Stag attack on ESB worker will ‘forever haunt’ him as he settles case

No employee should be left alone especially when in very remote places, says worker

https://www.irishtimes.com/news/crime-and-law/courts/high-court/stag-attack-on-esb-worker-will-forever-haunt-him-as-he-settles-case-1.4776425

A former ESB worker who was tossed into the air by a stag on a Tipperary mountain said the attack would forever haunt him.

In a statement after he settled his High Court action against the ESB on Friday, John Corcoran (63) said: “While I am so grateful to be alive and be here today the attack I endured that day will forever haunt me.

“Being left for dead in a bush for over an hour and a half having narrowly escaped death is not a risk in the workplace that should ever be allowed to happen. I truly hope lessons have been learned,” he added.

He said no employee “particularly in the already dangerous line of work of the ESB” should ever be left alone, especially when working so remotely.

Mr Corcoran said it was deeply regrettable that the case and the accident occurred and he claimed it could so easily have been prevented “with better support and working conditions from the ESB”.

Mr Corcoran’s case had been adjourned after he had to attend hospital when he had an asthma attack in the witness box this week.

Mr Justice Paul Coffey was, on Friday, told the case had been settled and another case brought by Mr Corcoran against the ESB in relation to alleged exposure to asbestos had also been settled.

The terms of the settlements are confidential.

John Corcoran was an engineering officer with the ESB and was on his way to check on a mast when the stag attacked him on a forestry path at Kilduff Mountain outside Templemore, Co Tipperary, six years ago.

Rutting season
The attack took place in September 2016 during what is traditionally rutting season.

Mr Corcoran, of Fawnlough, Nenagh, Co Tipperary, had sued ESB Networks Designated Activity Company with a registered address at Clanwilliam House, Clanwilliam Place, Dublin and the Electricity Supply Board with a registered address at East Wall, Dublin, over the stag attack on September 12th, 2016.

Mr Justice Paul Coffey was told that liability had been admitted in the case which was before the court for the assessment of damages only.

The court previously heard Mr Corcoran’s case includes a claim for a total of €420,000 in loss of earnings.

It was claimed that Mr Corcoran had been permitted to work alone in a mountain area during the deer mating season when it ought to reasonably have been known that it was dangerous and unsafe to do so.

It was further claimed there was a failure to have in place any warning device, panic alarm, man-down system or automatic distress message system for persons working alone in isolated areas.

In evidence, Mr Corcoran said it was a really lovely summer’s day when the attack happened.

“A herd of deer crossed the path in front of me. I said wouldn’t it be a lovely picture and then I got a sense of fear. The hairs on my neck were standing. I looked behind me and there was a stag 15 paces back from me,” he said.

He started to run but he said the stag hit him with force, his antlers creating eight puncture wounds on Mr Corcoran’s rucksack and wounding him in the shoulder.

“He propelled me through the air at speed over a bank and into the scrub. I lost my helmet and glasses,” he said.

The stag continued to attack with feet and antlers but Mr Corcoran said he had a rod and managed to hit the stag a few times in the nostrils, but it reared up on his hind legs and came crashing down on him.

Mr Corcoran said he lost consciousness for an estimated 10-12 minutes but later managed to reach his phone and summon help.

His solicitor, Seán Fitzgerald of HOMS Assist, after the announcement of the settlements said it was miraculous Mr Corcoran had survived the stag attack.

“We are only grateful that his case is one that highlights the role of care and responsibility that employers have for their employees. We are pleased that Mr Corcoran now has some closure and that he and his family have the financial support for the care he requires for his life-changing injuries,” he added.

Family of factory worker who died from asbestos illness say others may be unaware of health risks

https://www.independent.ie/irish-news/family-of-factory-worker-who-died-from-asbestos-illness-say-others-may-be-unaware-of-health-risks-40285312.html

Patrick Byrne, who spent 20 years working at a tyre factory, died of an aggressive form of cancer

The family of a retired factory worker who died from an illness caused by exposure to asbestos has expressed concern that other employees at a former tyre factory in Dublin may be unaware of the risk to their own health.

