Common Law Duties
Cases
Lendrum -v- Clones Poultry Processors Ltd
[2008] IEHC 412
Peart J.
“The accident:
As I have stated, the accident giving rise to the present claim occurred at the rear of the defendant’s premises while the defendant was engaged in loading product into the back of a van belonging to the defendant company which was parked roughly opposite the rear entrances to the premises. The laneway on which the van was parked was part of the roadway which I have described. It is approximately 11 metres in width at that point, and the van in question was parked in a position opposite these entrances and against a low wall on the other side, meaning that in order to get to the van in this parked position on this occasion it was necessary to cross to the far side of the roadway. There is no evidence before me as to whether the defendant required the van to be parked on the far side of this roadway when being loaded, rather than on the near side, but that may be dictated by the fact that on the near side between two of the three entrances into and out of the back of the premises, there is a large green Portakabin which is used apparently as a canteen.
……………..
The plaintiff has given evidence that he was never given any instruction by his employer as to how to conduct himself safely in the lane when loading up a van with product. Neither was there any health and safety notice.
Robert Burke, an engineer, of Herr Engineering & Design, has given evidence in accordance with his report. He has stated that at the locus of this accident and in the area of the Enterprise Centre as a whole, there are no warning signs, speed limit warnings, or anything which would warn a car driver that care must be taken because of the presence of people working in the area, either at the entrance to the Centre or anywhere within it.
He is of the view that measures could and should have been taken by the plaintiff’s employer to warn passing motorists, in particular those who pass at the rear of its premises, to ensure as far as possible the safety of its employees who may be working there. These measures would include the designation of a particular area for loading up vans in that area, ensuring that the area was kept clear, the placing of appropriate signage to warn drivers to take care, the placing of a speed limit for cars of about 10 mph, the placing of speed ramps, as well as ensuring that the gate at the exit point onto Rosslea was at all times kept closed to prevent this route being taken as a short-cut for traffic to that road.
He is also of the view that the defendant should have provided high visibility clothing for its employees working in this rear laneway in order to increase the visibilityof those employees while working in this area. He is of the opinion that the failure to take such measures means that the plaintiff was required to work in an unsafe environment, and that the defendant’s failures in that regard constitute a breach or breaches of the Safety, Health and Welfare at Work (General Application) Regulations 1993.
When cross-examined by Eoghan Fitzsimons SC for the defendant, he accepted that there would also have been an onus on the plaintiff to take reasonable care for his own safety while working. In that regard Mr Fitzsimons suggests that the only reason that this accident happened was that the plaintiff “went on a frolic of his own” by wanting to observe the first vehicle as it proceeded past the van, and that this was not part of his work activity, and was simply a traffic accident at the back of the premises, especially since it occurred in “a public place”.
Joseph P. Osborne, a consulting engineer, who prepared a report for the defendant, gave evidence in accordance with that report. He disagrees that the measures suggested by Mr Burke would have prevented this accident from occurring, and opined that it was simply a traffic accident and unrelated to any defects in the safety of the workplace or system of work. He is of the view that the defendant company simply has the use of these premises and that it is the Enterprise Centre which has the responsibility for matters such as road signs and other warnings to drivers passing through. He also believes that any drivers passing through this way for a shortcut would be local people and would already be aware that there may be people working at the rear of this premises. He believes that there is no need to have any signage in the roadway for such drivers. In his report he states that the blame for this accident must rest with the driver of the car and to an extent the plaintiff, and that “it is difficult to know …… what Clones Poultry Processors could have done to avoid the accident”.
Conclusion on liability:
The first thing to be said is that there is no evidence before me in these proceedings that any complaint exists in relation to the manner in which this vehicle was being driven on the area at the rear of the defendant’s premises, either prior to or at the time of making contact with the plaintiff’s foot and causing him to fall to the ground. The plaintiff has said that he did not either hear or see the car before this happened. The claim being made is in these proceedings is only against the defendant company, the plaintiff’s employer for failing to provide a safe place of work and/or a safe system of work. There has been evidence in the case that a second set of proceedings has been commenced against the MIBI seeking damages for negligence by an untraced driver, but it has been agreed between the plaintiff’s solicitor and the MIBI that the present proceedings would be determined ahead of the latter.
The personal injury summons in the present case recites a large number of allegations of negligence in this regard, but it unnecessary to set them out in detail. They can all be conveniently dealt with as a claim related to a safe place of work and safe system of work.
Mr Fitzsimons has suggested that no warnings or high visibility clothing would have served any purpose in preventing this incident from occurring, and that the sole cause of the plaintiff’s injury was the plaintiff’s own action – one outside the course of his employment, by deciding to come away from the back of the van in order to watch the progress of the first car which was travelling at speed. He suggests that if the plaintiff had simply ignored that and continued to do his work at the back of the van in the normal way, this accident would not have happened. For this reason, he suggests that this accident did not occur during “the course of his employment”.
I believe that to be an unduly restrictive meaning to “in the course of employment”. The plaintiff’s work required him to work in this laneway in order to load up the defendant’s product into the delivery van, and the defendant must be taken to have been aware that drivers were in the regular habit of using this area as a shortcut to the other road. That means that the defendant must be taken to be aware that such traffic would on a regular basis pass the point where the delivery vans were parked. The plaintiff was at work on that occasion, and engaged upon his duties, albeit that for a moment or two he looked at a passing car. I do not think that such a brief moment when his mind was on something which was not strictly work-related is sufficient to take the accident outside “the course of his employment”.
In my view the defendant as employer was under a duty to take care not to expose the plaintiff to any danger at work which was reasonably capable of being anticipated, and this required them to take reasonable steps to ensure the plaintiff’s safety while at work in the lane. It seems to me that no steps whatsoever were taken in that regard. Nevertheless, it is also the case that some of the measures identified by Mr Burke as appropriate to have been taken would not have had any impact in preventing this particular accident. There is a lack of causation therefore in relation to some of these suggested measures.
However, I feel that a reasonable precaution to be taken by the defendant would have been to provide the plaintiff with a high visibility jacket for use while working in the laneway on which there would be passing cars on a regular and known basis. That would have made the plaintiff more visible to the driver of the car as he turned back to return to the back of the van.
In addition, the absence of warning signs of any kind will have contributed to the driver failing to be alerted to keep a lookout for men or women working at the rear of the premises.
On the other hand, while speed ramps may well be a good idea generally, and a reasonable precaution for the defendant to have in place outside their premises in this Enterprise Centre, their absence on this occasion is irrelevant to causation since there is no evidence that the car in question was travelling other than very slowly. If that were not the case, it is probable that the plaintiff would have heard the car, as he had heard the first car, and in addition it is unlikely that the driver would have simply been able to stop his car trapping the plaintiff’s foot in the process. The same comment applies to the erection of speed limit signs.
But I accept that in circumstances where the defendant’s employee is required to load up a van with its product at the rear of the premises, and in an area where traffic is known to pass, it would be a reasonable measure to have a clearly designated and safe area for the van to be located while being loaded, and if possible in a position on the near side of the laneway, rather than against the low wall on the far side. That was absent in this case. It was reasonably foreseeable that an accident of this kind might occur if appropriate precautions were not taken to protect the plaintiff.
In these circumstances, I am satisfied that the defendant company breached its common law duty of care to the plaintiff by failing to ensure that this workplace, which includes this area for the purpose of this case, was safe in all the circumstances. I need not conclude the matter on the basis of any breach of statutory regulations.
Contributory negligence:
That said, however, I am satisfied that the plaintiff must bear a significant portion of the responsibility for this unfortunate occurrence. He also was well aware of the existence of passing traffic on this laneway. He was a mature and responsible employee, occupying the post of dispatch manager, as well as having other general duties. He must be taken as being aware that he must take reasonable care for his own safety while working in that environment. He accepts that he need not have moved to the outer side of the van from the back of the van in order to watch the progress of the first vehicle which passed him. It was not that act which was lacking in care for his own safety, but rather the manner in which he appears to have simply turned round to return to the back of the van, without apparently checking whether it was safe to do so, or anticipating that there might be a vehicle approaching. He failed to either see, or even hear the approaching car. It seems to me that he made that manoeuvre without any thought for any possible risk from cars which he was aware were in the habit of passing on that stretch of laneway. He ought to have taken more care for his own safety to ensure that it was safe to return to the back of the van. His failure to do so contributed significantly to this accident, even though his employer might also have taken greater care to ensure that his workplace was safer.
Coffey v Kavanagh
[2012] IESC 19
SC Denham C.J.
“….
3. The respondent claimed damages from the appellant to compensate her for injuries which she suffered arising out of an incident on the 4th October, 2004. On that date, in the course of her employment, she was caused or permitted to trip over a box in the office area of the appellant’s premises and suffered a fracture of her right wrist.
4. The respondent claimed that the fall and consequent injuries which she suffered were caused by reason of the negligence and breach of duty of the appellant in failing to provide her with a safe place of work and in causing or permitting the office area of the premises to become cluttered, unsafe and dangerous, with consequent risk of injury of the kind she sustained.
5. The appellant denied that he was negligent and claimed that the respondent’s injuries were caused by her own negligence in failing to have adequate regard for her own safety. He claimed that the respondent suffered her injury while she was assembling art packs and placing them in boxes on the floor of the office area, and that she failed to perform the task in a careful manner and caused or contributed to her own injury.
6. The learned trial judge found the respondent to be a careful, conscientious and truthful witness and he accepted her evidence as to the events which occurred on the 4th October, 2004. He held as follows:-
“When the [respondent] returned from lunch on the 4th October, 2004, the office area within the [appellant’s] premises was cluttered with boxes and materials which were strewn in a most untidy and unsatisfactory manner, and in some parts of the room, it was necessary to virtually climb over boxes in order to go from one part of the room to another.
The [respondent] began to tidy the office area in order to address, to some extent, complaints from the shop staff which had been made earlier by the [respondent] to the [appellant].
I am satisfied, on the evidence and on the balance of probabilities, that, whilst she was tidying the office floor, the [respondent] was caused to trip and fall. Her trip and fall was caused by some article or hazard on the floor which caused her to fall over one of the boxes on the floor.
The box over which she tripped was full of heavy materials and was, consequently, solidly fixed to the floor. In order to break her fall, the [respondent] put out her right (dominant) hand and her hand, consequently, took the principal force of her fall and she suffered the fracture which has given rise to these proceedings.
I accept the unchallenged evidence of Mr. Culleton that, in the circumstances, the office area within the [appellant’s] premises was unsafe for the purpose of packing articles into cardboard boxes and represented a hazard to staff members who were required to pass to and from and to through the office area for various purposes associated with their employment.
I also accept Mr. Culleton’s evidence that a safe traffic route should, at a minimum, have been provided for staff members for such purposes as they might require in the course of their employment. I am satisfied, on the evidence of the [respondent] and on the evidence of Ms. Giles, that no such safe traffic route was maintained in the office area in October 2004, when this incident occurred.
I am also satisfied, on the evidence of Mr. Culleton, that the system of work which was maintained by the [appellant] on the premises for the packing of materials into cardboard boxes was unsafe and represented a hazard for staff members who used the office area and were required to pass through the office.
In particular, the work station which was provided for employees to pack orders for transmission and delivery to customers was most unsatisfactory and untidy and unsuitable for the purpose for which it was required. It exposed the staff members to a variety of tripping hazards by reason of its inadequate space, its location, and the method which was adopted for packing and for storage within the defendant’s premises.
I accept Mr. Culleton’s evidence that there was a serious problem in relation to the available space for storing, packing and delivering materials from the small storage space at the back of the first floor of the defendant’s premises, and I accept the evidence of the [respondent] and of Ms. Giles, that, particularly during busy periods between July and the end of October each year, the office area was constantly cluttered with articles which comprised tripping hazards which were and remained a risk to staff members and other persons who were expected to use the office area and its environs.
Finally, I accept the evidence of Mr. Culleton that the [appellant] was negligent and in breach of his statutory and other obligations by failing to carry out a risk assessment in respect of the office area and the remainder of his premises, and by failing to put in place a safe and appropriate system of work which would have reduced or eliminated the risk of injury of the type which was sustained by the plaintiff.
It follows from what I have found that the [respondent] has established, on the evidence and on the balance of probabilities, that the [appellant’s] premises were unsafe and the system of work which was provided for the [respondent] was unsafe in the circumstances.
I am satisfied, also, that this negligence and breach of duty on the part of the [appellant] caused the [respondent’s] injury because I am satisfied, on the evidence, that she was caused to trip or fall because of the presence on the floor of article or hazard which, in turn, caused her to fall over one of the boxes on the floor. The [respondent] was acting in the course of her employment with the [appellant] when she suffered her injury and I accept her evidence that she was, in fact, trying to tidy up the premises when she tripped over the hazard which caused her injury.”
Contributory Negligence
7. On the issue of contributory negligence the learned High Court judge held:-
“It has been contended, on behalf of the [appellant], that the [respondent] was guilty of contributory negligence in failing to keep a proper lookout and that this negligence caused or contributed to her injury.
I do not accept that contention. I accept the evidence of the [respondent] and the evidence of Ms.Giles and that during busy periods, the floor of the office area within the [appellant’s] premises regularly became cluttered. I also accept the [respondent’s] evidence that she drew this to the [appellant’s] attention from time to time and that nothing was done by the [appellant] to reduce the risk of injury to the staff members by adopting a safe system.
I do not accept, on the evidence that the [respondent] failed to keep a proper lookout. I accept her evidence that a hazard on the floor, which she could not identify, but which caused her to trip, was probably either packing material or a tear in the carpet which caused her to trip and that she then fell over a box which was lying on the floor in an inappropriate place.
I cannot see how she can, in those circumstances, be found to have caused or contributed to her own injury. Accordingly, I am satisfied that the [respondent] is entitled to recover the full value of her claim.”
8. Thus, the learned trial judge did not accept the contention that the respondent was guilty of contributory negligence. He accepted the evidence of the respondent and Ms. Giles that the floor of the premises regularly became cluttered, and that she had drawn the problem to the attention of the appellant. He accepted her evidence that a hazard on the floor caused her to trip and that she fell over the box which was lying on the floor in an inappropriate place.
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Decision
15. This appeal raised the issue of liability for the injury caused. Essentially there was one issue, and that was whether the respondent was guilty of contributory negligence. It was submitted that she had failed to keep a proper lookout, that there were special circumstances in that the accident occurred in her office, that she was manager and that she had a duty of care. It was further submitted that there was a strong case for a finding of contributory negligence.
16. The law as to the role of this Court in reviewing oral evidence given in the High Court was stated by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at p. 217:-
“(i) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
(ii) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
(iii) Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See judgment of Holmes L.J. in “ Gairloch”, The S.S., Aberdeen Glenline Steamship Co. v. Macken 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
(iv) A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
(v) These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.”
17. This Court did not have the opportunity of seeing and hearing the witnesses in the High Court. The learned High Court judge did hear and see the witnesses and made primary findings of fact that are supported by credible evidence. Thus, this Court is bound by those findings. However, the High Court also drew inferences, and this Court may review those inferences.
18. The primary duty of care is on the employer, the appellant in this case, which has been established on the evidence. However, all the circumstances of the case have to be taken into consideration when considering the issue of contributory negligence.
19. The circumstances of this case include the following: the respondent was the manager of the shop. This role required her to work from a desk in the office. She was very familiar with the office. She had a responsibility to keep her desk and the area around it tidy. She knew of the clutter in the office; she had made a complaint previously; she knew of the potential danger; she was clearing the office when the accident occurred. She had started packing and unpacked two of the boxes and put them in the store room, and while walking, something on the floor caused her to trip and she fell. In all the circumstances I am satisfied that a degree of contributory negligence was established. I would hold that the respondent was 25% contributory negligent. Consequently, the award of damages for the respondent would be reduced to €41,175.00.
Conclusion
20. I would allow the appeal to the degree indicated in this judgment. “
Stachowski -v- Diamond Bar Ltd
[2012] IEHC 301
Peart J.
“…..
6. The issue as to liability in this case is whether the defendant breached its duty of care to the plaintiff by exposing him to an unsafe system of work, resulting in a foreseeable injury; or whether this plaintiff was in fact the author of his own misfortune by doing something which was not required of him by his employer and which he knew to be inherently dangerous and which could easily cause him an injury; or perhaps a combination of the two.
7. The plaintiff says that he was given no training as to how he should perform this task, and, that having been left to his own devices in this regard, he did the best he could. The defendant says that when the plaintiff was first taken on as an employee at the beginning of September, Mr Fay who owns the defendant company, and who is very experienced in this type of work, went out on the job with the plaintiff to show him the ropes, so to speak. He knew that the plaintiff had no previous experience of this type of work. The plaintiff had apparently done some military service in Poland before coming to this country, and as part of that service had obtained a qualification to drive trucks. But that apart, he had no particular relevant work experience. He was taken on as a general operative. Mr Fay was introduced to the plaintiff by another Polish man already in his employment. He found the plaintiff to be an excellent employee during the few weeks leading up to this injury. He spoke very highly of him.
8. The plaintiff has not stated that he was instructed by Mr Fay or any other employee of the defendant company to climb up onto the narrow ridge on top of the drop flap in order to adjust the pipes or the strapping. I can see no reason why the drop flap could not have been dropped, so that the plaintiff could easily have gained access to the flat bed of the truck and carried out whatever adjustments to the pipes that was necessary, and then put the flap back up into position in order to tie the straps to the sides of the truck. It is impossible to accept that the number of pipes and amount of other equipment on this truck would have made it impossible for the plaintiff to perform the task in this way. I cannot accept that there was the number of pipes which the plaintiff says there were on the truck. I cannot see any reason why there would be so many given the evidence which I have heard that a well might require perhaps 200 feet of piping. That would be ten lengths. I cannot see how there would be 90 pipes loaded up for a day’s work or even 50 in such circumstances.
9. The plaintiff was a very competent and valued employee even though he was working for the defendant company for a short number of weeks by the time of this accident. He was a general operative. It is inherent in the nature of the duties performed by a general operative that they are not specific. They can be many and varied as the day requires. Somebody such as the plaintiff must be expected to use his own commonsense in any situation which presents itself during the course of a day’s work. He must take reasonable care for his own safety too, and not take unnecessary risks. If he is presented with a situation which he considers to be risky, with the potential for injury to himself, he needs in his own interests to explore a safer way of doing the task. If necessary he could consult his employer for suggestions or advice.
10. In the present case the plaintiff was wearing Wellington boots. He decided to climb up onto the top ridge of the drop flap and to lean inwards while balancing on that ridge in order to adjust the pipes or the strapping. That was, he acknowledges, a dangerous manoeuvre. He appears to have lost his balance and fell awkwardly onto the ground below, causing himself a nasty twisting injury to his knee – a knee which had already suffered an injury previously apparently.
11. The plaintiff himself chose to adopt this particular and risky way of reaching the pipes and strapping. He was not instructed by the defendant to do this. He knew it was a risky thing to do. Having taken that risk, he has in my view only himself to blame. I am left wondering what exactly the defendant is supposed to have done to cause this to happen. The most that the plaintiff says is that he should have been provided with a ladder. I am not satisfied that even if he was given a ladder it would have assisted the plaintiff. I still consider that the optimal way of accessing the pipes was to simply lower the drop leaf and get up onto the back of the truck. The floor of the truck is only a meter or so above ground level. It is easily accessed by somebody like the plaintiff, even if some tools or equipment had to be moved slightly in order to facilitate him. He could in my view also have accessed the bed of the truck without dropping the leaf. He could even have left it in place and climbed over it and onto the floor of the truck, rather than simply staying perched precariously on the narrow ridge at the top of the drop leaf.
12. I do not consider that it is reasonable that his employer should be expected to have anticipated that the plaintiff would do as he did. It was not reasonably foreseeable that he would act in this way. I do not consider that the defendant breached its duty of care to the plaintiff. That duty of care is not an insurance or guarantee that no injury will be caused to the plaintiff. It is a duty to take reasonable care, and not expose the plaintiff to a foreseeable risk or hazard. Simply because an employee receives an injury at work does not automatically mean that his employer is responsible for its occurrence.
13. In these circumstances, I must dismiss the plaintiff’s claim. “
Everitt v. Thorsman Ireland Ltd.
[1999] IEHC 7; [2000] 1 IR 256
Kearns J
“…
22. Accordingly, a question falls for determination as to the responsibility, if any, of an employer for an injury sustained by an employee in circumstances where a tool supplied by a third party contains a latent defect which results in an injury to the employee.
As McMahon and Binchy (1990 Ed.) points out at p. 327:-
“The employer has the duty to take ‘reasonable care’ to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.”
23. The authors point out at p. 328:-
“It should, however, be pointed out that an employer is not an insurer of the safety of the equipment supplied to his employees. As Kingsmill Moore J. stated in the Supreme Court decision of Dowling -v- C.I.E.,
‘This duty is not a warranty but only a duty to exercise all reasonable care’.
Thus, where an employer buys from a supplier a standard tool, whose latent defect he has no means of discovering, he may be relieved of liability in negligence in the event of injury to an employee.”
24. In this regard, the first named Defendants relied on the decision of the House of Lords in Davie -v- New Merton Board Mills Limited and Anor. (1959 AC 604).
25. In that case a maintenance fitter was knocking out a metal key by means of a drift and hammer when, at the second blow of the hammer, a particle of metal flew off the head of the drift and into his eye, causing injuries. The drift, which had been provided for his use by his employers, although apparently in good condition, was of excessive hardness, and was, in thecircumstances, a dangerous tool. It had been negligently manufactured by reputable makers, who had sold it to a reputable firm of suppliers who, in turn, had sold it to the employers, whose system of maintenance and inspection was not at fault. The fitter claimed damages for negligence against his employers on the ground that they had supplied him with a defective tool.
26. The House of Lords held that the employers being under a duty to take reasonable care to provide a reasonably safe tool, had discharged that duty by buying from a reputable source a tool whose latent defect they had no means of discovering.
27. This unanimous view of the House of Lords is in accord with the Irish judgments in Bissett -v- Heiton & Co. (1930 I.R. 17) and Bissett -v- Heiton & Co. (No. 2) (1933 I.R. 242).
28. The Plaintiff for his part relied upon a decision of the Supreme Court delivered on the 18th November 1992 in Connolly -v- Dundalk Urban District Council and in particular to the passage of the judgment of O’Flaherty J. as follows:-
“The common law duties to take reasonable steps to provide safe plant and a safe place of work – I speak of the place of work as being part of the employer’s property, which is the instant case – are such that they cannot be delegated to independent contractors so as to avoid the primary liability that devolves on employers to make sure that these duties are carried out. These are responsibilities which cannot be put to one side; they must remain with the employer. They are owed to each individual employee. That is not to say, of course, but that the employer on occasion is entitled to and very often should get the best expert help that he can from an independent contractor to perform these duties. If he does so and the contractor is negligent causing injury to an employee, the employer retains a primary liability for the damage sufferedthough if he is not himself negligent he may obtain from the contractor a contribution to the damages and costs which he has to pay which will amount to an indemnity.”
29. Careful reading of this passage, which was obiter, certainly conveys to me that the learned Judge recognised that the actual common law duty is “to take reasonable steps to provide safe plant and a safe place of work”, and in the particular case (which concerned premises and not a tool) the employers were in any event found to be in default in two respects.
30. What further steps could the employers have taken in the instant case? Short of having the lever assessed by an expert in metallurgy or breaking the lever with a view to determining its maximum stress resistance it is difficult to see what they could have done. It was a newly purchased tool which appeared strong enough for the job and had been purchased from a reputable supplier and there is no suggestion to the contrary.
31. I therefore hold that the claim in common law against the employer in this instance fails.
32. That leaves open the question of statutory duty. The only breach of statutory duty upon which the Plaintiff relies (and in this regard no details of breach of statutory duty appear either in the original civil bill or amended statement of claim) is the suggestion that under Section 34 (1) (a) of the Factories Acts, 1955, the Defendants failed to provide “lifting tackle” which was of good construction, sound material, adequate strength and free from patent defect. I do not believe the lever in question can be regarded as “lifting tackle” and as the decision inDoherty -v- Bowaters Irish Wool Board Limited [1968] IR 277 related to a hook which was carrying a load which was suspended from a travelling crane, that case does not seem to me to be a binding authority in the present instance.
33. What does, however, seem to me to cover the situation is regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (SI No 44 of 1993) which imposes virtually an absoute duty on employers in respect of the safety of equipment provided for the use of their employees.
……..
34. Article 19 provides:-
“It shall be the duty of every employer, to ensure that –
(a) The necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health”
35. Article 20 requires employers to comply with the requirements of the fifth schedule which includes the following requirement at Requirement 7:-
“Where there is a risk of rupture or disintegration of parts of work equipment, likely to pose significant danger to the safety and health of employees, appropriate protection measures shall be taken.”
36. Accordingly, while there is no blameworthiness in any meaningful sense of the word on the part of the employers in this case, these regulations do exist for sound policy reasons at least, namely, to ensure that an employee who suffers an injury at work through no fault of his own by using defective equipment should not be left without remedy. AsO’Flaherty J. pointed out an employer in such a situation may usually, though not always, be in a position to seek indemnity from the third party who supplied the work equipment.
37. Accordingly, I find there has been breach of statutory duty on the part of the first named Defendant in this case……”
Lynch v Binnacle Ltd t/a Cavan Co-Op Mart
[2011] IESC 8
Supreme Court Denham J.
“Safe System of Work
24. The respondent had a duty to provide a safe system of work for the appellant. There was expert evidence that the system of work was safe when three drovers were present. However, when two drovers were absent the system became unsafe. When the appellant was injured the system was unsafe. In Kinsella v. Hammond Lane Industries Limited [1962] 96 ILTR 1 at p.4, McLoughlin J. stated:-
“If an accident causes injury to a workman and the accident results from a risk, of an unsafe system of work, against which the employer should have but did not take, reasonable precautions to guard, then the employer is liable for damages.”
25. In this case the facts are not in issue. Two employees left their work, thereby turning a safe system of work into an unsafe system. It is clear from the evidence that no provision was made for a situation where one, or two, drovers left their work. It is also clear from the evidence that the drovers were given no orders or directions as to what should happen in such circumstances. There was no evidence of supervision or of a procedure to be followed if one or more drovers left their work. The question then arises as to whether the respondent employer is vicariously liable.
Vicarious Liability
26. The traditional test, the Salmond test, was stated in Salmond’s The Law of Torts (1st ed., 1907) p.83:-
“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.
But a master … is liable even for the acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them.”
27. An employer may be vicariously liable for the wrongs of an employee, even when the employer may not have been at fault. Murnaghan J. pointed out in Byrne v. Ireland [1972] I.R. 241 at 280 (SC):-
“The doctrine is not invalidated by showing that the principal cannot commit the particular tort. It rests not on the notion of the principal’s wrong but on the duty of the principal to make good the damage done by his servants or agents in carrying on the principal’s affairs.”
28. In McMahon & Binchy’s Law of Torts, 3rd edn. (Butterworths Ireland Ltd., 2000), at paragraph 43.02, it is stated:-
“Historically speaking this example of strict liability can be traced to earliest times although its modern form in England dates from the end of the seventeenth century. It survived the “no liability without fault” era, to some extent as an anomaly, but nowadays with the trend towards no-fault concepts it can be sustained by more modern justifications such as risk creation and enterprise liability. In other words, the concept of vicarious liability has dovetailed nicely with the more modern ideas that the person who creates the risk, or the enterprise which benefits from the activity causing the damage, should bear the loss. Such persons or enterprises are in a good position to absorb and distribute the loss by price controls and through proper liability insurance. Liability in these cases should, it is felt, follow “the deep pocket”.”
29. In the recent Supreme Court decision of O’Keeffe v. Hickey [2009] 2 IR 302, the Court held that the State were not liable for actionable wrongs committed by the first named defendant in the action, who was a teacher, as there was no direct employment relationship between the teacher and the State. However, in several judgments there were discussions on vicarious liability, which were obiter dicta. The law at home and abroad was considered.
30. Having addressed the law in this jurisdiction, in Canada, and in the United Kingdom, Hardiman J. concluded that the law in Ireland is still that as stated in the Salmond test, and said any changes should be by legislation. Hardiman J. stated at paragraph 121:-
“I am not satisfied that it would be proper to ground vicarious liability on any of the theories expounded in the Canadian cases. I do not believe that the requirements of either fair compensation or deterrence justify the novel imposition of strict liability on an innocent employer for acts quite outside the well established Salmond test. It seems to me, as I have already said in this judgment, lacking in fundamental justice to impose a liability on a person simply because he is, or is thought to be, in a position to pay compensation. Equally, and perhaps even more obviously, it is wrong to impose the status of wrongdoer and the liability to pay compensation without fault for acts outside the scope of employment on the basis of pour encourager les autres.”
31. Fennelly J. also analysed cases from Canada and England and Wales . He took a different approach, and stated at paragraph 237:-
“The theoretical underpinnings of the doctrine of vicarious liability are much debated but no clear conclusion emerges. The result is that strict liability is imposed on an employer regardless of personal fault, which is especially striking when the acts are criminal and could not conceivably have been authorised even impliedly. Lord Steyn thought the imposition would be fair and just, if the necessary circumstances existed. Among the reasons suggested in the cases mentioned above is that the employer should bear the burden because he has “set the whole thing in motion” (Lord Brougham) or “has put the agent in his place…” (Willes J) or “is better able to make good any damage…” (Lord Pearce).
Also, commencing at paragraph 243, he stated:-
“Ultimately, I am satisfied that it is appropriate to adopt a test based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made. That test, as the cases have shown, has enabled liability to be imposed on the solicitor’s clerk defrauding the client (Lloyd v Grace Smith & Company [1912] 1 A.C. 716); the employee stealing the fur stole left in for cleaning (Morris v C.W. Martin & Sons Ltd [1966] 1 Q.B. 716) and the security officer facilitating thefts from the premises he was guarding (Johnson & Johnson v C.P. Security). In each of these cases, the action of the servant was the very antithesis of what he was supposed to be doing. But that action was closely connected with the employment. In Delahunty v South Eastern Health Board [2003] 4 IR 361, O’Higgins, rightly in my view, held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.
The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J provides an excellent example of practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 D.L.R. (4th) 45, the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.”
32. It is not necessary to consider a wider analysis in this case. In this case it is not necessary to advance beyond the traditional statement of the law in the Salmond test. This case is fact specific. The circumstances were that two other employee drovers left their work. While this was unauthorised it clearly was known that drovers did absent themselves from work on occasions. There was no evidence of any system of supervision by the employer. The drovers were authorised to herd the cattle. It was improper to absent themselves. Their absence was connected with the act they were authorised to do. This was so connected with the acts that they were authorised to do, droving the cattle, as to result in an improper mode of doing the work, an unsafe system of work. If they had not absented themselves the appellant would not have been exposed to danger. In this case one of the absent drovers was specifically employed to open the gate to the weighbridge, and it was in the absence of his co-employees that the appellant moved behind the bullock to open the gate and so expose himself to danger.
33. In all the circumstances of the case I am satisfied that the respondent is liable for the actions of the two employees, the two drovers, who absented themselves from work and so transformed a safe system of work and caused an unsafe system of work, a situation where the appellant was exposed to risk, and to injury.
Contributory negligence
34. However, the appellant also has a degree of responsibility. He did not ask the two other drovers to remain at work, nor did he even ask one to remain. He did not ask anyone to help him. He did not stop processing the cattle. He sought no assistance. The appellant has been a drover for many years, he is skilled and experienced in droving cattle, and would know of the nature of cattle and of a Limousin bullock. He had been employed as a drover for many years at the mart. Also, he managed cattle on his own farm. Consequently he is experienced in droving cattle. In all the circumstances I am satisfied that the appellant would have a contributory negligence of 33%.
35. Consequently, I would allow the appeal on the issue of liability and remit the matter to the High Court for an assessment of damages.”
Fennelly J.
“18. Since the decision of this court in Bradley v Córas Iompair Eireann [1976] I.R. 217 it has been established that, in cases of employers liability, negligence can be established in either of two ways: firstly, by establishing a departure from known and accepted standards in the particular trade or industry; secondly, by demonstrating a failing so obvious as to be unreasonable. Henchy J cited two principal authorities. In Morton v. William Dixon Ltd [1909] SC 807, Lord Dunedin pronounced what Henchy J considered to be “the most commonly cited statement of the necessary degree of proof” as follows:
“. . . I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either—to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or—to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.”
19. That prescription was, as Henchy J put it, “glossed” by Lord Normand in Paris v Stepney Borough Council [1951] AC 367 at 382:
“The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.”
20. The consequence of these principles is, in practice, that a plaintiff will rely on the evidence of an expert in order to establish the appropriate applicable standard. Mr Lyons cited the following passage from the judgment of Murray J, as he then was, in McSweeney v J. S. McCarthy LTD [Supreme Court unreported 28th January 2000]:
“It is well-established that an employer is under a common-law duty to provide his employees with a reasonably safe system of work. I know of no principle which exempts an employer from this duty only because their employee(s) are experienced, or know or ought to have known, of the dangers inherent in the work. Certainly, there are many factors which come into play in assessing whether, in the circumstances of the particular case, the system of work was reasonably safe or not. Among these are the experience of the workmen concerned, the level of danger involved, its complexity and so on.”
21. The employer is thus under a duty at common law to “provide his employees with a reasonably safe system of work.” This duty is laid directly on the employer and is non-delegable. As Hardiman J said in his judgment in O’Keeffe v Hickey [2009] 2 IR 302 at 325, the “distinction between a non-delegable duty of an employer and a vicarious liability of the employer for his employees is a subtle one.” I believe this distinction is at the root of the problem in this case. The learned trial judge looked for a distinct tortious act of the employees, Mr Drury and Mr Ford, with vicarious liability of the employer for that act as the sole basis of imposition of liability, but neglected to note that the duty to provide, using the expression of Murray J, a safe system of work is incumbent directly on the employer and is not capable of being delegated.
22. The authors of McMahon & Binchy, Law of Torts, (2nd ed. Butterworths, 1990 pars 18.33 state that “[s]ince Wilsons & Clyde Coal Ltd. v English [1938] A.C. it has been recognised that an employer’s duty of care to his or her employees is “non-delegable.””
23. Wilsons & Clyde Coal concerned an accident in a colliery in Scotland. The owner had delegated the management of the colliery to an agent. The respondents sought to rely on what is now the defunct defence of common employment to defeat the claim of a miner injured in their mine. Lord Macmillan explained the nature of the duty of an employer to his employees in the following terms at page 75:
“Now I take it to be settled law that the provision of a safe system of working in a colliery is an obligation of the owner of the colliery. He cannot divest himself of this duty, though he may – and, if it involves technical management and he is not himself technically qualified, must – perform it through the agency of an employee. It remains the owner’s obligation, and the agent whom the owner appoints to perform it performs it on the owner’s behalf. The owner remains vicariously responsible for the negligence of the person whom he has appointed to perform his obligation for him, and cannot escape liability by merely proving that he has appointed a competent agent. If the owner’s duty has not been performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible.”
24. O’Flaherty J in Connolly v Dundalk Urban District Council (unreported Supreme Court 18th November 1992, on appeal from the High Court judgment of O’Hanlon J reported at [1990] 2 I.R. 1) expressed the matter in the following terms:
“ The common law duty is to take reasonable steps to provide safe plant and a safe place of work – I speak of the place of work as being part of the employer’s property…… are such that they cannot be delegated to independent contractors so as to avoid the primary liability that falls on employers to make sure that these duties are carried out. These are responsibilities which cannot be put to one side; they must remain with the employer. They are owed to each individual employee.”
25. If the employer retains an independent contractor who, by his negligence, causes injury to the employee, “the employer retains a primary liability for the damage suffered though if he is not himself negligent he may obtain from the contractor a contribution to the damages and cots which he has to pay which will amount to a full indemnity.”
26. In the final analysis, I believe that the appellant is entitled to succeed in his appeal. This result can be reached alternatively through the route of vicarious liability or non–delegable duty. On the first basis, it can be said that it was the duty of the appellant’s fellow workers to assist him in the tasks of getting the animals from the pens into the sales ring. When they abandoned their task, they were acting within the course of their employment. They committed a breach of the duty of care owed to the appellant and the employer is vicariously responsible. I cannot see how this form of liability can be affected, as the trial judge appears to have thought, either by reason of the failure of the two men to seek permission or the fact that, as he believed, the absence of both men at the same time was unique. Alternatively, insofar as the otherwise safe system of work was not in operation on the day of the accident, the employer bears primary responsibility. The system was well described by the appellant and his engineer. The respondent called no evidence to explain how two men could leave their posts without permission or explanation. I would decide the primary issue of liability in favour of the appellant.
27. The respondent submits that, even assuming the respondent to have been liable, the appellant was guilty of contributory negligence. Two points, in particular, are made: firstly, that the appellant took inadequate care for his own safety by stepping into the single pen behind the Limousin bullock, thus exposing himself to the risk of being kicked; secondly, he should have sought assistance from other staff, rather than proceeding, as he did, to look after all the cattle going into the bullocks sale single-handed. In my view, there was contributory negligence on the part of the appellant. At the same time, it must be kept in mind that the prime duty to ensure that the system of work was safe rested on the respondent. The appellant was, in effect, continuing to keep the sales going for his employer. He also gave evidence, when pressed in cross-examination, that there was no other staff available. The appellant was an experienced handler of cattle and should have appreciated the risk of going into a pen alone with a single bullock. I would assess the contributory negligence at 33%.
28. I would remit the matter to the High Court to assess damages.”
Deegan v Langan
[1966] IR 373
WALSH J. :
“The appellant was found guilty of negligence in providing for use by the respondent, in the course of a building operation being carried on by the appellant, a particular type of steel masonry nail which was dangerous in that it was apt to disintegrate when struck by a hammer. Such a disintegration occurred when the respondent was using the nail in the course of his employment for the appellant with the result that the respondent lost the sight of one eye.
There was evidence that the appellant was aware of the dangerous quality of the nail in question when he provided the same for use by the respondent and permitted him to use it with a hammer. There was also evidence that the respondent himself was aware of this dangerous quality in the nail and that the appellant’s knowledge of this dangerous quality was also known to the respondent. The position was therefore that at the time of the accident the respondent was hammering a nail which to his own knowledge and to his employer’s knowledge was dangerous because of its propensity to disintegrate and the respondent was using the nail, which was provided by the appellant, for the purpose of the appellant’s work upon which the respondent was engaged.
The appellant complains that the learned trial Judge misdirected himself in law in refusing to allow counsel for the appellant to cross-examine the respondent to the effect that the respondent was himself guilty of negligence in using the nail when he knew it to have this particular dangerous quality. The allegation of negligence against the respondent which the Judge refused to permit to be pursued was that the respondent decided to run the risk of using this dangerous type of nail. There was no question of any negligence on his part after making his decision to use the nail.
It appears to me that the law governing such a situation is that the decision to run the risk does not amount to negligence on the part of the plaintiff provided that his conduct under all the circumstances was that of a reasonable man; that is, whether in this particular case, having regard to all the circumstances, his decision to use the nail was a reasonable one. It has been contended on behalf of the appellant that it should have been left to the jury to decide whether or not the respondent was unreasonable in not making representations to his employer about using this nail and in not having his instructions to use it further confirmed and, it is contended, that for not having done so the jury could find that he had acted unreasonably.
In my view a jury could not so find on the facts in this case.”
Caulfield v. Bell and Company Limited [1958] I.R. 331
Murnaghan J.
“ The expression, “a safe system of work,” which has become increasingly familiar in the Courts, has not, as far as I am aware, ever been precisely defined, nor, beyond saying that the obligation involved presupposes a system, am I going to attempt a definition. The expression has to be considered in every case, to which it is appropriate, in relation to the particular circumstances of the job in hand. In the expression the word, “safe,” means no more than”as safe as is reasonably possible in the circumstances.”The degree of safety would depend on the particular job, and would vary between wide limits.
In work of the kind which I gather was being performed by the plaintiff and which appears to have been of a repetitive nature I imagine it could not be said that there was not “a system” of work of some kind in operation. I do not know to what extent there was a risk of timber falling when being hoisted from the ship involved in that operation.
The plaintiff’s complaint in the present case is that the system of work, which he has not detailed, was unsafe in as much as the plaintiff had not adequate protection from timber falling when being hoisted from the ship. He does not complain that there was no system. The defendant Company now complains that it does not know in what respect the system of work is alleged by the plaintiff to have been unsafe and that, as a consequence, it does not know what case it will have to meet at the trial, where, Mr. Sainsbury says, the plaintiff, unless required to give particulars, can spring any surprise.
This is the first occasion, in these Courts as far as I am aware, on which the question has arisen as to what particulars (if any) should be given of an alleged unsafe system of work. The question is one of considerable importance and is not free from difficulty.
Mr. Sainsbury contends for the proposition contained in the words of Viscount Simon L.C. in Colfar v. Coggins and Griffith (Liverpool), Ltd. (1):
“. . . the advisers of the present appellant realized that his claim (independently of the Workmen’s Compensation Act) was bound to fail unless it could be established that the accident was due to the respondents’ failure to provide and maintain a proper system of work. ……..
The plaintiff must, in my opinion, in order to establish his case prove first that the system was not safe; second, what his employer could reasonably have done to make the system reasonably safe; and third, that his employers’ failure so to do was the cause of the accident.
I respectfully dissent from the view of Viscount Simon L.C., unless the passage I have quoted, where it says that “the statement of claim ought to set out, so far as relevant, what the proper system of work was, and in what relevant respects it is alleged that it was not observed,” is to be understood as meaning that following an allegation of negligence in the statement of claim particulars should be given to the effect shortly that the system of work in operation was unsafe, and that it could have been made safe in such and such a manner.
Wilson v Tyneside Window Cleaning Co
[1958] EWCA Civ 2 [1958] 2 All ER 265, [1958] 2 QB 110
CA PEARCE LJ
“The Plaintiff appeals from a Judgment of Mr. Justice Donovan given at the York Assizes on the 14th June, 1957, dismissing the Plaintiff’s claim for damages for personal injury suffered in an accident sustained by him when he was working for the Defendants as a window cleaner. The Plaintiff alleged negligence against the Defendants. The Defendants denied negligence but made no all
The learned Judge dealt with the first contention (as to the duty to provide a safe place of work) as follows. First he reminded himself of the well-known dictum of Lord Herschell in Smith v. Baker — that the duty of the employer is to take reasonable care to provide proper appliances and to maintain them in proper condition and so to carry out his operations as not to subject those employed by him to unnecessary risk. He dealt with the passage in the Judgment of Lord Justice Denning in the window-cleaning case of Christmas v. General Cleaning Contractors Limited, to which I have referred. That passage reads as follows: “The next question is whether the contractors are liable to their workman, the plaintiff. Counsel for the contractors argued that employers who send their men out to work on the premises of other people have no responsibility for the safety of those premises. Be cited Taylor v. Sims & Sims in support of that proposition. He said that it was for the occupier to see that the premises were safe for the workman and not for the employer to do so. I cannot agree with that proposition. Until recently many people thought that an occupier was bound to use reasonable care to see that his premises were safe for workmen he invited on them, but that is no longer true. The decision of the House of Lords in London Graving Dock Company Limited v. Horton shows that an occupier can allow his premises to remain defective and dangerous with impunity so long as he gives the men warning that the risk or the danger is so obvious that they must be aware of it. If this is so, I think it must follow that it is for the employer, who sends his men to the premises, to take reasonable care to see that the premises are safe for the men, or else take proper steps to protect the men from the dangers to which he sends them.
