The High Court has dismissed a former abattoir worker’s case alleging he was kicked and injured by an animal 15 years ago.
Mr Justice David Nolan found there was an inordinate and inexcusable delay on the part of plaintiff Vanderiei Jacinto de Figuerdo in progressing his 2011 case against his former employer: Kepak Athleague and Kepak Group Limited.
Allowing the case to proceed would place Kepak in a prejudicial position, and there is a “clear risk of memory fade” relating to an incident alleged to have occurred in 2009, said the judge.
The company has also had to ringfence funds for this claim, which gives rise to a financial burden, he added.
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The judge said Mr de Figuerdo, a Brazilian national living in Ireland for at least 15 years, claimed he was assigned to work at the end of the killing pen at Kepak’s Athleague plant.
In one instance, on May 6th, 2009, an animal’s legs got caught in the pen and had not been killed outright, the plaintiff claimed. Mr de Figuerdo alleged another employee had allowed the next animal to enter the pen before this one was cleared away. He claimed the next animal began kicking and struck him on the thigh, causing him to fall backwards and suffer an injury.
His claims were denied.
The judge said Mr de Figuerdo initiated his High Court personal injuries case late and then delayed in progressing it.
In 2021, Kepak issued its motion asking the court to dismiss the case for want of prosecution. It claimed several people who had direct knowledge of Mr de Figuerdo’s employment, practices, training and supervision had left the company. Kepak said it had inquired about their whereabouts but could not find them, so it was not able to secure their attendance to give evidence at a trial of the case.
The judge said more than a decade has passed since Kepak asked the plaintiff to provide his medical records, which have still not been disclosed.
Mr de Figuerdo’s solicitor submitted there has been no inordinate delay, but if inordinate delay occurred, it is excusable.
The judge said there was very significant delay between the proceedings being issued and Kepak’s filing of its defence in 2017.
Overall, he found the delay on the part of the plaintiff had been inexcusably inordinate and the balance of justice favoured dismissing the case.
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