A farmer and bovine embryologist has lost his personal damages and €75,000 loss of earnings claim arising from injuries sustained while carrying out a pregnancy test on a cow.

In the case before the High Court, Mr Justice Brian O'Moore has dismissed independent contractor and specialist Myles McDermott’s personal injury and loss of earnings claim against the Agricultural and Food Development Authority, Teagasc.

After hearing three days of evidence in the case, Mr Justice O’Moore dismissed the claim due to Mr McDermott’s failure to use an iron bar in a cattle crush that would have provided protection against him sustaining injury on the day.

Mr Justice O’Moore also stated that he found Mr McDermott’s evidence to be “equivocal and inconsistent” and that he preferred the evidence of operator of the cattle crush Ms Simone McCabe over Mr McDermott as to what occurred.

Cow scanning

The failed personal injury damages claim relates to Mr McDermott attending Teagasc's premises at Grange, Dunsany, Co Meath, on 14 October 2015 to carry out 300 pregnancy tests on cows for the State agency.

Mr McDermott had been doing this type of work for 25 years at that time and had been carrying out this form of pregnancy testing for Teagasc in Dunsany for three years prior to the accident.

The testing was to be carried out by introducing each cow to a cattle crush, where the animal was restrained in a neck brace.

The farmer and bovine embryologist farmer and bovine embryologist was half way through scanning the 300 cows when the incident occurred. \ CJ Nash

Mr McDermott stood behind the cow, inserting his left arm into the rectum and, by use of a probe, photographed the cow's uterus. The resulting image would then be inspected by Mr McDermott to see whether the cow is pregnant.

Use of iron bar

The cattle crush came with an iron bar which can be placed between the animal and the embryologist and Mr Justice O’Moore stated that if the bar had been in place during Mr McDermott's examination of the cattle on the day in question, he would have been fully protected from injury by any movement backward on the part of an animal.

In his written judgement, Mr Justice O’Moore stated: "There is no doubt that placing one's arm into the rectum of a fully grown cow while in the immediate vicinity of its rear presents dangers."

He said: “One of the hazards is that the cow will fall down or fall back or both. That is why there is a neck brace holding the cow's neck in place so that it cannot move.

"Of course, the neck brace can itself cause distress or death to the cow. That is why there is a rear restraint bar available with the crush.

"If the animal becomes distressed, the brace or gate can be loosened without any risk to the person examining it. That risk is removed by use of the restraint bar."

Dismissing Mr McDermott's claim, Mr Justice O’Moore stated: “In providing a crush box equipped with a restraint bar, Teagasc have acted to extinguish the risk to the plaintiff (Mr McDermott) of the sort of injury that he has suffered.”

The judge stated: “One does not need to be an engineer to realise that failure to use a rear restraint bar exposes someone to injury in the event that the cow becomes distressed and the gate is therefore loosened.”

Slow down the process

In his evidence, Mr McDermott accepted that he was aware of the use of the bar as a safety feature in other places, but that he had made a conscious decision that he did not need the bar at Dunsany and therefore did not ask about the availability of the bar.

The cattle crush came with an iron bar which can be placed between the animal and the embryologist, Teagasc argued.

Mr Justice O’Moore stated: “The bar was, in fact, available for use by Mr McDermott and had he asked for it, he would have been provided with it.

He said: “Mr McDermott, although fully aware of the protection that the use of this bar would provide, but it was not his common practice to use one.

He added: “This was because using the bar would slow down the process of checking the animals, this would mean that less cattle would be done in the day and as he was paid by the beast he would earn less money.”

Fretful cow

Each exam would last one minute and Mr McDermott was around halfway through the 300 cattle when, while carrying out one examination, one cow became "fretful and tremorous and anoxic”.

The neck brace had to be released to relieve the animal. Mr McDermott called out and the gate was released so that the neck brace loosened and the cow fell on to Mr McDermott and he was injured.

In evidence, Mr McDermott stated: "When I recognised what was happening I said 'we're in trouble here' or something to that effect. I don't remember the exact words.”

Ms McCabe stated that she only realised Mr McDermott was injured when he said "my leg's gone".

Teagasc argued that Mr McDermott was responsible for his own injuries as he failed to step back from the animal or out of the cattle crush.