Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 17
Mark Lawless v Adrian Keatley:
A “common sense” approach to
employer's liability
By Sorcha Ward - www.dacbeachcroft.com
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Overview
The High Court (Twomey J) delivered judgment in
the case of Lawless v Keatley on the 26th June 2025.
The case concerns an alleged incident on an employer's premises on the 9th March 2016 wherein the
Plaintiff suffered an injury to his back while emptying
a wheelbarrow on a upward incline.
2. Courts should apply 'common sense' and
'scepticism' to personal injury claims
The Court cited O'Donnell J (as he then was) in
Rosberg, who stated that 'courts should approach claims
….not simply on the basis of the genuineness or plausibility of
witnesses, but by applying common sense and some degree of
scepticism'.
Twomey J considered whether incidents such as that
which befell the Plaintiff should lead to compensation
simply because they occurred 'on the premises of a third
party with insurance.' Mr Justice Twomey stated that, in
his view, the plaintiff's accident, 'if it happened in a domestic setting would be regarded as an unfortunate everyday
mishap or accident'.
Twomey J referred to Nemeth, where the Court of
Appeal found that 'when a court is dealing with expert
evidence from engineers on "ordinary everyday matters with
which most people would be expected to be familiar' the court
can bring 'its own common sense to bear".'
The judgment considered that while expert evidence
might be required in a "highly specialised area of …..
medical or scientific expertise", a 'court does not require an
engineer to tell it that one should empty a wheelbarrow on an
upward incline, since this is basic common sense'.
Furthermore, the judgment considers the usefulness,
to the courts, of expert evidence from engineers in relation to these "unfortunate everyday mishaps, or whether
the courts are capable of assessing those everyday mishaps by
applying "common sense".
Implications
The decision by the High Court in Lawless reaffirms
the principle that employers are not insurers for every
workplace incident, especially where the tasks at hand
align with "everyday" domestic activities. The case calls
for the application of common sense in cases involving
everyday tasks, criticises the over reliance on expert
evidence and marks a call for realism in personal injury litigation.
Decision
In dismissing the claim of Mr Lawless, Twomey J
referred to and cited the recent decisions of the Court
of Appeal in Nemeth v Topaz Energy Group Limited
[2021]1, the Supreme Court in Rosberg Partners v L.K
Shields [2018]2 and the Court of Appeal in Morgan v ESB
[2021]3 and stated that:
1. An employer is not an insurer of an employee
Twomey J found, as was the case in Nemeth, that the
plaintiff was undertaking an action that, if it had taken
place in the plaintiff's home or garden, would be
considered an unfortunate everyday mishap.
References
[1] [2021] IECA 252.
[2] [2018] 2 I.R 811.
[3] [2021] IECA 29.
Twomey J opined that 'an employer is not liable for an
injury resulting from an employee doing an everyday task,
simply because he/she happened to do that task at work'. In
very plain language, Twomey J found that 'just because
an employer has an insurance policy for accidents at work
does not mean he/she ….should be regarded as being liable
for unfortunate everyday mishaps'. The test is: has the
employer failed to exercise reasonable care?
Twomey J found the task the Plaintiff was carrying out
at the time of his alleged accident - emptying a wheelbarrow – was an everyday task, which required no
specific training. There was no defect in the wheelbarrow. As such it seemed to the Court that 'there could
be no liability on the part of the employer, for not providing a
safe system of work.'
EXPERT WITNESS JOURNAL
Author
Sorcha Ward
Trainee Solicitor
Dublin
Email: soward@dacbeachcroft.com
15
OCTOBER/NOVEMBER 2025
