff thought that his back might be better in a day or two. 38. However, he states that, as his condition had not improved about two or three days later, he went to Dundalk Hospital and the doctor who saw him telephoned for a taxi to take the Plaintiff (and his then partner who had accompanied him) to the Accident and Emergency Department 10 of the Lourdes Hospital. The Plaintiff stated that he lay in the back of the taxi as he could not sit straight. 39. The Plaintiff states that he was in hospital for three days and underwent X-rays and an MRI. He stated that he was informed that he had a prolapsed disc. 40. On being discharged after three days, the Plaintiff said that he used two crutches and wore a Velcro brace back brace for in or around two years after the accident and was in an extremely disabled condition. 41. He stated that most of the weight was carried on his left foot, that it was difficult and that he was not able to use the crutches for long periods of time in any one day. The Plaintiff stated that he spent most of his time in bed when he went home immediately after the stay in hospital and needed help from his partner getting out of bed and moving around. He stated that in those initial months the pain was excruciating and that he was only able to have 30 minutes to an hour of sleep per night and that he was exhausted from not being able to sleep properly. He said that he could not sit or walk. During this period the Plaintiff said that the pain was in his centre, lower back, running down his right leg, down through his right knee, into his right ankle and then back up to his right knee. 42. The Plaintiff was attending his General Practitioner during these initial weeks and months and was referred for physiotherapy. He stated that because the physiotherapy was not working, he was sent to see a surgeon in Beaumont Hospital. He said that at that time the pain did not ease and that he was not able to work, get around or exercise. 11 43. The Plaintiff stated that his daily medication at this time was Oramorph, a liquid morphine, Diazepam, Arcoxia, Lyrica and another medicine which he had forgotten. 44. During this initial period of months, the Plaintiff stated that he could not wash, dress or clean himself after going to the bathroom and because he could not move or twist or reach behind due to the pain of trying to rotate his lower back, the Plaintiff’s partner would have to wipe his bottom at least twice per day (in the morning and evening) and wash and dress him. He stated that on occasion, when he could not wait until his partner arrived home, his partner would then have to clean him. He said that this continued for about 2 years after the accident. 45. The Plaintiff states that his relationship with his then partner ended at the close of 2022/beginning of 2023. 46. The Plaintiff stated that about 2 years after the alleged accident he started to stop using the back brace in order to build his core strength and thereafter also stopped using the crutches. He stated that during the initial period of 2 years, he had gained weight due to his lack of movement and thereafter slowly reduced his weight from 20 stone down to 17 stone, which he weighs now. 47. He stated that losing weight has been of some small assistance in reducing the pain and he estimated the improvement in pain relief to be in or around 20% to 25%. Current position 48. The Plaintiff stated that he is in constant pain walking or trying to sleep and upon wakening, has to reposition himself into a kind of foetal position and reposition pillows between his legs to try and alleviate the pain and go back to sleep. He said this was very disruptive. 12 49. He stated that since 2021, the pain has been stuck at the same level which at the date of the hearing of the action was approximately 6 years after the alleged accident. 50. The Plaintiff has attended his GP, Dr. Liam McGrath, Mr. Nasser (orthopaedic expert), Mr. Chambers (a pain expert) and Mr. Mohammed Ben Husien, Consultant Neurosurgeon in Beaumont. Their respective medical reports are addressed later in this judgment. 51. The Plaintiff stated that his life after the accident is completely different. He stated that he has no social life and after a 20 to 30 minute walk in the morning, the remainder of the day is spent at home. He stated that if he walked too much, for example, for 40-50 minutes, his right knee starts to jump and he gets pain across his lower back and down his right leg. Work 52. The Plaintiff stated that he is presently not able to work because he is in too much pain, that he cannot really move or lift anything and that his mobility is reduced. He stated that he has been upskilling by studying courses online in programming and web development such as the App Brewery of London through Udemy. ENGINEERING EVIDENCE ON BEHALF OF THE PLAINTIFF Mr. Seán Walsh 53. Mr. Seán Walsh of Seán Walsh & Associates, Consulting Engineers was retained by the Plaintiff. He prepared a report dated 15th October 2020 and gave evidence at the hearing of the proceedings on the first and second days. His report was prepared following Mr. Walsh’s 13 inspection of the accident scene on 27th July 2020 in the company of the Plaintiff and Caterina Lee of Glennon’s Claim Consultants for the Defendant. 