The learned Lord Justice was in effect saying that Horton’s case had left a gap which must be filled by imposing on the employer a liability for dangers for which the invitor might no longer be liable. The learned Judge observed that the other members of the Court of Appeal had based their Judgments on somewhat different grounds and that in the House of Lords the decision in the Plaintiff’s favour was based on a shortcoming in the system employed to clean the windows rather than a failure to inspect the windows before each periodical cleaning. He then referred to Cilia v. James & Sons and. Taylor v. Sims & Sims, in each of which cases the learned Judges held that where an employer sent out his men to work on the premises of others there was no duty of care on him in respect of those premises and that, if there were, the duty had, on the particular facts of each case, been discharged. He also referred to Hodgson v. British Arc Welding Company Limited (1946 King’s Bench, page 302), in which Mr. Justice Hilbery dealt with a similar point in a somewhat different and, as it seems to me, a preferable way. The implications of his Judgment are’ not that the employers had no duty at all in respect of things over which they had no control but that the discharge of that duty was of a wholly different kind from that where the master was in control.
The learned Judge then continued as follows:
“There is no evidence before me of any practice of window cleaning employers to inspect premises in detail before each periodical cleaning of the windows. Nor would Mr. Davis — a surveyor called for the Plaintiff — go further than to say that employers should go around while the work was on ‘to keep an eye on the men and see how the job was shaping’. I think it would be placing too heavy a burden upon employers to say that they must inspect in detail all the premises where their men clean windows every time the men do so and before they do so. Some premises contain so many windows that before the last window was inspected some new defect might have developed in the first; for example, a broken sash-cord, and the work of inspection might be endless. And without in any way minimising the risks of the job, I think they can be met in other ways. If men are properly taught their job; are provided with proper equipment; are adequately warned of the dangers, and are instructed that they should not clean any windows which appear to them to be too dangerous to clean, but should report the matter back to the employer, then it seems to me to be unnecessary to lay down that the employer must in addition inspect every window beforehand”.
The learned Judge then went on to deal with the case of Thomson v. Cremin (1953 2 All England Reports, page 1185) on which the Plaintiff relied before him and relies before us. In that case a stevedore succeeded against a shipowner, as invitor, in respect of a faulty shoring that injured the Plaintiff. The shoring had been installed by competent shipwrights in Australia who were independent contractors, and a Government certificate, had been issued to the effect that the regulations had been duly complied with. The shipowner, on the same reasoning as that in Wilsons & Clyde Coal Company v. English, was held vicariously liable to an invitee for the default of the independent contractors. The Plaintiff in this ease sought to say that since a master owes an even higher duty to a servant than an invitor to an invitee, then a master must a fortiori owe a duty to a servant to see that the premises are safe before sending his workman to work on someone else’s premises. But, as the learned Judge pointed out, this vary argument had failed in that case, since the plaintiff had sued his master as wall as the shipowner but had failed against his master,. The learned Judge referred to the words of Lord Simon and Lord Wright in that case. Lord Simon said:
“Rare, again, I agree with the view of the Scottish courts that it was not proved to be part of the regular practice or course of duty of stevedoring firms to make such inspection”.
The learned Judge then dealt with the duty to make this particular handle safe, and concluded that since it was not within the power of the Defendants to do so and they had net the necessary control over the premises it could hardly be unreasonable not to do so. He concluded, on this point,
“The Defendants in fact met the situation in this case by telling the Plaintiff, a very experienced man, that he need clean no window which he considered unsafe. I hold that there was no obligation upon the Defendants to go further and make good the defective handle. The duty of an employer to take reasonable care to provide a safe place of work relates, in my view, only to that place of work which is in the employer’s occupation or over which he is shown to have the necessary degree of control. This is not true of the premises in the present case”.
The learned Judge then dealt with the Defendants’ alleged failure to warn the Plaintiff of that which he already knew, namely, the danger of pulling on handles, and with the failure to give periodically repeated warnings in order to keep his caution vigilant, and decided that there was no negligent failure in that respect. He commented on the fact that there was no evidence of any practice in the trade with regard to repeated warnings. He differentiated between this case and cases where risks are “insidious and unseen”, such as dermatitis eases, where, for instance, it might be that reminders as to the use of barrier cream and such like precautions were necessary; and he pointed out that in any event it was pure guesswork as to whether, if there had been periodic warnings, this accident would have been avoided. He found, therefore, that the Defendants had not been negligent.
Now it is true that in Wilsons & Clyde Coal Company v. English, Lord Wright divided up the duty of a master into three main headings, for convenience of definition or argument; but all three are ultimately only manifestations of the same duty of the master to take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk. Whether the servant is working on the premises of the master or those of a stranger, that duty is still, as it seems to me, the same; but as a matter of common sense its performance and discharge will probably be vastly different in the two cases. The master’s own premises are under his control: if they are dangerously in need of repair he can and must rectify the fault at once if he is to escape the censure of negligence. But if a master sends his plumber to mend a leak in a, respectable private house, no one could hold him negligent for not visiting the house himself to see if the carpet in the hall creates a trap. Between those extremes are countless possible examples in which the Court may have to decide the question of fact: Did the master take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk? Precautions dictated by reasonable care when the servant works on the master’s premises may be wholly prevented or greatly circumscribed by the fact that the place of work is under the control of a stranger. Additional safeguards intended to reinforce the man’s own knowledge and skill in surmounting difficulties or dangers may be reasonable in the former case but impracticable and unreasonable in the latter, So viewed, the question whether the master was in control of the premises ceases to be a matter of technicality and becomes merely one of the ingredients, albeit a very important one, in a consideration of the question of fact whether, in all the circumstances, the master took reasonable steps.
That, as it seems to me, is the reasoning of this Court in Biddle v. Hart (1907 1 King’s Bench, page 649). In that case a stevedore’s workman, whilst engaged in unloading a ship, was injured owing to a defect in the tackle, and he was suing his master. The learned Judge withdrew the case from the jury, on the ground that the stevedore was not responsible for a defect in the ship’s tackle because the tackle did not belong to him. Lord Scroll said:
“In my opinion, if the employer uses plant which is net his own for the purpose of doing something which he has engaged to do, it cannot possibly be said that he has no duty whatever in relation to that plant. Otherwise he would be able to take anything that came from anybody and to use anything in the work he was engaged upon without making any inquiry at all, and then say, in the event of an injury arising from a defect in the plant, that he had nothing to do with it, and so escape liability. That, to my mind, is unreasonable, and is not consistent with the second section. What I take to be the meaning of that is that if the employer uses plant which does not belong to him, he may have a duty in regard to the persons employed to take reasonable care to see that it is proper for the purpose for which it is need. It may be that in a case of this character, although he had that duty, yet, if he had dealt with these shipowners before and had never had any cause for complaint, the jury might think that he had reasonably discharged that duty. On the other hand, when you have evidence that the plant was old and had been in use for a long time, the jury might say they ware not satisfied that reasonable care had been taken to see that it was in a proper condition. Once establish the duty the question la, What would the jury consider a discharge of that duty?”.
As Lord Justice Parker pointed out in Davie v. New Merton Board Mills (1958 1 All England Reports, page 67), that reasoning seems inconsistent with the two decisions to which I have referred which say that there is no duty of care in respect of premises over which the master has no control, but it is consistent with the alternative ratio in each ease that the duty had been discharged. It is consistent, I think, with the implications of the Judgment of Mr. Justice Hilbery in Hodgson v. British Arc Welding Company Limited. But applying that reasoning to this case, I think that the Plaintiff has not shown that the Defendants failed to take reasonable steps for the safety of the Plaintiff.
The learned Judge’s reasoning seems to me to be sound. It was a question of fact whether the Defendants were negligent; and I see no ground for differing from the conclusions of fact which the learned Judge reached.”
I would dismiss the appeal.
McDermid v Nash Dredging & Reclamation Co Ltd
[1986] UKHL 5 [1987] 2 All ER 878, [1987] AC 906
Lord Brandon
“Neill L.J., giving the judgment of the Court of Appeal [1986] Q.B. 965, did not accept the judge’s view that the defendants were liable to the plaintiff because Captain Sas was to be taken, as between the plaintiff and the defendants, to have been the servant of the defendants. He concluded, after an examination of all the relevant evidence, that Captain Sas was, and remained at all material times, the servant of Stevin. He went on to say, however, that this circumstance did not conclude the issue of liability in favour of the defendants, because it was also necessary to consider the question whether the defendants were in breach of the personal duty of care owed by them to the plaintiff.
In this connection he said, at p. 974: “In the instant case the relevant facet of the general duty of the defendants to take reasonable care for the safety of the young plaintiff was the obligation to provide and maintain in operation a safe system of work.”
……
Neill L.J. then discussed at length the principles of law governing the question of when employers may be held liable for the acts or omissions of a person who is not their servant. In the course of that discussion he referred to and cited from two well known English authorities, Davie v. New Merton Board Mills Ltd. [1959] A.C. 604 and Wingfield v. Ellerman’s Wilson Line Ltd. [1960] 2 Lloyd’s Rep. 16, and a recent decision of the High Court of Australia, Kondis v. State Transport Authority (1984) 55 A.L.R. 25.
He expressed his conclusions with regard to the proper principles of law to be applied and the proper approach to be followed, at pp. 979-980: “Neither in the cases to which we were referred in the course of the argument, however, nor in the other authorities to which we have had regard in the course of considering this judgment, have we been able to discover any general principle which provides a sure guide to the limits of vicarious liability in tort. It is clear that the legacy of the doctrine of common employment remains, together with the rather uneasy division between cases where an employer may be liable for the negligent performance of his personal duties by a third party and cases where the employer may be liable vicariously for the negligence of an employee or agent. It seems to this court, therefore, that in a case where a plaintiff is suing in respect of injuries received by him in the course of his employment and while working at a place at which he is required by his employer to work, the only satisfactory approach is to look at all the circumstances in the light of the fact that it is the basic duty of the employer to take reasonable care so to conduct his operations as not to subject those employed by him to unnecessary risk. The relevant circumstances will include: (a) the skill and experience of the injured employee, (b) the nature of the task on which the employee was employed, (c) the place where the injured employee was employed and the degree of control which the employer exercised at that place, (d) the relationship, if any, between the injured employee and the individual tortfeasor, (e) the relationship, if any, betweenthe employer and the individual tortfeasor, (f) the interest, if any, of the employer in the actual task which the individual tortfeasor was performing when the accident occurred.”
……
My Lords, I consider first the primary issue as to whether the defendants are liable to the plaintiff at all, either on the ground relied on by Staughton J. or on the different ground relied on by the Court of Appeal. In relation to this issue I would make a number of observations. First, there was, in my opinion, no material on which Staughton J. was entitled to find that a possible explanation of the action of Captain Sas in putting the engines astern prematurely was that he did so deliberately in order to encourage the plaintiff to perform his tasks more quickly. There was no evidence that Captain Sas thought that the plaintiff worked too slowly, and, in the absence of such evidence, the suggestion that Captain Sas deliberately put the plaintiff in danger in order to teach him a lesson is not one which ought to be entertained.
Secondly, I agree with the Court of Appeal that Captain Sas was, and remained at all material times, the servant of Stevin, and that Staughton J. was wrong in holding that, as between the plaintiff and the defendants, Captain Sas must be taken to have been the servant of the defendants. Thirdly, I agree with the Court of Appeal that the real question in the case is whether the defendants were in breach of the duty of care which they owed to the plaintiff in not devising and operating a safe system of work for him. Fourthly, I agree with the Court of Appeal that there was scope on the evidence for a finding that the system of work devised by Captain Sas, under which the plaintiff was to inform him that he had completed his work of unmooring by knocking on the outside of the wheelhouse, was unsafe. However, for reasons which will become apparent, I do not consider that it is necessary to reach a conclusion on that point.
My Lords, the Court of Appeal regarded the case as raising difficult questions of law on which clear authority was not easy to find. With great respect to the elaborate judgment of that court, I think that they have treated the case as more difficult than it really is. A statement of the relevant principle of law can be divided into three parts. First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, the provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it. Thirdly, the duty concerned has been described alternatively as either personal or non- delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty.
In the present case the relevant system of work in relation to the plaintiff was the system for unmooring the tug Ina. In the events which occurred the defendants delegated both the devising and the operating of such system to Captain Sas, who was not their servant. An essential feature of such system, if it was to be a safe one, was that Captain Sas would not work the tug’s engines ahead or astern until he knew that the plaintiff had completed his work of unmooring the tug. The system which Captain Sas devised was one under which the plaintiff would let him know that he had completed that work by giving two knocks on the outside of the wheelhouse. I have already said that I agree with the Court of Appeal that there was scope, on the evidence, for a finding that that system was not a safe one. I shall assume, however, in the absence of any contrary finding by Staughton J., that that system, as devised by Captain Sas, was safe. The crucial point, however, is that, on the occasion of the plaintiff’s accident, Captain Sas did not operate that system. He negligently failed to operate it in that he put the tug’s engines astern at a time when the plaintiff had not given, and he, Captain Sas, could not therefore have heard, the prescribed signal of two knocks by the plaintiff on the outside of the wheelhouse. For this failure by Captain Sas to operate the system which he had devised, the defendants, as the plaintiff’s employers, are personally, not vicariously, liable to him.
It was contended for the defendants that the negligence of Captain Sas was not negligence in failing to operate the safe system which he had devised. It was rather casual negligence in the course of operating such system, for which the defendants, since Captain Sas was not their servant, were not liable. I cannot accept that contention. The negligence of Captain Sas was not casual but central. It involved abandoning the safe system of work which he had devised and operating in its place a manifestly unsafe system. In the result there was a failure by the defendants, not in devising a safe system of work for the plaintiff, but in operating one.
On these grounds, which while not differing in substance from those relied on by the Court of Appeal are perhaps more simply and directly expressed, I agree with that court that the defendants are liable to the plaintiff.
…….
My Lords, for the reasons which I have given, I consider that the Court of Appeal decided rightly both the issues which arise on this appeal, and I would accordingly dismiss the appeal with costs.
Timer v AEC Limited
[1953] 2 All ER 449, [1953] AC 643, [1953] UKHL 3
Lord Oaksey
‘On the question of the construction of section 25(1) of the Factories Act, 1937, I am of the opinion that by virtue of that section and the interpretation section 152, the respondents were bound to maintain the floors and passages in an efficient state, but I do not consider that it was proved that they were not in an efficient state. A floor does not, in my opinion, cease to be in an efficient state because a piece of orange peel or a small pool of some slippery material is on it. Whilst I do not agree that the maintenance of the floors is confined to their construction, I think the obligation to maintain them in an efficient state introduces into what is an absolute duty a question of degree as to what is efficient . . The question then is whether section 25(1) applies to things which are not part of the floor but whose presence on it is a source of danger. If section 25 stood alone I would say that it did not. No doubt the section is one dealing with safety, but, even so, keeping the surface of a floor free from dangerous material does not appear to me to come within the scope of maintaining the floor.’
Lord Tucker
‘The learned judge seems to have accepted the reasoning of counsel for the plaintiff to the effect that the floor was slippery, that slipperiness is a potential danger, that the defendants must be taken to have been aware of this, that in the circumstances nothing could have been done to remedy the slipperiness, that the defendants allowed work to proceed, that an accident due to slipperiness occurred, and that the defendants are therefore liable.
This is not the correct approach. The problem is perfectly simple. The only question was: has it been proved that the floor was so slippery that, remedial steps not being possible, a reasonably prudent employer would have closed down the factory rather than allow his employees to run the risks involved in continuing work? The learned judge does not seem to me to have posed this question to himself, nor was there sufficient evidence before him to have justified an affirmative answer.
The absence of any evidence that anyone in the factory during the afternoon or night shift, other than the plaintiff, slipped or experienced any difficulty or that any complaint was made by or on behalf of the workers all points to the conclusion that the danger was in fact not such as to impose upon a reasonable employer the obligation placed upon the respondents by the trial judge.’
Parker v PFC Flooring Supplies Ltd
[2001] EWCA Civ 1533
CA POTTER LJ
“The judge dealt with those issues comprehensively in the following passages of his judgment. I turn to page 9, line 22:
“In addressing the question whether the company ought reasonably to have foreseen that one of its employees might decide to climb on to the roof for some reason, I remind myself of the size and nature of the company’s operation according to the limited evidence place before me. I have heard only from the claimant himself. The defendants called no evidence …
“The company consisted with a staff of seven, as I have already said, with their own separate jobs but to some extent sharing out the various practical jobs that arose from time to time in and about these premises. It seems to me, using ordinary common sense, that some of these tasks might well have involved briefly inspecting the exterior of the premises up to roof level, the gutters and downpipes for blockages perhaps, if not the roof surface itself. Such inspections might well have extended to the skylights, for leaks or damage, or for the removal of objects lodged or thrown or indeed blown on to them or other parts of the roof surface. The availability of the ladder facilitated such cursory inspections if not encouraged them. As already observed, I find it hard to think what else the ladder could reasonably have been supposed to have been available for. If, as I hold, a reasonable employer could have foreseen that inspections of this kind up to roof level might be carried out by the employees using the ladder, so that, for example, a fall from the top of the ladder could have been foreseen, is it to be said that the action of a conscientious employee in momentarily leaving the ladder and climbing on to the roof to remove some object on or attached to the roof and sustaining injury as a result, could not reasonably have been foreseen?
“In my judgment, the answer to that question must be no. It seems to me that in the circumstances of this case possible climbing on to the roof could and should have been foreseen, both in the context of the cursory inspections of the kind mentioned and also in the light of the general threat to the premises posed by vandals seen against the background of the burglary at Seven Kings. The fact that specialist contractors had been employed in the past when access to the roof had been necessary cannot, it seems to me, exclude the possibility of employees taking it upon themselves on occasions to attempt such brief or cursory inspections of their own by using the ladder provided.
“It follows, in my judgment, that the company did owe a duty of care to take reasonable steps to prevent its employees from going on to this roof and that in failing to take any such steps it was in breach of that duty. The issuing of a general prohibition or company rule wold have been one such step. Warning notices would have been another. I reject the submission that such a prohibition or rule or such notices would have been ineffective or counter-productive. Whether placed on the rear wall of the warehouse or displayed on the roof itself, such notices would have brought home to employees, including the claimant, the danger of going on to the roof and the company requirement that they should not do so for their own safety.
“I also reject the submission that the claimant would have disregarded any prohibition from his father or warning notice displayed on the premises or on or near the roof itself. I found the claimant to be a straightforward person, who was being honest and sincere when he said that he would obey his father for whom he had worked continuously since leaving school. I accept his evidence that had he been told not to go on the roof, he would not have done so, and I find no inconsistency between that and his other equally sincere answer to Mr. Pooles that he knew at the time that his father would not have allowed him to go had he asked him. It is one thing to do something you know you would be refused if you asked; but it is another thing to go against an express prohibitions. I find this claimant would not have disobeyed a clear company rule or an express prohibition from his father.
“I therefore find on the balance of probabilities that the company’s failure to take any of the steps referred to above, combined with its effective provision of the ladder facilitating access to the roof, were negligent breaches of duty which caused this tragic accident.”
In my view, those findings are unassailable.
Mr. Pooles has made a number of points on the wider implications for industry and employers of our upholding on appeal a case in which the central complaint of the claimant, as a ground-based employee, is that he was not prohibited by his employer from going on to roof of the premises at which he was employed, either at all or in leather-soled shoes. In effect he says, where will nannyism in the case of intelligent adults end? The answer to that seems to me to be that given by Mr. Prynne for the claimant. Cases of this kind are fact-sensitive and occur in a variety of situations. The over-all duty of the employer is to take reasonable steps for the safety of his employees against those types of risks which are reasonably foreseeable as likely to occur in the course of the employee’s employment, which in turn depend upon the nature, functions, restrictions and general parameters of the employee’s job and the broad areas of activity in which he is likely to be engaged or to engage himself in furtherance of his employer’s interests. If there are no circumstances reasonably likely to occur which might require or lead an employee in the course of his employment to inspect or concern himself with the roof or objects placed upon it, and if no access is provided, authorised or made readily available, that is one thing. If his job is, however, of a general nature and involves responsibility for security and may foreseeably lead him to the roof for some purpose or other of a legitimate nature, that is another.
This was a situation in which there were few hard and fast boundaries to the functions of a small band of employees. As the judge held, it was reasonably foreseeable that someone might use the ladder available on the premises to have access to the roof for some legitimate purpose. In the particular case of the claimant, his function included responsibility for security and there is no suggestion that in doing what he did, at least to the stage of reaching roof level, he was doing other than his duty; nor is it suggested that in going onto the roof he was breaking any instruction or warning he had ever received.
In those circumstance, as the judge specifically found on the evidence, the type of accident was foreseeable and the absence of any instruction or warning causative.
Broken down, Mr. Pooles’ submissions can be shortly stated as follows. He says it was not reasonably foreseeable that any inspection would take place, other than from the ground. Alternatively, if that was reasonably foreseeable, it was not foreseeable that the claimant would proceed onto the roof to inspect or to carry out any operation upon it. Again, the answer to that, in my view, is that the risk which the employer should have foreseen and against which he was required to guard was simply that of an employee having cause or at least the inclination in the course of his employment to go up on the roof for some legitimate purpose. If that was foreseeable, the fact that the detailed circumstances of the visit may not have been foreseeable does not give rise to a defence.
Secondly, Mr. Pooles says that if it was foreseeable that an employee might go up on the roof, it was in any event not reasonable to require the erection or posting of warning signs. He says that the danger of going on a roof in unsuitable shoes in such circumstances was self-evident, and that the suggestion that signs should be placed to that effect was really superfluous. He says this would equally apply to the suggested need for specific instructions to be given to the employees.
In respect of that contention, I consider that for the reasons given by the judge it was foreseeable that an inspection of some kind might be carried out using the ladder available for the purpose and, if so, it was specifically necessary to warn that no work should be done or access pursued onto the roof.
Finally, Mr. Pooles says that in any event it was not necessary in the case of the claimant’s son to issue him with any specific instruction because he knew his father’s views. So far as that argument is concerned, I read the evidence of the claimant, not as an acknowledgement that he had in mind at the time his father’s attitude, merely that in hindsight he acknowledged his father would have said no, if he had been there and asked. What is apparent is that, first, the father had never made clear that the roof was out of bounds. He did not give evidence either as to that or to the effect that his son should or would have known his views. Secondly, the judge found that if such a warning or instruction had been given, the claimant would have followed it and there would have been no accident. Thus causation was clearly established.
I would therefore uphold the judge on the issue of negligence.
There was of course an issue as to contributory negligence before the judge, who apportioned blame in the proportion 50/50. Mr. Pooles had argued before him and has urged upon us that the proportion of blame upon the claimant should have been far higher as the claimant was effectively the author of his own misfortune. Again the judge gave careful and comprehensive reasons for his finding as follows:
“I turn now to the question of contributory negligence. Mr. Prynne realistically accepts that, on any view, the claimant must be held partly to blame for this accident and that his damages should be reduced accordingly. But he says that, in applying the Law Reform (Contributory Negligence) Act 1945, the court should balance the claimant’s momentary act of folly on the one hand against the long-term systematic failure of the defendant to prevent the state of affairs leading to the accident from developing on the other. Mr. Prynne says that in those circumstances the greater part of the blame, which he puts at least at three quarters, should lie on the defendant.
“Mr. Pooles, on the other hand, consistent with his submissions as to the cause of the accident combined with the claimant’s admitted state of knowledge of the circumstances, says that the claimant was entirely to blame or, if not entirely, then very substantially.
…..
“True it is that the defendant effectively in the form of Mr. Parker senior (unhappily – for, whatever my decision in this case, he is no doubt full of regret for the accident and its consequences) had disregarded, on my findings, its safety obligations to all his employees. No one, on the evidence, had turned their mind to the foreseeable, and that led to the accident and is the foundation of liability.
“On the other hand, the claimant, it must be said, took it upon himself to go into a situation of obvious danger. As his frank and refreshingly honest evidence confirmed, he appreciated that the roof was slippery and that his leather soles were no match for its surface. He went up the ladder determined to detach the cable rather than cut it, as suggested by Mr. Stemp, and he made the conscious decision to leave the relative safety of the ladder, which was being held by Mr. Stemp, and walk on to the roof surface knowing that the skylight (at least) was fragile. The claimant was not a novice or an apprentice but an experienced employee about to take over the reins from his father whom he knew would not have allowed him to go on the roof had he asked him. On any view, his decision was foolhardy. Against that, it must be said that he was only doing his conscientious best for the company in trying to remove an obvious hazard from the roof and to do the job properly and permanently. That hazard might be said to exist in the threat both to the security of the company’s property for which he, the claimant, was effectively responsible; and also to the safety of any trespasser, whether a child or not, who might enter the company’s premises and try to use the cable to get on to the warehouse roof in order to steal from the company, with catastrophic results should he fail.
…..
“In my judgment, the claimant’s share of responsibility for this accident is substantial but it is no more and no less substantial than that of the defendant, and I think it just and equitable that liability in negligence be apportioned between the parties as to 50% each.”
It is not for this court to interfere with the finding of a judge on contributory negligence unless it considers that he was plainly in error in his finding. Fine judgments on the basis that the court might have been inclined to order a somewhat different apportionment are to be avoided. The claimant’s actions constituted the type of situation frequently encountered where an employee, properly concerned to do his job and solve a problem in the interests of an employer, is insufficiently cautious in respect of his own safety. While the judge said that the decision of the claimant to go up on the roof was foolhardy, it did not involve ignoring any previous instruction or amount to a deliberate flirting with danger of the kind frequently encountered in industrial injury cases. On the defendant’s side, the judge has found that the possibility of such an action should have been anticipated, had the employer been safety conscious rather than simply muddling through.
In my view, an apportionment of 50/50 on a rough and ready basis was reasonable and there are no sufficient grounds for disturbing the judge’s finding.
Turning briefly to the question of breach of statutory duty, the case for the claimant was that the failure of the defendant to issue instructions or institute a company rule against access to the roof or post a prohibitory or warning notice to that effect constituted a breach or breaches of the Workplace (Health, Safety and Welfare) Regulations 1992 and in particular Regulations 13(1) and 13(3), which require that in relation to an employee’s workplace the employer shall, so far as reasonably practicable, take suitable and effective measures to prevent any person falling a distance likely to cause personal injury. A breach of Regulation 13(4) was also alleged.
Mr. Pooles for the defendants took a number of points before the judge to the effect that regulations relied on were either not applicable or not breached. In particular he submitted that despite the wide definition of “workplace” in Regulation 2, as “any premises … made available to any person as a place of work”, the roof was not in any appropriate sense within that definition. The judge found that a breach or breaches of statutory duty had been established. Mr. Pooles has raised some interesting and arguable points. However, in the light of the clear view I have formed on the issue of common law negligence, and the fact that the judge’s assessment of 50/50 contributory negligence was not varied or affected by his findings of breach of statutory duty, it is unnecessary for us to decide those issues.I would dismiss the appeal.”
Jaguar Cars Ltd v Coates
[2004] EWCA Civ 337
TUCKEY LJ
“The judge expressed his conclusion on the claim for negligence as follows:
“I have come to the conclusion that if Mr Barry had thought about it, or anybody else for that matter in his position on behalf of the defendants had thought about it before the accident, they would have seen that there was a risk that a workman, perhaps not being as careful as he ought to be, might trip up, as the claimant did, going up these stairs and, in order to guard against that, have recommended that a handrail be provided. In my judgment, there was negligence on the part of the defendant in failing to provide a handrail. That, it seems to me, was something which, if anybody had sat down and thought about it before the accident, would have been provided and failure to do so was failure to take reasonable care to protect employees such as the claimant from a foreseeable risk of injury.”
In reaching this conclusion the judge was influenced by his earlier observation that the steps were unusually deep, so that one could not get into one’s ordinary stride walking up them. Care was needed because one might miss one’s step and it might be necessary to take more than one step to get up to the next one.
The judge then considered the question of causation and decided that if there had been a hand-rail, the claimant would have used it and this would have prevented the accident. He found that the claimant would not have fallen if he had been looking at the steps, and so he had contributed to the accident.
Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 is headed “Condition of floors and traffic routes”. Paragraph (5) says:
“Suitable and sufficient handrails and, if appropriate, guards shall be provided on all traffic routes which are staircases except in circumstances in which a handrail can not be provided without obstructing the traffic route.”
The regulations define traffic route as “a route for pedestrian traffic, vehicles or both and includes any stairs, staircase, fixed ladder, doorway, gateway, loading bay or ramp.” In rejecting the claim that regulation 12(5) applied to these steps. The judge noted that this regulation only referred to staircases and said that the steps shown in the photographs could not properly be described as a staircase. The claimant does not challenge this conclusion but relies, in this court, as he did below, on the provisions of regulation 5. This regulation is headed “Maintenance of workplace, and of equipment, devices and systems.” Paragraph (1) says:
“The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair.”
The judge rejected the argument based on this regulation because he said that it was concerned with maintenance and repair of such equipment as was provided and not with what should be provided. Regulation 12(5) prescribed what should be provided and there was no breach of that regulation.
……
Persuasively though these submissions are put, I do not accept them. Giving all due weight to the trial judge’s view of the matter, I cannot see how the failure to provide a handrail for these steps can be characterised as negligent. It is accepted that the fact that the defendants have provided a handrail since this accident is not of itself evidence of negligence. The photographs say it all, I think. These are the sort of steps that one sees everywhere. If the judge is right, no set of steps of this kind which carried any amount of traffic would be considered safe unless there was a handrail, perhaps in this case on both sides given the width, (47″) of these steps. These steps are solidly constructed. There are only four of them. They only rise 6 3/4″ at a time. Their generous depth, (19 1/2″), makes them easier and safer to tread on. Usually the complaint is that the treads of steps or stairs are not deep enough, so that there is a risk of not gaining a proper foothold on each step. That is not the case here. I cannot see that these steps pose any real risk, provided that those using them exercise the degree of care to be expected of anyone going up or down steps. It does seem to me that the judge has equated his finding of foreseeability of risk with a finding that there was a duty to provide a handrail, but one does not follow from the other.
Were the defendants in breach of regulation 5(1)? Mr Thompson correctly submits that the steps were part of the claimant’s workplace, that the regulation imposes an absolute obligation on the defendants to maintain the steps in efficient working order and repair, and that efficient in this context means efficient from the viewpoint of safety and not from the viewpoint of productivity or economy. Mr Thompson then says that because there was no handrail the steps were not in efficient working order and so there was a breach. I cannot accept this submission for the same reasons as the judge gave. As its heading and content makes clear, regulation 5 is concerned with maintenance. One must look elsewhere in the regulations to see what is required to be provided. Regulation 12(5) says when handrails should be provided. It is now accepted that this regulation did not require a handrail to be provided for these steps. Looking at the other provisions of regulation 12 one can see that it is directed to the construction of the workplace including the provision of handrails and guards and the like to make those places safe.
For these reasons I think that the judge should have dismissed the claimant’s claim. The cross appeal against his finding of contributory negligence does not therefore arise.
These conclusions obviously mean that the claimant will not receive the damages which he was awarded. I am sorry about that, but my sympathy for the claimant cannot compel the conclusion that the defendants were legally liable for his accident when I do not think they were. I would allow this appeal, set aside the judge’s order and substitute an order that the claimant’s claim be dismissed.”
Wilson v Tyneside Window Cleaning Co
[1958] EWCA Civ 2 [1958] 2 All ER 265, [1958] 2 QB 110, [1958] 2 WLR 900
Pearce LJ
“In a long and careful Judgment, he dealt with all the relevant facts and all the contentions put forward by the Plaintiff. Mr. Waller, in his very fair and careful argument for the Appellant, bases his contentions on two main grounds: first, that it is the duty of the Defendants to provide a place of work as safe as reasonable care and skill can make it. The accident (he says) shows that this place of work was not safe. That duty is always on the Defendants, whether delegated or not, as is shown by the case (in particular) of Wilsons & Clyde Coal Company Limited v. English (1938 Appeal Cases, page 37). He relies on Biddle v. Hart (1907 1 King’s Bench, page 649) and on a dictum of Lord Justice Denning in Christmas v. General Cleaning Contractors Limited (1952 1 All England. Reports, page 39), as showing that the employer’s duty of care as to the safety of the place of work extends even to premises over which he has no control; and he argues that the decisions in Taylor v. Sims & Sims (1942 2 All England Reports, page 373) and Cilia v. H.M. James & Sena (1954 1 Weekly Law Reports, page 721) are wrong in so far as a contrary view was taken. On the basis that the responsibility for providing a safe place of work remains on the master even though ha has no control of the premises, Mr. Waller contends that at the least a preliminary inspection to ascertain the dangers is available to the master and that in this case the Defendants were negligent in not so inspecting and in not providing a safe place of work for the Plaintiff.
…..
Now it is true that in Wilsons & Clyde Coal Company v. English, Lord Wright divided up the duty of a master into three main headings, for convenience of definition or argument; but all three are ultimately only manifestations of the same duty of the master to take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk. Whether the servant is working on the premises of the master or those of a stranger, that duty is still, as it seems to me, the same; but as a matter of common sense its performance and discharge will probably be vastly different in the two cases. The master’s own premises are under his control: if they are dangerously in need of repair he can and must rectify the fault at once if he is to escape the censure of negligence. But if a master sends his plumber to mend a leak in a, respectable private house, no one could hold him negligent for not visiting the house himself to see if the carpet in the hall creates a trap. Between those extremes are countless possible examples in which the Court may have to decide the question of fact: Did the master take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk? Precautions dictated by reasonable care when the servant works on the master’s premises may be wholly prevented or greatly circumscribed by the fact that the place of work is under the control of a stranger. Additional safeguards intended to reinforce the man’s own knowledge and skill in surmounting difficulties or dangers may be reasonable in the former case but impracticable and unreasonable in the latter, So viewed, the question whether the master was in control of the premises ceases to be a matter of technicality and becomes merely one of the ingredients, albeit a very important one, in a consideration of the question of fact whether, in all the circumstances, the master took reasonable steps.
That, as it seems to me, is the reasoning of this Court in Biddle v. Hart (1907 1 King’s Bench, page 649). In that case a stevedore’s workman, whilst engaged in unloading a ship, was injured owing to a defect in the tackle, and he was suing his master. The learned Judge withdrew the case from the jury, on the ground that the stevedore was not responsible for a defect in the ship’s tackle because the tackle did not belong to him. Lord Scroll said:
“In my opinion, if the employer uses plant which is net his own for the purpose of doing something which he has engaged to do, it cannot possibly be said that he has no duty whatever in relation to that plant. Otherwise he would be able to take anything that came from anybody and to use anything in the work he was engaged upon without making any inquiry at all, and then say, in the event of an injury arising from a defect in the plant, that he had nothing to do with it, and so escape liability. That, to my mind, is unreasonable, and is not consistent with the second section. What I take to be the meaning of that is that if the employer uses plant which does not belong to him, he may have a duty in regard to the persons employed to take reasonable care to see that it is proper for the purpose for which it is need. It may be that in a case of this character, although he had that duty, yet, if he had dealt with these shipowners before and had never had any cause for complaint, the jury might think that he had reasonably discharged that duty. On the other hand, when you have evidence that the plant was old and had been in use for a long time, the jury might say they ware not satisfied that reasonable care had been taken to see that it was in a proper condition. Once establish the duty the question la, What would the jury consider a discharge of that duty?”.
As Lord Justice Parker pointed out in Davie v. New Merton Board Mills (1958 1 All England Reports, page 67), that reasoning seems inconsistent with the two decisions to which I have referred which say that there is no duty of care in respect of premises over which the master has no control, but it is consistent with the alternative ratio in each ease that the duty had been discharged. It is consistent, I think, with the implications of the Judgment of Mr. Justice Hilbery in Hodgson v. British Arc Welding Company Limited. But applying that reasoning to this case, I think that the Plaintiff has not shown that the Defendants failed to take reasonable steps for the safety of the Plaintiff.
The learned Judge’s reasoning seems to me to be sound. It was a question of fact whether the Defendants were negligent; and I see no ground for differing from the conclusions of fact which the learned Judge reached.”
PARKER LJ
“I think that this ease is a very good example of the difficulties that one gets into in treating the duty owed at Common Law by a master to his servant as a number of separate duties. Thus, it is often said (as it is said in this case) that the master owes a duty to make the place of employment as safe as reasonable skill and care will permit. Again, it is said that it is the master’s duty to make the plant and tools as safe as reasonable skill and care will permit; and again it is said that it is the master’s duty to devise and lay down a safe system of working.
Approached in that way, questions at once arise as to whether, and if so to what extent, any of those duties extend (in the case of premises) to premises not occupied or controlled by the master, or (in the case of plant and tools) to plant and tools bought from responsible and reputable suppliers or manufacturers – bearing in mind, as has been laid down so often, that in each case the duty is a duty personal to the employer, in the sense used in Wilsons’ case. It is no doubt convenient, when one is dealing with any particular case, to divide that duty into a number of categories; but for myself I prefer to consider the master’s duty as one applicable in all circumstances, namely, to take reasonable care for the safety of his men, or, as Lord Herschell said in the well-known passage in Smith v. Baker, to take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk.
That general duty applies in the circumstances of every case; but the governing words “reasonable care” limit the extent of the duty in the circumstances of each case. Accordingly the duty is there, whether the premises on which the workman is employed are in the occupation of the master or of a third party, or whether the tool has been made to the order of the master or his manager, servant or agent, or is a standard tool supplied and manufactured by reputable third parties; but what reasonable care demands in each case will no doubt vary.
That, as it seems to me, is the true principle, and is consistent with the decision of this Court in Biddle v. Hart (1907 1 King’s Bench, page 649). As I said in Davie v. New Merton Board Mills, I very much doubt whether the decisions in Taylor v. Sims & Sims and Cilia v. James & Sons are correct decisions in so far as they said that in circumstances such as these there is no duty in respect of the safety of the promises. It seems to me also that those statements are inconsistent with a passage in the Speech of Lord Wright in Thomson v. Cremin (1953 2 All England Reports, page 1185), the passage being at page 1192).
Mr. Waller relied strongly on the dicta of Lord Justice Denning in the case of Christmas v. General Cleaning Contractors Limited (1952 1 King’s Bench at Page 148); but in my judgment those were dicta, and in so far as Mr. Waller said that those remarks implied that there was a duty to make promises in the occupation of a third party safe I do not think that they can stand with the decisions to which I have referred* Bearing that in mind, it seems to me that there is nothing in this case on which one can say that the general duty, so far as it relates to premises, has been broken.
One can conceive cases of a very old, dilapidated building, or a building which is known to have suffered war damage or is dilapidated in some other respect, where one could say that it was the duty of an employer to see that it was made safe or, if it could not be made safe, if necessary to forbid his workmen to go there and work. But there is no suggestion of that in the present case.
So much for Mr. Waller’s first contention. His second contention is based on an allegation that in various respects there has been a breach of the sub-division of the duty which relates to an unsafe system of working. I think this must be right: that in so far as what one may call the first division, the making the premises sage, cannot be fully performed — as when they are in the possession of a third party, it behoves the master to exercise all the more care in regard to his system of working.
In regard to the system of working, various points are taken. It is said firstly that it was the duty of the master, albeit that he could not make the premises safe, to inspect them either each time the workmen went on the job or at any rate twice a year in the course of a contract such as this. That, of course, overlaps to some extent what I have already said in regard to the first contention; but in so far as it is based on an unsafe system of working it seems to me that the answer here is that there is no suggestion that there is any practice in the trade in that regard. No doubt a master will inspect the premises generally with a view to estimating for the job in the first instance; but there is no practice in the trade whereby he must make a periodic inspection.
Secondly, it is said that reasonable care demanded in this case that there should be repeated warnings given to the Plaintiff of the danger of windows sticking and of handles coming off. In fact in the present case there not only has been no repeated warning, but no initial warning. But the circumstances here are these: this is a man who was 56 years of age, I think, at the time, and who has been all his life a window cleaner: he is a very experienced man, usually acting as a charge-hand, and he knew — and he frankly said that he knew — of the dangers involved, of handles coming off. It is said that he should have been told – one witness suggested that it should be impressed upon him twice a year — again and again. For my part, I would like to adopt entirely what Mr. Justice Donovan said on that point. It seems to me that the disadvantages of doing that in the case of skilled men of this sort may well outweigh the advantages; and for my part I cannot think that “reasonable care” demands a repeated warning to skilled man in a case at any rate such as this, where the dangers involved are patent. It is not a case that one sometimes comes across of the danger of silicosis from particles of dust which are quite invisible and cannot be seen. I do not know, but it may well be that in such cases “reasonable care” would demand that the employer should warn and exhort the men constantly to wear masks. But there, as I have said, the danger is not patent.
Lastly, it is said (and for my part I think that this is the strongest way that Mr. Waller can put his case) that there ought to have been general instructions that in the case of all sash windows men should clean them from the inside first and, while inside, should see that the top sash will come down – in other words, that it is not stuck; and that in the case of a window the handles of which are suspect it is actually opened while the men are inside. That, however, was a suggestion made by only one witness, who I do not think had any experience of window cleaning whatsoever. There is no suggestion that there is any settled practice in the trade for the giving of such instructions. Accordingly, one would have to say (adopting the words so often used) that it would have bean folly on the part of a prudent employer not to give such instructions. For my part, I am quite unable to say that in that regard the Plaintiff has made out his case.
For these reasons, as well as the reasons given by my Lord, I would dismiss this appeal.”
General Cleaning Contractors Ltd v Christmas
[1952] 1 KB 141, [1953] AC 180, [1952] 2 All ER 1110
Lord Oaksey
‘In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.
The risk that sashes may unexpectedly close, as the sashes in this case appear to have done, may not happen very often, but when it does, if the workman is steadying himself by a handhold, his fall is almost certain. If the possibility is faced the risk is obvious. If both sashes are closed there is no longer the handhold by which the workman steadies himself. If either sash is kept open the handhold is available and, on the evidence in this case, is, in my opinion, reasonably safe. But the problem is one for the employer to solve and should not, in my opinion, be left to the workman. It can be solved by general orders and the provision of appropriate appliances.’
Lord Reid
‘The question then is whether it is the duty of the appellants to instruct their servants what precautions they ought to take and to take reasonable steps to see that those instructions are carried out. On that matter the appellants say that their men are skilled men who are well aware of the dangers involved and as well able as the appellants to devise and take any necessary precautions. That may be so but, in my opinion, it is not a sufficient answer. Where the problem varies from job to job it may be reasonable to leave a great deal to the man in charge, but the danger in this case is one which is constantly found, and it calls for a system to meet it. Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required.’
Morris v West Hartlepool Steam Navigation
[1956] AC 552
Lord Morton of Henryton (dissenting)
‘My Lords, in the face of this evidence, I would find it difficult to hold that a guard-rail round the hatch was a thing which was ‘so obviously wanted’ that the owners and master of the Daltonhall, and inferentially the owners and masters of all the ships of a similar type on which these four experienced witnesses had sailed, were guilty of folly in failing to ensure that such a rail was erected.’
Lord Reid (majority)
“It was argued that, whether the practice of leaving the hatches unprotected was good or bad, the respondents were entitled to rely on it because it had gone on a long time and no one had heard of an accident arising from it. I would agree that, if a practice has been generally followed for a long time in similar circumstances and there has been no mishap, a reasonable and prudent man might well be influenced by that, and it might be difficult to say that the practice was so obviously wrong that to rely on it was folly. But an employer seeking to rely on a practice which is admittedly a bad one must at least prove that it has been followed without mishap sufficiently widely in circumstances similar to those in his own case in all material respects. This part of this case has caused me considerable difficulty, but I do not think that it has been proved that the circumstances were similar where the practice prevailed . If it ought to have been foreseen in this case, as I hold it ought, that men might be sent near this hatchway during the remainder of the voyage, I do not think that the respondents can rely on this practice as having absolved them from the duty to consider whether guard-rails ought to be put up.’