Elizabeth Sullivan told an inquest into the death of her father, Patrick Byrne, that she hoped there could be some form of inquiry to establish if other people who worked at the former Semperit tyre factory in Ballyfermot may also have been exposed to asbestos.

Dublin Coroner’s Court returned a verdict of death due to occupational-related disease as Mr Byrne (85) of St James Road, Walkinstown had died from malignant mesothelioma – a form of cancer caused by inhaling asbestos fibres which affect the lungs and heart.

The Semperit tyre factory on Killeen Road, Ballyfermot was in operation before its closure in December 1996 with the loss of 650 jobs.

The inquest heard Mr Byrne, who was a non-smoker, joined Semperit in 1974 and worked there for 20 years until his retirement.

Ms Sullivan told the Dublin Coroner’s Court that she was concerned that other former Semperit staff might not be aware of mesothelioma and how it could affect them.

She told coroner, Dr Clare Keane, that her father had experienced “a strange stabbing, severe” pain in his chest for about a year before his death on March 19, 2020.

Ms Sullivan said her father had only started working in the Semperit factory in his 40s, while many staff had worked there even longer and could be facing similar health problems now.

“My father was in great, unusual pain. It was very difficult to understand and if other men are facing that I would like that they could be helped,” said Ms Sullivan.

She added: “I really believe there must be an awful lot of people out there that are suffering the way my father suffered without knowing why they are suffering. And to me that’s the most important thing that needs to be addressed.”

The inquest heard Mr Byrne had been referred by his GP for an urgent chest X-ray in Tallaght Hospital in February 2020 after which he was confirmed as having malignant mesothelioma.

In written evidence, Professor Stephen Lane, a consultant respiratory and general physician at Tallaght Hospital, said Mr Byrne had a significant exposure to asbestos in the past.

The inquest heard Mr Byrne was not deemed suitable for chemotherapy as the risk of treatment outweighed any marginal potential benefits.

In response to a query from Mr Byrne’s family about holding an inquiry into asbestos-related illness at the Semperit plant, Dr Keane said the coroner’s office had previously been in contact with the Health and Safety Authority as a result of asbestos-related deaths.

Dr Keane said the HSA had confirmed it was active in raising public awareness about mesothelioma, particularly among targeted workers in the construction and demolition industry who were most at riskfrom inadvertent exposure to asbestos as well as the owners of buildings built before 2000 which were more likely to contain the material.

She said the HSA agreed with a previous recommendation of the Dublin Coroner’s Court that further sources of information and support to individuals who may have been exposed to asbestos in their previous occupations would be beneficial but the HSA believed it was a matter for the Department of Health and HSE to consider.

Offering condolences to Mr Byrne’s family on his death from a “difficult and aggressive form of cancer”, Dr Keane said she would raise the issue with the HSA again.

ECtHR: ‘Gay cake’ saga cut short as Strasbourg declares application inadmissible

https://www.irishlegal.com/articles/ecthr-gay-cake-saga-cut-short-as-strasbourg-declares-application-inadmissible

By Conor Courtney

The European Court of Human Rights (ECtHR) has dismissed the so-called “gay cake” case brought by Gareth Lee, a UK national, represented by Ciaran Moynagh of Phoenix Law, against the United Kingdom government.

The ECtHR found that Mr Lee had relied on national legislation to advance his discrimination claims in the domestic courts, and not Articles 8, 9 or 10 of the Convention.

By relying solely on domestic law, the applicant deprived the domestic courts of the opportunity to address this important issue themselves before he lodged his application with the European court, and the court therefore declared the application inadmissible.

Background
Mr Lee, a gay man, was associated with an organisation called QueerSpace, which is a volunteer-led organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland.

He planned to attend a private event on 17 May 2014, to mark both the end of the Northern Ireland Anti-Homophobia and Transphobia Week and the gathering political momentum towards legislation for same-sex marriage.

He decided to purchase a cake to bring to the private event, from Ashers Baking Co. Limited, designed with a picture of Bert and Ernie, the logo of QueerSpace and the headline caption, “Support Gay Marriage”.

On 12 May 2014, he received a telephone call from Ashers indicating that the order could not be fulfilled. The reason given was that they were a Christian business and, in hindsight, should not have taken the order.