54. The Plaintiff on the date of the inspection on 27th July 2020 informed Mr. Walsh of his version of events, from which Mr. Walsh prepared his report. 55. In summary, in his evidence Mr. Walsh stated that smaller pots of the type that were in use in this case should be operated with a smaller blender, and that larger blenders such as the one in this case should be used with larger pots that can accommodate and on which it can be supported properly by either the lug or an attachment. In this case, Mr. Walsh stated that a large blender was used in a smaller pot when it was designed for very large catering pots. He stated that the pots referred to in the report of Mr. Burke (consultant engineer retained on behalf of the Defendant) would be considered large in a domestic kitchen. Weight of blender & no manual handling or risk assessment 56. In terms of the weight of the blender, Mr. Walsh stated that this would not be an issue if the person using the blender lifted and used it properly, in accordance with correct techniques, which required training in manual handling and he stated that it was common case that the Plaintiff was not provided with training and correct manual handling techniques. He stated that the Safety, Health and Welfare at Work legislation and Regulations remained applicable whatever the task was and in this case, it was the blending of a sauce using a large commercial blender. He said that in this case, the blending process due, for example, to the movement and resistance when using and operating the blender in the pots required to be risked-assessed and it was not. Here, his evidence was that the process involved irregular movements in a congested or confined area which can create ergonomic issues and could cause injury. 14 The blending process on video 57. Two short videos prepared by Mr. Burke on behalf of the Defendant, which showed how the blending of marinara sauce was carried out at the Defendant’s premises, were shown during Mr. Walsh’s evidence and he was then asked questions about the process. No objection was raised on behalf of the Plaintiff in relation to the showing of these videos. 58. First, the pre-cooked sauce is mixed with its ingredients of vegetables and cooked in a large pot which has the effect of softening the vegetables in the cooked sauce. 59. In the second part of the process (first video excerpt) the pot is placed on the floor of the kitchen and the cooked sauce is then blended placing the end part of the head of the blender into the bottom of the pot and resting it there for less than a minute and this is done by a single individual. This process of blending reduces the viscosity of the cooked sauce. 60. The third part of the process is the sieving process which involves at least two persons. 61. The cooked sauce is scooped by a second person from the first pot and poured into a second pot – a bucket – through a sieve placed in the bucket (second pot) and the first person blends the sauce by placing the end of the blender into the sieve and resting it on the side of the sieve. This process takes about 2 minutes. The sauce is then ready for use. 62. The evidence was that this is the process that has been used for making marinara sauce in the Defendant’s premises for almost 18 years. There was no evidence that any person carrying out this process had sustained injury at any time. 15 63. This was not, however, the process carried out by the Plaintiff and a co-worker on the day of the accident on 7th November 2019. 64. Mr. Walsh first saw this video on coming to court to give evidence. In relation to the sieving process in the second of the videos shown, Mr. Walsh expressed the view that the sieve was too small, too light, not properly secured, and this was putting pressure on the person using the blender (in the video it was Ms. Malone, a former employee of the Defendant, who stated that it was not an issue in her evidence). Mr. Walsh also stated that the blender was too large for the vessel (the pot) shown in the video during the sieving process where the sieve is suspended in the bucket (the second pot) resting on the rim and that the forces generated could cause problems for the person holding the blender (but that the process shown in the first video was fine). Congestion 65. In terms of the blending process carried out by the Plaintiff in the alcove or nook off the corridor on 7th November 2019, Mr. Walsh stated that congestion would apply whether or not the Plaintiff was standing, crouching or sitting. Mr. Walsh stated that congestion affected the Plaintiff’s posture and whether he was standing, crouching or sitting, congestion would mean that he could not necessarily get the appropriate position for his body and this was a factor which could interfere with the execution of the process of blending. He stated that what the Plaintiff was doing with his hands in operating the blender was much more awkward than simply lifting. He stated that the Plaintiff was holding the blender at an angle, twisting and moving, and if he did not start the process from an absolutely appropriate posture, his risks of injury would then escalate. 