A gravedigger who fractured his ankle after slipping on ice in a cemetery following a burial has been awarded more than €50,000 damages by a High Court judge.
Mr Justice Kevin Cross said gravedigger Nicky O’Brien struck him as a “most decent individual” who did not exaggerate his injuries and did not even mention to the court that he had been left with scars. The accident occurred at St Ibar’s Cemetery near Wexford town.
Gravedigging is a “noble vocation” and the graveyard is a typical old Irish kind which has hazards and is not laid out with the same precision and military grace as those in continental Europe, he said.
The judge said he believed the accident was caused by the slippy nature of the ground which was sheltered by a headstone and, had the path been gritted, this accident would have been avoided.
Negligence
Mr Justice Cross also rejected pleas of contributory negligence on the part of Mr O’Brien.
“He was not running. He was wearing his work boots. He did nothing inappropriate,” he said.
Mr O’Brien (56), of Windmill Heights, Wexford, had sued his then employer, Wexford Borough Council, over the accident on January 8th, 2009. He claimed the council permitted the footpath to be and remain in a dangerous and unsafe condition and failed to warn him and others of the hazardous nature of the path.
The council had not provided grit and salt which could have been spread on the cemetery paths, he said. The council denied liability and pleaded that Mr O’Brien failed to take any care for his own safety.
Mr O’Brien had told the court he was walking away after the grave of an elderly woman had been covered, to be filled in later, when his foot went and he fell. “I felt a crack in my foot. The path was slippy. It should have been salted and it wasn’t,” he said.
Surgery
He later had reconstruction surgery on his right ankle said he was out of work for about eight months after the accident.
In his ruling, the judge said the issue in the case was what caused Mr O’Brien’s fall and whether it was because of the slippy nature of the ground due to frost and ice. The judge accepted salt had been requested and a bag of sand at the cemetery had been “exhausted”.
Mr O’Brien’s evidence was supported by the cemetery caretaker at the time and also by a mourner at the funeral, he said.
Mr Justice Cross said he had been asked by the council to prefer the theory offered by a witness from the Met Office, who had examined the reports and the data for the date in question, over the evidence of witnesses to the accident. Mr Justice Cross said he believed the witnesses to the accident.
He awarded €40,000 damages for pain and suffering to date and a further €10,000 for pain and suffering into the future which, with with special damages, amounted to €50,850.