The applicant brought an action against Ashers as a limited company and its owners, Mr and Mrs McArthur, in the County Court, claiming he had been discriminated against contrary to the provisions of The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.

The County Court proceedings
The question before the County Court was whether there had been any direct or indirect discrimination on grounds of sexual orientation, or on grounds of political opinion or religious belief.

Mr Lee argued that the McArthurs took exception to his sexual orientation, which they considered sinful; and that, in placing the order, he had not asked them to support or promote his cause, but rather to bake a cake.

The McArthurs, on the other hand, argued that the order was refused not because of the applicant’s sexual orientation, of which they had no knowledge, but rather because they believed that providing the cake would have promoted and supported the political campaign for legalisation of same-sex marriage in Northern Ireland, which they regarded as sinful and against their Christian beliefs.

The County Court found that the defendants had directly discriminated against the applicant on the ground of his sexual orientation contrary to the 2006 Regulations, for which there could be no justification.

The defendants appealed the decision by way of case stated before the Court of Appeal.

Court of Appeal proceedings
The Court of Appeal found that there had been associative direct discrimination against the applicant on the ground of sexual orientation (that is, direct discrimination by virtue of his association with the gay and bisexual community), and did not consider it necessary to read down or disapply the provisions of the 2006 Regulations.

The court considered the possibility of arbitrary abuse if businesses were free to choose what services to provide to the gay community on the basis of religious belief. The Court of Appeal also agreed with the lower court that the defendants had not been required to promote or support gay marriage by providing a cake.

UK Supreme Court proceedings
In the Supreme Court’s view, the Court of Appeal’s finding had suggested that the reason for cancelling the cake order was that the applicant was likely to associate with the gay community, of which the McArthurs disapproved.

However, the Supreme Court found no evidence that the bakery had discriminated as such in the past, because “they had both employed and served gay people and treated them in a non-discriminatory way”. Therefore, the reason for refusing to supply the cake was not that the applicant was thought to associate with gay people, but due to the McArthurs’ religious objection to gay marriage.

The Supreme Court observed that: “The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man.”

ECtHR decision
Following the Supreme Court decision, Mr Lee complained under Articles 8, 9, 10 and 14 of the ECHR, that his rights were interfered with by a public authority (namely, the Supreme Court) by its decision to dismiss his claim for breach of statutory duty; and that the interference was not proportionate.

The government argued that Mr Lee had not exhausted domestic remedies as he failed to raise his complaints under Articles 8, 9, 10 and 14 of the Convention in the domestic proceedings.

Mr Lee contended that:

he raised his Convention arguments in substance, as the domestic law provisions relied on were enacted to protect his rights under Articles 8, 9, 10 and 14 of the Convention; and
that in any event the violations later complained of only crystallised upon the handing down of the judgment of the Supreme Court.
Ultimately, the court found that the applicant did not invoke his Convention rights expressly at any point in the domestic proceedings. Instead, he formulated his claim by reference to the 2006 Regulations and the 1998 Order. The court was not persuaded by either of Mr Lee’s submissions.

The court found that the 2006 Regulations and the 1998 Order were enacted to protect the Convention rights of consumers, in a very limited way, against discrimination in access to goods and services. They could not, therefore, be relied on to protect consumers’ substantive rights under Articles 8, 9 or 10 of the Convention.

By relying solely on domestic law, the applicant deprived the domestic courts of the opportunity to address this important issue themselves before he lodged his application with the European Court. The domestic courts were better placed than the ECtHR to strike the balance between the competing Convention rights of the applicant, on the one hand, and the McArthurs, on the other.

Conclusion
In choosing not to rely on his Convention rights, the applicant deprived the domestic courts of the opportunity to consider both the applicability of Article 14 to his case and the substantive merits of the Convention complaints on which he was now relying. Instead, it was held that he was now inviting “the court to usurp the role of the domestic courts by addressing these issues itself”.

The Court determined that the applicant had failed to exhaust domestic remedies in respect of his complaints under Articles 8, 9 and 10 of the Convention, read alone and together with Article 14. Accordingly, these complaints were rejected as inadmissible pursuant to Article 35 ss1 and 4 of the Convention.