16 Risk Assessment 66. Mr. Walsh stated that whether or not the process of blending involved standing or sitting, each needed to be risk assessed, the ergonomic aspects considered and then a properly informed decision made as to whether there are risks of back injury, because you can have an entirely defective posture sitting as easily as standing. He stated that there was no risk assessment carried out and that this was common case. The Blender 67. The blender used by the Plaintiff was a 5.15kg weighted blender. As referred to earlier, Mr. Walsh stated that in this case it was the wrong blender for the pot which was used and it would have been more appropriate to use a pot that suited the blender or a blender that suited the pot. 68. The blender is referred to as a large power mixer and is manufactured by Robot Coupe, a prominent manufacturer of food processing and catering equipment and has a model number MP 450 Ultra. It is a large handheld model with an electric motor and handgrip at one end and mixing head at the opposite end of a long driveshaft extending from the bottom of the motor housing. Its overall length is 830mm (2ft 9in). The mixing shaft measures 40 mm (1.6in) in diameter and extends for 465mm (18in) from the bottom of the mixer housing, to include the mixing head. Pan supports for the blender 69. In his written report, Mr. Walsh stated that the length and weight of the blender unit presented manual handling difficulties. In this regard, the suppliers offered pan supports as optional extras that could be used to support the blender when it was being used in large pots and which also allowed a blender to be left operating unattended. Mr. Walsh in his written report stated that 17 the use of the pan supports could also be used by an operator to alleviate the manual handling load imposed by the weight of the unit, resistance of the blended material and any awkward postures required. In Appendix 1 of his report, he sets out brochure-type photographs of the pan supports where the copied brochure in describing the “adjustable pan support” and the “universal pan support” stated that “[t]hese 100% stainless-steel pan supports allow you to effortlessly tilt the mixer or simply leave it to its own devices. They can be totally dismantled, making them easy to clean and extremely practical to use.” Lug fitted to the blender 70. In his written report, Mr. Walsh states that a lug was fitted to the bottom of the motor housing and could be used for supporting the blender on the lips of large pots or other cooking vessels and produced photographs showing the position of the lugs at the bottom of the motor housing of the blender. Mr. Walsh in his report stated that it was not possible to use this at the Defendant’s premises as the pots used as blending vessels were not large enough and because the shaft of the blender was substantially longer than the depth of each pot and, therefore, it was necessary to manually hold the blender over the pot during mixing. The pots 71. Two sizes of pots were used for the blending of the sauce and photographs of the pots were set out in Mr. Walsh’s report. The smaller of the two pots measured 335mm (13.2in) in diameter and 212 (8.33in) in height and had a maximum capacity of 18 litres. The larger of the two pots was 360mm (14in) in diameter, 235mm (9.25in) tall and had a capacity of 23.5 litres. 18 Corridor 72. Mr. Walsh’s report sets out the location of the alcove in the corridor where the blending took place by the Plaintiff and his co-worker on 7th November 2019. The width of corridor in the restaurant is 1.055m (3ft, 5.5in). The accident occurred in the area of an opening on one side of the corridor giving access to an alcove which opening was 1.4m (4ft, 7in) wide. The alcove inside the opening, where the blending took place, measured 1.22m (4ft) deep and 1.81m (6ft) wide. A chest freezer was located inside the alcove against the rear wall. The clearance between the chest freezer and the opening from the corridor was 400mm (1ft 4in) and the overall clearance between the worktop located in the corridor against the wall immediately opposite the alcove opening and the chest freezer located in the alcove was 915mm (3ft). The photograph numbered 9 in Mr. Walsh’s report refers to the Plaintiff’s recollection of the configuration of the scene at the time of the accident and shows a pot placed on the floor in the general area of the alcove opening. This photograph also shows a stool inside the alcove and adjacent to the pot which measured 390mm (15.35in) square and 500mm (1ft 8in) high. Inconsistencies 73. In his report, Mr. Walsh states that “[t]he Plaintiff recalls that he himself sat on a stool that was located in the area, adjacent to the pot.” Under cross-examination, the Plaintiff said that that was not the case and that he was “in a half-squatted, bent over position” squatting over the stool, with both knees bent and his back bent (or half-bent) and leaning forward and that there were other items on the stool either side of the alcove. 