‘It is the duty of an employer in considering whether some precaution should be taken against the foreseeable risk to weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident does happen, on the other hand, the difficulty of expense and any other disadvantage of taking the precaution.’
Lord Cohen ‘When the court finds a clearly established practice ‘in like circumstances’ the practice weighs heavily in the scale on the side of the defendant and the burden of establishing negligence which the plaintiff has to discharge is a heavy one.’
Hannington v Mitie Cleaning (South East) Ltd & Anor
[2002] EWCA Civ 954
CA PILL LJ
“This is an application for permission to appeal against a judgment of His Honour Judge Anthony Thompson QC given at the Portsmouth County Court on 24th January 2002. The j
dge dismissed a claim for damages for personal injuries made by Mr Stanley John Hannington, the applicant.
The applicant was a general odd job man working for the first defendants, Mitie Cleaning (South East) Ltd, who had a cleaning contract with the second defendants, De La Rue Cash Systems Ltd, at their factory premises in Portsmouth. One of his jobs was to collect up the rubbish and waste in the yard of the premises and empty it into skips. On 27th October 1997, which was a windy day, he took a dustbin which contained waste, cardboard and paper material and attempted to empty the bin into a plastic waste disposal bin which was provided by a different company. The judge stated in his judgment that precisely what happened is unclear, but he came to the conclusion that a gust of wind brought the plastic lid of the bin down towards the applicant as he was placing the rubbish into it. The bin was on a platform about two feet high. In some way the claimant fell from the platform as a result of the lid coming down and sustained injury. I say “as a result of” because the judge did not make a finding on causation adverse to the applicant. He appears to have taken the view, at least sufficiently for present purposes, that the fall which occurred was causatively connected with the lid coming down.
The judge found that the claimant was an honest man. He referred to the allegations against the defendants, the first defendants being sued as employers and the second as occupiers of the premises. He referred to the allegations that there was a design fault in the bin and that there was a failure to train or warn the applicant to inspect the skip on a regular basis. Breach of statutory duty was alleged under the Use of Work Equipment Regulations 1992 and the Employers Liability (Defective Equipment) Act 1969. It was submitted that the second defendants were in breach of their duty under the Occupiers Liability Act 1957. The judge concluded that the suggestion that the lid of the skip was in some way defective was completely untenable. In reaching that conclusion he had regard to the absence of any securing catch. The judge noted that the applicant when giving evidence said that the lid had never blown on him before and that he had never seen or known the lids to blow down in that way. Another witness, Mr Mortimer, a fellow employee, did say that twice when he was doing this work the lid had come down.
The judge concluded:
“Both [the applicant] and Mr Mortimer were realistic about it and basically what their evidence came to was this, that this was the sort of job where you used your commonsense, and I think really that is about the measure of it. Mr Mortimer said, having mentioned the couple of occasions when the lid had blown down, that he could not remember telling anyone about it, either from Mitie, his employers, or De La Rue, and I think the reality of the situation was that neither Mr Hannington nor Mr Mortimer regarded this as a particular hazard. …
For my part I cannot see that there is anything negligent on the part either of the employers or of the occupiers of these premises in these circumstances. It seems to me one of the ordinary hazards of life that on a windy day things do blow about ….”
The judge said that there was no breach of duty. He went on to say, in relation to the claimant:
“… one has to take precautions accordingly.”
Mr McCormick submits that the judge has brought a new concept into the law by referring to the ordinary hazards of life. I do not consider that the judge was doing that. What the judge was holding was that in all the circumstances of this case there was no breach of duty in failing to provide a secure means of keeping the lid open. That was the way in which the judge saw the evidence and the circumstances. Ordinary hazards of life may or may not involve a breach of duty by employers or occupiers. There will be ordinary hazards which, by reason of their commonness or by reason of the serious consequences which may result from their occurrence, an employer or occupier is under a duty to take precautions against. I cannot conclude that the judge was saying that, merely because something was an ordinary hazard, it could not involve a breach of duty. He was considering the precise situation. In the judge’s view there was no breach of duty. Of course, there is breach of a duty by way of negligence only if a risk is such that employers or occupiers ought reasonably in the circumstances to take precautions to protect their employees or visitors against it.
I would grant permission to appeal in this case. I do so on the basis of two pieces of evidence which were given. I should say that this is a renewed application. I refused permission on paper without having seen the transcripts, for reasons which appear on the appropriate form. Having referred to the evidence of Mr Mortimer and to the circumstances, I said:
“The judge was in my view entitled to conclude that there was no breach of duty. The fact that changes were made after the accident does not establish that there was a breach of duty at the material time.”
Mr McCormick understandably relies upon the fact that action was taken after the accident and he refers to the document – it is not necessary to consider its precise provenance – at pages 65 and 66 of bundle C, in which it was stated:
“Due to the design of the skip I would suggest a simple locking mechanism be manufactured from mild steel to secure the locking arm from falling whilst the skip is in use.”
In the course of argument I referred to that as a De La Rue document. Having looked at it again, I am not sure that that is the case.
Evidence was called on behalf of the defendants and the witnesses were of course cross-examined by Mr McCormick. Mr Dyson was asked about the use of the skip:
Q.I am just suggesting to you that at all times, whoever supplied the skip, the user and hirer of the skip has a responsibility for ensuring that it is being operated safely and is in a safe condition.
A.Yes. …
Q.We have a skip with a lid mechanism that seems pretty daft, does it not, when one stops to think about it?
A.Yes.
Q.That skip, with that lid mechanism, was there for quite a number of months, maybe a year or so.
A.Yes. …
Q.And it would seem that no one really paid any attention to it until such time as he was injured by it, would it not?
A.Yes, that would appear to be the case.
Q.Which is all rather unfortunate, is it not?
A.It is very unfortunate, yes.
Mr Balay was cross-examined about risk assessment. It was put to the witness:
“Q.It wasn’t secured from the ground or to the base or to any stable structure. It was just standing more or less upright at something approaching 90 degrees and could have fallen down with relatively little force being applied to it, could it not?
A.I cannot disagree with what you are saying.”
Mr McCormick had attempted to base a case upon the unsuitability of the two foot high platform, but the judge, rightly in my view, said (and repeated in his judgment) that there was no case in the circumstances based on that. The questioning continued:
“Q…. I suggest that had someone who had been charged with doing a risk assessment looked at it, it is a point that would have been obviously and readily picked up. Would you agree with that?
A.Yes. But, as I said earlier, I really do believe that the situation had been evaluated. It just had not, unfortunately, been documented on a risk assessment.
Q.Yes, but do you agree with me that had someone done a risk assessment of that particular operation before the accident they would have realised that there was an obvious danger there?
A.Yes.”
The learned judge did not deal with those answers in his judgment. In my view the claimant has an arguable case on the basis of those answers, coming as they do from the defendants’ witnesses. I say no more than that. It is clear from my written refusal of permission that, upon a reading of the judgment itself, it appeared to me that the judge was entitled to say that in all the circumstances the extent of the risk in relation to this plastic cover falling was not such that there was a breach of duty either by the employers or by the occupiers. I would grant permission against both defendants. I have raised with Mr McCormick the possibility that, even if he succeeds against one but not the other, his client is at risk of paying the costs of the other. He proceeds with his application in that knowledge.
Subject to one point, permission is given generally. He also claims, as I have mentioned, that there was a breach of statutory duty in that the equipment was unsuitable; and that point can also be argued. Permission is not, however, granted on a point which had considerable prominence in Mr McCormick’s first skeleton argument but which has not since been pursued. That is the question of a fair trial in relation to the attendance of a medical witness to be called by the claimant which it is submitted was not treated properly by the judge. That had, it was submitted, an impact upon the judge’s approach to the question of liability. Permission on that ground is refused.
There have been two oral applications. I say no more than that the second was necessary because a long skeleton argument which referred to the transcripts arrived with me only on the morning of the date fixed for the last application and it was not possible within the time allotted on a busy day to consider the question. I would consider it preferable had those appearing for the claimant waited for the arrival of the transcripts before requesting the application to be listed. I would expect the office to have co-operated.”
Coxall v Goodyear Great Britain Ltd
[2002] EWCA Civ 1010 [2003] ICR 152, [2002] IRLR 742, [2003] WLR 536,
CA Lord Justice Simon Brown:
“This is the defendants’ appeal, brought with the permission of the judge below (His Honour Judge Rundell), against his judgment in the Walsall County Court given on 9 November 2001, awarding the claimant (the respondent) damages of £7,500 together with interest and costs. The damages were awarded for occupational asthma suffered by the respondent through working as a paint and line operator at the appellants’ tyre factory at Wolverhampton.
…..
The appellants challenge the judge’s holding that they were under an obligation to take the respondent off the job. That is the critical, indeed sole, ground of appeal. Mr Beard’s central contention on their behalf is that “an employer is not under a duty to remove an employee from safe work, still less dismiss him, because he is not suited to the work”. Rather, he submits, it is for the employee to decide whether or not to take the risk of continuing in his job. A series of Court of Appeal decisions, notably Withers -v- Perry Chain Co Limited [1961] 1 WLR 1314, Kossinski -v- Chrysler United Kingdom Limited (1973) 15 KIR 225 and Henderson -v- Wakefield Shirt Company Limited [1997] PIQR P413, is said to be authority for that proposition. Let me briefly consider each of those three cases.
The plaintiff in Withers was an employee with dermatitis who returned to work when it was known both to him and his employers that his continuation to work would give rise to a small risk of dermatitis recurring or being exacerbated. The Court of Appeal allowed the employer’s appeal against the trial judge’s award of damages. At p 1317 of the judgment Sellers LJ said this:
“… the defendants gave her what they thought to be the best available work they had. In fact, if she had not taken that work it would seem that she would not have worked at all and would not have earned any wages, which apparently she sought to do. I cannot believe that the common law requires employers to refuse to employ a person who is willing to work for them simply because they think that it is not in the person’s best interests to do the work. That would be imposing a restriction on the freedom of the individual which I think is foreign to the whole spirit of the common law of our country.”
At p 1319 he added:
“… there is no duty at common law requiring an employer to dismiss an employee rather than retain him or her in employment and allowing him or her to earn wages, because there may be some risk. The duty of the defendants in this case was to take all reasonable care for the plaintiff in the employment in which she was engaged, including a duty to have regard to the fact that she had had dermatitis previously. Beyond that I do not think the common law can be invoked.”
Devlin LJ said at page 1320:
“In my opinion there is no legal duty upon an employer to prevent an adult employee from doing work which he or she is willing to do. If there is a slight risk, as the judge has found, it is for the employee to weigh it against the desirability, or perhaps the necessity, of employment. The relationship between employer and employee is not that of a schoolmaster and pupil. There is no obligation on an employer to offer alternative safe employment, though no doubt a considerate employer would always try to do so – as the defendants thought they had done here. Nor is there any obligation on an employer to dismiss an employee in such circumstances. It cannot be said that an employer is bound to dismiss an employee rather than allow her to run a small risk. The employee is free to decide for herself what risks she will run.”
The plaintiff in Kossinski sustained injury to his elbow whilst removing paint with compressed air. Some months previously he had been diagnosed as suffering from tennis elbow. He claimed damages on the basis that he had been allowed to return to work of a kind likely to aggravate his injury. That claim failed both at first instance and on appeal. Following the approach set out in Withers, Edmund Davies LJ at p 229 said this:
“It requires no authority to illustrate the cogency of the proposition that the duty of reasonable care does not impose upon an employer the necessity of saying to an employee: ‘You are not fit for this properly-planned and entirely safe work because of your own physical condition, and therefore, despite your own desire to continue at it, we must dismiss you’
Indeed, in the light of such cases as Withers … [that] would have been an unacceptable submission …. In certain cases a duty of warning by the employers may arise, but it must depend upon the circumstances of the case.”
James LJ added at p 231:
“When the man himself made no complaint, I do not think that it was incumbent on the employers to conduct an investigation as to what, if any, other alternative work was available for him or to give him such warning that if he wanted to continue with his work he would do so at his peril.”
In Henderson the plaintiff’s job was as a final presser to iron shirts at the defendant’s factory. In 1991 she developed a painful stiff neck, consulted her GP, and was off work for a couple of months. In July 1992 she was again off work for a fortnight with neck pain, stiffness and tendonitis in the right shoulder. In January 1993 she was transferred to different work. The trial judge awarded her damages on the basis that when her symptoms emerged and she complained to her employers, they were under a duty to take her off the job. On the basis of the earlier authorities the employers were successful in their appeal. Kennedy LJ concluded that they had not been under a duty to offer the plaintiff a wholly different job any earlier than they did. Sir Ralph Gibson said at p 420:
“It is, in my judgment, impossible to hold on the material before the judge that the defendants were in breach of any duty whatever in March 1991. It would be to hold that the defendants were obliged, when the plaintiff reported that she suffered pain in doing work which was safe, to take her off that work. There is no such duty in law: see Withers -v- Perry Chain [1961] 1 WLR 1314. The plaintiff knew she was suffering pain in or after doing the work and there was no advice that she needed or which would then have assisted her. She knew in June that it was her work which was causing the pain, but she had not been advised by her doctor that she should not do it.”
The judge below, having considered those authorities, indicated that if he were to accept them, then the respondent’s claim would fail. He continued:
“I am not, however, inclined to follow this [line of] authority for the reasons submitted to me by Mr Hunjan that the authority relating to dismissal of employees is now forty years old. A lot has changed in the world of employment since 1961, not the least the COSHH regulations. Duties and obligations on employers are now much more stringent and it seems to me in 1996, because that is the time that I have to consider, in circumstances where a company doctor advises that an employee be moved, where a health and safety manager concurs with that suggestion and where the manager himself said that had he been aware of the advice he would have accepted that advice, it seems to me that failure to follow that advice, either to move or in the final analysis to dismiss the employee, does constitute a breach of the employer’s duty and … if the employee suffers an exacerbation of his illness or condition then that exacerbation is actionable.”
Judge Rundell later gave permission to appeal on these terms:
“Limited to the question whether, in the light of the evidence, the decision in Henderson was binding on me. I took the view that it was not and that it was distinguishable on the facts of the instant case.”
Before turning to the rival arguments on the appeal, it is convenient first to refer to one further authority, this Court’s recent decision in Hatton -v- Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1, a decision on four conjoined appeals and a guideline case with regard to the circumstances in which employers are liable for an employee’s psychiatric illness caused by stress at work. For present purposes it is, I think, sufficient to cite paragraph 34 of the Court’s judgment:
“Moreover, the employer can only be reasonably expected to take steps which are likely to do some good. This is a matter on which the court is likely to require expert evidence. In many of these cases it will be very hard to know what would have done some let alone enough good. In some cases the only effective way of safeguarding the employee would be to dismiss or demote him. There may be no other work at the same level of pay which it is reasonable to expect the employer to offer him. In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employee’s own good. As Devlin LJ put it in Withers -v- Perry Chain Co Limited [1961] 3 All ER 676 at 680, [1961] 1 WLR 1314 at 1320:
‘The relationship between employer and employee is not that of schoolmaster and pupil … the employee is free to decide for herself what risks she will run … if the common law were to be otherwise it would be oppressive to the employee by limiting his ability to find work, rather than beneficial to him.’
Taken to its logical conclusion, of course, this would justify employers in perpetuating the most unsafe practices (not alleged in that case) on the basis that the employee can always leave. But we are not here concerned with physical dangers: we have already rejected the concept of an unsafe occupation for this purpose. If there is no alternative solution, it has to be for the employee to decide to carry on in the same employment and take the risk of a breakdown in his health or whether to leave that employment and look for work elsewhere before he becomes unemployable.”
Not surprisingly, Mr Beard for the appellants relies on the court’s reiteration there of the Withers principle and its reference to the employee having to decide whether or not to take the risk to health involved in continuing work, whereas Mr Hunjan QC for the respondent emphasises the court’s observation that “we are not here concerned with physical dangers”, the court having already referred in paragraph 11 of its judgment to the “several differences between this [psychiatric illness through stress] and other kinds of work-related harm, such as injuries suffered in accidents at work or illnesses caused by exposure to deleterious physical conditions at work.”
……
For my part, I readily acknowledge that conflicting principles, perhaps even philosophies, are here in play. On the one hand is the principle expressed by Sellers LJ in Withers that “imposing a restriction on the freedom of the individual … is foreign to the whole spirit of the common law of our country” (or, as Devlin LJ put it, “the relationship between employer and employee is not that of a schoolmaster and pupil”). On the other hand employers clearly must bear some overall responsibility for the health and safety of their workforce.
How, then, is the undoubted tension between these principles to be resolved? To my mind this can only be achieved by reference to the individual facts of each case. Powerfully though Mr Beard’s arguments were advanced, I think in the end they go too far and prove too much. I simply cannot accept the Withers principle in quite the absolute terms he suggests, namely as a principle in no way dependant upon the magnitude of the risk in question. If the appellants’ argument here were sound, it would follow that employers would be immune from liability even, say, if they retained as spidermen employees whom they knew to suffer intermittently from vertigo or epileptic fits. That cannot, I think, be right.
Rather it seems to me that the principal consideration in determining whether or not any particular case falls within the Withers principle must be the actual nature and extent of the known risk. The risk in Withers itself, be it noted, was variously described in the judgments as “some risk” (Sellers LJ: “there may be some risk”), “a slight risk” and “a small risk”. Kossinski concerned only a tennis elbow. The plaintiff in Henderson had not even been advised by her own doctor to stop work.
How then do matters stand in the present case? I confess I have not found it an altogether easy one. For my part I regard the Withers principle as no less effective today then when it was first adumbrated. True it is that employers’ responsibilities towards their workforce have grown down the years. But society’s increasing respect for an employee’s autonomy to my mind represents a countervailing consideration. And the risk of precipitating claims for unfair dismissal is by no means to be discounted.
All that said, however, cases will undoubtedly arise when, despite the employee’s desire to remain at work notwithstanding his recognition of the risk he runs, the employer will nevertheless be under a duty in law to dismiss him for his own good so as to protect him against physical danger. The spiderman example I have given above is an obvious one. The present case, of course, is very much less obvious. I conclude, however, that in this instance too the duty arose. It is a striking feature of this case that all three of the appellants’ staff most directly concerned with the respondent’s welfare (the works doctor, the line manager and the health and safety manager) all thought that he should cease work – the evidence of the two managers being that, had they known (as plainly they should have known) of Dr Barnes’s view, they would have taken the respondent off his job. True, as Mr Beard argues, their evidence alone cannot dictate the extent of the appellants’ duty. But if they themselves regarded the respondent’s cessation of the work as necessary, and inferentially as their responsibility, I see no good reason for the court to regard them as having been under any lesser duty. It is essentially on this basis that I regard the judge below as having been entitled to distinguish the Court of Appeal line of authority. In none of those three cases was the position reached where the employers came to recognise that their employee should no longer continue in the work. Far from it.
It follows that, in my judgment, whilst the judge was wrong to decide (if, indeed, he did) that the Withers principle was not binding upon him, he was nevertheless correct in concluding that the appellants were negligent in having failed to follow their own doctor’s advice (because, of course, they had not received it) and failed “either to move or in the final analysis to dismiss” the respondent.
By way of footnote I add just this. No case in contributory negligence was pursued here on the footing that the respondent himself was partially to blame for his own injury in having chosen to continue at work despite knowing of the risk involved and of Dr Barnes’s express advice to his manager that he should stop working. I say no more than that, had it been, it might well have relieved the appellants of part of their liability.
That, however, is essentially by the way. For the reasons earlier given I would dismiss this appeal.”
Hickey -v- McGowan & ors
Spes -v- Windcanton Ireland Ltd
[2016] IEHC 194
Barry v Dunnes Stores (Clonmel) Ltd
[2013] IEHC 259JUDGMENT of Ms. Justice Irvine delivered on the 12th June, 2013
Background
1. The plaintiff in these proceedings was born on 12th November, 1971. She is a married lady with six children, two of whom were born prior to the events the subject matter of these proceedings.
2. This claim concerns an incident which took place on the defendant’s premises at Clonmel, Co. Tipperary on 13th October, 2004. At that time the plaintiff was employed as a part time sales assistant and she was six weeks pregnant. Her job included putting out stock on the shop floor from trolleys which are loaded by members of staff in the stores area.
3. On the day in question when the plaintiff and her colleague, Michelle Collins, arrived into work they found a number of trolleys in the homeware department which were stacked with goods to be displayed on shelves in that department. It is accepted that the plaintiff and Ms. Collins were expected to unload any trolleys so positioned as part of their regular duties and to place the goods on display.
4. The plaintiff states that she went over to one of the trolleys which was stacked with boxes well above the height of her head. She reached up to one of these boxes not knowing what was inside it and pulled it forward to take it down. As the weight of the box came into her arms, which were stretched above her head, she realised it was too heavy for her to manage. She called out to Ms. Collins to help her. Unfortunately at that precise moment when the plaintiff could no longer hold the box nor push it back up onto the trolley, Ms. Collins was herself busy handling another box. As a result, the plaintiff had to take the weight of the box into her arms and put it down quickly on a table that was close by. This required her to perform a twisting or turning type of manoeuvre. A few minutes later she felt pain in her back which soon started to radiate into her left buttock and down her left leg.
The Liability Issues
5. The plaintiff maintains that she suffered a significant injury to her back due to negligence and breach of duty on the part of her employer. She maintains that her employer failed to provide her with a safe place of work, a safe system of work, safe equipment or any competent assistance. In particular, the plaintiff alleges that she was allowed and required to lift a cumbersome and heavy box from a stock trolley which was stacked excessively high, causing her to overreach. She maintains that the defendant is liable at common law due to its failure to take reasonable care for her safety claiming that as a result she sustained a foreseeable injury to her back. The plaintiff also relies upon the defendant’s failure to comply with the provisions of the Safety in Industry Acts 1955 – 1980, the Safety Health and Welfare at Work Acts 1989-2005 (and the Regulations made thereunder) and also the Safety Welfare at Work (General Application) Regulations 1993.
The defendant denies all liability in respect of the plaintiff’s claim. It contends that the plaintiff was not exposed to a trolley which was laden in the manner alleged. However, if a trolley was laden in such a manner, it contends that the plaintiff’s injuries were caused entirely by her own negligence. It asserts that she was given extensive safety training which focused significantly on accident prevention and back safety. The defendant maintains that in the course of safety training the plaintiff was warned that she should never lift any load without first ascertaining its weight. It maintains that she was also trained never to carry out a lifting manoeuvre if it involved stretching and taking a load from an overhead position. Any loads which were positioned above an employee’s waist or shoulder were only to be moved if a safe platform was available such as a stepladder. Further, if having ascertained its likely weight, the load appeared to be too heavy or cumbersome, staff members were trained to seek assistance from other staff members. All staff, according to the defendant, were warned and advised of the danger of moving a load which they knew or ought to have known could expose them to injury. Accordingly, there were no circumstances which could justify an employee taking a risk such as that which the plaintiff had taken on the day of her injury. In other words, the defendant maintains that the plaintiff was the author of her own misfortune.
Decision
6. I do not propose in the course of this judgment to set out all of the evidence advanced by the parties. I will do no more than set out my findings of fact and the evidence supporting these findings after which I will deal with the liability issue.
7. I found the plaintiff in these proceedings to be a careful and thoughtful witness. I have no doubt whatsoever that she injured herself precisely in the manner which she recounted in the course of evidence. Her account of the events and the manoeuvre which she was performing was entirely consistent with the pleadings, her written account of how she sustained her injuries dated 14th February, 2005 and the evidence of Ms. Michelle Collins. The fact that Dr. Foley, in her records, recorded the plaintiff as having sustained her injury in the course of a dragging manoeuvre, does not to my mind in any significant way undermine the plaintiff’s evidence.
8. I accept the plaintiff’s evidence that on the morning of her injury, several trolleys were stacked with goods to a height of approximately 6ft and were left on the shop floor to be unpacked by herself and Ms. Collins, both of whom are ladies of quite short stature. Ms. Collins confirmed that she is about 5ft tall and I think the plaintiff is probably no more than an inch or two taller than her. Although the court heard evidence from Mr. McNamara, who was the plaintiff’s manager at the time, that staff were trained not to stack trolleys above eye level for safety reasons to which I will later refer, I am satisfied that on this occasion, the company’s safety practice was not followed. I believe my finding in this regard is well supported by the evidence of Mr. Fogarty, Consulting Engineer. Mr. Fogarty attended at the defendant’s premises in July 2009 for the purposes of inspecting the locus in quo and one of the trolleys relevant to the plaintiff’s injury. In the course of that inspection he was only permitted to photograph an empty trolley. However, as he carried out his inspection he noted the presence of three other trolleys on the premises. Two of these were on the shop floor. Mr. Fogarty estimated that the trolleys were stacked with goods to a height of 6.5, 7 and 8ft respectively. He asked for permission to photograph these trolleys but was refused. Regardless of the absence of photographs of these trolleys, I accept Mr Fogarty’s evidence as to the presence of these trolleys laden in the manner described. His evidence on this issue was not challenged by the defendant even though its representatives were present throughout his inspection.
9. I also accept the plaintiff’s evidence that the boxes on the uppermost level of the trolleys on the day of her accident contained ten or twelve bathmats and that each box weighed something between 9 and 10kg. In reaching this finding, I have taken into account the evidence of Mr. McNamara and that of Ms. Hawe, from the department of human resources, to the effect that staff are warned not to stock these trolleys above shoulder height and are trained to put heavier goods on the lower levels and lighter goods above. The plaintiff’s account regarding the contents of the offending trolleys was fully supported by Ms. Collins.
10. Having regard to my findings of fact I am satisfied that I must find the defendant guilty of negligence. The defendant should not have left out a trolley such as the one in question to be unloaded by the plaintiff. That trolley was stacked too high and boxes of bath mats weighting 9-10 kilos should never have been stacked above shoulder height. No engineering evidence was called on behalf of the defendant to counter that of Mr. Fogarty to the effect that the task of unloading such a trolley was potentially dangerous and unsafe. Further, the fact that such a practice would be likely to cause injury is borne out by the safety guidelines which set out and advise upon weights which may be lifted from any level from the ground up to shoulder height with relative safety. For example, a woman is expected to be able to handle a load of 3 – 7 kg at shoulder height with safety. However, no guidance is given as to weights which can be lifted safely above shoulder height and I accept Mr Fogarty’s evidence that this is because the handling goods of any weight manually above shoulder height is always potentially dangerous. Indeed, Ms. Hawe and Mr. McNamara both gave evidence to the effect that they knew it was unsafe to stack trolleys above eye level and that staff were trained not to do this and were always told that heaviest goods should be stacked below lighter goods and never above waist level. They both acknowledged that a trolley was stacked to above eye level is hazardous to manoeuvre safely around the store and that it also poses a risk of injury to the employee involved in the stacking and unstacking operation.
11. Clearly, it is not only the employer that has obligations in terms of health and safety. Every employee must take care for their own safety. Having considered all of the evidence, including the training videos shown in the course of the proceedings, I am satisfied that as of 2004, the plaintiff had received adequate safety training as to the manner in which she should approach any task involving the lifting of goods. Any employee who saw the defendant’s instruction video in relation to back safety could not fail to appreciate that they would risk injuring their back if they decided to move a load from above their head with their back extended. I am also satisfied that the plaintiff was adequately trained to seek help from other personnel if faced with a task which she considered might expose her to a risk of injury and that she was trained always to assess a load before seeking to take its weight in her hands.
12. However, the fact that an employer may train its staff at the time of recruitment and intermittently thereafter regarding the risk of injury to their back is significantly negated if, in daily practice, the methods for moving goods safely as advised in the course of training are not deployed by employees and managers do not enforce compliance with training and safe practice. In this regard I am satisfied from the evidence of the plaintiff, Ms Collins and Mr. Fogarty that it was not uncommon for trolleys to be stacked in the manner in which they were stacked on the day of the plaintiff’s injury. Further, while Mr. McNamara advised the court of the dangers associated with lifting boxes from a height he told the court that he felt the plaintiff should have called him to assist her if she had been unable to lift this box and that he would have taken it down for her, thereby putting himself at risk of injury and acting contrary to all safety training. This evidence suggests to me that the work practices adopted by staff and management at the time of the plaintiff’s injury may well have been at odds with the training relied upon by the defendant in its defence to these proceedings.
13. From a liability prospective, it is also no answer to the negligence claimed for the defendant to state that there were step ladders in the store which could have been used by the plaintiff for the task in question. Firstly the plaintiff should never have required a step ladder to unload any trolley of goods. Secondly, I got the impression from the evidence that step ladders were not in abundant supply and that any worker requiring one would have to go around the shop floor or into the stores area to find one. There was no designated area where these were kept. Thirdly, I am satisfied that the load concerned could not have been moved safely by the plaintiff standing on a step ladder, had she decided to try to find one. She would have needed to have two hands on the box to lift it and I don’t believe she could safely have transferred it to another colleague without the risk of becoming unstable on the ladder. I think the best the plaintiff could have done in the circumstances was to use the ladder to gauge the weight of the box and then refuse to move it. The question then is how that box could then be taken down safely. Perhaps this could have been done by two tall men of equal height as was demonstrated in relation to the movement of one high load shown in the training video but clearly such a manoeuvre would never have arisen had the trolley not been loaded in an unsafe manner in the first place. However, regardless of these facts the Plaintiff should have known not to try to lift down the box which caused her injury. She did this without ascertaining its weight. Had the plaintiff ascertained its weight by getting a step ladder, albeit it that this may have taken some minutes, I think this injury would not have happened. Alternatively she should have recognized the risk of taking any load from over head height and she should have refused to do so. In either set of circumstances the plaintiff would not have been injured. Accordingly I have decided that she must bear 30% of the liability for her Injuries.
General Damages
14. As a result of her injuries, the plaintiff attended her general practitioner the following day. Her regular general practitioner, Dr. Cheasty was not in the surgery and consequently she was seen by her colleague Dr. Fogarty. Dr. Fogarty diagnosed what is commonly referred to as a slipped disc. An MRI scan subsequently carried out demonstrated the presence of a mild disc protrusion at the L4/5 level but neither Mr. O’Roirdan, Consultant Orthopaedic Surgeon retained on behalf of the defendant nor Mr. Kaar, Consultant Neurologist, retained on the plaintiff’s behalf maintain that this disc protrusion was caused by the event under scrutiny. Because the plaintiff was six weeks pregnant, medication was not prescribed. She was advised to rest and to stay out of work. In January 2005, the plaintiff was advised to undertake some physiotherapy because of ongoing symptomology and she had five sessions which provided her with some relief. However, the plaintiff remained symptomatic with ongoing back and leg pain and this interfered with her day to day activities and made it particularly difficult to manage her family. She was reluctant to take even over the counter medication which might have eased her symptoms. I accept that she experienced ongoing back and leg pain over all of 2005 and into 2006. I further accept that there were many domestic tasks that the plaintiff was simply unable to perform because of her back pain.
15. In early 2006, the plaintiff had five further sessions of physiotherapy but achieved little by way of long term benefit from this intervention. In June 2007, when the Department of Social Welfare deemed her fit to reengage with the workforce, she discussed her position with Dr. Cheasty. She felt that having regard to the plaintiff’s ongoing symptoms that she required specialist review. Consequently, Dr. Cheasty referred her to Mr. Kaar, Consultant Neurosurgeon who directed that an MRI scan be carried out. This showed a mild broad based disc protrusion at the level of L4/5 but with no nerve root impingement. He was of the view that the plaintiff had mechanical back pain with referred leg pain as a result of the injuries sustained on 13th October, 2004. Mr. Kaar was of the opinion that prior to 2004, the plaintiff had some degree of underlying degenerative changes in her back. However, she was asymptomatic prior to her accident in October 2004 and he formed the view that but for the incident the subject matter of these proceedings she would probably not have experienced back or leg symptoms for many years to come. As far as he was concerned he considered the plaintiff capable of carrying out some light work as early as April 2007. Nonetheless, the plaintiff clearly continued to be quite symptomatic in so far as in September 2007 he considered that her symptoms warranted some degree of pain management.
16. The plaintiff was accordingly referred by Mr Karr to Dr. Damien Murphy, Consultant Anaesthetist. However, she was 22 weeks pregnant when she saw him in early 2010. He decided to postpone treatment until after the birth of her twins and later on 19th December, 2010, performed a diagnostic facet joint blockade. This gave the plaintiff very significant relief which she reported to him when she next saw him in February 2011. At present the plaintiff is not entirely symptom free and Dr. Murphy has advised that she may in the future need additional facet joint injections or radio frequency ablation. Further she is likely to require over the counter medication because of the vulnerability of her back.
17. Mr. O’Riordan, Consultant Orthopaedic Surgeon on behalf of the defendant examined the plaintiff on three occasions. He is satisfied that the plaintiff did not sustain a disc prolapse in October 2004 and that at that time she had asymptomatic underlying degenerative disc disease which became symptomatic as a result. He is satisfied that the plaintiff does not have any nerve root compression and that what she now has is degenerative disc disease associated with mechanical pain.
18. It is not disputed that the plaintiff still continues to have pain and discomfort in her back and also has restriction in the straight leg raising of her left leg. The plaintiff has, I believe, sought to mitigate her losses in terms of her compliance with all treatment and exercise programmes recommended by her doctors. The plaintiff has bought a treadmill and uses it to keep herself well exercised and she also engaged in pilates and swimming to keep her spine mobile. Having considered all of the evidence particularly that regarding the pre-existing degenerative change in the plaintiffs spine, I am satisfied that her symptoms at this stage can no longer be ascribed to taking down a heavy box from a height on the defendant’s premises on 13th October, 2004. Having regard to her age and the previously underlying degenerative changes in her back I am satisfied, on the balance of probabilities, that she would in any event have run into some difficulties and be symptomatic in respect of her back at this stage.. Accordingly, I will only award a sum for pain and suffering to date and in this regard, I will award a sum of €45,000.
Loss of Earnings
19. In relation to the loss of earnings claim, I am satisfied that the plaintiff was out of work solely as a result of her injuries up to 5th June, 2007, at which stage she was awarded job seekers allowance. The parties have agreed that the maximum sum to which the plaintiff might be entitled in respect of this period is a sum of €33,000 taking into account the plaintiff’s maternity leave. I see no reason why I should make any deduction from this sum.
20. I am invited by the plaintiff to conclude that she also sustained loss of earnings after 51 June, 2007, regardless of the fact that she was deemed fit to work, by the department of social welfare on 5th June, 2007 this being the basis upon which a job seekers allowance is paid. However, this determination by the Department does not mean that the plaintiff was symptom free and able for all types of work. Indeed I was advised by Dr. Cheasty that she considered the plaintiff unfit for her work in Dunnes Stores at this time because it involved a significant amount of manual handling and I accept Dr. Cheasty’s evidence on this issue.
21. Notwithstanding the foregoing, I am not satisfied that the plaintiff has made out a sufficient case to justify me augmenting her general damages to reflect some potential loss of earnings to cover the period spanning 5th June, 2007 until June 2011 when she returned to work with a different employer earning an equivalent income to that which she had formally enjoyed when working with the defendant. While the plaintiff may not have been fit to return to her work with the defendant in June 2007, I am satisfied from the fact that she was granted social welfare payments and from Mr. Kaar’s report that she was capable of doing light work as of April2007. There is an onus on every plaintiff to seek to mitigate their loss and in this regard, I think the onus was on the plaintiff to seek out alternative light work and had she done so she might have been entitled to claim a differential figure for loss of earnings over this period.
22. In deciding not to augment the plaintiffs general damages to reflect any further loss of earnings post 5th June, 2007, I have taken into account a number of complicating factors and these are firstly the fact that her daughter Ciara was born in May 2007. Regrettably the plaintiff’s mother, who looked after her children without financial recompense, died in February 2007 and had the plaintiff then gone back to work she would have had childcare costs which would have significantly impacted on her net earnings. Furthermore, the plaintiff’s twins were born in June 2009 and I think her pregnancy and the delivery of these twins might also have impacted upon her ability to work over this period of time. Consequently, I will not award any additional sum in respect of this period.
Conclusion
23. In all of the aforementioned circumstances, I will award the plaintiff a sum of €45,000 in respect of pain and suffering. I will further award a sum of €33,000 in respect of loss of earnings to which I will add any agreed special damages. I will not allow the cost of the treadmill as an item of special damage. A deduction of 30% must then be made in respect of the plaintiff’s contributory negligence.
Smith v Health Service Executive
[2013] IEHC 360,JUDGMENT of O’Neill J. delivered on the 26th day of July 2013
1. The plaintiff in this case sues the defendants, her employers, for damages for negligence and breach of duty including breach of statutory duty in respect of injuries she sustained on 27th July 2010, in the course of her employment with the defendants.
2. The plaintiff, who is a married woman and has two grown up children, has been employed by the defendants for 18 years as a Household Assistant in St. Joseph’s, Ferryhouse, Clonmel, County Tipperary. This is an institution which engages in the rehabilitation of boys between the ages of 12 and 18 years. The institution can accommodate approximately 23 boys in four houses or residential units.
3. During the summer break, when the boys are sent home or to another institution, a major cleaning operation is conducted by the household staff. This involves a very thorough cleansing and disinfecting, inter alia, of the residential units.
4. On the day of her accident, the plaintiff was engaged in this task. At about 10.00am, she was in the process of cleaning a shower or shower room in one of the residential units. This is not a shower in the ordinary domestic sense, but is a small room which is, in effect, a single shower. All of the walls and floors were tiled and the showerhead was set into the wall opposite the door into the shower room. Entrance to the shower was via a door which was off a corridor, and on the other side of the corridor opposite the door there was a solid wall.
5. The buildings that comprise this institution date back to about 1990 and the door in the shower room was undoubtedly of that vintage.
6. The hinges that supported the door were designed so that in the process of opening, the door was raised up slightly. The purpose of this design feature was to enable the door to self-close once opened. This was achieved by gravity pulling the door down from its slightly elevated position when open to the lower and stable position when closed. Many of the other doors in these residential units have similar hinges.
7. Over time, the self-closing operation of the door into the shower room became inhibited by the accretion of paint. I am satisfied that the door into this shower room had, by this process, lost the capacity to self-close and when open was stable in any opened position. When fully open, it did not go back so as to be flush with the wall from which it was hung because the width of the door brought it into collision with the side wall of the shower, but it could go back to an almost fully opened position.
8. The task the plaintiff had to do was to thoroughly cleanse the walls and floors of the shower room. To do this, she used a long-handled deck brush. The preferred detergent for this task was ‘Brillo Degreaser’ which came in 5-litre bottles. She had previously gone to the store to get this but none was available and so she was obliged to use the next best available agent which was a ‘Bleach’. Because this agent creates unpleasant fumes, it was necessary for her to keep the door of the shower room wide open to ensure adequate ventilation. Although there was a ventilating extractor in place which was operated by the electric light switch, the plaintiff’s evidence was, and I accept it, that this was inadequate to deal with the fumes from the Bleach.
9. The plaintiff also needed to keep the door open to its maximum extent to allow her sufficient uninterrupted room within the shower room to scrub the walls of the shower with the long-handled brush.
10. Keeping the door open gave rise to a controversy which dominated the heart of this case. In her evidence, the plaintiff described some difficulty in opening the door to its maximum extent. When examined by Mr. McCormack within 48 hours of the accident, no such difficulty was apparent and I am satisfied that whatever difficulty was perceived by the plaintiff when opening the door, was of no real significance.
11. I am also satisfied that the door did not function properly in terms of the design of the hinges, in that it did not self-close spontaneously.
12. However, I am also satisfied that the plaintiff, being accustomed to the self-closing feature on many of the doors in the residential unit, had reasonable grounds for believing that the door would self-close unless restrained by a doorstopper of one sort or another.
13. It is commoncase that the normal doorstoppers which were readily available would not work on this door because the gap between the bottom of the door and the floor of the shower room was abnormally deep.
14. Two methods of door stopping were, I am satisfied, used by staff of the defendants. The first of these was the placing of a 5-litre bottle of ‘Brillo Degreaser’ in front of the door, holding it open. This method was not available to the plaintiff because she had looked for ‘Brillo Degreaser’ and there was none available.
15. The second method and that adopted by the plaintiff was to place the handle of a mop or brush into the jamb of the door with the head of the brush or mop securely placed in the angle between the doorstep and the opposite side of the doorway. This kept the door open but it resulted in the mop or brush handle straddling diagonally the door opening thereby creating an obvious obstacle in the path of anyone attempting to cross the doorstep to get in or out of the shower room.
16. Having secured the door in the fully open position by using a long-handled mop in this way, the plaintiff proceeded to clean the walls of the shower. She spread the Bleach on the back wall of the shower where the showerhead was located. She used the shower itself as her supply of water and activated the shower by pressing the operating button with the handle of the deck brush she used to scrub the walls. When the shower was discharging water, the plaintiff would back away towards the door to avoid getting wet.
17. Her evidence was that whilst she was scrubbing the back wall with this long-handled mop, using an upward and downward motion, and as she backed away a little bit, her heel came in contact with the doorstep. It is probable that when this happened, the plaintiff was backing away to avoid water being discharged by the shower. It would seem to me that the internal dimensions of the shower were such, and having regard to the length of the brush handle (1,200mms.), her own physical size and the upward and downward scrubbing motion, that she was probably standing well inside the shower room and certainly not close enough to the doorstep to bring her heel into contact with it, except when she turned on the shower and backed away to avoid getting wet.
18. The evidence of both engineers established that the doorstep at the entrance to the shower was 2.5 inches in height above the level of the floor in the shower room. When the plaintiff’s heel came in contact with the doorstep, I am satisfied that this caused a backward trip. Immediately, the back of her leg came in contact with the handle of the mop, and because it was caught in the doorjamb it presented a solid obstacle which, I am satisfied, prevented the plaintiff regaining her balance after her initial backward trip and probably turned a backward stumble from which she could have righted herself into an uncontrolled freefall backwards out into the corridor.
19. Her fall was broken by colliding with the wall on the opposite side of the corridor. Her left shoulder impacted the wall before she fell to the ground. It is apparent that the plaintiff collided heavily with this wall and as a consequence suffered a serious injury to her spine, namely, a wedge fracture of one of the vertebrae of her thoracic spine. She was unable to rise from the floor. Help arrived and in due course she was removed by ambulance to South Tipperary General Hospital.
20. In these proceedings, the plaintiff sues the defendants, as her employers, for negligence and breach of their duty to her, including breach of statutory duty, namely, sections 8 and 19 of the Health and Safety at Work Act 2005 (the Act of 2005). The negligence and breach of duty so alleged comes down to three specific criticisms that the plaintiff makes of the defendants’ system of work under which she operated when she had her accident.
21. The first of these relates to the height of the step into the shower room. Mr. Fogarty, an engineer called for the plaintiff, said in evidence that this step was much higher than it needed to be, to achieve its purpose, namely, to prevent water flowing from the shower room into the corridor. He said a 1 inch step would have been sufficient and would have been much less hazardous to somebody doing the job the plaintiff was doing when she had her accident and, generally, people going in and out of the shower room.
