The High Court has refused to strike out a personal injuries claim from a former bookies employee who had signed a compromise waiver agreement for redundancy.
Plaintiff Philomena Hennessy “undoubtedly has hurdles to overcome” in her case with regard to the waiver and the statute of limitations, but these issues should be dealt with by the trial judge as a preliminary issue, ruled Ms Justice Marguerite Bolger in a recent judgment.
Ms Hennessy, with an address at Glenfield, Kilmallock, Co Limerick, is suing her employer of 17 years, Ladbrooks Payments (Ireland) Limited and Ladbrooks (Ireland), over a shoulder injury she allegedly suffered while working for the company, said the judge.
Waiver
Ladbrooks had sought to dismiss her proceedings submitting that they were bound to fail due to her having signed the agreement waiving any right to take action against it and due to the case being statute-barred, noted the judge. The company further contended there had been an inordinate and inexcusable delay in commencing and conducting the proceedings and the real risk of unfair trial arising from that.
Her employment ceased in August 2015, at which point she signed the compromise waiver agreement. This included a clause that said the employee had entered into the agreement “without coercion of any description” after taking independent legal advice as to its terms and effects, said the judge.
However, some eight months after signing this she launched an application with the Personal Injuries Assessment Board (PIAB) claiming she was repeatedly required to engage in repetitive movements and/or to work in awkward and unsuitable conditions during her employment, said Ms Justice Bolger.
Pain
Ms Hennessy claims she developed pain in her right shoulder due to her former employer’s alleged negligence and breach of duty to her, according to the judge. The claims are denied by Ladbrooks.
In the High Court motion, Ms Hennessy claimed she was informed that if she did not sign the waiver agreement another employee would be offered redundancy instead of her, said the judge. She claimed she did not take legal advice about it and was not advised to do so, the judge noted.
The judge said the company sought to excuse what seems to her to be an untrue statement in the waiver agreement on the basis that any obligation that they may have had to advise their employee to take legal advice fell away when she signed the document saying she had done so.
Ladbrooks contended that Ms Hennessy must take responsibility to read and have some understanding of the document and that she is bound by what she signed, noted the judge.
Ms Justice Bolger said she did not consider that the “bare existence” of the waiver meant Ms Hennessy’s case was bound to fail. The plaintiff’s claim that she was pressurised into signing it could have implications for the enforceability of the agreement she entered, she found.
The judge also said that, although Ms Hennessy has had issues with her shoulders since 2009, she claims she did not realise the significance of her injuries until after February 2014. Ms Justice Bolger found the issue cannot be fairly determined without evidence from the plaintiff or possibly from her doctors.
The judge was also not satisfied any delay that has occurred or any prejudice the company claims it has suffered is such that the proceedings should be dismissed.