74. Under the sub-heading “Circumstances”, Mr. Walsh, in his report, stated as follows: 19 “The Plaintiff recalls that on the occasion of the accident he was part of a three man team blending soup in a large pot. This work was normally done on the kitchen floor, but on the occasion of the accident he had been sent with the team to the corridor described above. The Plaintiff recalls that the soup [sauce] was prepared with the pot in the position on the floor shown in photographs 9 to 11. The Plaintiff sat on the stool shown, in the alcove opening and operated the blender by manually holding it over the pot. One of his coworkers was a kitchen porter. The kitchen porter worked on the Plaintiff’s right, i.e. towards the foreground of photographs 6 to 9 and towards the background of photographs 10 and 11. The kitchen porter poured the soup [sauce] from a pot in which ingredients had originally been prepared, into the blending pot. The second co-worker was the chef who worked on the opposite side of the Plaintiff to the kitchen porter. The chef held a funnel and sieve through which the kitchen porter poured the soup. The Plaintiff recalls that his accident occurred after he had been blending the soup for approximately ten or fifteen minutes. The blending work was finished and as the Plaintiff stood up from the stool he suddenly felt a severe pain in his back. He recalls that after this occurred he took a short cigarette break outside the premises. As the pain had not abated he then went home.” 75. Under cross-examination, the Plaintiff suggested that perhaps Mr. Walsh misheard him when he said that he was sitting over the area and that he was not actually sitting but was in a halfsquatted position as if he was going to sit. 76. Further, the Plaintiff stated that the chef (the third person) only came in at the end and only for a couple of seconds for the purpose of hurrying the Plaintiff and the kitchen porter along and 20 that he was holding the sieve for those seconds stating “Come-on, come-on, come-on” and then he grabbed the pot and ran back into the kitchen. 77. The Plaintiff stated that he did not have a cigarette (as stated by Mr. Walsh) and that he went outside trying to calm down because of the pain. He stated that he did not know what to do and that he did not want to be seen crying in the kitchen in front of new staff in a new job. ENGINEERING EVIDENCE ON BEHALF OF THE DEFENDANT Mr. Robert Burke 78. Mr. Robert Burke, Consulting Forensic Engineer of RB Consulting Ltd was engaged by the Defendant to give evidence and he did so on the second day of the hearing. It was Mr. Burke who prepared the two videos of the blending process which were shown in court. In relation to Mr. Walsh’s evidence and report and the issue of congestion, Mr. Burke stated that he did not see how the area where the blending process was carried out by the Plaintiff and another person in the alcove would give any significant cause for concern in relation to congestion and there was no height restriction and it would not require an operator of the blender to stoop over. 79. In terms of the processes shown on the video which he took, Mr. Burke agreed with Mr. Walsh that in the sieving process, the end of the blender would go as far down (angled
6. in)the cone of the sieve as it would reach before resting on the side of the sieve. 80. He stated that the pre-sieve blending process (the “first blitz”) in the first video excerpt took around 30 seconds and the second part of the blending process took about 2 minutes. Mr. Burke stated that in each of the two blending process, the most time that the person would be lifting the 21 full weight of the blender (5.15
7. kg)was for 8-10 seconds while making the chunky relish and 20 seconds when making the finer relish which is far off the guidance (not limits or targets) issued by the HSA where guidelines stated that a male can handle a load of 25kg at knuckle height when the load is held close to the body or 15g at knuckle height when the load is held at arm’s length. In his report, Mr. Burke stated that the guidelines state that a male can handle a load of 20kg at elbow height when the load is held close to the body, or 10kg at knuckle height when the load is held at arm’s length. In his report dated 1st December 2024, which was based on his inspection of the Defendant’s premises and equipment used on 25th November 2024, Mr. Burke stated that in this instance the load was not being held at arm’s length away from the body. Standing while carrying out the operation, the load would be held at knuckle height. Sitting, while carrying out the operation the load would be held at elbow height. In his view, the load of the blender was well within the guidance loads set out by the HSA and well within the capabilities of a male. 81. Mr. Burke did not see any excessive or unstable force arising or being generated by the liquids moving during the blending process. Whilst in the second video, he said that the sieve moved at one point, it had a handle and a hook on the far side which kept it over the plastic bucket and the kitchen porter (second person) at floor level could steady it and, therefore, this was not a major issue. 82. In terms of the process described by the Plaintiff, Mr. Burke stated that he could not see why a person using the blender would be squatting rather than standing when the blender, as a handheld tool, lends itself to standing when operating it and, in relation to Mr. Walsh’s evidence that the pot could be placed on a platform or raised dais, Mr. Burke saw no benefit to that proposal. He said that there was no great difficulty if a person was using the blender from a seated position. 