22. I am unable to agree with this criticism. Even if the step was only 1 inch in height, as recommended by Mr. Fogarty, it would still have been a serious tripping hazard and in all probability would have caught the plaintiff’s heel in exactly the same way as occurred. In addition, the 2.5 inch step is significantly more visible than a 1 inch step would be in this location, and hence, in my view, a 1 inch step was likely to be a greater hazard to employees of the defendants than the 2.5 inch step that is there.
23. I am satisfied that this allegation of negligence and breach of statutory duty fails.
24. The next criticism raised was to the effect that a warning should have been given to the plaintiff by the defendants as to the hazard posed by this step to employees working in the shower room or in going in and out of the shower room.
25. In my view, such a warning was entirely unnecessary. The plaintiff had been working in these premises for the defendants for 14 years prior to this accident. She was very familiar with the physical layout of the premises and all its individual features. She was herself a mature married lady with her own house and family and was fully competent to discharge the entire range of domestic household functions which is what she was employed by the defendants to do, as a Household Assistant. Pointing out this step to her and her colleagues of similar experience and telling them that it posed a hazard and to be careful to avoid it, would, I am quite sure, have been an exercise in tokenism and very unlikely to have impressed anything on the recipients of the message other than a very understandable sense of irritation.
26. The fact is, the step was readily visible. On the day of her accident, the plaintiff crossed it several times and went to the trouble of placing the mop head on top of it in the course of placing the handle in the jamb of the door.
27. It would be completely unreal to suggest that her employers could have done anything more, realistically, to convey to the plaintiff the potential risks posed by this step and I am satisfied that it was wholly unnecessary for the defendants to have given or provided a warning of the potential hazards associated with this step which was readily visible to adult, competent employees including the plaintiff.
28. I am satisfied that this ground of negligence and breach of statutory duty fails also.
29. This brings me to the third, and as it turned out in the trial, the real battleground between the parties. This was the plaintiff’s contention that the defendants, over many years, condoned the practice of securing doors in the open position by placing the handle of a long mop or brush into the jamb of the door and securing the other end or head of the mop or brush into the angle between the doorstep and the other side of the doorway. The plaintiff contended that the practice was a dangerous one which led to the creation of an obstacle that was likely to be a tripping hazard to the unwary as happened in the plaintiff’s case.
30. The defendants agreed that this practice was a dangerous one but made the case that not only was it not condoned by the defendants, but that if it did take place this was entirely unknown to the defendants who would have prohibited it if they had known about it.
31. Evidence was given by several of the defendants’ employees. From this, I am quite satisfied that this practice was regularly and continuously used over a long period of time to prop open doors. Specifically, the unchallenged evidence which emerged from the defence witnesses was that the front doors to two of the residences were regularly kept open by the use of a broom handle. Also, the back door of the kitchen was regularly kept open in this way.
32. I am quite satisfied that this practice had been in use on a regular and frequent basis in the defendants’ premises and was seen by the staff, and in particular the plaintiff, as a recognised, effective and acceptable method of keeping a door open. It is absolutely clear that the defendants at no stage did anything to prohibit this practice, and I am satisfied on the balance of probability that the management grade in St. Joseph’s must have been aware of it, or at the very least, having regard to the longevity and prevalence of the practice, they ought to have been aware of it.
33. This conclusion gives rise to an issue of law. Is the adherence to this practice, which both parties acknowledged was a dangerous one, to be properly treated as a failure of duty on the part of the defendants, as employers, and/or mainly or wholly as contributory negligence on the part of the plaintiff.
34. Before embarking upon this issue, it is necessary to consider, in the first instance, whether or not the condoning by the defendants of this practice and their failure to have prohibited it when they said they knew or ought to have known of it was a breach of statutory duty on their part.
35. It was submitted for the plaintiff that the condoning by the defendants of the practice of propping open self-closing doors with the handle of a brush or mop was a breach of s. 8 of the Safety Health and Welfare at Work Act 2005. The relevant portion of this section is as follows:
““8.—(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees; . . .”
36. In addition, the plaintiff submits that there was a breach of s. 19 of the Act, insofar as the defendants, in their risk assessment, failed to mention or deal with the practice of propping open doors with brush or mop handles. The relevant portion of this section reads as follows:
“19.—(1) Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be known and referred to in this Act as a ‘risk assessment’) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions . . .”
37. I am of opinion that the condoning by the defendants of this practice and their failure to have prohibited when they know or ought to have known of its prevalence cannot be regarded as anything other than a failure by the defendants as contemplated by s. 8(2)(a) of the Act of 2005, namely, a failure in the managing and conducting of the work activities so as to ensure, as far as was reasonably practical, the safety and health at work of the plaintiff. Thus, I have come to the conclusion that the defendants were in breach of this statutory duty to the plaintiff and there is a direct causative link between that failure and injuries suffered by the plaintiff.
38. It is commoncase that the defendants’ various risk assessments which, although they do deal with “slips, trips and falls” and a variety of potential hazards associated therewith, no mention at all is made of the practice of propping open doors with brush or mop handles, in that context. Mr. Hayes, an engineer called on behalf of the defendants, justified such omission on the basis that he would not expect that kind of detail to be included in a risk assessment. However, in a risk assessment dated 9th June 2010, relating to the Bawnard Residential Unit, quite considerable detail is set out relating to the risk of slips, trips and falls from wet floors in bathrooms, kitchens and stairways. I would be of opinion that having regard to the longevity and prevalence of this practice, it should have been addressed and the risks associated with it considered as part of the obligation of the defendants to carry out risk assessments. I am satisfied that the failure to have so done was a breach of the defendants’ statutory duty under s. 19(1) of the Act of 2005.
39. I should add that the condoning by the defendants of this practice and their failure to have prohibited it was also a breach of the defendants’ common law duty of care to the plaintiff as her employer and was negligent.
40. This brings me to the question of negligence or contributory negligence on the part of the plaintiff and breach of statutory duty on her part, namely, a breach of s. 13 of the Act of 2005, which reads as follows:
“13.—(1) An employee shall, while at work—
(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work. . . .”
41. For the defendants, it was submitted that as the plaintiff had herself devised and implemented the method of propping open the door by the use of a mop handle, insofar as this practice was a causative feature of her injuries, it was not the result of any inadvertence or heedlessness on the part of the plaintiff, but was her own deliberate and conscious act and therefore she was wholly responsible for the consequence of adopting this dangerous practice and, necessarily, it followed that she was 100% contributory negligent in respect of her own injury.
42. For the plaintiff, it was submitted that where a breach of statutory duty on the part of an employer was established, an entirely different standard with regard to contributory negligence by the employee was applicable, namely, that mere inadvertence or heedlessness would, in the face of a primary breach of statutory duty, not amount to contributory negligence.
43. In this regard, the plaintiff cited the following passage from McMahon & Binchy (3rd Ed.) at p. 606 under the heading of ‘Contributory Negligence’:
“(21.52) The courts have consistently held that the term ‘contributory negligence’ has ‘a different meaning’ in an action for breach of statutory duty and in an action for common law negligence. In Stewart v. Killeen Paper Mills Ltd, 112, Maguire C.J. stated that there is:
‘An essential difference in the nature and quality of the acts of the plaintiff which would amount to contributory negligence in the one case and in the other. The distinction is very fine. It is nevertheless well established’.
(21.53) The care required of a plaintiff in an action for breach of statutory duty is less extensive than in actions for common law negligence. The court must take into account ‘all the circumstances the work in a factory . . . it is not for every risky thing which a workman in a factory may do in his familiarity with the machine that a plaintiff ought to be held guilty of contributory negligence’113
(21.54) It has been stated that:
‘The policy of the statutory protection would be nullified if a workman were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which, though trivial in itself, threw him into the danger consequent on the breach by his employer of the statutory duty. It is the breach of statute, not the act of inadvertence or carelessness, which is then the dominant or effective cause of the injury’. 114
(21.55) The essential difference between breach of statutory duty and common law negligence seems to be that, in respect of breach of statutory duty:
‘(a) An error of judgment, heedlessness or an inadvertence on the part of a workman does not amount to contributory negligence’. 115
Whereas in respect of common law negligence:
‘(a) An act of inadvertence, even though momentary, if it is an act which a reasonably careful workman would not do, will in a common law action amount to contributory negligence’ 116
(21.56) In Stewart v. Killeen Paper Mills Ltd.117 Kingsmill Moore J. stated:
‘Where the injury could not have occurred but for a breach of statutory duty on the part of the master, a jury, in considering whether the conduct of the workman in all the circumstances amount to contributory negligence, are entitled to take into account that the action was taken by the workman in furtherance of the interests of his master and that zeal may have dulled the edge of caution; that the action was one undertaken to meet a situation where if anything effective was to be done it had to be done rapidly and without deliberation; and that, if the act was one which was customarily performed, the master ought to have been aware of the practice and its danger and ought to have taken steps to forbid it. Where it can be shown that a regular practice exists unchecked it is difficult to convict of contributory negligence a workman who follows such a practice’.
(21.57) In drawing a distinction between common law negligence and breach of statutory duty so far as the contributory negligence of an employee is concerned, the courts have been engaged in the formulation of robust policy making for which there is no express warrant in the Civil Liability Act 1961. Echoing the approach of the American courts, 118 our judges have taken the view that social policy requires that legislation prescribing safety standards in industry should not too easily be diluted by the doctrine of contributory negligence. . .”
44. As is apparent from the foregoing summary of the authorities, where a breach of statutory duty is established as a primary cause of a plaintiff’s injury, mere inadvertence or inattention on the part of the employee as distinct from positive conscious deliberate action will not amount to contributory negligence.
45. It thus becomes necessary to closely analyse what the plaintiff did immediately prior to her accident to ascertain whether, as is submitted by the defendants, the causative actions were conscious and deliberate on the part of the plaintiff or whether any culpable activity on her part should be fairly regarded merely as inadvertence or inattention.
46. It would seem to me that the activity of the plaintiff can be divided into two parts. The first was the undoubted deliberate and conscious adoption by her of the practice of propping the door open with the mop handle. Having done that, she then proceeded with the cleansing of the back wall of the shower. During that operation, probably in order to avoid water being discharged by the shower, the plaintiff backed away and inadvertently brought her heel into contact with the doorstep and the back of her leg into contact with the mop handle.
47. Thus, the immediate and proximate cause of the plaintiff’s fall was that of coming into contact initially with the doorstep and then, the mop handle which, in my view, could only be characterised as the result of inadvertence or a lapse of attention on her part.
48. Insofar as the plaintiff adopted the practice of placing the mop handle in the jamb of the door, she was merely following what was the well established practice condoned over a lengthy period of time for propping open self-closing doors in this way. Therefore, in my view, this part of the conduct or activity of the plaintiff is properly to be characterised as the defendants’ breach of statutory duty rather than as contributory negligence on the part of the plaintiff. On the other hand, the action of the plaintiff in backing away and catching her heel and leg in the step and mop handle is properly to be characterised as inadvertence, inattention or carelessness on the part of the plaintiff which, following the aforementioned authorities, should not amount to contributory negligence as it was merely inattention or inadvertence whilst adhering to a practice or system of work that was established or condoned by the employer.
49. I use the word “should” above advisedly for the simple reason that in all of the consideration given in the aforementioned older cases, there is no mention of and no consideration of the effect of s. 13 of the Act of 2005. It would seem to me that this section, imposing, as it does, a specific statutory duty on the part of employees, requires a reconsideration of the treatment by the courts of contributory negligence on the part of an employee in the context of an established breach of statutory duty on the part of the employer.
50. The legislative history behind s. 13 of the Act of 2005 goes back to s. 125(1) of the Factories Act 1955, which is in the following terms:
“125(1) – A person employed in a factory or in any other place to which any provisions of this Act apply shall not wilfully interfere with or misuse any means, appliance, convenience or other thing provided in pursuance of this Act for securing the health, safety or welfare of the persons employed in the factory or place, and where any means or appliance for securing health or safety is provided for the use of any such person under this Act, he shall use the means or appliance.
(2) A person employed in a factory or in any other place to which any provisions of this Act apply shall not wilfully and without reasonable cause do anything likely to endanger himself or others.”
As is apparent from this, the statutory duty imposed upon employees for their own safety or that of their fellow employees was extremely restrictive.
51. A significant change in the general duty of employees was brought about by s. 8 of the Safety in Industry Act 1980, which replaced sub-section (1) of s. 125 of the Factories Act 1955, and is in the following terms:
“8.— Section 125 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (1):
‘(1) The following provisions shall apply to a person who is employed in a factory or in any other place to which any of the provisions of the Safety in Industry Acts, 1955 and 1980, apply, namely,
(a) he shall take reasonable care for his own safety and health and that of any other persons who may be affected by his acts or omissions while at work . . .’”
52. Sub-section (1)(a) above clearly expand the statutory general duty of care owed by employees to more or less correspond with the well-established common law duty of care owed by employees for their own safety.
53. Section 9(1) of the Safety, Health and Welfare at Work Act 1989, extended the statutory general duty of care to all “places of work” as defined in s. 2 of that Act, and is in the following terms:
“9.—(1) It shall be the duty of every employee while at work—
(a) to take reasonable care for his own safety, health and welfare and that of any other person who may be affected by his acts or omissions while at work . .”
54. The duty, as expressed here, is in almost exactly the same terms as in s. 8 of the Safety in Industry Act 1980, save that “welfare” is also included in addition to safety and health.
55. Finally, the latest statutory expression of this duty is contained in s. 13(1)(a) of the Safety, Health and Welfare at Work Act 2005, as quoted above. Insofar as the general statutory duty of employees is concerned, there does not appear to me to be any material difference between the duty as expressed in s. 13(1)(a) of the Act of 2005, and as expressed in s. 9(1)(a) of the Safety, Health and Welfare at Work Act 1989.
56. The cases relied upon by the plaintiff in support of the submission that mere carelessness, inattention or inadvertence would not amount to contributory negligence were decided before the enactment by the Oireachtas of a general duty of care on the part of employees as set out above, and hence, these cases do not consider that current general statutory duty of care on the part of employees.
57. Thus, it is necessary that there would be a reconsideration of the treatment of contributory negligence on the part of an employee in the light of the statutory duty now imposed on employees.
58. The above authorities reveal that the benign treatment of contributory negligence on the part of an employee in the face of a primary breach of statutory duty by the employer was to ensure that the policy underpinning the statutory provision would not be diluted by a reliance upon the doctrine of contributory negligence. If, however, the duty of an employee to take reasonable care for their own safety is elevated to the status of a statutory duty, it would seem to me that the exculpation of inadvertence and inattention from the ambit of contributory negligence must be reconsidered given that both employer and employee are now bound by statutory duties to take reasonable care.
59. This approach appears to have been adopted by the Supreme Court in the case of Coffey v. Kavanagh [2012] IESC 19, in which the judgment of Quirke J. in the High Court was overturned to the extent that a finding of contributory negligence to the extent of 25% was made by the Supreme Court where the primary duty of care on the part of the employer was found but where the employee had tripped and fallen as a result of the untidiness of her work environment, where she had some responsibility herself to keep the area where she fell, tidy.
60. In Quinn v. Bradbury & Bradbury [2012] IEHC 106, Charleton J., in reducing the plaintiff’s damages by 30% , referred to s. 13(1)(a) of the Act of 2005, commenting that:
“The sub-section of itself maintained the responsibility of an employee at common law to take reasonable care. In principle, an employee is not required or entitled to completely surrender control over his or her welfare while at work to an employer”.
Further on, the learned judge said the following at para. 21:
“21. Having found that the responsibility for this accident rested with the employers of Robin Quinn, the court is concerned with the issue of contributory negligence. Under s. 13(1)(a) of the Act of 2005 there is a duty on an employee while at work to protect his safety, health and welfare. Other requirements are also made which are not relevant here. That subsection, of itself, maintains the responsibility of an employee at common law to take reasonable care. In principle, an employee is not required or entitled to completely surrender control over his or her welfare while at work to an employer. . .”
61. In short, therefore, it must be said that in light of the statutory duty as imposed on employees, inattention, inadvertence, heedlessness or carelessness on the part of an employee can no longer be regarded as outside the ambit of contributory negligence, in circumstances where it is established that there was a primary breach of statutory duty on the part of the employer, assuming causative links between the breach of statutory duty by the employer, in the first instance, and contributory negligence of the employee, to the injuries actually suffered.
62. It is fair to say that the duty imposed on employers under s. 8(1) of the Act is undoubtedly of a more onerous order being expressed as being “shall ensure so far as is reasonable practicable the safety, health and welfare at work of his or her employees”, whereas the statutory duty imposed on employees under s. 13(1) of the Act is to “comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety and health and welfare . . .”
63. I would be of opinion, firstly, that a liability must attach to the plaintiff in respect of what may fairly be regarded as her negligence in bringing about this accident by backing into and falling over an obstacle which she had placed in her own pathway only moments earlier. Secondly, reflecting the higher or heavier duty resting upon the employer under s. 8(1) with regard to managing the system of work, a significantly greater proportion of liability must attach to the defendants for having condoned and permitted the practice of propping open doors with brush or mop handles to have continued uninhibited over a long period of time. In my view, the appropriate apportionment of liability between the plaintiff and defendants is 75% against the defendants and 25% against the plaintiff.
64. The plaintiff, in falling backwards, collided heavily with the wall on the other side of the corridor opposite the door into the shower room. She undoubtedly suffered a serious injury to her thoracic spine and also, I am satisfied, to her left shoulder. Neither side called any medical experts to give evidence concerning the plaintiff’s injuries and these are dealt with comprehensively in the medical reports which were admitted into evidence by agreement between the parties. These comprise a medical report from Mr. Benny Anto Padinjarathala, the Orthopaedic Surgeon under whose care the plaintiff came in Waterford Regional Hospital after she had been transferred there from South Tipperary General Hospital; the report of Mr. George F. Kaar, Consultant Neurosurgeon dated 24th October 2012; a report of Dr. Kenneth W. Patterson, a Consultant in Anaesthesia, dated 4th March 2013; two reports of Dr. Sean J. McCarthy, specialist in general injuries, sports injuries and exercise medicine, dated 4th April 2011 and 12th June 2013; the reports of Dr. Coleman Walsh, the plaintiff’s General Practitioner, dated 18th April 2011 and 24th May 2013; the report of Dr. James Morrison, Consultant Psychiatrist, dated 12th April 2011, 18th October 2012 and 31st May 2013. For the defendants, three medical reports were submitted by agreement, namely, two reports of Mr. Frank McManus, Orthopaedic Surgeon, dated 1st March 2013 and 29th April 2013, and the report of Dr. Richard Horgan, a Consultant Psychiatrist, dated 10th February 2012. All of these reports reveal that the main injury suffered by the plaintiff following what was a heavy fall, resulting in a severe impact with the wall in question, was a wedge fracture of the 6th thoracic vertebra. The treatment for this was conservative, namely, a period of immobilisation in hospital for a number of days followed by the wearing of a brace continuously for in excess of three months thereafter. This fracture healed, leaving a slight deformity, namely, a 15 degree Kyphus in the plaintiff’s spine at that level.
65. As a result of her injury, the plaintiff suffered considerable pain, particularly down her left side radiating into her lower limb.
66. As time went on, the plaintiff began to experience considerable pain and discomfort in her left shoulder and neck region. An MRI scan of the left shoulder on 18th October 2012, demonstrated a partial tear of the Supraspinatus tendon, bone oedema of the humeral head suggesting trauma and degenerative changes with some impingement. This was associated with considerable limitation of movement in the plaintiff’s left shoulder and weakness due to pain in the left shoulder. An earlier MRI done on 9th December 2011, showed degeneration and a moderate broad base posterior disc protrusion at the C5/C6 intervertebral disc which was distorting the Thecal sac and encroaching on the emerging bilateral C6 nerve roots. There was also disc degeneration at the C4/C5 level as well.
67. It is apparent that the plaintiff had degenerative disc disease in her neck prior to this accident but I am satisfied all of this was asymptomatic prior to her accident.
68. It is not surprising that the fall which the plaintiff experienced did significantly affect this already existing degenerative disease in her neck rendering it significantly symptomatic thereafter. There was, in addition, evidence of traumatic injury to the left shoulder in the MRI of 18th October 2012. As the more acute injury, namely, the fracture of her thoracic vertebra progressed towards recovery, the difficulty she was experiencing with her left shoulder and neck became more prominent, and as time went on, a dominating problem for her.
69. I am quite satisfied that since this accident, the plaintiff has had a great deal of pain and discomfort, particularly down the left side of her body and that all of this pain and discomfort had had a very debilitating effect on her life, particularly as it has, in a significant way, disrupted her normal sleep pattern leaving her tired, irritable and moody, which in turn has developed into a serious depression which has required continuous treatment since the early days of her recovery after this accident. In addition, she has suffered from flashbacks and nightmares relating to the circumstances of her accident which has been described by both psychiatrists as Post Traumatic Stress Disorder, but I would be reasonably satisfied that with the passage of time, these have diminished in intensity and frequency.
70. Although she went back to work relatively soon after this accident, after about four months, I am quite satisfied that the return to work was driven by financial necessity and her ability to cope at work was sustained by the goodwill and cooperation of her supervisor, Ms. O’Flynn, and her co-workers who assisted with or relieved her of the more onerous tasks.
71. The plaintiff, though considerably improved, particularly so far as the injury to her thoracic spine is concerned, nonetheless still has ongoing significant pain at this stage, mainly due to her shoulder problem and her psychological upset is still continuing and she remains on medication for her anxiety and depression.
72. In my view, the appropriate sum to be assessed in respect of her pain and suffering to date is the sum of €45,000.
73. For the future, I think it probable that the effects of this fall on her underlying degenerative disease in her neck will, as time goes on, diminish, and as her physical condition improves, so also in all probability, will her psychological status. Accordingly, in my view, the appropriate sum to be assessed in respect of her future general damages is the sum of €30,000, making a total of €75,000 for general damages.
74. At the close of the case, Mr. Maher S.C. for the defendants applied to the court to dismiss the plaintiff’s case under the provisions of s. 26(1) and (2) of the Civil Liability in Courts Act 2004. This section, which bears the side heading ‘Fraudulent Actions’ is in the following terms:
“26.—(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that—
(a) is false or misleading, in any material respect, and
(b) he or she knows to be false or misleading,
the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that—
(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the affidavit, dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court . . .”
It is well settled, that in making an application of this kind, a defendant bears the onus of proving on the balance of probability the various elements set out in section 26.
75. In this case, the defendants make the case that when the plaintiff swore her affidavit of verification on 14th November 2011, verifying the content of a reply to a notice for particulars which was dated 30th September 2011, the reply being dated 11th November 2011, that she knew that the reply to requests numbers 16 and 18 of the request for particulars were false and misleading.
76. The requests in question read as follows:
“16. Has the plaintiff ever suffered any injuries in any accident either prior to or subsequent to the incident which is the subject matter of these proceedings? If so, provide the following particulars in respect of each and every injury:-
(a) Date and place sustained.
(b) Detailed description of the nature of the injury.
(c) The names and addresses of any hospitals or medical institutions rendering treatment or consultation.
(d) The names and addresses of all physicians, surgeons or other medical practitioners attended.
(e) The nature an extent of recovery and if any permanent disability was suffered, the nature and extent of such permanent disability.
(f) If the plaintiff was compensated in any manner for the injury, please state the names and addresses of each an every person or organisation paying such compensation and the amount thereof.
(g) Please furnish copies of all medical reports pertaining to any such claim for compensation . . .
18. Please state if the plaintiff has any illness, sickness, disease, handicap, surgical operation or medical complaint, physical or otherwise prior to or subsequent to the accident which is the subject matter of these proceedings, if so, please advise:-
(a) The date and place sustained.
(b) The details of symptoms.
(c) The names and addresses of any hospital or medical institution rendering treatment or consultation and the names and addresses of all or any physicians, surgeons, medical practitioner rendering treatment or consultation.”
The reply to those requests, as contained in the reply dated 11th November 2011, is as follows:
“16. The plaintiff has not suffered from any other accident or injury of relevance to the injuries complained of in these proceedings other than a brief period of low back pain in or about 2005 that was treated by her GP, Dr. Coleman Walsh, with manipulation and did not reoccur . . .
18. None relevant save the history set out at 16. above.”
In the course of the proceedings, discovery was sought by the defendants by way of a notice of motion dated 20th February 2013. The discovery sought, which appears to have been conceded and complied with by the plaintiff, was in relation to the plaintiff’s medical history and was extraordinarily extensive. As a result, all of the records relating to the plaintiff’s, it would appear, entire medical history, going back to 2004, were discovered.
77. In the course of a lengthy cross-examination of the plaintiff, Mr. Maher S.C. for the defendants drew attention to and challenged the plaintiff on the following entries in her medical records.
78. The first of these was an entry dated 27th September 2004, in the records of her General Practitioner, Dr. Coleman Walsh, and it reads as follows:
“subjective symptoms: severe pain left hip
subjective findings: pain on hip flexion, internal and external rotation
assessment: The pain was so severe I wonder had she developed a fracture
procedure: injection intra muscular difene 75 mgs im stat
plan of action: referral hospital Waterford Regional
drug prescription: (new) DIFENE 50MG CAPSULE EC retarded caps, 1 caps TDS, 10 day(s), 30 caps.”
The following entry in the GP notes dated 28th September 2004, is in the following terms:
“date of examination: 28/09/2004
hospital: Waterford Regional – A 270511
diagnosis [M]: Trochanteric bursitis”
It is apparent from a perusal of the plaintiff’s records that the complaint recorded above was as described in the records diagnosed as a bursitis, was treated and is not ever again mentioned in the plaintiff’s records. When challenged on this in cross-examination, the plaintiff’s evidence was that she had no recollection whatsoever of this complaint and had completely forgotten about it, and even when challenged on it, still could not remember it.
79. The next entry in the plaintiff’s medical records to which Mr. Maher drew attention was in the GP records of Dr. Walsh dated 27th October 2005, and it reads as follows:
“subjective symptoms: neck pain
objective findings: tenderness left neck
plan of action: advised to do the McKenzie neck exercise programme
drug prescription: (new) DISTALGESIC 32/325 TABLET tabs, 2 tabs TDS, 30 day(s), 100 tabs
drug prescription: (new) ANXICALM 2MG TABLET tabs, 1 tabs daily, 7 days), 7 tabs.”
80. As is apparent from the medical records, there is no mention of this complaint again. In the reply to particulars dated 11th November 2011, as quoted above, the plaintiff mentions a brief episode of low back pain in about 2005 that was treated by her GP, Dr. Coleman Walsh. There is no mention whatever of such a complaint in the GP records and I would infer that the reply to particulars was probably a mistaken attempt based on the plaintiff’s faulty memory of the neck complaint she actually had in 2005.
81. When challenged on the subject of neck pain on the left side in October 2005, the plaintiff’s evidence, having apparently discussed the matter with her husband overnight, acknowledged that she had a once-off episode of neck pain then which she said was caused by leaving a window open, either a bedroom or car window, and she insisted that it was a once-off episode and that she had forgotten it until it was brought up by Mr. Maher in cross-examination.
82. The next matter to which attention was drawn derived from a note in the General Practitioner’s records dated 27th November 2006, where the plaintiff made a complaint of right hip pain (severe). She was referred in respect of this complaint to a Dr. Brian Mulcahy and it is apparent from the records that her complaint was fully investigated in Shanakiel Hospital, the conclusion of which was diagnosis of degenerative changes in the plaintiff’s right hip joint. The plaintiff, in her evidence, acknowledged this complaint and said that this complaint had not given her trouble since, until the recent past, when it began to trouble her again and that she might require surgery for it.
83. The next record referred to by Mr. Maher was a record of South Tipperary General Hospital and although the record is undated, it can be said to have related to a consultation between 31st July 2008 and 11th August 2008. The content of the record would suggest that the plaintiff was attending the hospital with regard to significant health issues entirely unrelated to the injuries of which she complains in this accident. As part of what would appear to have been a fairly extensive history taken from the plaintiff, the following is recorded:
“SR: Pain (L shoulder → L arm no neck discomfort)”
84. It is quite clear that this complaint was not the reason why she was in South Tipperary General Hospital on that occasion and there is no mention of it whatsoever thereafter. It seems to have arisen only as part of the taking of a comprehensive history and it does not appear to have given rise to any concern on anybody’s part. It did not receive any further attention and was not mentioned again.
85. The plaintiff’s evidence on this topic, when challenged on her evidence to the effect that she had not experienced neck or shoulder pain prior to the accident the subject matter of these proceedings, was that she could not remember this complaint in July 2008 at South Tipperary General Hospital.
86. Finally, Mr. Maher raised a complaint of low back pain made by the plaintiff to her General Practitioner on 9th February 2009, as disclosed by the GP records. It is apparent from the GP records that followed this date, that this complaint was extensively investigated and was related to fibroids and led, later in 2009, to the plaintiff having a hysterectomy performed. The plaintiff’s evidence in this regard was to the effect that the pain which she suffered, she described as being a year before the accident the subject matter in this case, was caused by fibroids and that when she had her womb removed, this pain disappeared.
87. As discussed above, the injuries which the plaintiff suffered in the accident the subject matter of these proceedings were a wedge fracture of the 6th thoracic disc and an injury to her left shoulder region, both of which are entirely consistent with the nature of the fall she had. The medical reports of the various doctors who treated the plaintiff in respect of those injuries and their sequelae were admitted by agreement into evidence. Also admitted to evidence were medical reports from the defendants, in particular Mr. Frank McManus, who unfortunately did not have an opportunity to see the MRI of the plaintiff’s left shoulder and therefore reserved his position with regard to that injury.
88. In my opinion, it would have been readily apparent to the defendants that the left hip complaint from 2004 was of a minor and transient nature and of no relevance at all to the injuries sustained by the plaintiff, the subject matter of these proceedings. Similarly, the complaint of left neck pain in October 2005 was also a minor event of a transient nature with no bearing on the injuries sustained by the plaintiff in July 2010, almost five years later. The problem of degenerative change in the plaintiff’s right hip discovered in 2006 similarly had no connection with the injuries in respect of which the plaintiff claims damages from the defendants. The complaint in South Tipperary General Hospital in late July 2009, of left shoulder pain and going down her arm with no neck discomfort was clearly isolated and not perceived to be of any significance at the time and the plaintiff could not remember it and I accept her evidence in that regard. It is readily apparent that this complaint, or anything similar, did not emerge again until after her accident in July 2010. Finally, the complaint of lower back pain in 2009 was explained in the medical records by the presence of fibroids and cured by the hysterectomy and had nothing whatsoever to do with the injuries suffered by the plaintiff in her fall in July 2010.
89. In light of all of the information disclosed to the defendants in the plaintiff’s medical records and bearing in mind that there is little or no dispute concerning the injuries suffered by the plaintiff in this accident, save to the relatively minimal extent revealed in the defendants’ medical experts reports, the forensic assault on the plaintiff to set up an application under s. 26 of the Act of 2004, can only be seen as wholly unjustified and an opportunist attempt to evade their liability to the plaintiff by a misconceived invocation of section 26.
90. It is obvious that reply number 16 to the request for particulars is inaccurate, but I am quite satisfied that this was the result of the plaintiff having completely forgotten about the minor hip and neck complaints she had in 2004 and 2005, and believing, in my view, rightly, that her right hip problem and her fibroids problem had no relevance to the claim she was making.
91. I am absolutely satisfied that when this reply to particulars was made, the plaintiff had no intention whatsoever of misleading anybody. I have had the opportunity of listening and observing the plaintiff give her evidence in the course of a lengthy examination and cross-examination and in the course of the latter, having to endure a searching examination, which clearly impugned her integrity. I am quite satisfied that she gave her evidence, so far as accuracy was concerned, to the best of her ability and recollection and at all times, honestly. I reject the submission or suggestion that she was attempting to mislead the court.
92. I have no hesitation in dismissing the defendants’ application under s. 26 of the Act of 2004. I would like to add that this section is there to deter and disallow fraudulent claims. It should not to be seen as an opportunity to prey on the frailty of human recollection or the accidental mishaps that so often occur in the process of litigation, to enable a concoction of error to be assembled so as to mount an attack on a worthy plaintiff in order to deprive that plaintiff of the award of compensation to which they are rightly entitled. There is a world of difference between this plaintiff’s case and the fraudulent claims that have been exposed in the cases that were opened to this court in dealing with this s. 26 application, namely:
(i) Folan v. Ó Corraoin & Ors. [2011] IEHC 487, Murphy J.
(ii) Rahman v. Craigfort Taverns Ltd. [2012] IEHC 478, O’Neill J.
(iii) Montgomery v. Minister for Justice, Equality and Defence & Anor.[2012] IEHC 443, O’Neill J.
(iv) De Cataldo v. Petro Gas Group Ltd. & Anor. [2012] IEHC 495, O’Neill J.
(v) Salako v. O’Carroll [2013] IEHC, 17, Peart J.
(vi) Ludlow v. Unsworth & Anor. [2013] IEHC 153, Ryan J.
It behoves defendants to use prudent discernment before taking the very serious step of making a s. 26 application.
93. Before leaving this topic, I would also observe that the situation that was confronted by the court in this case was brought about, it would seem to me, firstly, by the extension of the demand for particulars, far beyond its legitimate scope, a practice which, hopefully, following the judgment of Hogan J. in the case of Armstrong v. Sean Moffatt and Thomas Moffatt t/a Ballina Medical Centre and Maureen Irwin, in which judgment was delivered on 28th March 2013, will be curtailed or else condemned in the future.
94. Secondly, and here I do not make any criticism of the defendants because it would seem apparent that the plaintiff conceded the discovery sought, but discovery in this case extended far beyond what was relevant to the issues in the proceedings as raised on the pleadings. The mere fact that somebody makes a claim for damages for personal injuries does not entitle defendants to discovery of a plaintiff’s entire medical history. In the first instance, it is not right that plaintiffs should have these aspects of their personal lives disclosed in this way, when they bear no relevance to the issues in the case, and the availability of irrelevant medical records frequently gives rise to extending the length of trials because of the inevitable exploration of these records in cross-examination.
95. Mr. Treacy S.C. for the plaintiff, brought up the subject of aggravated damages because of the unjustifiable manner in which a s. 26 had been invoked by the defendants, but having considered the matter further, did not make an application for aggravated damages. He did ask the court to award additional general damages to the plaintiff to compensate her for the upsetting experience of having her reputation and good name unjustly impugned by the defendants in the pursuit of the s. 26 application, all under the protection of absolute privilege.
96. It would seem to me that if any damages were to be awarded to the plaintiff because of the manner in which the defence was conducted, these could only be awarded under the heading of either aggravated or exemplary damages. In these proceedings, the plaintiff claims damages arising from the negligence and breach of statutory duty of the defendants in respect of the system of work adopted. In my view, it could not be said that the upset of the plaintiff, caused by the unjust attack on her in the course of the defence of the proceedings was a foreseeable consequence of the defendants’ original negligence and breach of statutory duty. Accordingly, general damages in respect of that upset cannot be awarded in these proceedings.
97. The special damages in the case are agreed at €5,000 making a total of damages of €80,000.
98. Accordingly, there will be judgment for the plaintiff for the sum of €60,000 being 75% of the total damages.
Moore v Westwood Club Ltd
[2014] IEHC 44 JUDGMENT of Mr. Justice Herbert delivered the 5TH day of February, 2014
1. In this case the evidence established, or it was admitted, that some time after 22.30 hours on the 26th/27th December 2007, the plaintiff and two female friends, having paid an admission charge of €20 were enjoying, – in the company of 900 other persons, – a convivial night out at Barcode, a nightclub located at the Westwood Club in Fairview, Dublin. Later that night the plaintiff was returning from the rest-rooms intending to rejoin a group of other young persons with whom she and her two friends were socialising. She was crossing the floor of a restaurant area and was carrying a glass in her right hand. The glass contained a ready-mixed soft drink containing alcohol known as a “WKD” alco-pop. Her right hand is her dominant hand.
2. During this journey she fell on the floor, landing on the front of her body. Her right hand containing the glass struck the ground. The glass, which was a specially designed “nonics” safety-glass designed to fragment into small pieces, like the shatter-proof windscreen of a mechanically propelled vehicle, broke on impact with the tiled floor. Unfortunately, the plaintiff’s right middle finger was cut, most probably by the base which does not fragment like the remainder of the glass. There were also minor cuts to her right thumb and ring finger. The plaintiff asked a security-man who was in the restaurant area for a dressing for the wound. He considered that she required medical attention. He brought her to the security room where the wounds were cleaned and a temporary dressing applied. Despite her anxiety to return to socialising in the club, an ambulance was called by a member of the security staff. Her two female friends were contacted and they accompanied her in the ambulance to the accident and emergency department of the Mater Misericordiae University Hospital. There her wounds were cleaned and dressed. She was given the option, – it was then approximately 02.30 hours on the morning of the 27th December, 2007, – of remaining in the accident and emergency department or of travelling home and returning later that morning at 08.30 hours. She chose the latter. On returning to the hospital she came under the care of Mr. Cronin, a Consultant Plastic, Reconstructive and Hand Surgeon.
3. I am satisfied on the evidence and I find, despite the entry in the background history of the event recorded by Dr. Fergus Cummins in his medical notes, that the plaintiff was pushed to the ground, that the plaintiff in fact fell and was not pushed. Mr. Christopher O’Reilly, at the time general manager of the Restaurant and bar, produced in evidence a most impressive incident book. This book contained a sequential list of time related incidents entered as they were seen by or, were reported to him by the member of the security staff monitoring the security cameras. Mr. O’Reilly told the court that Mr. Colm Carney was the person on duty on the night of the 26th/27th December, 2007. Against the time 01.10 hours, there is an entry as follows:-
“Jessica Moore (address and telephone recorded) finger cut. Fell to the ground with glass in her hand. Claims it was an accident.”
4. Ms. Niamh O’Leary-Merriman, who lived at the time very close to the plaintiff, told the court that she was with a group of her own friends in the club in the restaurant area. She saw the plaintiff going past and she tipped her on the shoulder and said “Hi”. The plaintiff, she said turned and then fell forwards on her face on the floor. More importantly however, was the evidence of Mr. O’Reilly that the staffing roster showed that eighteen security-men, – in addition to sixteen bar staff, ten floor staff and seven cleaners, – were on duty in the club on the night of the 26th/27th December, 2007. Perusal of the entries in the incidents book and the evidence of Mr. O’Reilly satisfies me that the security staff were well trained, carefully positioned and vigilant and, any persons, male or female acting in an aggressive or insulting manner were immediately escorted from the premises. The evidence, particularly the evidence of the plaintiff herself, established that there was a security man in the restaurant area very close to where she fell. I am satisfied that had the plaintiff been, “pushed to the ground”, cutting her hand and losing her drink as a consequence there would have been a noisy disturbance which could not but have attracted the attention of the nearby security man. I am satisfied that this would have been logged in the incident book and, perhaps other action taken.
5. I am satisfied on the evidence and I find, that the plaintiff did not fall or trip by reason of intoxication. If there had been any concern as to the concentration of alcohol in the plaintiff’s blood on the occasion, I am confident that this would have been noted and, probably tested, by the staff of the Accident and Emergency Department of the Mater Misericordiae University Hospital. If the plaintiff had been intoxicated at the time when she fell I have no doubt but this would have been noted by the security man whom she first approached and by the other security staff in the security room where she was seated awaiting the arrival of the ambulance and would have been recorded in the incident book. In addition, the plaintiff’s evidence and that of her friend Ms. Louise Lynch was that the plaintiff had taken no drink at home or at the house of Ms. Suzanne O’Neill on the 26th December, 2007. The plaintiff gave evidence that her mother was at work on the 26th December, 2007, and she had to look after her sister until her mother returned from work at 18.00 hours. I have no reason to doubt the plaintiff’s evidence that prior to the incident she had drunk no more than four alco-pops, (4% alcohol content: 1.1 alcohol units). Ms. Louise Lynch gave evidence that she was drinking her fourth drink when the incident to the plaintiff occurred.
6. I am satisfied on the evidence and I find that the footwear worn by the plaintiff on the occasion did not cause her to fall or contribute in any manner to the fall. Her evidence was not challenged and I accept that she was wearing on the occasion suede ankle boots with a sole of some man-made compound, like black rubber and with a separate 2½inch block heel. The plaintiff and Ms. Niamh O’Leary-Merriman both gave evidence that at the time of the fall the plaintiff was walking, – not running, dancing, or moving excitedly or erratically in any way, – and this evidence was not challenged or discredited.
7. I find on the evidence that the floor of the restaurant area where the plaintiff fell was made up of ceramic or similar floor tiles of good slip resistant value, – R.10, rating. Ms. Flood, managing director of Templeville Limited, the owner of the Club told the court that these tiles were laid in 2000. She told the court that she had chosen these tiles for the particular location on the advice of Mr. Kevin Kelly, managing director of Tubs and Tiles and of Ms. Helen Broderick, an interior designer. These were flat rather than profiled tiles. Ms. Flood told the court that these tiles felt coarse when rubbed with the fingers. In 2004, she became concerned about the effect of wear on the tiles and a possible consequential impairment of the slip resistant value of the tiles. She contacted two companies specialising in assessing and reducing the risk of slippage on floor surfaces, – Safestride Limited and Slipstop (Ireland) Limited. In January 2005, the floor area where the plaintiff had fallen and other adjoining floor areas were treated with a product called “Slip-Stop” by the latter company. A letter dated the 19th January, 2005, from Slipstop (Ireland) Limited to Ms. Flood was produced in evidence by her which confirms this and describes the treatment as follows:-
“The SLIPSTOP anti-slip treatment has caused a chemical reaction with the floor, creating millions of microscopic “U” shaped pores, each sealed internally. The action of the foot on a treated surface displaces water/grease and the pores act like tiny suction cups preventing the foot from slipping.”
This letter then continues as follows:-
“To maintain the full effect of the treatment, it is important that you do not allow a build-up of deposits in the pores. Usual sources for such deposits are: grease that has been allowed to dry on the surface, calcium from water, liquid cleaning products that leave a film on the floor, or powdered detergents, which leave a calcite film on the floor.
To avoid any build-up in the pores, simply follow the Cleaning Guidelines (enclosed) this will ensure that your floor will remain slip-resistant for a time in excess of our five year guarantee period.”
8. Ms. Flood told the court that despite this five year guarantee period the relevant floor was in fact treated four times with “Slipstop” anti-slip treatment by that company between 2002 and 2010. Ms. Flood and Mr. O’Reilly gave evidence that the floor was cleaned regularly with special electric scrubbing and buffing machines using a special high quality floor cleansing liquid supplied by Shearwater Distribution Limited. Ms. Flood and Mr. O’Reilly told the court that Mr. Kevin Polly, managing director of that company and Mr. O’Reilly, had conducted a cleaning training programme for the Club staff. Mr. O’Reilly gave evidence that the floor had been cleaned in this manner on Sunday, 23rd December, 2007. He gave evidence that the Club was not open on the 24th or the 25th December, 2007. Friction tests carried out by Slipstop (Ireland) Limited after it had been treated by “Slipstop” anti-slip treatment showed that the floor rated as “good”. I am satisfied that the floor in the restaurant area where the plaintiff fell, as maintained by the first defendant, provided a safe standing and walking surface for users, including the plaintiff, when dry.
