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Gravedigger awarded €50k after slipping on ice at funeral

Independent.ie logo Independent.ie 06/10/2017 Tim Healy

Nicky O Brien of Windmill Heights, Wexford, pictured leaving the Four Courts © Provided by Irish Independent Nicky O Brien of Windmill Heights, Wexford, pictured leaving the Four Courts A gravedigger who slipped on ice fracturing his ankle at a funeral has been awarded over €50,000 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 he has been left with scars.

Grave digging, the judge said, is a noble vocation and the graveyard where the accident occurred - St Ibar’s cemetery near Wexford town - is a typical old Irish graveyard which has hazards and is not laid out with precision and military grace as those in continental Europe.

The judge believed the accident was caused by the slippy nature of the ground which was sheltered by a headstone.

If there had been grit, the judge said this accident would have been avoided.

Mr Justice Cross also rejected there was contributory negligence on the part of Mr O'Brien.

"He was not running. He was wearing his work boots. He did nothing inappropriate," Mr Justice Cross stated.

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.

He later had to have reconstruction surgery on his right ankle and said he was out of work for about eight months after the January 8, 2009 accident.

Mr Justice Kevin Cross said the issue in the case was what caused Mr O'Brien's fall  and was it because of the slippy nature of the ground because of frost and ice.

The judge accepted that salt had been requested and a bag of sand at the cemetery had been exhausted. Mr O'Brien, in his evidence, said he was supported by the cemetery caretaker at the time and a mourner at the funeral.

Mr Justice Cross said in the case he was been asked by the Wexford Borough Council side 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 he believed the witnesses to the accident.

He awarded €40,000 for pain and suffering to date and a further €10,000 for pain and suffering in to the future with special damages came to a total of €50,850.

Nicky O'Brien (56), Windmill Heights, Wexford had sued his employer at the time Wexford Borough Council as a result of the accident on January 8, 2009.

He claimed Wexford Borough Council permitted the footpath to be and remain in a dangerous and unsafe condition  and allegedly failed to warn him of the hazardous nature of the path.

He has further claimed there was an alleged failure to warn employees and the public in general of the existence of the hazard on the footpath and the Council had not provided grit and salt which could have been spread on the cemetery  paths .

The Council denied the claims and contended that Mr O'Brien failed to take any care for his own safety.

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