22 83. At para. 2.05 of his report dated 1st December 2024, Mr. Burke stated that “[a]t the time of the alleged incident, the plaintiff was employed as a kitchen porter. He was in casual employment commencing August 2019 and he [sic] was formally employed on 20/10/2019. Mr. Andrew McGeogh confirmed the plaintiff had received no formal Health and Safety Training and no Manual Handling training. He did receive on-the-job training regarding the tasks expected of him.” 84. During cross-examination, Mr. Burke agreed that there was a requirement on employers to give manual handling training, and in relation to the lifting of weights and in the area also of risk assessment, there were legal obligations on the employers in that regard. Mr. Burke agreed that it was his understanding that the Plaintiff had not received manual handling training. EVIDENCE AS TO FACT ON BEHALF OF THE DEFENDANT Ms. Guntha Malone 85. Ms. Malone was a former employee of the Defendant who gave evidence on the second day of the hearing. 86. Ms. Malone was working in the Defendant’s premises on the day of the accident on 7th November 2019. She had worked for the Defendant for 18 years and ceased working there in 2020. At the time of the accident, she had held the position of sous chef (second to the head chef) and had held that position for about 5 years. 23 87. Ms. Malone explained how the spaghetti marinara sauce is made at the Defendant’s premises. She in fact was the person in the video recording demonstrating how the sauce is made and had no difficulty in making the sauce during that demonstration which was recorded in 2024. 88. In summary, (and as set out earlier) the sauce in its thicker constituency with ingredients is first made on the cooker. 89. When it is cooked, that thicker constituency is ‘blitzed’ by an individual using the blender and blending the cooked thicker sauce in the pot which is placed on the ground. The blender is sitting on the bottom of the pot. 90. When that is done, the blended sauce is poured by a member of staff by the use of a jug from the first pot to the second pot via a sieve in that pot and it is further blended by another member of staff to transform the thicker lumpier constituency into a smooth textured sauce. The blender is resting on the side of the sieve which is placed in the second pot. 91. Ms. Malone stated that is how the marinara sauce had always been made in the 18 years, three or four times per week, that she worked for the Defendant and that every new person who comes to work is shown how to do it that way. 92. Ms. Malone stated that she had previously prepared the sauce that way when she was pregnant without complaint. In Ms. Malone’s experience no one had ever complained of sustaining an injury during the making of the sauce with the exception of the Plaintiff. 24 93. Ms. Malone stated that on the day of the accident, 7th November 2019, she was in charge of the kitchen as the head chef was off. 94. She states that when she came to work that morning, at about 9.00am, she had a general conversation before work with the Plaintiff who stated that he was happy to be at work and he informed her that he had hurt his back lifting weights at his gym the day before. 95. She conversed with him about training in gyms and about what she was doing including six-week challenge exercises. She asked whether he was okay to work and the Plaintiff said that he was. 96. Ms. Malone did not recall the Plaintiff preparing the sauce that day. Her evidence is that she was in the kitchen and the sauce needed to be blitzed and she asked that this be done and took the heavy pot off the cooker and placed it on the floor of the kitchen. As matters were busy that day in the service area she said that later on, the Plaintiff came into the kitchen and he told her that his back was sore. He asked her whether he could go for an early break and she told him that he could. 97. Ms. Malone confirmed that when she worked for the Defendant, she received manual handling and health and safety certificates. Mr. Arvind Neyhaul 98. Mr. Neyhaul was a former employee of the Defendant and worked there for approximately six years. He was working in the Defendant’s premises on the day of the accident on 7th November 2019 as line chef. He recalled the Plaintiff working in the Defendant’s premises and welcoming him as a new member of staff. 25 99. On an earlier occasion, Mr. Neyhaul said that he was asked by the head chef to show the Plaintiff how to prepare and make the sauces and his evidence is that he showed the Plaintiff how to make the marinara sauce by asking another staff member, such as the kitchen porter, to make the sauce in the following way. 100. He stated that the first procedure was to have the ingredients, such as chunky vegetables cooked on the cooker in the bigger of two pots, then place that pot on the floor of the kitchen, or if it is too busy in the kitchen, in the corridor, and then to blend (or ‘blitz’) the cooked material (the vegetables are softer having been cooked) in that pot with the blender (‘the gun’) which has been plugged in to an electrical socket for one or two minutes by a single individual (who has been asked by the chef) and then blend it again in the bucket (the second pot) via the sieve by pouring the soft sauce with a jug from the first pot into the sieve which is in the bucket (the second pot) and the bottom of the blender is placed inside the sieve, resting on the side of the sieve. He stated that two or three persons are involved in carrying out the second blending exercise transferring the material with a jug via the sieve in the bucket (or the second pot) and blending it while this is being done. He stated that a jug is always used as the pot is hot and the bottom of the blender is placed inside the sieve resting on the side of the sieve (which takes the weight of the gun). 