9. Mr. Barry Tennyson, B.E., C.Eng. (etc.), chartered engineer, who gave expert evidence in the case for the plaintiff, told the court that under wet conditions, this floor would suffer a significant decrease in slip resistance. During the course of his evidence, Mr. Tennyson referred to a 2006 Article from the Construction Industry Research and Information Association (“C.I.R.I.A.”), authors, Carpenter, Lazarus and Perkins, entitled, “Safer Surfaces to Walk On; reducing the risk of slipping”, dealing with slip resistance of flat and profiled ceramic tiles in a shopping mall context. Mr. Tennyson did not have an opportunity of inspecting the particular floor on which the plaintiff fell or of carrying out roughness, friction, pendulum or other tests on that floor. His evidence was based on the fact that he had seen this particular floor on the 5th October, 2009, when he had advised the defendants in an action relating to an alleged fall on broken glass on an adjoining dance floor, and on his stated familiarity with the characteristics of micro-rough floor surfaces of this type. It was his evidence that the continued safe level of slip resistance of such a floor depended on ensuring that deposits did not build up in the pores/surface roughness valleys which hold and thereby neutralise the impact of any wetness on the floor. This is the conclusion of the authors of the 2006 C.I.R.I.A. article and is the advice given in the passages which I have cited from the letter dated the 19th January, 2007, from Slipstop (Ireland) Limited to Ms. Flood.
10. I am satisfied on the evidence of Ms. Flood and Mr. O’Reilly that there were seven cleaners on duty in the Club on the night of the 26th/27th December, 2007. The evidence established that six of these cleaners were stationed at pre-designated locations each intended to cover a particular area of the Club. The seventh cleaner moved continuously through the restaurant, bar and dance floor areas and was in radio communication with the eighteen security men. These were also tasked to look out for breakages and spillages. I am satisfied on the evidence of Mr. O’Reilly that on the night of 26th/27th December, 2007, one cleaner was stationed in the restaurant area where the plaintiff fell and two security men were assigned to patrol that area and the immediately adjoining dance floor area. The evidence established that each cleaner had ready access to a nearby cleaning station. Each cleaner was equipped with a floor mop which had a detachable and replaceable head. The cleaning stations were equipped with “wet-floor” signs, stacks of dry mop heads, drying cloths and other cleaning equipment.
11. Mr. O’Reilly gave evidence that each member of the cleaning staff received training from him and also from Mr. Kevin Polly of Shearwater Distribution Limited in cleaning and maintaining the floor and in dealing with breakages and spillages on the floor. The evidence established that the duty of the ten floor staff was to clear tables of empty bottles and glasses and return these to a cleaning station behind the bar area. They were also instructed to report any breakages or spillages in the area to a roving cleaner or to a security man. Mr. O’Reilly told the court that he had instructed the floor staff and the security staff that if they observed a breakage or spillage they should remain at the scene until the area or the roving cleaner arrived. The cleaners were instructed to sweep up any broken glass, mop up any spillage, clean the immediate and adjoining floor area and leave a bright yellow triangular hazard sign at the location until satisfied that the floor was dry. I find that this floor together with this system of care and maintenance, provided of course, that the system was in operation on the occasion, – constituted a full and effective discharge by the defendants of the duty of care owed by them to the plaintiff.
12. The plaintiff gave evidence that the floor in the restaurant area generally on the particular night was wet and slippery. She described it as being, “real messy”. After she had fallen she noticed that the floor area on which she fell was wet, like water was on it, but she assumed that it was spilled drink. She also noted that there was brown colour on the floor, which she said resembled muddy water carried on shoes. In cross examination, the plaintiff said that when she felt the tip on her shoulder, she turned to her left and then immediately fell flat out and slid along the floor for a bit on her stomach. She did not notice what became of the glass she had been holding in her right hand.
13. Ms. Niamh O’Leary-Merriman told the court that a good bit of the floor in the restaurant area, but not all of it, was wet. She said that she had slipped, but not fallen on the same floor some time earlier, near enough to where the plaintiff had subsequently fallen. She saw persons spilling drink on the floor and said that one of her own friends had done so. She saw no attempt made to clean up the spillage or to dry the floor. She had tipped the plaintiff with her finger on the shoulder as the plaintiff was walking past. She said that she had employed no force at all. She recalled that a number of persons had gone to the assistance of the plaintiff after she had fallen but the plaintiff got up quickly and walked away.
14. Neither Ms. Flood nor Mr. O’Reilly were in a position to give any evidence at all to the court of the actual performance by the cleaners or other staff members of their duties on the night of the 26th/27th December, 2007. No other witnesses were called to supply this information. The plaintiff’s own evidence established that at least one of the security men was present in the designated restaurant area on the occasion and, this was the person to whom she went after her fall, seeking a bandage. Mr. O’Reilly identified this security man as Mr. Pablo Sergio. He did not give evidence, nor, did the other security man who Mr. O’Reilly told the court was also on duty in the restaurant area on that night. No cleaner or member of the floor staff gave evidence. Mr. O’Reilly gave evidence that he had come on duty at 20.00 hours that night and remained present and in overall control of the club for the whole of that night. He told the court that he saw and spoke to the plaintiff after she was brought by Mr. Sergio to the security room. He had heard Mr. Sergio reporting over the radio that there was a lady in the back of the restaurant whose fingers had been cut.
15. I accept Mr. O’Reilly’s evidence that the plaintiff was brought to the security room at 01.10 hours on the morning of the 27th December, 2007, and was removed to hospital by ambulance at 01.30 hours. I am satisfied that the plaintiff, Ms. Niamh O’Leary-Merriman and Ms. Louise Lynch were all mistaken in their recollections as to the time at which the plaintiff had fallen. I find however, that this does not cast a doubt on the remainder of their evidence. Mr. O’Reilly told the court that at about 01.45 hours, he inspected the location near the back of the restaurant area where he believed the plaintiff had fallen. He could not say that anyone had marked the actual place where this had occurred. He found the area clean, dry and glass free. He assumed that the area had been cleaned and any glass removed by the cleaners. He did not recall if he had made any inquiry as to who had carried out the work. He produced in evidence a statement which he had personally written and signed at the time.
16. I find on the balance of probabilities that the cleaning and maintenance system so carefully set up by the defendants failed to operate effectively on the night of the 26th/27th December, 2007. Ms. Flood told the court that the maximum number of persons permitted on the premises was 1,300. Mr. O’Reilly gave evidence that, as counted by a “clicker” machine, there were 900 persons on the premises on the night of the 26th/27th December, 2007. I believe that the description given by the plaintiff furnishes an accurate picture of the pressure on staff and services on that night. She said, “the place was crowded all over with people. There was a long queue to get in, a long queue at the bar and a long queue at the ladies toilet”. Whether the cleaning and maintenance system failed under this pressure or for some other reason, I cannot ascertain. However, there was no evidence at all as to how or how well it operated on the relevant night and no evidence to gainsay the evidence of the plaintiff and Ms. Niamh O’Leary-Merriman as to the condition of the floor in the restaurant area at and before the time the plaintiff fell. I find that the valleys in the micro-rough surface of the floor tiles that held liquid and, therefore, controlled slipping, in the area where the plaintiff fell, had become filled and blocked by a build-up of particles of matter or precipitates from fluids or contaminated water permitted to lie and be trodden about on and into the surface of the floor. This, I am satisfied, had the effect of compromising the slip resistance of the floor in this area. I find the plaintiff’s reference in her evidence to noting a brown colour on the floor where she fell to be most significant in this regard. Perhaps indeed, this was muddy water as she surmised. The fact that the plaintiff had turned to her left, – the movement she mimed in the witness box was pivoting her upper body to the left at hip level, – most probably meant that both her feet were no longer planted evenly on the ground, with probably greater weight being transferred to her left foot may well, in combination with the impairment of the slip resistance of the floor in that area have contributed to her fall. This could not amount to contributory negligence on her part or to a failure, under the statute, to take reasonable care for her own safety. I find therefore that the defendants, in the circumstances, were guilty of a breach of the duty of care owed by them to the plaintiff.
17. Three medical reports were admitted into evidence, – Mr. John McInerney, 22nd April, 2008; Mr. Kevin Cronin, 19th December, 2008, and the 17th February, 2012.
18. Mr. McInerney and Mr. Cronin were agreed that the plaintiff suffered a division of the flexor digitorum profoundis tendon and of a digital nerve of the middle finger of her dominant right hand and an injury to the nail of that finger. She also suffered a laceration of her right thumb and right ring finger, but without deep damage. An x-ray of the hand was normal. The damage to her tight middle finger was repaired under general anaesthesia. She was hospitalised for two days and then discharged home with a splint to the right hand which she wore for six weeks. She had several sessions of hand physiotherapy.
19. On the 22nd April, 2008, (four months post incident), Mr. McInerney noted on clinical examination that the plaintiff had a 2cm pink scar running from the right middle distal interphalangeal joint into the distal pulp with paraesthesia around the scar and hypersensitivity with a thickenings of the flexor sheath. He noted a loss of five degrees extension and flexion of the distal interphalangeal joint and also a reduction in grip strength as compared with the left hand. The plaintiff had a 1cm pink scar on the pulp of her right thumb and a scar of similar size and colour in the distal interphalangeal joint area of her right middle finger with a ridged proximal nail with 3 holes. Mr. McInerney considered that the scars would fade to pale scars over a period of eighteen months. He considered that the plaintiff would have permanent flexor sheath thickening and some restriction of movement. He advised that there was no risk of osteoarthritis.
20. On the 19th December, 2008, (one year post incident), Mr. Kevin Cronin, who examined the plaintiff at the request of her solicitors, noted on clinical examination that she had a well healed scar at the tip of her right middle finger and a minor scar on her ring finger. He found that she lacked ten degrees of full extension at the distal interphalangeal joint of her right middle finger. Mr. Cronin stated that this was of no clinical significance. He found that the plaintiff had good sensation in the distribution of the radial nerve, but abnormal sensation in the distribution of the ulnar digital nerve. He considered that the plaintiff had made an excellent recovery and had an excellent range of motion and a very good recovery of sensation in the right middle finger. He considered that she was likely to have ongoing difficulty with shooting pain due to neuroma formation at the nerve repair site. He considered that the cold intolerance which she was experiencing in the tip of the finger would improve slowly over time as would the subjective feeling of numbness in the finger tip.
21. The plaintiff was most recently reviewed by Mr. Cronin on the 17th February, 2012, (four years and two months post incident). He noted on clinical examination that she now had objectively regained a full range of movement in her right middle finger and an excellent recovery of sensation in that finger. Though the right middle finger sat more flexed than the others, he was satisfied that the plaintiff could correct this actively at will. Subjectively the plaintiff remained troubled by cold intolerance which she stated was her principal problem. She complained of shooting pain when she tapped the top of her right middle finger on some hard object and experienced numbness and dysaesthesia in the same finger tip. She also complained of a diminished range of motion in her right middle finger due to an abnormal flexion of that finger which she claimed would not straighten like the other fingers. Mr. Cronin considered that the altered sensation in the tip of her right middle finger was likely to be permanent.
22. The plaintiff in evidence claimed that she could not straighten her right middle finger fully and that it looked curved compared to the other fingers of that hand. I am satisfied on the evidence that she can in fact straighten the finger fully, but keeps it in a slightly inwardly curved position. There is no objective basis for this. She gave evidence that she could not quite touch the palm of her right hand with the tip of her right middle finger. It is unnecessary to determine whether or not there is some objective reason for this. The gap is so infinitesimal that it could cause no possible functional or cosmetic impairment. This slightly curved profile of the right middle finger and the fact that the tip of the finger cannot touch the palm of her right hand are not observable, and certainly not a conversation distance, unless attention is specifically drawn to them. I am satisfied that they represent no cosmetic blemish. There are very faint white linear marks on her right middle finger and the nail of that finger, though entirely intact and undeformed, is slightly discoloured in places and the surface of the nail is not as smooth and even as the nails on the other fingers of her right hand. These are not cosmetic blemishes at conversation distance, but I accept that the nail damage, however minor, could well be something of which a young woman might be somewhat self conscious. There is undoubtedly some thickening of the right middle finger. This is very minor and is scarcely noticeable at conversation distance unless one focused very much on her right hand. Despite this minor thickening, I observed that the plaintiff had no difficulty in wearing a ring on her right middle finger.
23. The plaintiff gave evidence that in cold weather the tip of her right middle finger becomes, “sort of dead or numb and is painful”. She accepted in cross examination that wearing a glove helped, but did not eliminate the pain. She told the court that if she strikes the tip of her right middle finger on some hard object it causes pain. This she said caused her difficulty when typing. Mr. Cronin in his report of the 17th February, 2012, states that while objectively the plaintiff has made an excellent recovery of sensation in the right middle finger, this is not normal and will probably never fully return to normal. In his report of the 19th December, 2008, he considered that her problem with cold intolerance in the tip of the finger would probably improve slowly over time as would hopefully the subjective feeling of numbness in the tip of the finger.
24. The plaintiff is 29 years of age. Prior to the incident on the 26th/27th December, 2007, she was employed at a ladies hairdressing salon where she cut and coloured hair. She gave evidence that she returned to her employment six weeks after the incident because she needed money, but worked only as a receptionist. She told the court that she experienced some pain when typing if she struck a key too hard with the tip of the middle finger of her dominant right hand. She had a concern that if she returned to cutting and colouring hair, she might experience difficulty in cutting due to numbness in the tip of her right middle finger, or that the finger might be damaged by the bleaching and developing agents used in hair colouring. This was a personal concern only and she was not so medically advised. In August or September 2008, she became a sales person in a well known fashion house in Dublin. She told the court that she had no difficulty in carrying out her work and she remained employed in this business at the date of the hearing of this action. She told the court that she had given birth to a child three years prior to the hearing. She said that her right middle finger had not caused her any difficulty in managing her infant.
25. For pain, suffering and embarrassment to date the Court awards the plaintiff €36,000. For pain, suffering and embarrassment into the future the Court awards the plaintiff a further sum of €20,000.
Elmontem v Nethercross Ltd
[2014] IEHC 91JUDGMENT of Mr. Justice Herbert delivered the 28th day of February 2014
1. The court is satisfied on the evidence that the second defendant was employed by the first defendant as head chef at its hotel, spa, golf and leisure complex at the date of the events giving rise to these proceedings. The evidence established that this was and is a very considerable enterprise employing between 70 and 100 people of mixed ethnicity. I am satisfied that the offer of employment was made by email dated the 17th March, 2010, under the signature of Ian McGuinness, who proved this document. He gave evidence that he was managing director of the first defendant since June 2004. The offer was accepted by the second defendant. The evidence established that the position was not advertised in the print media or in any trade journals. I am satisfied on the evidence of Mr. Brady, then general manager of the complex, and Mr. McGuinness that this was unnecessary as the existence of the vacancy would have been well known within the small group of non self-employed experienced and reputable chefs working in the State. I am satisfied that the decision to offer the position to the second defendant was made by Mr. McGuinness and not by Mr. Brady.
2. I find on the balance of probabilities that Mr. McGuinness at that time was not aware and was not aware at the time of the incident giving rise to the present claim, that the employment of the second defendant as head-chef by a former employer had been terminated following an incident in which he had assaulted an under-chef by throwing a pan at him in the course of their work. The person who had investigated that incident and who had terminated the second defendant’s employment on that occasion was Mr. Brady, who was then general manager of that other business.
3. It is clear from the text of the offer contained in the email dated the 27th March, 2010, that Mr. McGuinness had met the defendant on at least one occasion before offering him the position of head-chef with the first defendant. There was no evidence that the second defendant had submitted or had been required to submit a curriculum vitae when applying for the position with the first defendant. I find on the balance of probabilities that Mr. Brady did not, as he now recalls, inform Mr. McGuinness of this previous assault, nor had he cautioned Mr. McGuinness about employing the second defendant. I am also unable to accept his “belief” that the second defendant had told Mr. McGuinness of this previous assault. The dismissal had, it appears resulted in a hearing before the Employment Appeals Tribunal at which the second defendant had been awarded the equivalent of a month’s salary.
4. The evidence established that there were several other well qualified candidates for the position in addition to the second defendant. Mr. Brady told the court that the second defendant was an excellent chef, but had a problem controlling his temper. I accept the evidence of Mr. McGuinness that he would not have offered the position to the second defendant had he been aware of this previous incident in the second defendant’s career. He and his fellow directors and shareholders, – the first defendant is a family owned and controlled company, – would have been concerned about the risk of involvement in employment disputes or litigation. On the balance of probabilities I find that Mr. McGuinness is correct in his recollection that it was Mr. Brady who had arranged for him to meet the second defendant and that Mr. Brady had been present at that meeting. I accept his recollection that Mr. Brady had told him that the second defendant was a very, very good chef and was ideally suitable for the position. Mr. McGuinness recalled that he had understood that the second defendant was at that time intending to accept the position of chef at a licensed premises known as The Graduate in Killiney having decided to move from another licensed premises known as The Vaults. Mr. McGuinness told the court that he was unaware of the previous assault or of the Employment Appeals Tribunal hearing. Mr. Brady gave evidence that the previous assault had occurred at a resort in Co. Wicklow. The evidence established that the second defendant lived at Lusk, which is closer to the first defendant’s complex near Swords than Killiney. The manner in which Mr. McGuinness dealt with the second defendant following the incident in the present case is consistent with his evidence that he would not have chosen the second defendant for the position had he been aware of this previous assault. However, for the purpose of this action, the fact remains that Mr. Brady as general manager of the first defendant and therefore the immediate superior of the second defendant, was aware that the second defendant had demonstrated a propensity to behave violently towards fellow employees if angered.
5. The plaintiff is and has been since 2006 or 2007 financial controller of the first defendant. The evidence established that at approximately 17.30 hours on the 21st March, 2011, the second defendant called to the plaintiff’s office enquiring as to why he had not received a V.H.I. card when other senior employees had received theirs in the post. I am satisfied on the evidence of the plaintiff, – the second defendant was present in court and represented by solicitors and counsel but did not give evidence, – that during their ensuing conversation the second defendant became increasingly aggressive. The plaintiff told the court that he had advised the second defendant that he would telephone the V.H.I. offices as soon as he could, but that he was then busy dealing with a Bank. He said that the second defendant had raised his voice and shouted, “you are always (expletive) busy”. The plaintiff told the court that the conversation became so heated that he pointed his finger to the door and asked the second defendant to leave the office. Even were I accept, which I do not, the pleading that the plaintiff put his finger in the face of the second defendant in a provocative and aggressive manner and swore at the second defendant in an aggressive manner, this would not constitute negligence or contributory negligence on the part of the plaintiff in the circumstances of this assault.
6. I am satisfied on the evidence that the second defendant without warning struck the plaintiff who had remained sitting behind his desk, battering him violently about the face and head with both fists. The plaintiff told the court that when he had attempted to get up, the second defendant seized him by the neck and pushed him against the wall of the office and continued to punch him about the head and upper body. The plaintiff suffered a cut over his left eyelid, a black eye, contusions on the left side of his face, swelling of the facial soft tissues and bruising to his left shoulder area. I accept the plaintiff’s evidence that he was very severely shocked and traumatised and was in great pain and that his face and clothes were covered in blood.
7. Photographs admitted into evidence show blood spattered over documents on the plaintiff’s desk and even on the ceiling of the office. The plaintiff gave evidence, which was not contested, that there were also blood stains on the carpet surrounding his desk. Mr. McGuinness gave evidence that he was on his way to the office having been informed of the incident, when he met the second defendant and noticed that the knuckles of both his hands were covered in blood. This assault took place in the presence of another employee, – a part time accountant, – who was working at a desk in the same office as the plaintiff. This gentleman, who was named, did not give evidence. This gentleman brought the plaintiff to Airside Clinic at Swords and then to Swords garda station where the plaintiff made a complaint to Gda. Paul Healy. If a statement was taken on the occasion it was not produced in evidence. It was accepted that the second defendant had pleaded guilty to criminal charges brought on foot of this complaint.
8. It is submitted by the plaintiff that the first defendant is vicariously liable for this assault on him by the second defendant. Additionally or alternatively he submits, that the first defendant was negligent and in breach of duty, including breach of statutory duty, in failing to provide him with a safe place of work and responsible fellow employees. I am satisfied that these claims are sufficiently made out and particularised in the personal injuries summons and in the replies to the various requests for particulars raised on foot of the summons.
9. I adopt the “close connection” test for the imposition of vicarious liability expounded, after an extensive review of decisions in this State and in other common law jurisdictions, by Fennelly J. (Murray C.J. and Denham J. (as they then were) concurring), in O’Keeffe v Hickey [2009] 2 IR 302 at 378, paras. 243 and 244, where he held:-
“[243] 62. Ultimately, I am satisfied that it is appropriate to adopt a test based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made. That test, as the cases have shown, has enabled liability to be imposed on the solicitor’s clerk defrauding the client (Lloyd v. Grace, Smith and Company [1912] 1 A.C. 716); the employee stealing the fur stole left in for cleaning (Morris v. C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716) and the security officer facilitating thefts from the premises he was guarding (Johnson & Johnson (Ire.) Ltd. v. C.P. Security Ltd. [1985] I.R. 362). In each of these cases, the action of the servant was the very antithesis of what he was supposed to be doing. But that action was closely connected with the employment. In Delahunty v. South Eastern Health Board [2003] 4 IR 361, O’Higgins J., rightly in my view, held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.
[244] 63. The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J. provides an excellent example of the practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 D.L.R. (4th) 45 the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.
10. Whether the actions of the second defendant on the 20th March, 2011, were closely connected with his employment must be considered in the context of such matters as, the nature of the employer’s business, whether the risk of the sort of incident which occurred arose because of the nature of that business, the nature of the duties, broadly defined, which the employee was engaged to perform at the time the incident occurred, whether the act could be said to be incidental to or a consequence of anything which the employee was employed to do, whether at the time of the incident the employee could reasonably be said to have been acting, however, mistakenly or excessively in the interests of the employer or was merely pursuing some private end, whether the employee in the course of his duties was expected or encouraged to act aggressively, whether the assault arose out of vengeance or spite, or resentment or intemperate behaviour on the part of the employee and, many other similar factors. The fact that the opportunity to commit the act would not have arisen but for the access to the plaintiff’s office afforded to the second defendant by his employment is not in my judgment sufficient to establish the requisite close connection between that employment and his tortious act.
11. Even on the most liberal construction of this test, I am satisfied, that to hold the first defendant vicariously liable for the tort of the second defendant would, on the facts hereinbefore set out, amount to imposing absolute liability on an employer. To alter the law to this extent would require, in my judgment, a clear act of the legislature. The presence of the second defendant in the plaintiff’s office on the 20th March, 2011, was I am satisfied, in relation to his employment with first defendant. The terms of his employment, by reference to the email of the 27th March, 2010, contain the following:-
“We have a company health scheme with V.H.I. and the company will cover the costs of V.H.I. for you personally, (cost €690), – if you want your family covered, the cost can be deducted from your salary.”
The grievance which brought him to the plaintiff as financial controller of the company was therefore connected with his employment. However, what then occurred was nothing more than a vicious attack on the plaintiff motivated by some personal resentment which ignited an apparently ungovernable temper. In my judgment this could not be remotely consistent with the interests of his employer and had no close connection with any acts which fell truly within the scope of his employment as head chef with the first defendant. I find that the first defendant is not vicariously liable for the assault by the second defendant on the plaintiff.
12. There is a non-delegable duty at common law on an employer to take all reasonable precautions for the safety of each of its employees and not to expose them to a reasonably foreseeable risk of injury: to act as a reasonably careful and prudent employer would in the circumstances. A similar but more extensive duty is placed on employers by the provisions of the Safety Health and Welfare at Work Act 2005. Part of this duty is to provide and maintain a safe place of work and to provide competent co-employees. I am satisfied in the instant case that no failure to provide the plaintiff with a safe place of work has been made out. This aspect of an employer’s duty relates to the physical condition in and under which an employee is required to work. It does not apply to the personal behaviour of a particular co-employee in an otherwise safe place of work. In the present case the evidence established that the plaintiff and the second defendant did not even work in the same building in this extensive complex. The incident which I have described occurred when the second defendant came uninvited to a building, – seemingly a former gate lodge on the premises, – where the second defendant and Mr. McGuinness alone had their offices. It is not suggested in evidence that the second defendant should not have come to the plaintiff’s office on the occasion or that he was acting contrary to instructions in so doing, or in so doing without making a prior appointment.
13. The Safety, Health and Welfare at Work Act 2005, came into force on the 1st September, 2005, (S.I. No. 328/2005). Section 8(1) of the Act of 2005 provides that:-
“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”
14. Without prejudice to the generality of subsection (1), section 8(2)(b) of the Act of 2005, imposes a duty on an employer of:-
“Managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.”
15. Section 8(2)(g) of the Act of 2005, requires an employer to provide:-
“The information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees.”
16. Section 2(6) of the Act of 2005, defines, “reasonably practicable” as meaning that an employer:-
“Has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.”
17. There is no definition in the Act of 2005, of “improper conduct or behaviour”. I find that it would include such matters as bullying, harassment, rough play, practical joking, racial or other abuse or physical violence.
18. The evidence established that the first named defendant through its then general manager, Mr. Brady, was aware that the second defendant had on a previous occasion in a fit of temper caused physical injury to a fellow employee in the course of their joint employment. I am satisfied that Mr. Brady knew or ought to have known that there was a very real risk, not just a mere possibility, that this could occur again, if for any reason the second defendant’s temper became aroused and that this exposed his fellow employees, including the plaintiff, to a risk of physical injury. I am satisfied that it was reasonably foreseeable that the second defendant was likely to prove a source of danger to other employees of the first defendant because of his apparently ungovernable temper.
19. It was not submitted and I would not accept, that it was negligent or a breach of duty including statutory duty on the part of the first defendant to have employed the second defendant at all. The evidence did not establish that Mr. Brady was aware of any further assaults perpetrated or threatened by the second defendant on fellow employees. Mr. Brady had dismissed the second defendant following the previous assault. This may have led Mr. Brady to assume that such an incident was unlikely to recur. However, the cause of the previous assault was not a personal antipathy between the second defendant and a particular fellow employee no longer on the scene. The cause was the second defendant losing his temper to an almost maniac level with a co-worker over some dispute or perceived grievance in the course of their work. A real risk of a reccurrence therefore remained. In my judgment the making of such an assumption would not and did not excuse the employer from taking no measures whatsoever to prevent a recurrence. The first defendant did not exercise reasonable care and, certainly did not exercise all due care to put in place measures to prevent or to protect against, such an event. This was not a risk which could be entirely eliminated, but in my judgment was one which could have been adequately controlled without grossly disproportionate or expensive measures.
20. The first defendant, however, took no care to put in place measures to prevent a recurrence of such improper conduct or behaviour on the part of the second defendant likely to put the safety and health of other employees at risk. There was no evidence that the first defendant had a Safety Statement or a notified policy which identified conduct or behaviour in the workplace that would not be tolerated, – conduct such as verbal abuse or physical violence of or towards other workers. There was no evidence that Mr. Brady had notified and warned the second defendant in writing in clear and definite terms that physical violence towards any other employee would not be tolerated and would result in his being dismissed for gross misconduct. The evidence established that Mr. Brady ceased to be general manager of the first defendant in July 2010, prior to the assault by the second defendant on the plaintiff. However, the common law and statutory duty to put necessary protective and preventive measures in place arose immediately on the employment of the second defendant in March 2010 and continued unabated thereafter. The evidence did not establish that the first defendant had security staff or C.C.T.V. monitoring at the complex. This might have had an additional deterrent effect on the second defendant. However, one cannot lose sight of the fact that the second defendant perpetrated the assault on the plaintiff in the presence of another employee of the first defendant and a short distance from the office of Mr. McGuinness, managing director of the first defendant.
21. Mr. McGuinness gave evidence that prior to the assault on the plaintiff by the second defendant he had received a complaint from another employee that the second defendant had made very offensive racist remarks about the wife of that fellow employee. Mr. McGuinness said that he had immediately investigated this complaint. The second defendant had apologised to the other employee, – they were both from the same ethnic background, – and the apology was accepted. Mr. McGuinness told the court that he had given a verbal warning to the second defendant on that occasion. In my judgment an incident like this should have clearly brought home to the first defendant the urgent necessity of having a clear Safety Statement or policy with regard to improper conduct or behaviour at work, especially having regard to the multi ethnic nature of its large workforce.
22. I am satisfied that the plaintiff succeeds on this aspect of his claim. I find that the first defendant and the second named defendant are jointly liable to the plaintiff for the injuries suffered by him.
23. After the incident, the plaintiff was seen at the Accident and Emergency Department of Beaumont Hospital. X-rays taken of his facial bones showed no fractures. The plaintiff was given an anti-tetanus injection and his left eyebrow was sutured with three sutures. He was then discharged into the care of his general medical practitioner, Dr. Richard Aboud.
24. The plaintiff was examined by Dr. Aboud on the 28th March, 2011, one week following the assault. On that occasion Dr. Aboud noted that the plaintiff had substantial bruising on the left side of his face and over his eyes. There was a 2cm long sutured laceration over his left eyebrow. The entire soft tissue of his face was tender. The plaintiff had left sided jaw pain which limited mouth opening. He complained of a clicking sensation when he opened his mouth. Dr. Aboud prescribed anti inflammatory medication and exercises, – which I assume were facial exercises. The plaintiff was re-examined by Dr. Aboud on the 4th March, 2011. On that occasion, the plaintiff complained of increased pain and a worsening of the clicking sensation in the left side of his temporo-mandibular joint. An M.R.I. scan was carried out on the 12th April 2011. This disclosed no bone lesion or soft tissue abnormality and joint alignment appeared satisfactory. The radiology Report notes that the imaging was somewhat suboptimal due to movement.
25. The plaintiff was seen by Mr. Leo A. Vella on the 25th April, 2012. He noted that the wound over the plaintiff’s left eyebrow had healed without leaving a noticeable scar. Mr. Vella recorded that the plaintiff was taking prescribed analgesic medication together with anti-depressant medication and sleeping tablets. He noted that the plaintiff was attending Ms. Elizabeth Buckely for psychological counselling. Mr. Vella found that there was some remaining bruising on the plaintiff’s left shoulder, but recorded that the plaintiff had advised him that this was not causing the plaintiff any problems. Mr. Vella found that the plaintiff could open his jaw fully, but that there was a minor soft click in the left temporo-mandibular joint. Mr. Vella recorded that the plaintiff was obviously upset during this examination and appeared to be suffering from significant psychological upset or depression.
26. X-rays were taken of the plaintiff’s mandible on the 9th August, 2011, which showed no fractures. The plaintiff was seen on the 17th August, 2011, by Mr. Padraig O’Callaigh, a consultant oral and maxillofacial surgeon. He advised the plaintiff that he had sustained no jaw or facial fractures. The plaintiff was again seen by Mr. Vella on the 8th November, 2013. Mr. Vella noted that on the 14th June, 2013, an x-ray mandible pantomogram showed a normal bony outline. Mr. Vella considered that the plaintiff had made good progress, but still suffered clicking in his left jaw on opening his mouth. He noted that the plaintiff continued to suffer occasional discomfort on his left temporo-mandibular joint. In Mr. Vella’s opinion the medical record demonstrated that the plaintiff had suffered post traumatic stress disorder from the date of the accident on the 21st March, 2011, to the 5th October, 2012.
27. The plaintiff was re-examined by Mr. O’Callaigh on the 13th November, 2013. He noted that the plaintiff clinically continued to have a click in his left jaw on opening his mouth. The plaintiff advised him that this was getting better and he stated that it did not bother him too much. The plaintiff also complained of occasional discomfort in his left jaw. Mr. O’Callaigh noted that the plaintiff had been given some jaw exercise which caused the clicking to disappear. He found that the plaintiff’s muscles of mastication were normal. On this occasion Mr. O’Callaigh considered that the persistent discomfort in the plaintiff’s left jaw was most likely secondary to work stress which the plaintiff was then experiencing.
28. The plaintiff was seen by Dr. Aboud on the 21st November, 2013. He noted that the plaintiff still had clicking in his jaw on the left side. He records that the plaintiff’s mood was stable but he was still taking two types of anti-depressants, an anti-anxiety tablet and a sleeping tablet. Dr. Aboud considered that the plaintiff was continuing to improve. The plaintiff complained of insomnia, anxiety, depression and early morning waking. Dr. Aboud concluded that the plaintiff was under considerable work stress at the time and that this stress was exacerbated by the stress of the pending court hearing. He noted that the plaintiff had attended for psychotherapy and considered that additional psychotherapy on a monthly basis for a further year would be of assistance to him.
29. A very short letter from Ms. Elizabeth Buckley M.I.A.C.P. dated the 1st January, 2014, was produced in evidence. This records that the plaintiff had been referred to her by Dr. Aboud for [psychological] counselling to assist him in working through the effects of the assault on him. She stated that he had attended for a total of sixteen sessions ending on the 15th June, 2012. In his report of the 22nd November, 2013, admitted into evidence with other medical reports, Dr. Aboud suggested that perhaps the specialist opinion of a psychiatrist might be of value. If any such was obtained it was not produced in evidence by any party during the hearing.
30. I am satisfied that as of the date of this judgment the plaintiff has recovered from the physical and mental injuries suffered by him as a result of the unexpected and vicious assault on him by the second defendant on the 21st March, 2011. I am satisfied on the evidence that there will be no future adverse sequelae. The court awards the plaintiff damages in the sum of €28,000 for the pain and suffering which he has endured to date. Special damage has been proved in the sum of €5,984. There will therefore be a decree in favour of the plaintiff for €33,984 against the first defendant and the second defendant as joint tortfeasors.
Bowell v Dunnes Stores
[2015] IEHC 613JUDGEMENT of Mr. Justice Bernard J. Barton delivered the 9th day of October 2015
1. The plaintiff was born on the 26th June, 1987 and resides at 1 Triog Manor, Green Mill Lane, Portlaoise, Co. Laois. He brings these proceedings for damages for personal injuries and loss arising as a result of an accident which occurred in the course of his employment by the defendant in its supermarket premises located at Green Mill Lane, Portlaoise.
2. Save for an admission that the plaintiff was an employee and lawful visitor on the premises within the meaning of the Occupiers Liability Act 1995, a full defence has been delivered to the proceedings incorporating a plea of negligence and/or a contributory negligence on the part of the plaintiff.
3. It had initially been pleaded that the accident occurred on the 6th March, 2010, however, it was always the plaintiff’s belief and, indeed, it was his evidence, that the accident occurred on the first Friday in March, accordingly, at the commencement of the trial an amendment was sought and an order made enabling the plaintiff to plead the date of the accident as Friday the 5th of March, 2010.
4. This became significant because not only was there was a controversy between the parties as to the nature and date of the accident in respect of which the Plaintiff brings these proceedings but also because of the legal consequences which the defendant submitted flowed from any failure on the part of the plaintiff to prove the date as now pleaded.
5. The Plaintiff’s case was that the accident occurred on the evening of the 5th March when he tripped over a packet of bottles which had been left on the stock room floor whereas the Defendant’s case was that the plaintiff was mistaken about both the date and circumstances of the accident he being absent from work on the 5th and having made a report that he had hurt his back whilst lifting at work a week earlier on the 26th of February 2010.
6. At the close of the evidence it was submitted on behalf of the defendant that the plaintiff was required to establish that the accident occurred on the 5th March, 2010 and that this was one of the essential proofs which had to be satisfied by the Plaintiff if he was to succeed in the cause of action as pleaded. Even if all other proofs were satisfied it was submitted that the plaintiff could not succeed in law if an accident was proved to have occurred on some date other than the 5th of March.
7. The defendant contended that to prove that the accident had occurred on the 5th of March was a near impossible task; on the preponderance of the evidence it was submitted that the court was bound to find that an accident had occurred on a date other than the 5th and that any such finding was fatal to the plaintiff’s claim.
8. On behalf of the Plaintiff it was submitted that, in the circumstances of this case, proof that an accident occurred on the 5th of March 2010 was not material to the plaintiff’s cause of action against the defendant. On any view of the evidence the only question regarding the date on which the accident occurred was whether that was the last Friday in February or the first Friday in March; either way both dates were within the statutory period, accordingly, there could not be a limitation issue. It was further submitted that there was no substantive legal relevance attaching to the date in the sense of establishing a cause of action; it was not germane to the cause of action nor was it required to be known by the defendant in its defence of the proceedings. In the event that the court found that the plaintiff was mistaken as to the date and rejected the submissions made on his behalf, an amendment of the indorsement of claim to insert the date found to be correct was sought.
9. Given the potential consequences arising from these submissions I consider it appropriate that the court decide this matter by way of preliminary issue.
10. Turning firstly to the jurisdiction of the court to allow the amendment of pleadings Order 28, rule 1 of the Rules of the Superior Courts 1986, as amended, provides:
“The Court may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties.”
There is ample authority for the proposition that under this rule the Court has power to order the amendment of proceedings prior to, during, and even after trial in certain circumstances. See Wildgust v. Bank of Ireland and Norwich Union [2001] 1 ILRM 24; W(F) v. BBC High Court (Barr J.) 25th March 1999; FL v. CL [2007] 2 IR 630; Mooreview Developments Ltd v. First Active Plc [2011] 1 IR 117; and Flynn v. DPP [1986] ILRM 290.
11. Having regard to the admissions made in the defence it is not necessary for the plaintiff to prove his contract of employment with the defendant nor that he was a visitor on the premises within the meaning of the Occupier’s Liability Act 1995. Consequently, the common law and statutory duties arising and owed by the defendant to the plaintiff are not in question; however, the alleged breaches of those legal duties are very much in issue. In essence the plaintiff’s cause of action against the defendant is in respect of a wrong arising in the course of the employer-employee or what used to be referred to as the master-servant relationship.
12. The contents which are required to be set out in an indorsement of claim on a Personal Injuries Summons are provided for by Order 1A and appendix CC of the rules of the Superior Courts. These specify that full and detailed particulars comprising the claim be pleaded. In this regard Appendix CC provides a format in which the indorsement ought to be presented , namely,
(a) the description of the parties,
(b) the nature of the claim,
(c) the acts of the defendant alleged to constitute the wrong,
(d) the instances of negligence together with all other relevant circumstances in relation to the commission of the wrong and
(e) any other assertion or plea concerning the same together with particulars of the plaintiff’s injuries alleged to have been occasioned by the wrong of the defendant,
(f) the relief sought and, where appropriate, any particulars required by Order 4 Rule 3(a).
In my view it is notable in the context of the question under consideration here that the date of accident or occurrence alleged to have caused the injuries and loss is not a specified particular.
13. The core of the question which is at issue here is concerned with the material requirements necessary to constitute a cause of action in negligence and for breach of statutory duty. As to that “Cause of action” was described by Lord Esher M.R. in Read v. Brown (1888) 22 QBD 128 at 131 as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court”. See also the decisions of our Supreme Court in Hegarty v. O’Loughran [1990] 1 IR 148 and Fletcher v. Commissioners of Public Works [2003] 1 IR 465.
14. There are four accepted elements to the tort of negligence. These have been described by McMahon and Binchy 4th Ed, on The Law of Torts as
1. “A duty of care, that is, the existence of a legally recognised obligation requiring the defendant to conform to a certain standard of behaviour for the protection of others against unreasonable risks;
2. a failure to conform to the required standard
3. actual loss or damage to recognised interests of the plaintiff; and
4. a sufficiently close causal connection between the conduct and the resulting injury to the plaintiff.”
In a negligence action for damages for personal injuries the law requires that the plaintiff must plead and prove “… the facts upon which the supposed duty is founded and the duty to the plaintiff with the breach of which the defendant is charged” See Gautret v. Egerton (1867) L.R. 2 C.P. 371 and West Rand Central Mining Co. v R [1905] 2 KB 391 at pp. 406-8. In addition the consequences of the breach of duty must be pleaded and in this regard particulars of the breach of the duty on the part of the defendant as well as particulars of the injuries and loss caused thereby must also be given. See Order 1A of the rules and also Odgers on Civil Court Actions 24th ed.p.181.
15. Not all causes of action require the pleading and proof of a date but by their nature certain causes of action do such as, for example, those for the enforcement of breach of a contract, or on any negotiable instrument, or for goods sold and delivered, or for possession of demised premises based for non payment of rent, or for misrepresentation inducing a contract, or where the defence raises a limitation statute or a defence of waiver by laches. See Odgers on Civil Court Actions 24th ed. p 172 for an informative discussion on this topic.
16. However, whilst the principal reason for the practice of pleading a date or a series of dates in a negligence action is to show in the overwhelming majority of cases that the proceedings have been brought within the limitation period, the pleading of a date is not a material constituent of nor is it necessary in order to establish or disclose a cause of action in a negligence. Indeed, under the Workman’s Compensation Acts a mistake as to the correct date of the accident was a ground on which the court was entitled to relieve a claimant of the consequences of having failed to bring an application within the time limited by the Acts. See Nolan v. Duigan S.C. (1946) 80 ILTR 49.
17. Whilst a mistake in relation to a date may be relevant in the context of the credibility of a witness or where the reliability of a witness’s recollection is in question, absent any issue on a limitations statute or in deceit, a mistaken recollection in relation to the date of an accident would not of itself entitle or warrant the court in making an order dismissing a personal injury action brought in negligence and / or for breach of statutory duty where all other proofs required by the law have been satisfied.
Decision on the cause of action issue.
18. Whether or not the paucity of case authority on the point is attributable to the practice of pleading a date or dates of an accident or circumstances or other occurrences or, in the absence of doing so, because the date or dates were furnished by way of particulars or, if the date was incorrect or otherwise mistaken, was corrected by amendment, or because the law has long since been settled, it seems to me that if a mistake as to the date of an accident was fatal to a cause of action in negligence and /or for breach of statutory duty ,other than in cases involving deceit or an issue on a limitations statute, it is a controversy which would have regularly featured in litigation long before now . Whatever the explanation maybe, for the reasons already given I cannot accept the defendant’s submissions as being sound in law on this issue. Neither deceit as to the date of the accident nor a limitation issue arises in these proceedings. Absent such questions or issues, it is the opinion of the court that if all other proofs necessary to constitute a cause of action in negligence and or /for breach of statutory duty, and I dare say other torts such as nuisance, are satisfied, a genuine mistake as to the date or dates of the occurrence of the event or circumstances giving rise to such proceedings or failure to plead such in the indorsement of claim is not in law fatal to such causes of action.
Decision on the date of accident .
19. That the Plaintiff was not recorded as being on duty at work on the 5th of March 2010 is of significance with regard to the determination of the issue as to the correct date of the accident. The Plaintiff fairly accepted that he could not be sure as to the date. However, he was certain that it occurred on a Friday evening which he thought was the 5th of March. On the other hand the defendant’s Miss Farrell recalled that the accident had occurred on the evening of 26th of February, also a Friday, though in this regard she agreed under cross examination that she was relying on her memory rather than on any contemporaneous note or record.
20. The law requires that the determination of this question is to be made on the balance of probabilities. There was no evidence of an investigation in relation to the accident circumstances having been carried out by the defendant in accordance with its own procedures. Miss Farrell did make a statement on the day following but it was not sought to introduce that into evidence nor any statutory record of the accident nor was there any evidence that the defendant wrote in response at any time dealing with the allegations contained in the plaintiff’s intimating letter of the 22nd of March 2011 nor was the plaintiff asked to make a statement in respect of the accident as part of any investigation.