101. In his time working there, Mr. Neyhaul said that he did not have any trouble carrying out this process in the corridor. 102. Mr. Neyhaul said the procedure was as that set out in the video. He said that he did not see the Plaintiff making the sauce on the day of the accident as he was working in the service area and his particular ticket in the restaurant and it was busy. 26 103. Mr. Neyhaul stated that when working with the Defendant he had received training in Dublin on two or three occasions in manual handling, lifting weights and avoiding risk. FINDINGS & LIABILITY 104. Arising from the evidence as to fact, and the evidence from the parties’ respective engineers, I make the following findings and also address the question of liability. Employment History 105. The Plaintiff was born in the State on 6th March 1986 and was aged 39 years of age at the hearing of these proceedings in December 2025. He was aged 33 years of age at the time of the accident on 7th November 2019. 106. He attended school in Drogheda and left school in or around 16 years of age. 107. In 2000, he worked with his uncle-in-law in Mallon Coving as a labourer for approximately 18 months. This was manual work which included coving inside houses. This led to carpentry work such as first fixes. 108. The Plaintiff enrolled with Youth Reach for a couple of months which was an education programme similar to the Junior Certificate. He completed a Computer Applications Training (ECDL) while on the Youthreach programme. He left this programme and secured a number of different jobs as a kitchen porter and worked in Mosney for a couple of months where he washed dishes. The Plaintiff then went to work as a window cleaner. 27 109. The Plaintiff worked with Cisco Engineering for approximately one year as a general operative and labourer and this included manual work, working with welders and steel fixers, where he sanded down pieces of metal and painted them. 110. The Plaintiff was then out of work for a period. 111. The Plaintiff joined the Defence Forces from 2005 to 2010. He was initially stationed in McKee Barracks and achieved the rank of Private 3 Star in the 2nd Field Artillery Regiment. In addition to his basic training with the Defence Forces, he also completed a Gunners course, a Mortar’s course and training in a Grenade Launcher. He also completed Signals training and First Aid Certification. 112. After leaving the army, the Plaintiff went to Galway and worked as a kitchen porter in Capones restaurant for a couple of months and this involved washing dishes, cups and cutlery. He then worked for The Tea Cosy in Ennis, again washing dishes. 113. The Plaintiff then went to work as a commis chef in Carlingford Adventure Centre and this work involved working with and preparing food, cleaning and chopping vegetables. 114. The Plaintiff states that the first time he saw a marinara sauce being sieved was during his employment with the Defendant and that he had never previously made a sauce. 115. The Plaintiff was working with the Defendant for approximately six weeks prior to the accident as a commis chef. 28 116. Ms. Guntha Malone was the sous chef and was second in command in terms of managing the kitchen. 117. Prior to the accident the Plaintiff was fit and healthy, participating in running when he was a member of the Defence Forces and up until the date of the accident the evidence is that he was a member of the Aura gym in Dundalk where his exercises included swimming, running, and lifting weights. 118. Whilst the Plaintiff does not recall informing Ms. Malone of this, I accept and find, on the balance of probabilities, the evidence from Ms. Malone who was employed by the Defendant as the sous chef at the time of the accident. She states she had a conversation on the morning of the accident on 7th November 2019 with the Plaintiff. The Plaintiff informed her that he was a member of the Aura gym in Dundalk and that he had hurt his back lifting weights the previous day. She asked if he was okay to continue and fit to work and the Plaintiff replied that he was. 119. During his cross-examination, the Plaintiff stated that he recognised Mr. Neyhaul’s face when he was pointed out to him in court during the first day of the hearing. The Plaintiff stated that he did not remember Mr. Neyhaul giving him instruction or showing him how to do things including using the blender in the manner shown in the two videos for blending the marinara sauce. 