21. Although the plaintiff gave evidence of attending the emergency department of Portlaoise Hospital shortly after the accident there was no hospital note of that attendance introduced in evidence. However, notes in that regard are referred to in the report of Dr. Sinead Murphy, consultant neurologist, dated the 18th December 2013. These notes were reported as showing that the plaintiff was advised that he had pulled a muscle and that he had been discharged on non steroidal anti-inflammatory drugs “after some weeks”. Dr. Robert Lawlor’s notes, the plaintiff’s GP, confirmed that the plaintiff had also attended his surgery in respect of his injuries. The accident and emergency notes of the hospital for the 19th of March 2010 refer to the plaintiff as having sustained injuries on a Friday exactly three weeks to the day before his attendance there being a date which would coincide with the 26th of February, also a Friday and being the same date on which Miss Farrell said the plaintiff was on duty and had reported having hurt himself.
22. Although Miss Farrell accepted that she was relying on her recollection rather than on any written record as to the date of the accident, the hospital record corroborates her evidence as to the date. Whilst the physicians reporting in this case on both sides had variously understood the date of the accident to be the 5th or 6th of March 2010, the plaintiff freely acknowledges uncertainty as to whether the accident occurred on the 26th of February or the 5th of March and that he would likely have referred to the accident as having occurred on the first Friday in March.
23. It seems to me in deciding this question not unreasonable to rely on a medical record made by a triage nurse at the Midland Hospital, Portlaoise, on the 19th of March, which clearly records the accident as having occurred on a date which also happens to coincide with the evidence of Miss Farrell, accordingly, I find as a matter of probability that the accident occurred on the 26th of February and not on the 5th of March 2010
Conclusion
24. Having already accepted the submissions made by senior counsel for the plaintiff, Mr. Counihan, in relation to the pleading and proof of date of the accident and the relevance or otherwise of that to the plaintiff’s cause of action, and there being no suggestion of deceit or possible limitation issue, the court will vacate the order made at the commencement of the trial and will substitute therefore an order pursuant to Order 28 rule (1) of the rules amending the date of the accident on the indorsement of claim to read the 26th of February 2010.
Background to liability.
25. The plaintiff was born in England on the 29th of June 1987 and came to Ireland to work after leaving school. He enrolled in a computing and drafting course which he undertook for two years and then commenced an architectural technician’s course in 2007/2008 at honours level.
26. To supplement his income the plaintiff started working for the defendant in 2004. He was employed as a general operative. His duties included working on checkouts and stacking products for sale on the supermarket shelves. He was a part-time employee working for 15 and 25 hours per week outside college hours which meant that he worked evenings and weekends. He identified his supervisor on the day as Ann Marie Farrell.
27. His recollection was that the accident occurred on a Friday evening which the court has found was the 26th of February 2010. The accident occurred in the defendant’s stockroom. The plaintiff was working alone; the accident was not witnessed but the plaintiff reported on the evening to his supervisor that he had hurt himself.
28. Both parties retained engineers who carried out an on site inspection, took photographs and prepared reports for the assistance of the court.
29. On the evening of the accident there was a requirement for the stacking of shelves with products in the retail section of the supermarket. The plaintiff was tasked with identifying the stock required; locate that in the storeroom, and thereafter to stack the shelves. This necessitated the identification and stacking of stock onto a pallet which was located in an aisle of the stockroom which when loaded would be brought into the retail section of the supermarket by way of a hand operated pallet truck. The plaintiff received his instructions that evening from his supervisor, Miss Farrell.
30. The engineer’s photographs introduced into evidence show the shelving on which products are stacked. It was his evidence that the quantity of product in the stockroom was such that it could not all be accommodated on the shelving. The excess product had been stacked on pallets which had been lined up along the rear wall of the stockroom and other pallets which had been placed at the end of the shelving racks. The pallet on which the plaintiff was stacking goods was located in an aisle between two rows of shelving racks at a position immediately beside a stack of pink coloured boxes shown in the plaintiff’s engineer’s photograph number 4. Whilst all the engineer’s photographs showed the stockroom to be adequately lit, the plaintiff’s evidence was that on the evening of the accident the product had been packed on the pallets located along the rear wall of the stockroom and at the end of the shelving to such a height that this interfered with and reduced the level of lighting.
31. With regard to the circulation areas where the pallets at the back wall of the stock room and at the end of the racking had been placed, it was the plaintiff’s case that this resulted in the creation of a very restricted circulation corridor or aisle within which to walk.
32. At the time when an engineering inspection carried out by the defendant’s engineer, Mr Terry, a yellow demarcation line had been painted on the floor of the stockroom and which is clearly seen in his photographs 3, 4, 5 and 6. It was common case that these lines had been painted some time after the accident. These photographs show one pallet located at the end of the shelving in an area now intended and designated as a circulation area or aisle and another pallet placed adjacent to the rear wall inside the yellow line. There was a controversy between the parties as to the location, number and stacking of pallets at the time of the accident.
33. The plaintiff’s evidence was that there were two or possibly three pallets at the end of the shelving racks best seen in photographs 4 and 6 taken by the defendant’s engineer and photographs 5, 6 and 7 taken by the plaintiff’s engineer and that these pallets were stacked with stock nearly reaching up to the ceiling. The defendant’s Miss Farrell doubted that there would have been any pallets placed at the end of the racking or that they would have been stacked to such a height as suggested by the plaintiff..
34. The plaintiff made his own list of what product was required to resupply the instore retail shelving. As can be seen from the photographs most of the product is shrink-wrapped. A pack of two litre bottles of 7up contains nine bottles weighing approximately eighteen kilograms. When the plaintiff came to that item on his list he went looking for it and walked down the aisle towards the camera shown in photograph number 4 taken by his engineer. He checked along the shelving as he walked. When he got to end of the shelving he turned to his left and walked down the other side of the racking shown in the defendant’s photographs 1 and 2. On reaching the end of that aisle he found a pack of 7up bottles which had been placed on a pallet located at the end of the shelving seen in the defendant’s photograph 3. He took up the pack and, given the proximity of the pallet onto which he was stacking product in the adjoining aisle, rather than retracing his steps, he decided to walk down the narrow passageway created by the opposing pallets located at the end of the racking and the back wall.
35. Whilst walking down the narrow passageway, the plaintiff tripped over another pack of 7up bottles which had been left on the floor. This caused the plaintiff to trip and fall. As he did so he kept hold of the pack of 7up. He fell awkwardly and in evidence demonstrated a twisting motion. In the process himself he became wedged between the stock on the opposing pallets. He eventually managed to wriggle himself free, ultimately coming in contact with the floor.
36. Although the plaintiff had been working in the stockroom for about twenty minutes before the accident he denied, when it was put to him, that he had been responsible for putting the 7up pack over which he had tripped in the narrow passageway, moreover, his evidence was that he hadn’t been in the narrow passageway before the accident.
37. There was some controversy as to whether or not the plaintiff had actually struck the floor when he tripped. His recollection was that initially he had simply become wedged between the stock and that he had had to wriggle himself free. There was also some controversy as to the level of lighting, though that had not been pleaded. It was the defendant’s contention in any event that that had really nothing to do with the accident since the lighting was more than adequate for the plaintiff to see where he was going even if the pallets were stacked in the manner as suggested by the plaintiff. When he reported the accident to his supervisor, Miss Farrell, he had not mentioned anything about an inadequacy in the lighting, nor was the plaintiff’s account of tripping over a pack of 7up mentioned by him. Her recollection was that the applicant simply said that he had hurt his back whilst lifting , an account which is also consistent with the record made by the triage nurse of the Midland Regional Hospital when the plaintiff attended there on the 19th of March 2010.
38. The plaintiff insisted that he had sustained his injuries when he tripped whilst carrying a pack of 7up bottles and not otherwise. He acknowledged the account as recorded in the notes but insisted that the evidence of the circumstances of the accident which he gave was the truth. By way of explanation for the account which he had given to his supervisor and at the hospital, he said this was because he thought there would be a full investigation by his employers into the accident in accordance with its accident reporting procedures and that he thought he would get more immediate attention at the hospital which was his main concern because he was in so much pain. His concentration was on his injuries rather than on the accident circumstances.
39. Subsequently, the plaintiff wrote a letter to the defendant on the 22nd of March 2011 in which he specifically stated that he had tripped over stock that was left on the stockroom floor that he had fallen on his side and had become wedged in between the stock. This account also appears in the medical notes of the Adelaide and Meath Hospital dated the 13th of September 2011. The notes of his GP Dr. Lawlor, which were admitted, also referred to the plaintiff “tripping”.
40. The plaintiff’s recollection was that when he reported the accident on the evening of its occurrence to his supervisor she did not make any written record of what he had said nor was he subsequently asked to make a statement in accordance with the defendant’s accident reporting procedures.
41. With regard to health and safety, his evidence was that he had attended a training course on the 17th of August 2004 and that as part of that course he had completed a questionnaire in relation to manual handling. That questionnaire sought to assess the plaintiff’s understanding in relation to a number of health and safety issues including the assessment of the work environment. In response to that question the plaintiff answered “assess the area make sure that nothing is in the way to were (sic) you need to go”.
42. It was suggested to the plaintiff that had he gone back the way he had come that that would have been a safer route. He agreed with that suggestion. The plaintiff also agreed that he had not assessed the narrow passageway before walking into it. He had not seen the pack on the floor and he accepted that he had not made a complaint about that on the evening when informing his supervisor that he had hurt himself.
43. Engineering evidence was given on behalf of the plaintiff by Mr. Vincent O’Hara, consulting engineer. His report and photographs were introduced into evidence. That report recorded an account given by the plaintiff that he had fallen to the floor sustaining injuries in the process, however, Mr. O’Hara gave evidence that that account had been an error on his part and his recollection was that the plaintiff did not actually say that but rather he had made an assumption to that effect . He had carried out an inspection of the locus in quo and recorded measurements of the racking, of the distance between the end of the racking and the back wall as well as the dimensions of the pallets and the packet of bottles. It was his evidence that depending on the positioning of the pallets and whether these had been placed lengthways or widthways relative to one another the space through which the plaintiff walked was between 300 millimetres and 500 millimetres. In either case it was his opinion that the available space was simply too restrictive, especially if carrying a nine bottle pack of 7up. In his opinion a gap of 800 millimetres would have been necessary in order to allow for the safe passage by the plaintiff whilst carrying a load of such dimensions.
44. As to the location of stacked pallets along the back wall of the store and at the end of the racking, it was his opinion that whilst there could be no objection to the pallets being located and stacked along the back wall of the storeroom, however, pallets should not have been placed at the end of the racking in what was, in effect, an aisle for circulation by employees and equipment and that that should have been kept clear.
45. Whilst here would have been some restriction of lighting caused by the level of stock in the stock room as described by the plaintiff , Mr O’ Hara accepted if the plaintiff was able to read his stock list then the lighting would have been sufficient to enable the plaintiff see the pack of bottles on the floor, however, in the circumstances of this case the plaintiff was carrying a load through a narrow passageway and was doing so having just come around a corner, accordingly, there was an increased risk that the pack would not be noticed and that in the particular circumstances it was less likely that the plaintiff would have seen the bottles on the floor.
46. Mr. O’Hara had sight of the defendant’s relevant Safety Statement. Under the section dealing with safety in the product storage and racking section of the premises, the defendant had identified a health and safety risk in relation to the aisles and had directed that the aisles between the racking were to kept free of product at all times.
47. It was Mr. O’Hara’s evidence that the plaintiff’s lack of familiarity would have been an additional risk factor and that the plaintiff’s vision of the floor or an object on the floor in the restrictive passageway would itself be further restricted depending on the height at which the load in question was being carried by him. From the plaintiff’s perspective at the time of the accident the presence of an obstruction, in this instance a pack of bottles, in the passageway would have been unexpected.
48. With regard to the controversy over the number of pallets present at the time of the accident, Mr. O’Hara confirmed that at the joint engineering inspection the plaintiff had given an account of tripping and twisting and of being wedged between stock on a number of pallets. At no point did Mr O’Hara understand there to be only one pallet against the back wall and at the end of the racking at the time of the accident.
49. Whilst Mr. O’Hara accepted that the usual width of an ordinary doorway was 700 millimetres and that in the ordinary way that would ensure a safe passage for a pedestrian, in this case the plaintiff was carrying a large pack of bottles hence the need for an 800 millimetre passageway width. Either way, it was his opinion that had the defendant’s own Safety Statement been complied with the area would have been perfectly safe and that there would not have been a problem for the plaintiff.
50. Ann Marie Farrell’s evidence was that whilst there would have been nobody in charge of the storeroom at the time of the accident she doubted that it was as congested as described by the plaintiff and in this regard she said that deliveries would have been quiet in the month of February. According to the defendant’s records there were ten members of staff on duty on the Friday and as far as she was concerned that was a normal staff compliment. She confirmed that the accident was reported to her on the same evening by the plaintiff. The reason she was surprised by the plaintiff’s evidence that there would be pallets at the end of the racking was because the cold storeroom would have had to have been accessed and that that would not have been possible if the pallets were placed where the plaintiff says that they were. However, she accepted that she did not go into the stockroom that evening so she could not give any evidence of its actual state from her own knowledge.
51. In relation to the plaintiff’s report of the accident circumstances, it was her evidence that the plaintiff told her that he had hurt his back whilst lifting. Her recollection was that the plaintiff came to her at the checkout and told her that he had hurt himself. Her recollection was that the plaintiff seemed fine but that he did say that his back was sore. She ultimately sent him home. She didn’t remember a meeting on the following day but made a note the next morning instead of that evening because she was on her own and it was late.
52. With regard to completing an accident report form, she said that an official accident report form as such was not completed, however, she wrote out a statement. Other than that she confirmed that there had been no official investigation of the accident in accordance with the defendant’s accident reporting procedures. She did not check the details of the accident with the plaintiff before making her statement. Under the defendant’s accident reporting procedures the person who should have filled out an accident report did not do so but she did not know why such a report had not been completed. She agreed that under the defendant’s accident reporting procedures there ought to have been an investigation and a report made.
53. Engineering evidence was given on behalf of the defendant by Mr. Terry. It was his evidence that the yellow lines present at the time when he took his photographs were intended to be demarcation lines between stock and circulation areas.
54. In his opinion the probability, on the plaintiff’s evidence, was that the width of the narrow passageway was approximately 500 millimetres and that at that width it would have been possible for the plaintiff to have been jammed between the stock on the opposing pallets in the passageway as described. With regard to the question as to whether 500 millimetres was a sufficiently safe width for the plaintiff to pass whilst carrying a pack of 7up bottles, it was his view that the width of the passageway would have been dependant on the way in which the pallets had been located on the floor relative to one another. The width could have been more or less depending on orientation of the pallets, however, it was also his evidence that the proper access to the pallet which the plaintiff says he was stacking was along the aisles between the racking and not the area at the end of the racking because that was not a designated passageway for use by employees.
55. In Mr. Terry’s opinion the instructions and training given to the plaintiff were sufficient and appropriate. That much was accepted by the plaintiff as was the fact that he did not follow those instructions. If the plaintiff had accessed the area in accordance with his training he should, in Mr. Terry’s view, have seen the packet on the floor. The packet was large and plainly visible. On the stacking, placing and orientation of the pallets he didn’t think lighting was an issue and no complaint had been made about it either at the time or on the day of the inspection.
56. Under cross examination Mr. Terry accepted that the area between the yellow lines and the stock room wall now painted on the floor was designated for storage so that to the left of the lines the area was designated for the movement of employees and stock pallet trucks. If there were pallets of stock located as suggested by the plaintiff then that would have resulted in restriction of access and movement. Mr. Terry also accepted that the narrow passageway between the pallets would only have been visible when looking down the passageway especially if there were stacked pallets on both sides. He accepted that if pallets were placed with stock on them in the position where indicated by the plaintiff then that would have constituted an obstruction. A person turning a corner and going into a restrictive passageway would certainly need to keep a proper lookout and an object placed on the floor in the passageway could be problematical. Mr. Terry accepted that pedestrian aisles should be kept clear and that if there was packet of 7up on the floor in the passageway then that too constituted an obstruction. It was his view, however, that carrying a packet of 7up was unlikely to have obstructed the plaintiff’s vision otherwise than the view immediately around his feet.
Decision on liability and causation.
57. I have had an opportunity in the course of the trial to observe the demeanour of the plaintiff as he gave his evidence. His credibility was called into question on a number of fronts but also with particular regard to the circumstances and facts of the accident. The answers he gave to certain questions in the course of cross examination are, in my view, telling. He accepted that he may only have said when he reported the accident that he had injured his back when lifting and that a similar account had likely been given as noted in the emergency department record of the Midland Regional Hospital, Portlaoise, of the 19th of March 2010. He also accepted that he had received induction training on commencement of his employment and that on the occasion of his accident he had been non-complicit with that.
58. The initial injuries complained of by the plaintiff involved his back and chest. The chest x ray was reported as showing a hairline fracture of the left third rib. The plaintiff made complaints of and gave evidence in relation to his chest pain. Whilst there is a causation issue between the parties in relation to the plaintiff’s current injuries and sequelae, the fact that the plaintiff was medically assessed and objectively reported upon as having sustained a chest injury, which included a fracture of the left third rib is, in my view, significant with regard to a determination in relation to the circumstances of the accident as contended for and given in the evidence by and on behalf of the plaintiff.
59. Quite apart from the difference of opinion as to causation in relation to the plaintiff’s current medical presentation in terms of causation, both Professor Molloy, who gave evidence on behalf of the plaintiff, and Professor Phillips, who gave evidence on behalf of the defendant, accepted that the plaintiff was an entirely genuine individual. They had both examined the plaintiff and gave evidence that his reactions in the course of medical examination were neither medically inconsistent nor exaggerated. Professor Molloy gave evidence that the rib injury sustained by the plaintiff would have been particularly painful and would be consistent with a significant impact to the chest. Professor Phillips understood that the circumstances of the accident involved the plaintiff being wedged as part of a twisting motion. There was no suggestion by Professor Phillips or Professor Molloy that the plaintiff’s initial injuries were in any way inconsistent with the accident as described. In fact the contrary was the case.
60. It is not in dispute that no investigation was carried out by the defendant in accordance with its own accident reporting procedures. Insofar as there was some correspondence passing between the plaintiff and the defendant commencing with the plaintiff’s letter of 22nd March 2011, no issue appears to have been taken by the defendant with the plaintiff in relation to the accident circumstances themselves. No evidence was led by the defendant as to what investigation if any was undertaken other than the evidence given by Miss Farrell. She had not gone into the stock room on the evening and could give no direct evidence as to the layout, location, and stacking of pallets.
61. On the issue as to whether the plaintiff had simply hurt his back when lifting or had injured himself when he became wedged between the stock on opposing pallets, accepting ,as I do, the medical evidence in relation to the plaintiff’s initial injuries, I find as a fact that this evidence is consistent with an accident as described by the plaintiff rather than with an accident causing a simple back injury whilst lifting a pack of bottles since on that version the chest injuries which were medically noted and radiologically confirmed at the time are neither consistent nor medically explained.
62. Returning to the plaintiff’s demeanour as observed by me in the course of the trial and having regard to the foregoing findings, I am satisfied that the plaintiff gave truthful evidence in relation to the accident and I find as a fact that it occurred in the way , manner and circumstances described by the plaintiff .
63. It follows from his account and the evidence of the plaintiff’s engineer, which I accept, that the passageway through which he was walking was too narrow and was unsafe. There is no evidence that the pack of 7up bottles over which he tripped in the passageway was put there by him or that he had any responsibility for the state of affairs with which he was confronted. He was an employee going about his employer’s business. His employer owed him a duty of care both at Common Law and under Statute, particularly pursuant to the provisions of the Safety Health and Welfare at Work Act 2005, to provide him with a safe place and system of work.
64. The defendant’s Safety Statement Risk Assessment, which was operative at the time, assessed the risks in the area and contains a direction that the store room aisles should be kept clear. I am satisfied on the evidence that the stock room was congested in the way described by the plaintiff. It follows that on the evening of the accident the defendant had failed to comply with its own Health and Safety Statement. The placing and packing of any pallet at the end of the racking in close proximity to other stacked pallets lined against the back wall of the storeroom was an obstruction on what should otherwise have been a clear circulation area for use by the plaintiff and other employees of the defendant.
65. There was no supervisor or manager on duty in charge of the store room at the time when the plaintiff was assigned his duties. The plaintiff’s supervisor never entered the storeroom on the evening and could give no evidence as to its actual condition at the time she assigned the plaintiff. The manager for the area on the occasion had gone off duty before the plaintiff went into the storeroom. That person had a responsibility to see to it that the defendant’s Health and Safety Statement was complied with. It was reasonably foreseeable that a pack of 7up bottles left in a narrow passageway constituted a danger to an employee such as the plaintiff who might well be detailed, as the plaintiff was, to obtain product from the storeroom for stacking on the supermarket shelves.
66. The fact that the plaintiff owed both a common law and statutory duty of care to himself, in particular to comply with the training and instructions which he freely accepts that he received but failed to comply with, does not absolve the defendant from complying with the common law and statutory duty of care which was placed on it for the safety of its employees, including the plaintiff.
67. I am satisfied on the evidence and find that the defendant was in breach of both its common law and statutory duty of care to provide the plaintiff with a safe place and system of work and that its failure to do so was the principle cause of the accident for which it must be held responsible.
Decision on contributory negligence.
68. The essence of the defendant’s submissions in relation to negligence but in particular in relation to negligence on the part of the plaintiff, was that the accident could never have occurred had the plaintiff followed the training and instructions which had been given to him, which he had accepted that he had received but with which he had failed to comply. Moreover, it was no part of the plaintiff’s case that he ought to have been provided with a refresher course. He had not made the case that he had forgotten the instructions and training given to him at the time of his induction. On the contrary he knew what he ought to have done, namely to assess the work environment, but freely admitted that he had failed to do that, consequently, he was the author of his own misfortune.
69. On behalf of the plaintiff it was submitted that there was a clear breach of statutory duty on its part under the Act of 2005 with particular emphasis being laid on the fact that it had failed to comply with its own safety statement and risk assessment insofar as that applied to the locus in quo. Had it done so the likelihood was that there would have been no accident at all. At worse the plaintiff was guilty of inattention or inadvertence. He had in no way contributed to the state of affairs with which he was presented and in which he found himself.
70. The many decisions of the Superior Courts reaching back to Stewart v. Killeen Paper Mills Ltd (1959) IR 436 establish that in respect of a breach of statutory duty on the part of a workman an error of judgment, heedlessness or inadvertence does not amount to contributory negligence where the injury could not have occurred but for the breach of statutory duty on the part of the employer. However,a deliberate act on the part of an employee in the knowledge of the risk of injury attendant upon it will attract liability on the part of the employee. See McSweeney v. McCarthy unreported S.C. January 28th 2000 ( Murray J.) where on the facts of that case a 40% deduction was made in respect of the employees own negligence and breach of statutory duty.
71. In respect of common law negligence the position was that an act of inadvertence, even momentary inadvertence, was capable of attracting a finding of contributory negligence if it constituted an act which a reasonably careful workman would not do.
72. These and other authorities to like affect must be viewed with caution in light of the provisions of the Safety Health and Welfare at Work Act 2005 (the Act of 2005) and the subsequent decisions made concerning them.
Section 13 of the Act of 2005 provides, inter alia,
“(1) An employee shall, while at work—
(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work…”
This provision has potentially significant legal consequences for employees constituting as it does a statutory general duty of care which they owe in the course of their employment.
73. The legislative history leading up to the Act of 2005 is usefully reviewed in the decision of O’Neill J. in the case of Smith v. The Health Service Executive [2013] IEHC 360. Referring to the case authorities decided in respect of the statutory duty of care owed by an employee and culminating in the provisions of the Safety Health and Welfare at Work Act 2005 O’Neill J. observed at para. 58 of his judgment:-
“58. The above authorities reveal that the benign treatment of contributory negligence on the part of an employee in the face of a primary breach of statutory duty by the employer was to ensure that the policy underpinning the statutory provision would not be diluted by reliance upon the doctrine of contributory negligence. If, however, the duty of an employee to take reasonable care for their own safety is elevated to the status of a statutory duty, it would seem to me that the exculpation of inadvertence and inattention from the ambit of contributory negligence must be reconsidered given that both employer and employee are now bound by statutory duties to take reasonable care..”
Commenting on the effect S.13 of the Act of 2005 and having referred to the decisions of the Supreme Court in Coffee v. Kavanagh [2012] IESC 19 and Quinn v. Bradbury and Bradbury [2012] IEHC 106 O’Neill J. stated at para. 61 of his judgment:-
“In short, therefore, it must be said that in light of the statutory duty as imposed on employees, inattention, inadvertence, heedlessness or carelessness on the part of an employee can no longer be regarded as outside the ambit of contributory negligence, in circumstances where it is established that there was a primary breach of statutory duty on the part of the employer, assuming causative links between the breach of statutory duty by the employer, in the first instance, and contributory negligence of the employee, to the injuries actually suffered.
62. It is fair to say that the duty imposed on employers under s. 8(1) of the Act is undoubtedly of a more onerous order being expressed as being “shall ensure so far as is reasonable practicable the safety, health and welfare at work of his or her employees”, whereas the statutory duty imposed on employees under s. 13(1) of the Act is to “comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety and health and welfare . . .”
74. Adopting this statement of the law as it now stands, the plaintiff cannot, on my view of the evidence, have been but aware of the congestion in the stockroom and in particular the narrowness of the passageway into which he decided to proceed especially carrying as he was a large pack of 7up bottles weighing some eighteen kilos. He fairly accepts that he did not stop to assess the situation with which he was confronted and never saw the pack of bottles which were lying in the narrow passageway and over which he tripped. It is clear from the evidence that in order to get a proper view of the passageway and anything that might have been on the floor that the plaintiff would only have been able to see that whilst directly looking along the passageway and that that was so because of the height of the stock on the opposing pallets.
75. It was suggested that having picked up his pack of 7up bottles off the first of the pallets located at the end of the rack that he had simply gone around a corner and had only taken one or two feet when he came in contact with the pack on the floor, however, on his evidence there were 2 or 3 stacked pallets located one beside the other at the end of the shelving and that having tripped he had become wedged amongst the stock between the first and the second pallets. On that evidence it seems reasonable to infer that the packet of bottles on the floor was somewhat further down the passageway than suggested.
76. Whilst the carrying of such a large packet would have obscured the plaintiff’s vision to some extent I am satisfied ,on the evidence, that any restriction would have been confined to an area just in front of his feet, there being no evidence that the plaintiff was carrying the pack of bottles otherwise than normally. On these findings had the plaintiff been keeping a proper lookout and especially if, immediately before he started to walk into the passageway, he had assessed, in the words of his training, “the environment” which confronted him, he ought to have been able to see the pack of bottles on the floor. In my view his failure to do so constitutes both contributory negligence and a breach of the statutory duty of care which he owed to himself.
Decision on the apportionment of fault.
77. As to the apportionment of fault between the parties this is not to be assessed on the basis of the causative contribution of each to the accident but rather on the respective blameworthiness of both. Whilst the court has found that the principal cause of the accident was due to the negligence and breach of statutory duty on the part of the defendant, having due regard to the principals upon which fault is to be apportioned the court considers that, in the circumstances of this case, the appropriate apportionment of liability between the parties is 70% against the defendant and 30% against the plaintiff.
The injuries
78. As a result of the accident the plaintiff described how he had become wedged between the stock on the opposing pallets in the stock room and had had to wriggle himself free. He was aware of some soreness in his back and chest after the accident and reported to his supervisor that had hurt himself. On the next day he noticed that his symptoms were getting worse and went to the local hospital where his back was x-rayed. At this time his main symptomology related to his back. The plaintiff also attended his GP Dr. Robert Lawlor. It appears from his notes that the plaintiff was complaining of pain in the thoracic spine and in the intra scapular region mainly to the left. He was prescribed some anti-inflammatory medication. The plaintiff became aware of increasing chest pain. X-rays showed a fracture involving the third rib on the left hand side. The plaintiff was referred to Mr. David Cogney orthopaedic surgeon in Tullamore Hospital. He continued to be symptomatic both in respect of his chest and his back. Due to continuing symptomology the plaintiff was prescribed Difene and Lyrica by his G.P. He also underwent a course of physiotherapy.
79. The plaintiff went on to develop other symptomology including pain and restriction of neck movement and what was described as “shooting pain” throughout his body associated with some clumsiness. His G.P. referred him to the neurology department in Tallaght Hospital as his symptoms had now become quite widespread and which suggested a neurological involvement.
80. The plaintiff subsequently came under the care of consultant neurologists Dr. Sinead Murphy and Dr. Donal Costigan. An M.R.I. scan was arranged for him. In his past medical history it was also noted that the plaintiff had a post viral myositis in the year 2006/2007.
81. As a result of investigations which were carried out under the care of Dr. Murphy in 2012, the plaintiff was diagnosed as a type 1 diabetic and consistent with that condition the plaintiff had developed a peripheral neuropathy.
82. In the course of his evidence the plaintiff described how his neck became very stiff and he felt he was unable to turn his head to any significant degree. He described altered sensations in his hands and fingertips. However, once he commenced treatment for diabetes his diabetic symptoms improved to some extent. He continued to experience symptoms of pain and stiffness in his neck and back, however, these naturally improved to a point where, in the Spring of 2013, he felt able to return to work for the defendant. Initially he was assigned light duties. He remained in employment with the defendant for about five months until December of that year. He was able to manage his work duties up until December when he was assigned duties which required him to work in the cold store of the defendant’s premises. He felt physically unable to work in a cold environment and would not accept duties that required him to do so. The defendant was unable to accommodate him, accordingly he went on sick leave.
83. With regard to his architectural technician course which he was taking at honours level, it appears that he went back to that for a number of weeks shortly after the accident but was unable to continue because he was unable to bend over a manual drawing table due to his back symptomology and as a result of which he eventually dropped out of the course. Subsequently, in or about September 2014, he commenced a FETAC level 5 IT course which he was able to manage. Between 2011 and 2013 the plaintiff occupied himself with research on computers and since January 2015 has obtained some part time IT work in a small company. His present intention is to undertake a degree in computing.
84. The plaintiff gave evidence that he has continued to suffer from pain in his shoulders, upper back, and lower back as far as he is concerned his physical symptomology is such as would prevent him from returning to any form of heavy manual work such as that undertaken by him when employed by the defendant. His case was that he was now only fit for light work such as IT and computing.
85. Although the plaintiff gave evidence that he had no knowledge of his diabetic condition prior to the accident it appears from medical notes and records, which were admitted in evidence, that he had attended Dr. Lawlor in February 2008 with concerns in this regard. Unfortunately that was not followed up at the time and it was not until 2012 that he was actually diagnosed with type 1 diabetes.
86. It also appears that Dr. Murphy had concluded that the plaintiff was suffering from fibromyalgia. Under cross examination the plaintiff denied that he had suffered from this condition prior to the accident but medical notes from 2006 show that the plaintiff was investigated for that condition and myositis at that time. Having been reminded of this, the plaintiff recalled that he was out of work for a few weeks but gave evidence that symptoms in this regard had resolved without recurrence up until the time of the accident. I accept the plaintiff’s explanation that he had actually forgotten about this particular episode and that in the subsequent years he felt fit and well and was a regular attendee at his local gym.
87. Medical evidence on behalf of the plaintiff was given by Professor Molloy whose report, prepared for the assistance of the court, was admitted. Medical evidence on behalf of the defence was given by Professor Phillips. He too prepared a report for the assistance of the court which was also admitted.
88. Professor Molloy carried out one physical examination on the 7th of April 2015. He had access to certain notes and records including a report from Dr. Murphy. He noted that an MRI scan of the plaintiff’s cervical and lumbar spine had showed some bulging at the C3/4 level but without cord involvement. An EMG was carried out subsequently by Dr. Costigan on the 5th of March 2012 which showed some neurological abnormalities consistent with the neuropathy. The plaintiff complained to Professor Molloy of cramps in his lower back and legs and sometimes in the shoulder blades. These symptoms could be quite significant at times and could lead to a feeling of the plaintiff’s legs giving way.
89. A physical examination was carried out by Professor Molloy which showed that the plaintiff’s cervical spine movements were reduced by 30 to 40% in all directions with tenderness in the neck and shoulder muscles but no neurological deficit in the upper limbs.
90. With regard to the plaintiff’s back ,Professor Molloy noted that movements were good on forward and lateral flexion and that the plaintiff’s straight leg raising was 80 degrees bilaterally, moreover, the plaintiff could heal and toe walk without difficulty and reflexes were grade two, with down going planters. There was no sensory or motor loss.
91. Professor Molloy’ opinion was that the plaintiff was suffering from chronic pain syndrome with a neuropathy most likely diabetic in nature which was contributing to the plaintiff’s symptoms.
92. Vocationally Professor Molloy thought that the plaintiff would be well able to undertake his chosen career path in IT and computing. He was satisfied that the probable cause of the plaintiff’s neuropathy was his diabetic condition and was not related to the trauma arising from the accident. In his opinion the plaintiff suffered a significant soft tissue injury which was then complicated by the effects of his untreated diabetes. The diagnosis of diabetes was a shock for the plaintiff and there were also domestic problems which resulted in his partner leaving him and which required the plaintiff to look after their two year old daughter.
93. With regard to the myositis which was diagnosed in 2006, Professor Molloy’s evidence was that that condition caused muscle weakness; however, it appeared that in the plaintiff’s case it was relatively mild and settled very quickly. Professor Molloy examined the plaintiff in connection with fibromyalgia but formed the opinion that the plaintiff did not satisfy the criteria for a diagnosis of that condition. The plaintiff’s injuries referable to the accident were of a soft tissue nature. There was no underlying pathology. He didn’t think that the diabetes would have had any significant impact on the course of the plaintiff’s physical symptomology such as slowing expected course of recovery. It did not aggravate nor was it otherwise connected to the symptoms referable to the soft tissue injury.
94. The soft tissue injuries, whilst diffuse, were typical of trauma rather than diabetes though the symptoms of peripheral neuropathy complained of by the plaintiff were solely attributed to the diabetes and not to the trauma.
95. Professor Phillips examined the plaintiff on the 11th of July 2012. At that time the plaintiff was complaining of pains in his arms, his back and his legs and that he was unable to hold a two litre bottle of milk in his hand. He described pains “all over”. He noted that the plaintiff had been advised that he had had arthritis involving both of his feet.Clinical examination of the plaintiff’s neck was satisfactory; there was mild global weakness of the upper and lower limbs of undetermined aetiology.
96. He thought that most of the plaintiff’s current symptoms were referable to neurological conditions not connected to the trauma. His expectation,insofar as the physical injuries were concerned, was that these ought to have resolved over a relatively short period of time. He didn’t accept that the plaintiff has organic symptoms at this point caused by the original injury. He thought that the explanation for the persistence of physical symptomology referable to the trauma was a failure on the part of the plaintiff to rehabilitate. He didn’t think that that was referable to the plaintiff’s diabetes. He agreed that the plaintiff was not suffering from fibromylgia. He did not agree, however, that tender points noted by Professor Molloy on physical examinations signified an ongoing pathological process involving a fall occurring some five years previously. The plaintiff’s chronic pain syndrome was subjective in nature. There was no underlying organic or pathological explanation for its continuation at such a remove from the accident. The plaintiff’s presentation was either an entirely subjective neurotic condition or it was the result of a pathological process such as diabetes. Either way it was not caused by the accident.
97. Professor Molloy was recalled to give evidence arising out of the evidence of Professor Phillips which had not been directly put to him in the course of cross examination. He expressed the opinion that the symptom complex from which the plaintiff is now complaining ,insofar as is referable to the accident, was acceptable in what he described as soft tissue criteria. He agreed with Professor Phillips that in the ordinary way one would have expected the plaintiff to recover in a relatively short period of time but in the plaintiff’s case he did not do so. He felt that there was also a psychological component present in the plaintiff’s presentation.. He agreed that there was no underlying pathology referable to the accident, however, a small percentage of a patients who sustain soft tissue injuries which one might expect to recover relatively quick go on to develop chronic symptomology and that that was medically accepted.
Decision on the injuries .
98. As a result of the accident the plaintiff sustained soft tissue injuries to his chest and a rib fracture; he also suffered soft tissue injuries effecting his shoulders and thoracic spine. The plaintiff was extensively investigated in respect of symptoms including altered sensation in his extremities, muscle weakness, and deterioration in motor power. There is no doubt but that the medical notes and records establish quite clearly that in a period of some eighteen months subsequent to the accident the plaintiff continued to complain of these symptoms as well as of symptoms of back pain including pain radiating into his neck with restricted ranges of motion of his neck. He was prescribed medication and also underwent courses of physiotherapy which were of little benefit to him. In 2012 he was diagnosed with type 1 diabetes for which he was treated and which is now under control. Apart from symptoms referable to his neck, back, shoulders and chest I am satisfied that the neurological symptoms of which the plaintiff complained were, as a matter of probability, referable to his diabetes and are not causally related to the accident. Moreover, these symptoms would not delay or otherwise interfere with the ordinary process of rehabilitation. There is no doubt, however, that the process of rehabilitation in the plaintiff’s case was slow, however, it is also clear that to the extent that the plaintiff continued to be symptomatic in relation to his back and neck, that had reached a level where the plaintiff himself felt able to return to work for the defendant in May 2013 and, indeed, the plaintiff was able for the work duties assigned to him from the time of his return to work in May until December 2013 when his own assessment was that he would be unable to work in a cold store .
99. Although the plaintiff had some restriction of neck movement when examined by Professor Molloy his neck movement was normal when examined by Professor Phillips. His bilateral leg raising test was normal, as was the MRI scan of the plaintiff’s neck and back. I accept the evidence of Professor Molloy that a psychological component is generally involved with a patient suffering from chronic pain syndrome. The plaintiff may have believed that to attempt to work in a cold store would have had an adverse affect on him, however, it appears that on treatment for his diabetes and working for the defendant as a general operative undertaking the same tasks as he had prior to the accident, that the plaintiff had reached a level of recovery which enabled him to undertake such duties. He did not, however, seek out alternative employment of a similar type after he ceased work in December but has taken an altogether different career path which, on the evidence, is also desirable having regard to the plaintiff’s diabetic condition.
100. The plaintiff is more optimistic about the future now and has returned to exercise, walking as much as he can. No doubt his neuropathy still affects him to some extent. His symptoms, insofar as they are referable to the physical injuries, whilst not having any objectively assessable organic or pathological cause referable to the accident are now, it seems to me, at a relatively low level. I accept the evidence of Professor Molloy that in a small number of individuals who have sustained trauma of the type experienced by the plaintiff that some symptomology is seen and accepted in medical practice. The consequence of his untreated type 1 diabetes was a peripheral neuropathy but for which the defendant has no responsibility in law.
Given the period of time which has elapsed since the accident and that his condition insofar as it relates to the accident is medically said to be chronic, it seems reasonable to conclude that the plaintiff is likely to experience some ongoing albeit low level of physical symptoms for sometime to come.
100. Having due regard to foregoing and the complexity arising as a result of symptomology referable to different causes, principally though not exclusively the plaintiff’s diabetes, and applying the well settled principals of law as to the assessment of compensation for personal injuries caused by reason of negligence and /or breach of statutory duty, it is the view of the court that a fair and reasonable sum for general damages on full liability is €65,000.
Decision on Special Damages.
101. The plaintiff has made a claim for loss of earnings to date of trial in the amount of €48,937.77 less deductible social welfare benefits giving a net figure of €23,967.64. Other special damages have been agreed between the parties in the sum of €3,803.
102. Having regard to the findings of the court in relation to the plaintiff’s physical disabilities referable to the injuries sustained as a result of the accident and which had resolved to a point which enabled the plaintiff to return to work for the defendant in May 2013 and to continue thereafter until December 2013, when he himself decided that he would not work in a cold store, I am satisfied ,on the balance of probabilities, that the plaintiff possessed an ability to seek , carry out and engage in similar work duties of the type undertaken by him between May and December, had he chosen so to do . Accordingly, the court finds that his claim for loss of earnings should be limited to a period from the date when, after the accident he ceased to receive income from his employment with the defendant until the date of his return to work in May 2013. I will discuss with counsel the apportionment of the sum of €23,967.64 appropriate to that period; added to which will be the agreed sum in respect of other special damages.
103. There will then be judgment for the net amount of the general and special damages having regard to the apportionment of 70/30 in the plaintiff’s favour and the court will so order.
McLaughlin v McDaid
[2015] IEHC 810JUDGMENT of Mr. Justice Hanna delivered on the 10th day of December, 2015.
1. This case arises from an injury which the plaintiff suffered on the 26th day of June, 2003. The incident occurred at a quarry at Crislaghkeel, Burnfoot, Co. Donegal. The quarry belonged to the defendants or one or some of them. No issue concerning the ownership of the quarry surfaced in any meaningful way at the hearing. By any yard stick, the plaintiff was occasioned a serious injury to his right foot. As a consequence, following multiple surgeries and rehabilitative treatment, he is left minus most of his right foot. However, notwithstanding significant educational shortcomings and aided by an apparently keen work ethic and the utilising of prostheses he is able to engage in full-time employment, currently in the United States of America.
2. The plaintiff, whose date of birth is the 24th August, 1985, was but seventeen years of age when this misfortune befell him.
3. Beyond the very bald and limited narrative there rages a sea of controversy between the parties as to what, in fact, did happen on that day. There is dispute as to the plaintiff’s entitlement to be on the said premises, the nature of and legal status of his relationship with the defendants. A central question arises as to how the plaintiff came to be injured in the first place.
4. The plaintiff first commenced proceedings against the first to fourth named defendants inclusive by plenary summons on 21st January, 2004. These proceedings were discontinued and a second set of proceedings, those with which we are directly concerned, commenced on the 30 April, 2004 citing the present defendants and the Motor Insurers Bureau of Ireland as an additional party.
5. The statement of claim was delivered on the 1st March, 2006. It alleged that the alleged accident occurred during the course of the plaintiff’s employment with the second, third and fourth named defendants at the quarry aforesaid. The first named defendant drove the other defendant’s lorry over the plaintiff’s right foot, or so the statement of claim alleges. The statement of claim goes on to seek damages from the first to fourth named defendants and to satisfy such judgment against the then fifth named defendant, the Motor Insurers Bureau of Ireland (the “Bureau”) pursuant to the agreement between that organisation and the Minister for the Environment dated the 21st day of December, 1988. As to how the liability of the Bureau might arise, the statement of claim is silent. The statement of claim was supported by an affidavit of verification purportedly sworn by the plaintiff on the 5111 September, 2006.
6. The Bureau entered an appearance on the 5th October, 2004. The second named defendant did so on the 20th December, 2004. There was a subsequent change of solicitor representing the Bureau.
7. A significant landmark in the case is the order of this Court made on the 18th May, 2009 by Cooke J. striking out the claim against the Bureau. Effectively from that date the involvement of the Bureau’s solicitors, Messrs. Peter J. Sweeney, ceased. They had acted, in effect, as the sole solicitors for the defence. The application which led to that order and the circumstances leading up to it are of some relevance to this entire matter.
8. Without going into minute detail, Messrs. Sweeney sought particulars of the circumstances of the accident both as to how and where same occurred. The insurance company concerned (Quinn Insurance) who had instructed Messrs. Sweeney conducted its own investigations into the claim. Apart from the significant question as to whether or not the alleged accident, assuming it was a road traffic accident, occurred in a public place, important questions also arose as to the circumstances in which the injury was caused to the plaintiff.
9. It seems that the plaintiffs account of what had occurred, to use the colloquialism, had started “ringing alarm bells”. For example, the statement of claim rather blandly stated that the lorry ran over the plaintiffs right foot. It seems that the plaintiff expanded somewhat on that otherwise bald narrative by telling a doctor who examined him on behalf of the defendants as then represented that he was intending to get into a lorry on the front side seat beside the driver. Apparently the driver did not see him as he was walking up the side of the lorry and the driver proceeded to drive off. The wheel of the lorry went over his right foot. The plaintiff told another doctor that he was “about to climb in the passenger side of the lorry”.
10. It was submitted at the application to strike out the proceedings against the bureau that the description of the accident proffered by the plaintiff was completely at variance as to what was noted in the accident and emergency department in Derry where the plaintiff went for treatment. In an affidavit grounding the aforesaid application to strike out, Mr. Patrick J. Sweeney, solicitor, highlights the following.
(a) An entry in the Accident and Emergency Department records stating “works in quarry, caught right foot on the digger …. digger ran over right foot extensive injury to foot.”
Reference made to a further narrative describing a digger/tractor running over the plaintiff’s foot.
(b) The statement of Sergeant Daniel Devlin, member of An Garda Siochana of Moville Garda Station, Moville, Co. Donegal was also submitted to the Court. Sgt. Devlin says that he encountered the plaintiff while on duty on the 31st August, 2003 and that plaintiff told him that he had been working in the quarry and that a track machine has caused the injury to him.
11. It would appear that the Court took the view that the accident the subject matter of the proceedings had not occurred in a public place and, more specifically, on the public highway. Nor was the vehicle involved one which attracted compulsory insurance. Therefore, liability on the part of the Bureau did not arise and the proceedings against it were struck out.
12. Where did this leave the plaintiff’s narrative to date? This we discover in the amended statement of claim which was furnished by the plaintiff on the 11th March, 2014. Out goes reference to the lorry and its registration number. In its place is substituted the single word “digger”. There is no other material alteration to the narrative set forth in the statement of claim as to what occurred. Of course, more than the simple description of the vehicle involved had changed. The whole picture had changed from that of a case of negligent driving of a motor lorry to the negligent operation of a substantial piece of machinery in a quarry. The physical location itself had not changed but took on the heightened significance in that the plaintiff was a minor and was employed in a quarry and in circumstances governed not only by common law but by a body of statutory and regulatory law designed to afford protection to the plaintiff as a minor, as an employee and, indeed, as a member of the public.
13. In brief terms, the case made by the plaintiff in the form in which it came on before me alleged that he was employed by the second, third and fourth named defendants. During the course of his employment and while approaching a fellow worker (also under age) the latter caused or permitted the track of a heavy machine to go over the plaintiffs right foot causing him to suffer the injury in question. This was a clear case of negligence and breach of statutory duty. The previous story about the involvement of the lorry was a fiction conceived, distilled and promoted by the defendants with a view to engaging the involvement of an insurance company to meet what was clearly going to be a substantial claim for damages arising from the injuries suffered by the plaintiff.
14. Not so, say the defendants. The plaintiff was not employed by them at all. In an amended defence on behalf of the second, third and fourth named defendants’ which was delivered on the 19th March, 2015 it was alleged that the plaintiff had occasionally visited the quarry prior to the accident and had been on occasion permitted to clean and tidy the office, canteen and weighbridge. It was claimed that the third named defendant gave the plaintiff small amounts of cash from the petty cash of the fourth named defendant as pocket money. Apart from that, he was not employed and was not authorised or engaged to deal with or operate any of the machinery in the quarry. The quarry was closed at the time of the accident and he should not have been there. Two of the defendants were away at a trade show in England. The plaintiff had been “messing” for want of a• better word with a friend of his and his injury resulted from wholly prohibited use of machinery on the defendants’ quarry premises. The narrative concerning the lorry was a composition solely of the plaintiffs making.
15. The defendants further urge that, even were I to find in the plaintiffs favour, this Court should, nevertheless, dismiss his claim pursuant to section 26 of the Civil Liability and Courts Act 2004 because of the false and misleading evidence that the plaintiff has brought before the Court. At this point it may be useful to summarise the evidence
David McLaughlin
16. The plaintiff, David McLaughlin, was born on the 24th August, 1985. He is from Buncranna. He left school at fifteen years of age and now works as a technician in the United States of America. When he left school he worked for a year approximately with a transportation company and went to work in McDaid’s quarry in 2002. The workings of the quarry involved the excavation of rock, the transportation of that rock to a crusher and crushing the rock into the various requisite dimensions of stone or rubble for delivery and sale. The plaintiff says that on the first day he was asked to load a crusher. He was asked could he run a machine. He was fully employed in 2002. During the course of his employment he said he was driving a loader and a tractor. He remembers Declan Doherty who was then aged about sixteen also being there. Michael Lynch, who was a bit older, was employed as a machine driver. The McDaids’ were in and out. The foreman was a Mr. Sean Breslin and it seems he was the person generally in charge. One Pamela Toland worked in the office which was situated beside the weighbridge.
17. The incident in which the plaintiff was injured occurred, he tells us, on the 261 June, 2003. He was operating a thirty tonne tracked excavator loading rock into a crushing plant. The rock was being fed to him by Declan Doherty (known as “the Goose”) who, in turn, was operating a fifty-five tonne Halla 555 excavator. He was operating this machine at a higher level to the plaintiff. His function, according to Mr. McLaughlin, was to push rock using this excavator from an upper level and to cause it to drop down towards the plaintiff who would then load that rock onto the crusher.
18. Due to an over-accumulation of rock the plaintiff had difficulty in accessing same for the purpose of loading it onto the crusher. He dismounted from his own machine and went off towards Mr. Doherty. He had no other means of communicating with Mr. Doherty. There was nobody else there to guide them or to assist in communicating the difficulties which the plaintiff says he was experiencing. As he approached Mr. Doherty’s machine the boom on that machine dropped and the digger tracked forward. The plaintiff’s left leg became caught in a rock and the track of the machine went over his right leg. The plaintiff started screaming. Mr. Doherty, the plaintiff says, got out of the machine and started climbing down the hill. The plaintiff says that Mr. Michael Lynch drove the car up, picked up the plaintiff and took him, firstly, to Burnfoot and thereafter the first named defendant, Damien McDaid, drove the plaintiff to Altnagelvin hospital in Derry. The plaintiff says that once he got to the hospital he could not remember anything until sometime later and after he had been initially treated. He remained in the hospital up to the 22nd of July and underwent up to eight operations. He left the hospital on crutches and used them for about three weeks. For the presence, it is sufficient to say that the plaintiff suffered extremely serious injuries causing him to loose the greater part of his right foot. He has been left with a “club foot”. He has, eventually, managed to forge a career for himself in the United States where he is able to work although obviously seriously hampered by his injury and having to avail of prosthesis. Subsequent to the accident, he went to work in the United Kingdom and, after about a year or so made his way to the United States. In the interim, following the injury, he had some difficulties with criminal activity in this jurisdiction involving road traffic and public order matters and, apparently, a failure to answer bench warrants. His interface with the law was not such as to prevent him coming home to deal with this case nor, indeed, to return to and remain in the United States of America where, I am informed, his status is fully legal.
19. The plaintiff recalls that while he was in the hospital the McDaids or one or another of them would visit him nearly every day. He says that he was told by Michael McDaid to say that the accident was caused by a lorry and this was the narrative which he presented to his lawyers at that time. He did not, however, tell this to the doctors.
20. During the course his employment, he says that he was paid approximately €300-€400 per week in cash. After he was injured he was out of work for a period of two years. His disability payments were organised through the post office by his mother. On the day of the accident, Mr. Breslin, the foreman was not present and the plaintiff believes he was in England with the second and third named defendants at a trade show.
21. Under cross-examination of the plaintiff it was put to him that he was not employed contrary to what he had asserted both on his pleadings and in evidence. It was put to him that, in effect, he hung around the premises and involved himself in tidying the canteen and sweeping the weighbridge and other menial tasks for which he was paid small sums, such as €20.00 now and again out of petty cash. The plaintiff, on the other hand, maintained that he employed and was paid in or around €300 “into his hand” at the end of every week and that he “clocked” in and out every morning and evening like other employees.
22. It was further put to him that he was not allowed to go near any of the machinery. The plaintiff maintained that he was so permitted and indeed it was part of his job. It was specifically put to him that Charles McDaid, the third named defendant, and Michelle Kearney and Pamela Toland would give evidence supporting the defendants case as to the nature of the plaintiff’s engagement (if any) with them. (I should observe at this point that neither Pamela Toland nor, more significantly, Charles McDaid, the third named Defendant, were proffered as witnesses). Apart from the rather modest tasks in which he was engaged, they would confirm that he would have been stopped from going near any of the machines. He was not allowed to operate the crusher. Only Jason Doherty, Sean Breslin and the third named defendant, Charlie McDaid, could do this.
23. It was put to the plaintiff that the quarry was closed. He said it was not. However, he did not disagree that two of the defendants and Mr. Sean Breslin were away at a trade fair in England. He denied that himself and Declan Doherty were trespassers.
24. The plaintiff stated that Michael McDaid had concocted the story about the lorry going over his foot. That entire narrative was concocted and maintained by the McDaid’s and Michael and Charlie McDaid in particular. At all material times, the plaintiff says that he was under the influence of Charlie McDaid and that he went along with their version of events up until recent times when the statement of claim was amended and he came to Court to make his case.
25. As to the actual “mechanics” of the accident, he says that as he approached the excavator the driver, Declan Doherty, lowered the boom and the machine tracked forward. The plaintiff maintained that his left foot had become stuck and that his right foot was caught by the tracker. He says that he tried to attract the attention of the driver by throwing rocks or whatever he could. (He accepted that he had only introduced this narrative at the hearing). He says he was screaming and in pain and trying to attract Declan Doherty’s attention in whatever manner he could.
26. The plaintiff was also pressed by Mr. Mac Aodha on behalf of the defendants on the circumstances in which he instructed his solicitor, swore an affidavit of verification and a corrective affidavit and, importantly, the extent of any alleged influence over him held by the McDaids.
Mr. Pat Culleton
27. Mr. Culleton, a consultant engineer, was called to give evidence by counsel for the plaintiff. In broad terms, both he and the consultant engineer called on behalf of the defence, Mr. McKay, were in agreement on central issues. Were the plaintiff’s recollection as to the nature of his engagement with the defendants and the general circumstances surrounding the accident to be correct then the plaintiff’s employer would fall foul of a substantial corpus of statutory and regulatory provision governing the operation of mines and quarries and places of employment generally not to mention the pre-existing common law obligations of an employer to an employee. The injury, as reported to Mr. Culleton by the plaintiff, was caused as the plaintiff approached the excavator at a time when the plaintiff was or ought to have been visible to the operator of same. It is possible that any cries from the plaintiff may have not been audible to the said operator. I should observe that Mr. Culleton did not visit the quarry and did not inspect the machine in question.
Mrs. Joan McLaughlin
28. The plaintiff’s mother told us that he was a troubled child who had difficulty at school suffering from ADHD. The general family background was both industrious and successful. The plaintiff herself was taxi driver and funeral director. Of her children, two had become teachers and one an architect. David was problematic at school and she described him as being both streetwise and vulnerable. He was friendly with Michael McDaid’s son and, for reasons she could not understand, worshipped Charlie McDaid, the third named defendant.
29. The plaintiff was in secondary school for some twenty-eight days and, despite his parent’s best efforts that ended the formal education phase of his life. He was good at fixing things. After he started working at the quarry he went every day leaving home at around 7.20am. Sometimes she brought him to work. He was paid between €300 and €350 per week and sometimes €400. He would work late and was always paid in cash. He told her this. She thinks he used to work in Moville as well.
30. She heard about the accident from Michelle Kearney (nee Galbraith) who worked in the office in the quarry and who had gone to tell the plaintiffs father at home (this gentleman was unwell and did not give evidence). Ultimately, the plaintiff’s mother went to Altnagelvin Hospital in Derry. The plaintiff was not able to communicate with her that evening or for a few days thereafter. Michael McDaid arrived back from England that night. He told her that a lorry ran over David’s foot and told her that Damien Doherty was driving it at the quarry. David was not in good shape. He had lost a lot of blood and she apprehended that he was going to die. She noted that when she saw Charlie McDaid there at a later stage he was crying.
31. She never got to speak to David for a few days. He was unable to communicate. When he was able to speak, her recollection is that there was always a McDaid in the room with them. Thereafter, the plaintiff underwent numerous operations and it was thought he was going to lose his leg. Michael McDaid gave her a document to take to her solicitor after about two weeks. This document set out the details which were reflected in the narrative of the original statement of claim in these proceedings.
32. Mrs. McLaughlin described how the plaintiff progressed after about two years, firstly going to the United Kingdom and then to the United States where he now lives. She gave some evidence with regard to an approach from one of the defendants but for the purposes of this judgment I have entirely disregarded any what might broadly be termed “without prejudice” discussions involving the parties in person.
33. Under cross-examination, Mrs. McLaughlin confirmed that the plaintiff had been in hospital for approximately one month. She was pressed as to the manner and extent of the remuneration received by the plaintiff and paid by the defendants but held to her evidence in this regard.
Mr. Michael Keane
34. This witness was an official of the Department of Social Protection (formerly Social Welfare). He confirmed that an application was made and processed for occupational injury benefit for the plaintiff up to the 18111 September, 2003. This application named McDaid Quarries Ltd. as the plaintiff’s employer (the plaintiff being in insurable employment). He produced the application form for disability/injury benefit. This was signed by both the plaintiff and by Michael McDaid. It bears the stamp of McDaid’s Quarries Limited, Crislaghkeel aforesaid. It states that the accident occurred at McDaid’s Quarry in Bumfoot and that a lorry crushed and injured the plaintiff’s right foot. The plaintiff observed on the said form that “no one saw me” when he was injured. This was admitted to be a lie by his counsel, Mr. Lyons SC. The form named the plaintiff as an employee of the defendants’ for the purposes of the application and describes him as a labourer PIT (part time).
Mr. Greg Murphy
35. This witness was an inspector with the Health and Safety Authority. He carried out an inspection of the quarry and interviewed various witnesses. In general terms, Damien McDaid described the “motor lorry version” of the injury to Mr. Murphy. Mr. Charlie McDaid confirmed that he employed the plaintiff albeit part time and that the plaintiff only worked the odd day at the quarry. He described his duties as being in the office doing office work. The plaintiff told Mr. Murphy that on the day of the accident he was tidying around the office and he was sent to get stuff for the office in Burnfoot in a lorry and this was when the accident occurred. Damien McDaid was driving the lorry, he said. Mr. Murphy had some reservations about the case. His observations in this regard were noted and transmitted to his line manager. Mr. Murphy was concerned arising from a conversation he had with two members of Garda Siochana who had the conversation with a somewhat intoxicated plaintiff one night in Buncranna. The plaintiff told them about the track of the excavator going over his foot. It seems that the file was kept open but matters were not pursued beyond a recommendation relating to Health and Safety and unrelated to the accident in question.
36. When he attended the premises, Mr. Murphy did not observe any gate or barrier. He carried out his inspection on the 14th July, 2003.
Mr. Tom Heneghan
37. Mr. Heneghan is a solicitor by profession. He worked at all material times as a claims process manager for Liberty Insurance, formerly Quinn Insurance. An accident report form was submitted and he gave evidence regarding the concern of the insurers with regard to whether or not an indemnity applied in the circumstances. As we know, this concern eventually led to the nominated solicitors, Messrs. Patrick J Sweeney, coming off record.
38. Mr. Heneghan had not personally dealt with this matter since this occurred before he was employed by Liberty Insurance. He confirmed that the plaintiff was referred to as a labourer working for the McDaids’ in the course of the investigation by the then insurers.
Mr. Sean Breslin
39. This was the first witness to be called by the defence. Prior to Mr. Breslin giving evidence the court was informed that both Declan Doherty and Michael Lynch had been served with subpoenas by the defence although they had hoped that Mr. Doherty would have been called by the plaintiff. He was not. The hearing proceeded on the basis that, should the plaintiff so wish, Messrs. Doherty and Lynch could be interposed as witnesses. Otherwise, of course, it was entirely open to the defence to call these gentlemen having secured their attendance. Any sanction arising from failure to answer the subpoenas was not pressed at that point.
40. Sean Breslin was employed at the quarry. He was a machine operator and his principal job was feeding stone into the crusher. He carried out this work in conjunction with one other employee and he would use an excavator to lift the stone into the crusher where it would be reduced to the various sizes required for sale. He was with Charles and Michael McDaid in England when the accident occurred. He says that the quarry was closed on that day. He remembers the plaintiff being there.
He initially said he vaguely remembered the plaintiff who was hanging around the quarry and could have been doing tidying up jobs for Charlie. He expanded this some what under cross examination to say that the plaintiff was there fairly frequently and he would have to say that the plaintiff was working for Charlie McDaid. He never saw the plaintiff driving lorries or doing any other duties. He never saw him operating machines.
41. As regards Declan Doherty, Mr. Breslin said that he couldn’t remember much about him, that he wasn’t about the place and was not working there. As far as he was concerned, the accident was caused by a lorry and such was his belief up until the time he came to court. He hadn’t been working for the McDaid’s for some five or six years. He said that Charlie McDaid told him that the lorry went over the plaintiff’s foot.
42. The keys of the machinery were left in the office at the end of each day which he presumes was locked. He has been working in farming for the past five or six years. He displayed some vagueness of memory throughout the course of his evidence. He did not, however, dispute that the plaintiff was operating machinery on the day of the accident. He had no reason to disbelieve that Declan Doherty ran the track of the machinery over the plaintiff’s foot. As regards the premises, he said that there was some kind of barrier there but he agreed that people could get in and out and there was nothing to stop the plaintiff and Declan Doherty doing so. He had been asked to come and give evidence by Charlie McDaid.
43. It appears that Sean Breslin was in a position of some authority. He was part of the group that attended the trade fair on the day of the incident. He gave evidence that it was his job to check the machinery during the course of the working day. He de scribed the quarrying operation as being fairly small.
Jason Doherty
44. This witness worked from time to time at the quarry. He was an excavator driver. He had trained as such. He was doing a lot of work for Coillte at the time. He would be drafted in as needed by Charlie McDaid. He was not continuously employed at the quarry. This happened two or three times per month. He would drive an excavator. He worked in conjunction with Sean Breslin. There were just two persons involved in his work.
45. He felt that he would have seen Declan Doherty coming in and out some years later and he was sitting as passenger in a McDaid lorry. He never saw the plaintiff involved with machines.
46. The Halla machine in question was extremely valuable. It would have cost a few hundred thousand Euros. He doesn’t know if Declan Doherty was driving it on the occasion of the accident. The system involved arriving at the premises, getting the keys and checking the machine. If the quarry or office was closed you wouldn’t be able to access the key. Like Sean Breslin he was asked to come by Charlie McDaid. During the course of the last twelve years he has been working for the McDaid’s with some periods of unemployment. He was not working for anyone else.
Damien McDaid
47. This witness is the first named defendant. Around the time of the accident he was not working at the Quarry but at a petrol station in Burnfoot which I understand he operated with his girlfriend, Pamela Toland. At the request of his brother Michael, he drove a lorry from Michael’s house to the Quarry on the day of the accident to collect stone. He recalls that there was a barrier of sorts and as far as he knows he had to unlock the barrier to gain access with the lorry to the Quarry. However, he qualifies this by saying that it all happened a long time ago.
48. He drove in and parked the lorry. He saw the plaintiff running down. The plaintiff was “squealing”. He says that he got the key of his brother’s Michael car which was parked at the Quarry and put the distressed and injured plaintiff into the car. He drove to Burnfoot, collected Pamela Toland, and thereafter to Altnagelvin Hospital in Derry. Subsequent to the accident he had a fallen out with his brothers and didn’t speak to them for years. It appears this falling out was unrelated to the subject matter of these proceedings.
49. He admitted in evidence and under cross examination that narrative of the accident to the effect that the plaintiff was injured by a lorry driven by him (Damien McDaid) was a lie. This fictitious account, according to him, was conveyed to his co defendants, Charles and Michael McDaid as well as Messrs. Sweeney, the solicitors acting for the Insurers and to the Health and Safety Inspector, Mr. Murphy. He claimed that the story was made up because the plaintiff was fearful of getting into trouble because he had been driving the digger himself (as the witness understood it) and this had caused his injury. He had thought the plaintiff was driving the digger. Under cross examination, he sought to say that he first told his brothers about the injury being caused by the digger when they came to court some months before the hearing when the case didn’t get on and that they were “gob smacked” (to use Mr. Lyons expression) when they heard it. He was properly pressed on how this could be so since the question of the digger being involved had been clearly canvassed in the application some five years earlier by Messrs. Sweeney and Company to come off record for the defendants. He could not answer this.
50. He insisted that he did not make up the story about the lorry being involved because of the fact that the defendants had no insurance cover. The story was made up on the way to the hospital in Derry by the plaintiff and himself with a view; it would seem, to keeping the plaintiff out of trouble. This happened at time, by any stretch of the imagination, when the plaintiff was clearly highly distressed and was, apparently, lapsing in and out of consciousness.
51. Most tellingly, this witness could offer no satisfactory explanation as to why the hospital records in Altnagelvin refer to a digger running over the plaintiff’s foot at a time when it would appear highly probable that the only source of this information was himself who had driven the plaintiff to the hospital. It would seem clear from the evidence that, by this stage the plaintiff was unconscious or physically and mentally in extremis or intermittently in either state.
52. It is worth noting that, notwithstanding professed illiteracy and an absence, according to him, of any communication with his brothers, this witness did not provide a satisfactory explanation as to why a well constructed and articulate defence had been typed out and signed by him.
Declan Doherty
53. This witness, like the plaintiff, was some seventeen years of age. It appears he, too, had left school although he did allude to the fact that this accident happened during his school holidays. He said that he was scared about giving evidence and that he was very much a reluctant witness. He had been served with three subpoenas (at least one of them on behalf of the plaintiff rather than the defendants). He turned up in court under threat of sanction from the court.
54. He wasn’t an employee of the defendants. He used to hang around the quarry from time to time occasionally going on “runs” in lorries. He didn’t give evidence of doing anything particularly useful around the place.
55. He said that he turned up at the Quarry on the day of the accident. The place was quieter than usual. It is notable that did not say that it was completely silent in the sense of being closed. He heard a noise and went towards it. He observed the large, orange coloured track digger, the Halla machine and that it was being driven by the plaintiff. The bucket on the machine appeared to be digging at the ground. There was immediate objection to this line of evidence from Mr. Lyons SC for the plaintiff in that this was the first time in ten years and more of the history of this case that he had been suggested the plaintiff was driving the digger. There was, however, more to come from this witness. Briefly put, Mr. Doherty wanted to have “a go” on the digger so the plaintiff facilitated this. Mr. Doherty climbed into the digger and started tracking it forward. The plaintiff was wearing steel toe capped industrial style boots and, in a bizarre passage of events, seemed to want to test the durability of his protective footwear against the tracker of this 50 ton plus machine and volunteered his foot for this purpose. This turn of evidence came as something of a surprise to all present, even to Mr. Mac Aodha, counsel for the defendants.
56. In a nutshell, the machine tracked forward. The plaintiff’s foot appears to have got stuck and the track went over it. The plaintiff started yelling and, at this, the witness brought the digger to a halt, dismounted and, as suggested by counsel for the plaintiff, “legged it out of there”. He did not take steps to see if the plaintiff was alright. He thought everything would be okay. At that point, he simply vanished from the history of the case until, it would seem, he encountered the defendants sometime prior to the proceedings and recounted some (but not apparently all) of what he says transpired. On a number of occasions he indicated that he was scared (his description) because of his involvement in what happened he had not involved himself in any of the evidence gathering by the previously involved insurance company or their solicitors or the Health and Safety Inspector. Prior to the case he had been interviewed by Mr. Henry, the defendants’ solicitor but thinks that he did not give him any “direct answers”.
Michelle Kearney
57. This witness was a relative of the defendants’ and worked in the quarry office between 2001 and 2009. She did general office work and paid the wages and did the accounts. There were up to six full time employees of whom the plaintiff was not one. There was a clocking in and off system. Wages were paid in notes and/or coin. She would calculate the hours and cash was put into an envelope for the employees. She also collected money from debtors.
58. The plaintiff was ce1iainly around the place and involved in cleaning the weighbridge and the canteen. He got money here and there she said, maybe €20 out of petty cash. Charlie McDaid was very good to him. She didn’t remember the plaintiff’s mother dropping the plaintiff off now and again or the plaintiff turning up every day at the Quarry. She remembered him coming and going with Charlie and at other times was doing small jobs and sitting on lorries. However, she said she wouldn’t really know what was going on outside the office. He wasn’t getting paid for driving diggers and she said he didn’t have a log in card. She imagined that he wouldn’t be allowed to drive a digger. She couldn’t remember Michael Lynch working there.
59. She was very careful to stress on a number of occasions during the course of her evidence that the plaintiff was not “an employee”. Otherwise, she seemed to have a very vague recollection of what occurred. It all happened some twelve years previously. She thinks she was phoned on the day of the accident by Damien McDaid. She thinks the quarry was closed on the day and the “the boys” were away at the Trade Fair. There was a key box in the office. On a normal day she would be there at around 8 am and the keys would be out at that stage. The office was kept locked. Maybe the keys were left in a machine- she didn’t know. This was nothing to do with her.
60. She couldn’t remember the plaintiff’s mother leaving up the plaintiff’s lunch. She couldn’t remember visiting the plaintiff some five times in the hospital. She remembered being in the car park there with Charlie. It was not up to her to visit the plaintiff. There was no talk of insurance that she remembers.
61. On cross examination, it was put to her that it was never suggested that Michael Lynch was not working there until years later. She said she could ascertain if he was working there although she did not work there anymore and couldn’t say when he worked there. This evidence was not pursued.
Laurence McDaid
62. This witness is a brother of the defendants’ and although not involved in the Quarry he was the owner of the Halla 555 digger machine. He purchased it the previous December for around £100,000.00 sterling. He had been using it on another job and it was being stored in the Quarry. He had been using it on a job in Letterkenny previously and there was not work for it just at that time. Any key from a similar machine would start this digger (Damien McDaid also stated this). He stated that Declan Doherty was not employed by him.
Norman Jones
63. This witness was a summons server and he was called to outline the efforts he had made to serve a witness summons on Michael Lynch whom, it would be recalled, the plaintiff said was in the Quarry and was in charge on the day of the accident and who drove him to Burnfoot. It would appear from Mr. Jones’ evidence that Mr. Lynch did not wish to involve himself with the proceedings notwithstanding the efforts by Mr. Jones (at the instigation of the plaintiff’s solicitor, Messrs. C. S. Kelly and Company) to serve him. Although given the opportunity to do so, the plaintiff’s lawyers did not seek any sanction against Mr. Lynch and were content to let matters rest without his evidence. It was apparent that a similar view was shared by the defendants’. It should be observed that Mr. Lynch’s presence on the day was disputed in questioning of the plaintiff on behalf of the defendant, Mr. Lynch was also named during the course of the plaintiffs cross examination as one of the persons (another being Mr. Charlie McDaid) who would deny that the plaintiff was ever allowed to drive a digger or operate machinery on the Quarry. I will return to the absence of such evidence hereunder. Whatever about the non-involvement of Mr. Lynch, as to the absence of evidence from Messrs. Michael and Charlie McDaid I will comment later.
Damien McKay
63. A Chartered Engineer, called by the defendants’. Like Mr. Culleton on behalf of the plaintiffs’, he prepared a report and took some photographs. The history of the accident he took as set out in Mr. Culleton’s report. He had first been instructed the previous March and his report would not have reflected any evidential developments since that date including the rather dramatic suggestion that the Halla 555 machine was used as some means of testing the durability of the plaintiffs protective footwear.
64. As with Mr. Culleton, it is not necessary to recount for the purposes of this exercise the minutia of his technical evidence. If what the plaintiff says is correct, a raft of statutory and regulatory provisions where breached. Indeed, he conceded that, whatever way one looked at this case, there was breach of statutory obligation.
65. He did question whether the accident could have happened as described by the plaintiff in a sense that the operator of the Halla machine may not have been able to observe the plaintiff approaching. Further, unless the plaintiff sought to draw the machine operator’s attention to the fact that his foot was stuck, throwing stones at the under carriage of the machine would not have been audible to the operator.
66. The plaintiff and his mother were re-called briefly. The plaintiff denied the suggestion that he put his foot under the track of the machine to test the boot. His mother disputed the evidence of Michelle Kearney with regard to the plaintiff’s attendance and indeed her own attendance at the Quarry to bring the plaintiff his lunch.
Submissions
67. It was considered appropriate by the parties and the court that there be oral and written submissions in this case. The case, as should be readily apparent, had a long and chequered history. It had a couple of false starts including one where I permitted an adjournment to enable the defendants’ then unrepresented, to take up the opportunity afforded them by an adjournment to seek legal representation. This they did. This was of particular assistance given the stark variation in the accounts of what happened when the plaintiff was injured (the fact of such injury not being in dispute) and the complete change in character of the allegations made by the plaintiff in the amended statement of claim, represented, peculiarly, by such a simple textual amendment.
68. For the plaintiff, Mr. Richard Lyons SC, stated that the injury stemmed from the negligence of the defendants’ in permitting two unlicensed and untrained seventeen year old boys to operate excavating machinery without supervision, banksmen or any adequate communication system. The plaintiff placed reliance upon the evidence of Mr. Keane from the Department of Social Protection. His receipt of Occupational Injury Benefit evidenced his employment by the fourth named defendant. Such payments are only available to an individual who has been in insurable employment at the time of an accident. A signed, stamped and verified report had been completed by the fourth named defendant, McDaid Quarries Limited. The plaintiff’s hospital admission records, in addition, describe the accident as an “injury at work” and the place of the accident as “work”. Further, under cross examination, Michelle Kearney, the office manager at the Quarry at time of the accident, gave evidence of the payment of the plaintiff in cash as directed by the third named defendant Mr. Charlie McDaid.
69. Were the court to find the plaintiff to be an employee it was submitted that a number of statutory breaches of duty were identifiable. These were, inter alia, breach of section 27 of the Mines and Quarries Act 1965 which requires “close and effective supervision” over operations. Section 109 of the said Act prohibits a “young person” (being a person under 18 years of age) to be employed at a mine or a quarry. Further, sections 6 and 7 of the Health and Welfare at Work Act 1989 impose general duties on employers in relation to work places, training, supervision as well as a requirement to conduct their undertaking in a way which does not expose employees to risks to their safety and health.
70. It was also argued that the defendants had a duty under common law and the Occupiers Liability Act 1995 to take reasonable care of the plaintiff.
71. If, contrary to what was asserted on the plaintiff’s behalf, the court were to be persuaded that the plaintiff was a trespasser, liability would still arise. The defendants were negligent in allowing two teenagers access heavy machinery. This machinery was not properly stored, secured and/or immobilised. In this latter instance it was conceded that contributory negligence could arise. Such would not be the case were the accident to have occurred in the manner as described by the plaintiff in the course of his employment and while he was engaging in system of work caused, permitted or actively acquiesced in by his employer.
72. Tuning to the fact that the plaintiff proceeded under two different statements of claim and the two affidavits of verification sworn by him, the plaintiff’s counsel relied upon the plaintiff’s immaturity and the over weaning influence of the third named defendant upon the plaintiff. The first statement of claim and the narrative it promoted was brought about and devised by the defendants’. This was done with a view to setting up a false insurance claim to meet the defendants’ liability to the plaintiff. In anticipation of the defendants’ reliance upon Section 26 of the Civil Liability and Courts Act 2004 it was pressed upon me that injustice would result where this court to contemplate dismissing the plaintiff’s claim. Mr. Lyons identified a number of criteria which would distinguish the present case from much of the case law in the relevant area. The plaintiff did not exaggerate his injury. Secondly, the plaintiff disclosed the true facts prior to and in the course of his trial. Thirdly, the initial narrative would have benefited the defendants’ and not specifically the plaintiff who could still seek to satisfy any judgment against the defendants’ assets in the absence of any indemnity from an insurance company. Finally, were the plaintiff’s claim to be dismissed, tortfeasors so found would walk away from their collective liabilities notwithstanding their own egregious conduct.
73. Counsel, inter alia, cited Looby v Fatalski [2014] IEHC 564 and Mulkern v Flesk [2005] IEHC 48 as examples of cases where applications were made under Section 26 to strike out plaintiff’s claims and which were refused. Both cases concerned untruths authored by plaintiffs but which were not found to be sufficient to effect the dismissal of the plaintiff’s claim.
74. Counsel for the second, third and fourth named defendants Mr. Sean Mac Aodha BL, while emphasising his clients denials of negligence and breach of duty towards the plaintiff, submitted that the plaintiff was not an employee. The Quarry was closed on the day of the accident. The plaintiff was a trespasser. The plaintiff prompted Declan Doherty to track the digger over the plaintiff’s foot to test his steel capped boot.
75. Referring to the variations in the statements of claim and the affidavits of verification sworn by the plaintiff, Mr. Mac Aodha argued the case that the plaintiff’s case should be dismissed pursuant to section 26 aforesaid.
76. He sought to rely on a number of authorities. He quoted the comments of Peart J in Carmello v Casey [2008] 3IR 524 in relation to the nature and purpose of section 26 which stated the section was introduced to avoid injustice “… to defendants to whom false or exaggerated claims are mounted in the hope of recovering damages to which such plaintiffs are not entitled.” He referred to the comments of Quirke J in Higgins v Caldark and Quigley [2010] IEHC 527. In that case, the learned judge found that where the court finds that a claim has been based upon materially false and misleading evidence, “…the fact that the dismissal of an action will deprive a plaintiff of damages to which he or she would otherwise be entitled cannot, by itself, be considered unjust.”
77. The defendants’ disputed that there was any question of any over bearing influence on the plaintiff’s will. There was no evidence to suggest anything such as bullying of the plaintiff. The plaintiff’s replies to particulars and his affidavit of verification supporting the first statement of claim (that which described the lorry as the mechm1ism of the plaintiff’s accident) had been sworn in September, 2006 by which time the plaintiff had moved to the United States of America. By that stage, he must have been beyond the influence of the defendants if he ever was so in the first place.
Injuries
78. No dispute of any significance arose as to the nature and extent of the plaintiff’s injuries or the consequences for him in the future. The medical reports of a consultant surgeon, two consultant orthopaedic surgeons and the plaintiff’s general practitioner were agreed. They were as follows,-
(a) Report of Mr. J. A. Hanley, Consultant Surgeon, dated 12th January, 2004.
(b) Two reports of Mr. A. R. Wray, Consultant Orthopaedic Surgeon dated respectively 13th February, 2004 and 7th January, 2005.
(c) Report of Dr. D. A. McLoughlin, General Practitioner, dated 11th January, 2005.
(d) Report of Mr. Aidan F. Lynch, Consultant Orthopaedic Surgeon, dated 3rd July, 2014.
For reference purposes, copies of these reports will appended to this judgment.
78. A report was also obtained from Ms. Margot Barnes, Occupational Therapist. The report was dated November, 2014. Ms. Barnes gave evidence before me. Again, for reference purposes, her report will be appended to this judgment. Also appended will be an agreed report of Mr. Nigel Tennant, Consulting Actuary, setting out figures representing suggested items of future loss, principally prostheses and related matters.
79. It should be noted that all of the medical reports apart from that of Mr. Lynch identify a motor lorry as being involved in the accident rather than the digger.
80. It is clear that the plaintiff suffered an extremely serious injury to his right leg. He was clearly highly distressed and in great pain by the time he presented at Altnagelvin Hospital in Deny. He was, by that stage, effectively unconscious and up to that time had been suffering a significant loss of blood.
81. He had sustained a crush injury to his right foot. This injury involved multiple fractures. The toes of his foot became ischemic. He underwent a number of procedures, up to eight in all. I am satisfied that the plaintiff was in a life threatening condition and that, consistent with taking all necessary steps to preserve his life, every expertise was employed which, in all probability, saved the plaintiff’s leg from amputation. However, notwithstanding the efforts of the emergency, surgical and orthopaedic staff at Altnaglevin Hospital, the front portion of the plaintiff’s right foot could not be saved and he underwent an eventual amputation over the distal half of this foot. As a consequence, his foot is approximately half the size that it was. It has been described as a “club foot”.
82. He was in hospital for a period of some four weeks. His foot became infected during his stay there – his mother recalls a very strong odour during one of the occasions upon which she visited him. The plaintiff left the hospital in a wheelchair and, after a number of weeks, graduated to crutches. His wounds were dressed on a regular basis.
83. It appears the plaintiff returned to work after a fashion some nine weeks after the accident although experiencing pain and discomfort. It appears he went to the United Kingdom and then to the United States of America where he now lives and works. Despite ongoing difficulties with balance, occasional pain and discomfort he still has managed to hold down employment. It appears that he is married and is enjoying a supportive relationship with his spouse. I should observe that, given the severity of the injuries experienced by the plaintiff and the fact that he had significant educational disabilities which greatly impeded and foreshortened his education, he seems to have dealt with his incapacity remarkably well.
84. When he was examined by Mr. Aidan Lynch in July, 2014 a 17cm scar over the front of the plaintiffs ankle was noted where the skin from the sole of the plaintiff’s foot had been replaced over the site of the amputation. He exhibited mild tenderness over the navicular bone of his foot and had a callosity under the cuboid bone. Movements of the plaintiffs hips were equal. Straight leg elevation was 70 degrees on both sides. Movements of his knees were equal. There was no dorsi flexion of his right ankle and he had restricted plantar flexion to 30 degrees. There were 20 degrees of inversion and 10 degrees of eversion at his heel on examination. At his left ankle there was noted to be 15 degrees of dorsi-flexion and 40 degrees of plantar flexion. There were 30 degrees of inversion and 10 degrees of eversion at his heel.
85. The most recent medical report on behalf of the plaintiff, that of Mr. Aidan Lynch, concluded that the plaintiffs foot is approximately half the size of its original shape. This restricts the amount of heavy physical work which the plaintiff can undertake. He is working as a driver and is unable to undertake any heavy physical activities.
86. He isn’t available to participate in any spoiling activities since his accident. His foot tends to become sensitive especially in cold climatic conditions. He requires an orthotic support in his shoe and requires industrial boots while working. Clinically, the plaintiff does have a milder degree of stiffness of his ankle and of his heel. There is, however, no increased risk of arthritis about the ankle or the back of his foot in the future.
87. It is clear, however, even with the excellent outcome the result and injury has significant life time consequences for the plaintiff. His foot is unsightly and he is conscious of it if he is walking barefooted or wearing sandals, for example. His balance is not good. He takes no comfort walking and can only walk a few hundred yards. Emotionally, according to Ms. Barnes the injury impacted upon him to a very significant degree. He has to use a pumice stone and creams to maintain his foot in good conditions. The prosthesis needs to be replaced on annual basis. His right foot can swell and be painful with moderate use.
88. Ms. Barnes gave evidence of the plaintiff requiring gym membership as a substitute for the sporting activities in which he is now no longer able to engage. He is unable to carry out domestic chores such as cutting the grass and needs to pay someone for this.
89. Mr. Nigel Tennant, Consultant Actuary, provided a report dated 19111 February, 2015 which was admitted into evidence and which set out the future estimated costs of prosthetic aids and other related matters. The substantial items are an annual cost of $6,451.00 for a partial foot, moulded socket, tibial tubercle height, toe filler. As well as this, he would require annually a11 addition to the lower extremity test socket. These would cost $1,138.00 annually. He also, for example, requires special socks at an annual cost of $22.00 per pair.
90. Ms. Barnes also noted some complaints from the plaintiff about postural difficulties consequent upon his injury. There is some suggestion that he is developing a stoop. This was not dwelt upon in evidence and it is not referred to by Mr. Lynch in his report.
91. For the purposes of assessing damages in this case, I will assume that prosthetic aids can accommodate any such difficulties in the future.
92. It would appear that the aids and appliances alone come to a fairly substantial sum. The individual costs of these items were ascertained by Ms. Barnes by telephone to the United States. Were the plaintiff to return to Ireland, it is not clear to me whether these items might be provided free of charge or at a lesser (or perhaps greater) cost. In assessing damages, this is one of the eventualities I will have to bare in mind.
Conclusion
93. It is important in setting out my conclusions that I should preface same with some short observations on some of the witnesses. This may assist in indicating the impact of the various witnesses in giving their evidence and my observation of them while doing so.
94. The “neutral” witnesses, if might so term them, require no comment other than to observe that they did their utmost to assist the court. In this category I include Messrs. Culleton and McKay, the Consultant Engineers who dealt with the evidence as presented to them and as they understood it. Witnesses such as Mr. Murphy and Mr. Heneghan, again, gave their evidence succinctly and dispassionately.
95. I took considerable care in observing the witnesses who were more personally involved in the case. The plaintiff, firstly, had undoubtedly been the author, in nominal terms of the very least, of what was a false claim. I am satisfied that he did so at the behest of and under the influence of the second and third named defendants. This fran1e of mind continued and extended, in my view, to the affidavit of verification sworn by the plaintiff in September, 2006 notwithstanding that, by then, this vulnerable plaintiff had left this jurisdiction. By the time the matter came on before me, however, circumstances had altered considerably in the mam1er described above and this case proceeded in its entirety before me on the basis of the case as set out in the amended statement of claim. Such evidence as the plaintiff brought before this court was, I am satisfied, truthful, to the best of the plaintiff’s knowledge and efforts, and was not done with any attempt to mislead this court. It goes without saying, of course, that the earlier statement of claim was an unlawful fiction.
96. The plaintiff’s mother impressed me as a forthright and truthful woman and I had no difficulty in accepting her evidence.
97. The evidence proffered on behalf of the defence was not, I fear, satisfactory as far as this court was concerned. I take into account, however, that many years has passed since these events with which we are concerned and allowance must be made for this as far as witnesses both for the plaintiff and the defendant are concerned. Thus, I do not think it is unfair to observe that I found there to be a degree of caginess and partisanship in the evidence of Mr. Sean Breslin, Ms. Michelle Kearney and Mr. Jason Dohe1iy. For example, Ms. Kearney went to some lengths to point out that the plaintiff was “not an employee”. I felt there was something of a mantra-esque aspect to her evidence in this regard that I found unsettling. Mr. Breslin was particularly cagey in the manner in which he gave his evidence. Mr. Dohe1iy was but an occasional employee of the defendants’ and, thus, was of limited assistance. Even so, I did note his evidence to be somewhat partisan in the defendants’ interest.
98. The evidence of Mr. Damien McDaid and Mr. Decla11 Doherty I found to be, in certain major respects, wholly implausible. I do not accept Mr. McDaid’s evidence that he and the plaintiff made up the narrative of the original proceedings. I do not accept that he drove the plaintiff to Burnfoot although he did drive him thence to Derry. I do not accept that the false narrative to which I have referred was concocted in the car on the way to the hospital. I am satisfied, on the balance of probabilities, that the only source of the history of the accident taken at Altnagelvin hospital was Mr. Damien McDaid and that this history referred to injury caused by a digger. I found the totality of Mr. McDaid’s story of estrangement from his brothers’ since around the time of this accident (not because of) difficult to accept. Given the production by him of a defence in his personal behalf which I believe was authored by his brothers’ and at a time when he professed not to be talking to them, the assertion is not credible. I do not believe that his brothers’ were in any way surprised by his relation of the “digger narrative” at the hearing when he turned up for the hearing of the case.. I don’t believe any such conversation took place.