120. I find, on the balance of probabilities, that the Plaintiff was shown by Mr. Neyhaul how to blend the marinara sauce in the manner described in his testimony and illustrated in the two videos played in court. The process shown in the videos involved, after cooking the sauce, an initial blending by one person in a pot on the ground followed by the transfer of the sauce, by jug, into 29 a bucket (a second pot) also on the ground via sieve placed in this bucket and a second round of blending which involved two persons. The sauce by then had been further blended and sieved in the second bucket ready for use. The accident 121. The Plaintiff was an employee of the Defendant working as a commis chef at the time of the accident which occurred on 7th November 2019. As a commis chef, he handled ingredients, deliveries and carried out preparation work as well as preparing fried food. 122. At the time of the accident, he had been working for the Defendant for a period of approximately 6 weeks. 123. On 7th November 2029, somewhere between 11.00am and 11.30 am, the Plaintiff and a male kitchen porter were asked by one of the junior chefs in the kitchen to prepare a marinara sauce for use at lunchtime that day. 124. The Plaintiff and the kitchen porter had initially set up in the kitchen but were told by another employee, by the use of expletive language, to get out of the kitchen as it was busy. The use of expletive language in a busy kitchen is unsurprising. The evidence before me from all of the witnesses of fact was that it was a busy kitchen where there was approximately up to nine staff at any one time and that they worked well together. 125. The Plaintiff and the kitchen porter moved from the kitchen to the area of the hallway or corridor adjacent to the kitchen which contained an area described as a nook or alcove in which the two pots were placed and where they carried out this singular blending process. 30 126. The Plaintiff was operating a large commercial electric blender which was plugged in to the electrical socket behind the deep freeze fridge located in the nook or alcove. 127. The singular process which was carried involved the kitchen porter pouring the unblended cooked sauce from the first pot into a second pot through a sieve (placed in the second pot) and the Plaintiff blended the material as it was being poured into the second pot. 128. The Plaintiff was holding the blender in front of him. The blender is an electric large hand-held model and its overall length is 830mm (2ft 9in) and is 5.15kg in weight. 129. The blending was carried out in the sieve in the second pot. The Plaintiff held the blender in front of him with the turning part of it placed in the sieve in the second pot while the sauce was being poured by the kitchen porter pouring the unblended cooked sauce from one pot into the other pot. The Plaintiff was squatting during the blending in order to seek to achieve better stability because he was holding the blender in place suspended up from the sieve (and not touching the sieve) seeking to ensure that all the material would be blended before making contact with the sieve. The blender was not resting on the bottom of the sieve but was elevated and suspended over the pot. The process took about 15 minutes to complete. 130. At the end of the process, the chef came and held the sieve and took the pot with the blended sauce into the kitchen. 131. There was no use of a jug. 31 132. When the blending process carried out by the Plaintiff and the kitchen porter was completed, after the Plaintiff straightened and stood up, turned to the right to put the blender on top of the freezer and heard and felt his back pop and felt an immediate pain. He said that when walking back into the kitchen he informed the other commis chef that his back was sore and it was suggested that that he take some paracetamol. 133. The Plaintiff walked home in pain which took longer than usual, went to bed, and took pain relief tablets which his partner bought from the chemist. He telephoned work and stated that he could not return to complete his shift for that day. 134. As his condition had not improved about two or three days later, he went to Dundalk Hospital and the doctor who saw him telephoned for a taxi to take the Plaintiff and his then partner who had accompanied him, to the Accident and Emergency Department of the Lourdes Hospital. The Plaintiff stated that he lay in the back of the taxi as he could not sit straight. 135. The Plaintiff was in hospital for approximately three days and underwent X-rays and an MRI. 136. The medical evidence, the assessment of that evidence, and what transpired thereafter, is set out later in this judgment. 137. The Plaintiff was employed by the Defendants for approximately 6 weeks but had not, at that stage, received training in relation to the use or handling of the electrical 5kg commercial blender or any training in relation to lifting, bending or risk assessment. 32 138. The Defendant’s case is that the Plaintiff was previously shown by Mr. Neyhaul how to carry out the blending of the sauce and in addition it is argued that this was not something which he needed to be shown having regard to his experience, age (approximately 33 years of age at the time) and having regard to previous work history. 139. On 14th March 2022, further particulars of negligence were delivered on behalf of the Plaintiff which pleaded that the Defendant had: “(
8. f)failed to ensure that the Plaintiff’s place of work was, insofar as was reasonably practicable, safe and without risk as required by s. 15