99. Neither do I believe the evidence of Mr. Declan Doherty as regards the actual mechanics of the injury occasioned the plaintiff. I expressly reject his evidence that the plaintiff volunteered his foot to the track of the digger for testing or any other purposes. I prefer the plaintiff’s narrative that Mr. Doherty was there at the time and was operating the digger. I do, however, accept that Mr. Doherty fled the scene after the accident. I find it difficult to reach a precise conclusion as to why he absented himself there after from the proceedings. He stated on a couple of occasions that he was scared. Of whom or what it was not quite clear. In any event, I find his description of what occurred in and around the actual accident to be implausible and I do not accept it.
100. Turning to the question of employment, I am satisfied that the plaintiff was employed by the second, third and/or fourth named defendants or any combination of them. They were the owners and operators of the quarry. The plaintiff’s employment was, I am satisfied, full time in its nature and extent. His duties would have included a number of menial tasks such as cleaning up the office and around the weighbridge. However, I am satisfied that, from time to time, he also operated machinery as part of his general terms of employment. I am not persuaded that he drove diggers on a day to day basis but I accept what the plaintiff says that, at an early stage he was checked out as to his capabilities in handling machinery and that, thereafter, as required would operate same in and about the quarry.
101. I am satisfied that he attended on a daily basis at the Quarry and to this end I expressly accept the plaintiff’s evidence and that of his mother. I accept, further, that he took home into his hand a sum in the order of €300 per week.
102. I accept that Michael and Charles McDaid and Sean Breslin where absent from the quarry on the day of the accident. However, I am satisfied that the quarry was functioning on that date albeit in a very limited way. To be fair to Declan Doherty he did observe that the Quarry was “quieter than usual” when he turned up. He did not say that it wasn’t functioning at all.
103. I am satisfied that there was a system of work or a “culture” which caused or permitted the plaintiff, notwithstanding his tender years to operate machinery in an unsupervised way from time to time. I am satisfied that the operational arrangements were of such laxity that there was nothing untoward about Declan Doherty operating the machinery at least as far as the plaintiff was concerned. However, the plaintiff was not in charge. I am satisfied that Mr. Michael Lynch was in charge although he was absent from the actual scene of the accident when it occurred.
104. As already noted, I am satisfied that the quarry was not closed. Further, neither was there any means where by it could be securely closed because there were no gates, contrary to what was suggested in cross examination. Indeed, none were observed by Mr. Murphy, the Health and Safety Inspector when he attended at the scene. There may have been a barrier present but this was, effectively either not functioning or was no bar to anyone gaining access to the quarry. I am further persuaded that the quarry was functioning on the day in question. There was no reason that it should not do so. We were informed (there was no dispute about this) that this was a quarry employing approximately 6 people. Two only of the active workforce were absent at the trade fair. In my view, the quarry was functioning with Mr. Lynch in charge as aforesaid.
105. I am satisfied that the machinery which was stored or operated in the quarry was inadequately secured. The machinery was easily rendered operational either by keys which were accessible in the office at the quarry or by using a key from another machine. This included the Halla 555 machine which was involved in the injury to the plaintiff.
106. I am satisfied that the gravely deficient and uncontrolled system of work which was permitted at the quarry was such that the plaintiff had no cause to be alarmed or to be on particular guard by the fact that he was operating machinery without supervision or a means of communication with the Halla digger.
107. I am satisfied that the plaintiff, going about his employment, approached the Halla digger and that it was tracked forward. Its operator, Declan Doherty, was unable to observe the plaintiff either because he wasn’t keeping a proper look out or because of his view of the plaintiff was obscured by the boom on the digger. I am satisfied that the plaintiff by screaming and grabbing rocks and throwing same at the cab of the digger alerted Declan Doherty to what had happened and he stopped the digger. I am of the view that the plaintiff was in enormous and immediate pain and shock as a consequence.
108. I am satisfied that Mr. Michael Lynch drove the plaintiff as far as Burnfoot and, in this regard, I reject the evidence of Damien McDaid. I accept that Damien McDaid drove the plaintiff to Altnagelvin Hospital in Derry thereafter but I do not accept that there was any agreed story as to what occurred. I am satisfied that, when the plaintiff arrived at the hospital, he was fully unconscious and that the history was probably recounted by Damien McDaid. That history included reference to a digger and no reference to any lorry. In addition, I find it highly implausible that the plaintiff would have been in any condition to hatch such a story at the time.
109. I am satisfied that the description of the accident involving the lorry as opposed to the digger was, in all probability, created and promulgated by the second and/or third named defendants. This was done with a view to ensuring that there would be indemnity from an insurance company to meet any claim which the plaintiff might bright against the defendants. I am satisfied that this was a deliberate attempt at engineering a false and misleading claim against the insurance company. I accept the evidence of the plaintiff’s mother that when ever she visited the plaintiff in hospital a McDaid was always present. This was to ensure that the intended narrative was not disturbed in any way. I say that the plaintiff was persuaded to go along with the story because of the emotional hold which Charlie McDaid seemed to exercise over him, the fact that the plaintiff was a minor and someone suffering from learning difficulties. The plaintiff was a vulnerable person.
110. I am satisfied that the plaintiff was remorseful about what happened. This was reflected in his subsequent aberrant behaviour and the incident in Buncrana when, in an intoxicated state, he blurted out the true story to a member of An Garda Siochana as was referred to in the solicitors affidavit grounding the application of Messrs. Sweeney and Company to come off record for the defendants’.
111. I am satisfied, therefore, that the plaintiff is, in the first instance, entitled to succeed in an action for damages on the grounds of the negligence and breach of duty and breach of statutory duty of the second and third and fourth named defendants’. The plaintiff, although but seventeen years of age, was caused or permitted to operate machinery for which he was neither trained nor qualified and to do so without any or adequate supervision, means of communication with another machine operator or operators or the presence of a banksman. The defendants’ were, in my view, in breach, inter alia, of the following provisions:-
a. The Mines and Quarries Act, 1965 sections 12, 27, 109 and 110.
b. The Safety, Health and Welfare at Work (General Application) Regulations Statutory Instrument 44 of 1993. In particular, regulations 13 and 19 thereof.
c. The Safety, Health and Welfare at Work (Construction) Regulations Statutory Instrument No. 481 of 2001 and, in particular, regulation 41(d) thereof.
This is not intended to be an exhaustive catalogue of the breaches of statutory duty in this case. I think I fairly reflect the views of the consultant engineers called on behalf of the plaintiff and the defendants in this case that this system of work as described by the plaintiff and accepted by this Court was simply impermissible in common law and in statutory provision.
112. Of greater particularity, the second, third and fourth nan1ed defendants’ or any of them or any combination of them, their servants or agents were also in breach of their common law duties as employers. Such a breach was occasioned by; failing to take proper or adequate precautions for the safety of the plaintiff, failing to provide a safe system of work, failing to provide a safe place of work and failing to provide any or any adequate supervision and/or training for the plaintiff. Further, they were negligent in failing to have or any adequate regard to the plaintiff’s tender years and vulnerable state of mind.
Damages
113. On the existing evidence, the plaintiff is entitled to a substantial sum for damages for pain and suffering to date and into the future. There is no evidence upon which I can make any finding with regard to future loss of earnings. However, it is appropriate that I take into account the fact that, giving the nature of the injuries suffered by the plaintiff, there must be a significant impact upon the plaintiff’s future employability where he, at some point, to become available on the employment market. Equally, I have regard to the fact that, notwithstanding his significant physical handicap, he has managed to secure and hold down remunerative employment.
114. As regards the claim for loss of earnings to date, I am satisfied that the plaintiff was at a loss of €300.00 per week for a period often weeks applicable to the accident and, after that point, would have been able to take up employment at a level of remuneration commensurate with his previous level of employment. I am unaware of what deductions (if any) should be made from this sum having regard to occupational injury benefit and the like received by the plaintiff in the interim. Counsel may wish to address me on this.
115. As regards the claim for other items of special damage, these relate in greatest substance to prostheses and related matters including creams and special socks. A claim has been made for a number of items into the future including gym membership, grass cutting and a variety of items which I do not propose to allow since these could very well arise without any injury. The prostheses to replace the missing part of his foot and matters such as creams and pumice stones all of which require annual replacement were costed but in a manner that was somewhat unsatisfactory based on United States’ pricings and on information ascertained by telephone or other communication with United States rather than Ms. Barnes’ personal experience and knowledge. This was not, however, disputed in any meaningful way by the defence. It is not clear to me whether or not the plaintiff would be required to pay for these matters were, for example, he to return to Ireland in the future. Equally, it may well be that these items could be cheaper in Ireland. Perhaps, more expensive? I don’t know and it is not a matter for me to speculate on this. There will, however, undoubtedly be substantial expenditure into the future which should be taking into account in the calculation of compensation in this case doing the best one can with the available evidence.
116. In the circumstances, I consider the appropriate award of damages to be the following:-
Pain and suffering to date
€100.000.00
Pain and suffering in the future
€150,000.00
Special damage to date (including loss of earnings and allowance for prosthesis to date)
€3,000.00
Special damage into the future
€200,000.00
TOTAL AWARD:
€453,000.00
117. I will not accede to the defendant’s application to dismiss the plaintiff’s case pursuant to section 26 of the Civil Liability and Courts Act 2004. That section provides as follows:-
“26. – (1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces or dishonestly causes to be given or adduced, evidence that-
(a) is false or misleading, in any material respect, and
(b) he or she knows to be false or misleading,
the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(2) The court in a personal injuries action shall, if satisfied that a
person has sworn an affidavit under section 14 that –
(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the affidavit,
dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court. … “
118. In my view, the plaintiff in this case has not giving or adduced or dishonestly caused to be giving or adduced evidence of and in the manner described in the said act. His evidence and that called by or on his behalf has been, as I have found, substantially truthful and I have accepted same. He has candidly accepted that the description of the accident in which he suffered injury as outlined in the first statement of claim served on his behalf was false. I accept his evidence that this narrative was a concoction devised by the defendants with a view to securing indemnity from an insurance company against the plaintiff’s claim. Insofar as the plaintiff went along with this, he did so under the influence of and, indeed, in thrall of the third named defendant. I am satisfied that the defendants attended on a regular basis with the plaintiff while he was in hospital in part, at least, with a view to insuring that the fiction regarding the lorry be maintained. I am equally satisfied that, on a night in Buncranna late in the August following the accident, the plaintiff while inebriated went “off message” and blurted out to what really happened to members of An Garda Siochana.
119. I am satisfied that the influence of the defendants extended beyond the immediate aftermath of the accident and included the time when the plaintiff signed the affidavit in 2006.
120. There is no doubt that the plaintiff has played some part in promoting the initial false claim. False or misleading statements and information in replies to notices for particulars and, more especially, in affidavits are extremely serious matters m1d must weigh heavily against a plaintiff. This is the case even when a claim is substantially genuine. The act specifically mandates the Court to dismiss proceedings when misleading evidence has been advanced by or on behalf of the plaintiff. This governs what occurs at trial. Thus, previous misconduct by a plaintiff in the provision of information and related matters is of significance and must be considered in the overall context of the case but with particular emphasis on what transpires at the hearing. A plaintiff may, at the hearing, take sufficient steps to redeem previous malefaction. On the other hand, impeccable pre-trial conduct can be undone by false evidence at trial by vi1iue of the section. Here and, from the outset, the plaintiff has openly and candidly accepted what has occurred to date of trial and has offered evidence in support of his case that I find to be truthful.
121. Even though the issue does not now arise, to me it would seem a grotesque injustice that the authors of a bogus claim on an insurance company should seek successfully to rely upon the provisions of section 26 against a plaintiff such as this, drawn by them into a web of deceit spun to shelter them from their obligations in law.
Hrdlicka v Andrew Best Roof Ltd
[2016] IEHC 35, Cross J.JUDGMENT of Mr. Justice Cross delivered on the 24th day of June, 2016
1. The plaintiff is a carpenter originally from the Czech Republic who arrived in Ireland in September 2005 and is married with three children.
2. The plaintiff brings these proceedings in negligence against his former employer as a result of a incident that occurred at his then place of employment on the 9th December, 2013, when he was allegedly assaulted by another employee, Z., of the defendant and sustained significant injuries including a potential extremely serious injury to his right eye which was hit with a hammer in the affray. Fortunately the plaintiff sight was not affected in the long term though at one stage this was a real possibility.
3. Separate proceedings have been initiated by the plaintiff against his alleged assailant.
4. The plaintiff claims against his employer not on the basis of vicarious liability but for the failure to supply a safe system and place of work on the basis that the knew or ought to have known of the danger that would be posed to the plaintiff by Z. and failed to take any proper steps to avert it.
5. Not surprisingly there is a total conflict of evidence on the facts between the plaintiff and various witnesses who gave evidence on behalf of the defendant.
6. The plaintiff alleges that some few weeks prior to the index incident he was working at a site in Naas for the defendant when a colleague Z had an argument with him following which Z. telephoned the plaintiff and threatened to kill him.
7. The plaintiff further alleges that a colleague S. (who was not available to give evidence) rang the principal of the defendant company, in the plaintiff’s presence, after the incident in Naas to advise him of the threats posed by Z. and of his fears and the fears of the plaintiff in respect of Z.
8. Nothing happened for some weeks as Z. was away on his annual holidays but on 9th December, 2013, the plaintiff was sent to work at another site in which the defendant’s were providing carpentry services in Monkstown, Co. Dublin and he was surprised to see Z. on the site and there was an early morning confrontation with Z. in which the plaintiff alleges Z. repeated his threats. Whereupon the plaintiff says he telephoned his managing director who was not on site to indicate that the threats were real and he requested to be taken off the site and to be put to work elsewhere. The managing director declined indicating that they were working on different floors and that the plaintiff was to telephone the managing director if anything happened.
9. During the day the plaintiff heard Z., who was originally from Georgia, speaking in Russian, a language which the plaintiff understood and referred to the plaintiff to fellow workers as a “dumb ass” and a “condom”.
10. The plaintiff further alleges that at approximately 5pm at the conclusion of the work day he was going towards his car in the car park and he passed Z. on the pathway who was with another person and he heard Z. saying to this other person in Russian words to the effect “look at that condom”. The plaintiff then turned around and words were exchanged and the plaintiff alleges that he was hit on his head with the pallet which Z. was carrying which caused an injury and a mark to his forehead and then the plaintiff punched Z. causing him to fall to the ground and Z. picked himself up and reached for a hammer and hit the plaintiff over the eye with the hammer causing him his injuries.
11. The plaintiff alleges that these injuries were caused, inter alia, by the negligence of the defendant in it’s failure to provide a safe system of work for the plaintiff in it’s failure to adhered the warnings in the knowledge that Z. posed a threat to the plaintiff and that an assault or injury to the plaintiff was likely to occur without intervention by the defendant.
12. The plaintiff was the only witness on his behalf, the medical reports having been sensibly agreed by the parties.
13. There is no doubt but that the plaintiff sustained as stated a very nasty injury when he was hit with a hammer on his right eye, he suffered bruising and swelling a diminution of his visual acuity in his right eye, abrasions, watery eyes, he sustained double vision by happily he made an excellent recovery and his vision has returned.
14. The defendant’s account of the incident was entirely different. Z. gave evidence to the effect that after an issue of when the contact in Naas, there was a disagreement as Z. was of the view that the plaintiff was not up to the job that he was required and had “zero personality” and in particular he was not prepared to take any instructions from Z.
15. The plaintiff did not agree that Z. was in any way his superior but I accept the evidence from the defence that in fact Z. was placed in a position of acting or temporary foreman while the managing director was not on site. This position was probably not fully communicated to the plaintiff but is a clear source of misunderstanding between the parties. The plaintiff considered he was equal in status to Z. and Z. considered he was the plaintiff’s superior.
16. Z. agrees that he had a telephone conversation with the plaintiff after another employee S. seemed to have turned against Z. and Z. suggested to the plaintiff that he was “telling lies” to S. but Z. denied any threats to the plaintiff. Z. then telephoned his managing director indicating that the plaintiff was not up to the job and was not taking instructions.
17. On 9th December, Z. said he arrived at Monkstown and he was immediately confronted by the plaintiff who said to him are you going to smash my face or who is going to smash whose face, it is not clear precisely what was said and Z. said that that conversation ended with him suggesting that the plaintiff leave him alone. He agrees that he did refer to the plaintiff as a “condom” during the day but he did not address the plaintiff in those terms and he was not particularly aware that the plaintiff would have heard him.
18. Z. then says that at the close of the day, he was walking with a colleague, A., as the plaintiff passed by then he did refer to him in the similar derogatory terms, the plaintiff turned round and spoke to him and then Z. alleges the plaintiff punched Z. a number of times causing him to fall back. His hoodie was placed by the plaintiff over his head causing Z. to be blinded. He was flaying around with his hand which may have contained some tools, he fell to the ground dropping his tools and the plaintiff was kicking him and the hoodie was over his face that he could not see anything and when he was dragged to his feet by his colleagues, the plaintiff was not anywhere to be seen and Z. could not say how the plaintiff came to have his injuries.
19. The defendant’s case was supported by the evidence of N., who was a Czech employee who knew Z. for some two weeks before the incident but did not know the plaintiff. He did hear Z. saying to him about the plaintiff in Russian the derogatory language in the terms previously referred. He says he saw the fight from a distance of about 40m and his first sight was the plaintiff walking towards Z., Z. had his toolbox on his shoulders. He said the plaintiff reached Z. and he saw that he grabbed Z’s jacket and that the plaintiff was the first person to strike the other and he pulled Z’s jacket over his head and started kicking Z. when he was on the ground and Z. from the ground was swinging tools around and the matter only lasted a few seconds. N. agreed that it was only three weeks previously to his giving evidence that he was reminded of the incident and asked to give a statement.
20. The final witness for the defendant was A., the managing director, who is a Ukrainian who had employed Z. and engaged him as a probationary foreman. Z. was on the site in Naas towards the end of October 2013, when Nick was there and that on 31st October, he got a phone call from Z. indicating that Z. was not happy with the plaintiff who would not take instructions from him. That Z. did not advise him of any threats from anyone to anyone on a physical basis and that he denied getting any call from S.
21. A. then said that Z. went on holidays and on the morning of 9th December, 2013, he got a phone call from the plaintiff from the site in Monkstown to tell him “that something is going to happen” and that Z. is “not nice” and A. said that Z. would be working at a different floor and that he could take instructions on the day from the site foreman rather than Z. and that if anything of concern were to occur, the plaintiff was to give A. a ring.
22. A. denied any previous incidents involving a fight and he indicated he did not consider nor it would occur to him that a fight would take place.
23. A. also says that on 9th December, he had, in fact, no other site available for work but he did not believe that any physical incident was going to happen. He was aware that workers frequently utilise foul language to each other on building sites but that nothing serious comes from that fact.
24. After the incident, both the plaintiff and Z. were let go from the defendant’s employment. What Occurred?
25. It is clear that in Naas, an incident occurred causing “bad blood” between the plaintiff and Z. The incident probably arose from a misunderstanding as to Z’s position as temporary foreman of which the plaintiff was unaware. In any event, I believe that some threats were made by Z. to the plaintiff. I should observe that the plaintiff is a larger, taller and heavier person that Z. The plaintiff said that he has put on weight since the incident but I believe he was always the bigger man.
26. I also find that this incident between the plaintiff and Z. caused some friction to previously good relations between Z. and S. and that S. did phone A., his managing director, and conveyed concerns to him in the presence of the plaintiff. I fully accept that A. now has no recollection of that telephone conversation and probably did not think that anything unusual was being told to him.
27. I also find that on the morning of 9th December, there was a further confrontation between the plaintiff and Z. The nature of the confrontation suggests to me that the plaintiff was correct that some threats were being made. I do not see if the confrontation was merely about issues of authority that the plaintiff would have rung A. and as A. confirmed, indicated to him that something bad was going to happen.
28. In relation to the assault itself, it is common case that when the plaintiff passed by Z., Z. made a derogatory remark about him to his fellow worker. This remark caused the plaintiff to turn around and to “square up” to Z. It is unfortunate that Z’s companion did not attempt to cool matters at the time but I accept the plaintiff’s evidence that Z. did strike the plaintiff on the forehead with his mallet. This explains the indentation mark on the plaintiff’s forehead. This element of the confrontation was presumably not seen by the witness N. who was 40m or so away and it was immediately followed by the plaintiff throwing a number of punches at Z. causing him ultimately to fall to the ground and drop his tools.
29. The witness, N., must be incorrect when he implied that the injury may have occurred when Z. appeared to be on the ground flaying around with possibly a hammer or something in his hand. I accept the evidence both from Z. and the plaintiff that Z. had his hammer in his hand at the time when he was still standing up or had raised himself up to his feet. The blow to the plaintiff is unlikely to have been caused while Z. was on the ground as suggested by N. I also accept that at some stage, in the incident, the plaintiff had the whole of Z’s jacket over his head so as to temporary blind him.
30. What undoubtedly occurred, however, was that Z. did use a hammer which hit the plaintiff and caused the significant injuries complained of.
The Law
31. As stated above, this is not an action in assault. I am not judging the rights or wrongs of the plaintiff’s actions vis-Ã -vis Z. and Z’s actions vis-Ã -vis the plaintiff from the point of view to who or what extent was the guilty party. My analysis above, however, indicates that I believe that the first blow was struck against the plaintiff and that the injury to the plaintiff was caused by a hammer being wielded in a dangerous manner by Z.
32. This action, however, is an action in tort, not alleging vicarious liability for the actions of Z. but alleging direct negligence as employer. The defendant, as employer, clearly has a duty of care to the plaintiff to provide a safe system of work and a safe place of work. If the defendant is or ought to be aware of specific threats to the health and safety of their workers, then the employer has duty to take reasonable steps to avoid the injury.
33. These propositions are, in no way novel or in no way create new obligations so that the principles as set out in Glencar Explorations plc v. Mayo County Council (No. 2) [2002] 1 IR 84; or in Whelan v. Allied Irish Banks plc [2014] IESC 3, need not concern us. The issue in relation to liability is what the defendants knew or ought to have known about the likelihood of injury to the plaintiff and whether they could have reasonably done anything to avoid it.
34. As stated above, I have found that the defendants, through their managing director, A., were advised of previous threats by Z. to the plaintiff and were further advised on the morning of the incident that these threats had been repeated.
35. In Elmontem v. Nethercross Limited t/a Roganstown Golf and Country Club and Max Usi [2014] IEHC 91, Herbert J. in his judgment delivered 28th February, 2014, considered the liability of the defendants in the circumstances where the second named defendant was a head chef of the first named defendant “without warning struck the plaintiff who had remained sitting behind his desk battering him violently about the face and head with both fists”. Herbert J. rejected the plea on behalf of the plaintiff that the employer were vicariously liable for the assault by their employee on the plaintiff adopting the test of “close connection” between the acts complained of and the nature of the plaintiff’s employment as set out by the Supreme Court in O’Keeffe v. Hickey [2009] 2 IR 302.
36. Again, as stated the plaintiff in this case is not making any claim based upon vicarious liability.
37. In relation to the direct liability of the employer in the Elmontem case above, Herbert J. accepted liability on the basis that the employer through its general manager:-
“…was aware that the second defendant had on a previous occasion in a fit of temper caused physical injury to a fellow employee in the course of their joint employment. I am satisfied that Mr. Brady knew or ought to have known that there was a very real risk, not just a mere possibility, that this could occur again, if for any reason the second defendant’s temper became aroused and that this exposed his fellow employees, including the plaintiff, to a risk of physical injury. I am satisfied that it was reasonably foreseeable that the second defendant was likely to prove a source of danger to other employees of the first defendant because of his apparently ungovernable temper.”
38. In the Elmontem case above, the previous assault was with another employer but the defendant, Mr. Brady, was aware of that fact.
39. Herbert J. goes on to say:-
“…the cause of the previous assault was not a personal antipathy between the second defendant and a particular fellow employee no longer on the scene. The cause was the second defendant losing his temper to an almost maniac level with a co-worker over some dispute or perceived grievance in the course of their work. A real risk of a recurrence therefore remained. In my judgment the making of such an assumption would not and did not excuse the employer from taking no measures whatsoever to prevent a recurrence. The first defendant did not exercise reasonable care and, certainly did not exercise all due care to put in place measures to prevent or to protect against, such an event. This was not a risk which could be entirely eliminated, but in my judgment was one which could have been adequately controlled without grossly disproportionate or expensive measures.”
40. It is in the light of those principles that I examine the plaintiff’s claim against his employer. I find that to be aware that there was “bad blood” between Z. and the plaintiff is one thing, and the fact that the plaintiff was so concerned about Z’s possible behaviour that he called his employer on the phone is of greater assistance to the plaintiff in determining whether he can establish liability. However, the obligation on the employer is to do what is reasonable. I do not find that the failure of the employer to remove the plaintiff, or Z., from the site in Monkstown (even if there were any other sites available) was a breach of their duty of care to the plaintiff. The employer was aware that there was “bad blood” between the two workers. They were aware also that frequently on building sites rough language is used and parties may have intense rivalries but in the absence of any previous physical assaults such as occurred in the Elmontem case (above), to impose upon the defendants an obligation to segregate in different sites, the plaintiff and Z. is, in my view, to impose too strict a liability upon the employer. The managing director, A., not unreasonably indicated that Z. and the plaintiff would be working on different floors, that the plaintiff could take instructions from the foreman on the site rather than from Z. which seemed to be a source of contention between the plaintiff and Z. and was advised to phone A. in the event of any difficulty. The defendant, in this case, has not acted unreasonably.
41. Essentially, that regime as established by the defendants worked satisfactorily throughout the day even with Z. making derogatory comments about the plaintiff until a further comment was made at the end of the day in which the plaintiff foolishly turned around to Z. rather than ignore it and the incident developed on the lines that I have described above. I hold that the defendant was not negligent in all the circumstances of the case and though on my findings it appears the plaintiff was the more innocent party in the assault (without deciding that issue), he is not entitled to succeed as against his employer.
Spes v Windcanton Ireland Ltd
[2016] IEHC 194
JUDGMENT of Mr. Justice Barr delivered on the 16th day of March, 2016
Introduction
1. At all material times, the plaintiff was employed by the defendant in the chill area of the defendant’s distribution centre at Unit 16, Northwest Business Park, Blanchardstown, Dublin 15. This was a distribution centre for the Superquinn chain of supermarkets. Goods would be delivered to this distribution centre by various suppliers. The goods were delivered on pallets. The plaintiff was employed as a “picker”, which involved lifting goods from the pallets and placing them on trolleys known as “combi cages”. These cages were then marked for onward transport to various Superquinn supermarkets. Sometimes, when goods were going to be delivered to the supermarket on a pallet, rather than in a cage, the plaintiff would move the goods from the pallet on which they had been delivered to other pallets.
2. On 29th October, 2012, while the plaintiff was engaged in lifting trays of yogurt from a pallet to a cage, he was caused to suffer an injury to his back in the following circumstances: the last five trays of yogurt were remaining on the pallet, the plaintiff walked over to the pallet and squatted down on his hunkers, he pulled the trays of yogurt towards him and then lifted the five trays. When he was turning to place the trays into the combi, which was approximately one meter away, he experienced a sharp pain in his back. When the pain did not subside, he told his supervisor that he had injured his back and he was allowed to go home early.
3. It is the plaintiff’s case that the injury to his back was caused due to the negligence and breach of duty, including breach of statutory duty, on the part of the defendant. In particular, he states that the defendant was negligent in the following ways:-
a) While he maintains that he was trained how to lift items from the floor, he was never trained as to the correct technique when twisting or turning while carrying a heavy load;
(b) He alleges that the defendant imposed an unreasonably high “pick rate” of 1200 picks per seven and a half hour shift; and
(c) He was required to carry out an unreasonable amount of work in relation to lifting heavy items, rather than being rotated between heavy and light items.
4. It is the plaintiff’s case that as a result of these factors, his back was weakened over the years that he worked with the defendant, such that he suffered the acute injury which he did on 29th October, 2012.
5. The defendant denies that it was negligent or in breach of duty. In particular, the defendant states that the plaintiff received training in safe manual handling techniques when he first joined the company. There were also a number of refresher courses given to the plaintiff during his employment with the defendant. The defendant has exhibited a number of records in this regard. Secondly, the defendant states that the pick rate of 1200, was not an unreasonable rate to set in all the circumstances. Finally, they deny that the plaintiff was treated, in any way, unfairly in relation to the allocation of heavy duties. The defendant also alleges that the plaintiff was guilty of contributory negligence, in particular, failing to comply with the manual handling training, which had been given to the plaintiff on the commencement of his employment with the defendant and on refresher courses on various dates thereafter. Finally, the defendant denies that the plaintiff has suffered the alleged or any injuries or has incurred the losses claimed by way of special damages.
The Liability Issues
Evidence of the plaintiff, Mr Slavomir Spes
6. The plaintiff is a Slovakian national and was born on 28th June, 1968. He came to Ireland in August 2004 and commenced working with the defendant at its distribution centre in Blanchardstown in February 2005. The plaintiff stated that at the commencement of his employment with the defendant company, he was given training in manual handling. He stated that this was very elementary training in safe manual handling techniques. The instructor gave a demonstration of the safe method of lifting items from the floor, by lifting an empty box which measured some 30 x 30cm from the floor onto a table. He then lifted the box from the table and placed it back on the floor. The lifting technique taught was that operatives should squat down on their hunkers and with the box fairly close to the body, they should lift while keeping their back straight at all times. The plaintiff stated that when the trainer had given his demonstration, each of the employees had to lift the cardboard box from the floor onto the table and vice versa. The plaintiff stated that he might have signed some documents either on the day of the training, or in the office on the following day.
7. He stated that there may have been a questionnaire issued at the end of the training. However, due to his limited English, he did not understand all the questions asked. When he was unable to understand the question, he simply looked at what a fellow employee had written on his questionnaire and he did likewise. While a number of training documents were put in evidence during the course of the trial, there were no documents concerning any training given to the plaintiff in 2005.
8. The plaintiff stated that when he received the training, there were approximately six or seven people in the group. The training was given by Mr. Geoffrey Fitzsimmons and Mr. Tommy Moran. The plaintiff was adamant that this training only concerned the correct method to lift a box from the floor onto a table and how to lift the box from the table and place it on the floor. The plaintiff stated that he was not shown any techniques for safe turning while carrying a load. The plaintiff was challenged about this in cross examination, but he remained adamant that he had never received any training in relation to turning, nor as to the risks involved in twisting his trunk, without moving his feet.
9. The plaintiff further stated that he was required to work under considerable pressure in the distribution centre. The distribution centre supplied 24 Superquinn stores. Within the chill area, there were eight “banks” with each bank consisting of an array of 24 combis, one for each of the stores. Three of the banks catered for fruit and vegetables. The other banks catered for dairy, potatoes, juices, chicken and bacon and finally deli products. A member of the warehouse staff was assigned to a particular bank for the day. If a particular product was fully distributed earlier in the day, a team might be broken up and assigned to other banks. Each bank was U-shaped and it was the practice to bring a pallet of goods to the bank where the team distributed the product to the combis in the bank.
10. The plaintiff stated that he normally worked an eight hour day, five days a week. He was required to work at a rate of 1200 picks per shift. A tray of yogurts, would constitute one pick. If an operative lifted five trays at a time, and placed them onto a combi, this would constitute five picks. There was a two part sticker or tag on each of the trays. When the operative had lifted the trays from the pallet and placed them on the combi, the operative would tear off portion of each of the five tags and, at the end of the day, place them in a sheet, which would be handed up to the team leader. In this way, the defendant was able to ensure that each operative made at least 1200 picks in the course of the day.
11. It was not always the case that product was taken from a pallet and placed onto a combi. Sometimes the produce would be taken from one pallet and placed onto another pallet. This did not affect the number of picks that would be involved in removing the goods from one pallet to the other. A third alternative was that the goods would remain on the pallet and the picker would tear off the second part of the tag and leave the produce on the pallet. This would happen if, for example, a particular supermarket was to get a delivery of a full pallet load of potatoes. Thus, in these circumstances, a picker would get a number of picks, without having to lift any items at all.
12. The plaintiff accepted that he had been told in training that he should only lift the number of the items which he felt comfortable with. Thus, it was put to him that on the day of the accident, he could have decided to lift only three trays of yogurts instead of five trays. The plaintiff accepted that he was free to choose the number of items that he would lift at one go, but stated that they were under considerable pressure to achieve their target of 1200 picks per day. He stated that if he only lifted one item at a time, a team leader would give out to him for not achieving enough picks. The plaintiff stated that if he did not achieve the target number of picks in a day, he would be called into the office and warned about his failure to achieve the target. If he continued to fall down in this area, he would be threatened with being laid off.
13. The plaintiff stated that he had to work under considerable pressure in the distribution centre. He stated that he and other workers found it very difficult to achieve their target pick rate. He stated that he complained to the team leaders, Mr. Geoff Fitzsimmons and Mr. David Kennedy in relation to the pressure that they were required to work under. He stated that on occasions, the work area would be very cluttered with pallets and combis, such that it was difficult for them to adopt safe lifting techniques, when working under pressure in such confined spaces. The plaintiff stated that his complaints were not heeded by the team leaders. Indeed, he stated that if he made complaints, he was often assigned to even more onerous work.
14. The plaintiff also stated that he and some of the other foreign workers were treated unfairly, in that they were unfairly rostered to do heavy duties on a regular basis. He accepted that on occasions, he was rotated between heavy and light duties, but stated that sometimes he would be allocated to do heavier duties, three days in a row. Alternatively, if there was only a small amount of work to be done in the chill area, he would often be sent to work in the ambient area, if it was busier. In this way, he asserted that he and some of his fellow employees were treated unfairly and given an undue amount of heavy work.
15. The plaintiff further stated that in assigning him to a large amount of heavy duties, the defendant failed to take into account that he had suffered two previous back injuries. In 2009, the plaintiff had suffered an injury to his back when he was hit by a pallet truck driven by a fellow employee. He stated that he did a report of this incident for his team leader. There was no claim made in respect of that accident. The plaintiff had obtained a sick cert from his GP. He was out of work for one week. He then returned to doing the same duties as he had done prior to the accident. He had a second incident of back pain in May 2011, when there had been a very busy week at work and the plaintiff suffered back pain at the end of the week. He attended with his GP and got a sick cert for one week or ten days. When he returned to work, he did the same work as he had done prior to going out sick.
16. In relation to the circumstances of the accident which occurred on 29th October, 2012, the plaintiff said that he was working in the dairy area on the day in question. He was lifting trays of yogurt from a pallet and putting them onto combis. When he reached the last number of trays on the pallet, he pulled five trays over to the side of the pallet and squatted down on his hunkers. He then gripped the five trays and stood up, keeping his back straight. As he turned to place the trays onto the combi, he felt a severe pain in his back. He managed to place the trays on the combi. When the pain did not subside, he went to his team leader, Ms. Sharon Waters and told her that he had injured his back and asked for permission to go home early. She said that he could go home early.
17. In the course of cross examination, a number of training records were put to the plaintiff. The defendant maintained that these records established clearly that the plaintiff received manual handling training in the course of his employment with the defendant and that such training had been supplemented from time to time by way of refresher training. It is necessary to go through these documents in some detail.
18. The first document was a document headed Employee Training Declaration dated 16th September, 2008. The course was stated to be “SHELA Briefing”. This document was signed by the plaintiff and also by a Mr. Bill McDermott, who apparently had given the briefing on 16th September, 2008. No evidence was called as to the meaning of the words “SHELA Briefing”, nor as to the content of this briefing.
19. The next document in chronological order was a document headed Manual Handling Course dated 30th September, 2009. This document had the following paragraph under the heading (part of the print was missing from the copy handed into court):-
“This course involves the practice of manual handling techniques and some simple stretching exercises. If you are receiving medical attention or for some other reason (i.e. pregnancy, back ache or medical conditions) do not feel fit to participate, please consult your trainer at the beginning of the course. Otherwise please [sign] your name confirming your willingness to participate. If at any time during the course you experience any back pain or other physical problems, you must inform the trainer immediately.”
20. This document was signed by the plaintiff. A few lines beneath his signature was an acknowledgment that he had received the pocket hand guide. In evidence, the plaintiff stated that he did recall receiving a small booklet at some stage. He stated that his English was not very good at that time and he did not understand all of the material in the book; however, he was able to follow the instructions therein as there were diagrams showing correct lifting techniques.
21. The next documentation was a series of documents dated 3rd February, 2011. The first of these was an Employee Training Declaration in respect of manual handling. Beneath the box indicating that the activity was manual handling, the following declarations appeared:-
(1) I have been shown, trained and understand the safe system of work procedures for the above task/activity.
(2) I agree to follow the safe system of work documented at all times.
(3) I have been made aware and understand the risks associated with this task and the consequences if this SSOW is not adhered to.
22. This document was signed by the plaintiff. Also on the same sheet was a Trainer Declaration, which stated that the trainer had trained the particular person in the procedures as laid out in the safe systems of work. It further stated that the trainer was satisfied that the person had shown competency in the task/activity/equipment by way of verbal questioning. There was also a trainer sign off sheet which indicated that the activity was manual handling and the trainer was Mr. Geoffrey Fitzsimmons, who signed the sheet and dated it.
23. The third document dated 3rd February, 2011, was an Employee Training Declaration in respect of general operating of MHE. There was the usual declaration that the worker had been shown, trained and understood the safe system of work in respect of the designated activity. This document was signed and dated by the plaintiff.
24. The plaintiff stated that he did recall getting some training from Mr. Fitzsimmons. He stated that the training was just in the form of a question and answer session. The team leader would ask the questions and then fill in the form. The plaintiff stated that on occasions he was approached by a team leader while he was working on the warehouse floor and was asked whether he knew how to lift safely, or some other question, and he would just answer that he did know the correct techniques. The team leader would then just tick the requisite box and ask the plaintiff to sign the form.
25. The next document was a form headed “Safe System of Work”, dated 7th September, 2011. This was stated to be the review date in respect of original instruction given on 14th November, 2008. It concerned using a pump up pallet truck. There was no indication on this document that it had been furnished to the plaintiff. The only reference that could refer to the plaintiff was the reference at the top being the safe system of work reference No. “PT09”. The plaintiff was not cross examined in relation to the content of this document.
26. The next document was part of a series of documents all dated 2nd November, 2011. The first of these was a form headed Employee Training Declaration in respect of the activity designated as: using pump up pallet truck. Again, there was the usual declaration that the plaintiff had been shown, trained and understood the safe system of work procedures of the above task and activity. He agreed to follow the safe system of work documented at all times. He stated that he had been made aware and understood the risks associated with the task and the consequences if the safe system of work was not adhered to. The document was signed by the plaintiff. In the Trainer Declaration portion of the form, the box marked verbal questioning was ticked. In evidence, the plaintiff did not recall being shown how to use a pumped up pallet truck. However, he knew how to operate one from his pervious work experience. He accepted that the document showed that the team leader did a question and answer session with him on the warehouse floor and that he then signed the document.
27. The next document was another Employee Training Declaration this time in respect of the activity of “Picking 25kg bags of bakery”. It had the usual declaration and was signed by the plaintiff. The Trainer Declaration indicated that the training had been given by means of verbal questioning. In evidence, the plaintiff stated that he was simply asked if he knew how to lift bags weighing 25kg. He was asked did he have any experience of lifting such bags and he said that he did. He stated that nobody explained to him how to lift such bags. He just signed the form.
28. The third document dated 2nd November, 2011, was another Employee Training Declaration, this time in respect of “changing order picker battery”. It had the same declarations as in other forms and was signed by the plaintiff. The Trainer Declaration part was ticked in the box marked verbal questioning. The plaintiff stated that he did sign this form, as he had received some training in how to change the picker battery.
29. The final form dated 2nd November, 2011, was another Employee Training Declaration, this time in respect of the activity of “low level order picking”. It had the usual declarations and was signed by the plaintiff. The Trainer Declaration portion was ticked in the box marked verbal questioning. In evidence, the plaintiff stated that he just signed this form without receiving any training. He stated that nobody showed him how to do low level order picking. He accepted that he had been asked some questions by the team leader.
30. The next document was in respect of refresher training in manual handling which appeared to have been given on 15th November, 2011, and was a review of training which had originally been given on 20th November, 2008. The document stated that a description of the activity/task was “any task requiring lifting, carrying, pushing, pulling, including with the use of MH aid”. The risks identified from the risk assessment were stated to be “injury caused by incorrect handling techniques”. This document was not signed by the plaintiff and he was not cross examined on it.
31. The final documents were two documents dated 18th January, 2012. The first of these was an Employee Training Declaration in respect of the activity of “manual handling”. It contained the usual declarations and was signed by the plaintiff. The Trainer Declaration portion indicated that the operative had shown competency in the particular task/activity by way of practical demonstration, verbal questioning, theory test and other, although what the “other” was, was not indicated on the form.
32. The final document was another Employee Training Declaration in respect of manual handling. It contained a declaration that the operative had attended and understood the contents of the manual handling course, had been shown a video titled “your back at work by IBEC” and had been shown a video titled “Role Cage Safety”. All the boxes for these three declarations were ticked. The name of the trainee was put in in print as the plaintiff’s name. However, it was not signed by him. The Trainer Declaration portion indicated that the operative had shown competency in the activity by way of practical demonstration, verbal questioning and theory test. The three boxes in respect of these activities were all ticked. The Trainer Declaration was signed by Bill McDermott and dated 18th January, 2012.
33. In his evidence, the plaintiff stated that he recalled receiving some training from Mr. Moran and Mr. Fitzsimmons; however, he did not know who Bill McDermott was. He accepted that he had received some refresher training in January 2012. He accepted that his English was reasonably good by that time and that he could understand the normal things about his work. He accepted that he attended and understood the manual handling training in 2012, but stated that it did not deal with turning or twisting. He reiterated that he had never been taught any techniques for turning. He stated that he did not see the videos entitled “Your Back at Work” or “Role Cage Safety”. He stated that he had been shown one video, but that was eight years ago. He stated that in the second manual handling document dated 18th January, 2012, the one signed by Mr. McDermott, that was not his writing on that form and he did not fill it in.
34. In relation to the issue of the plaintiff being required to work under considerable pressure, it was common case between the parties that the pick rate had been increased from 1100 to 1200 in 2010. Ms. Waters stated that this increase was due to the fact that there had been a change of work system introduced into the warehouse, whereby the distance which an operative had to travel between a pallet and the combi, which he was working on at the time, was reduced. In such circumstances, it was alleged that the operatives were not being put under additional pressure in having to achieve the higher target of pick rates.
Evidence of Mr. Marian Grecko
35. Evidence was also given on behalf of the plaintiff by Mr. Marian Grecko, who had worked at the distribution centre from 2007 until its closure in 2014. He accepted that at the commencement of his employment with the defendant, he received training in manual handling, hygiene and was trained in the use of the cherry picker. In respect of the manual handling training, he was shown how to lift items correctly. He was shown how to lift an object from the floor to a table. In the demonstration, the trainers used an empty cardboard box.
36. Mr. Grecko stated that he was not shown any video in the course of the manual handling training. He was shown a video on hygiene.
37. In cross examination, the witness stated that he was shown how to lift an item from the floor, when he started with the company in 2007. He subsequently did a refresher course, where he was shown correct manual handling techniques again. He accepted that he understood the demonstrations which were given to him. He also understood what was involved in lifting correctly. However, he was very clear in his recollection that the manual handling training only concerned how to lift an item from the floor onto a table and vice versa. He stated that there was no training in relation to turning correctly or how to avoid twisting the body. He was adamant that the trainer did not show them how to turn correctly.
38. Mr. Grecko stated that on occasions he would have to turn or twist his body when the cages were very close to each other. When there was not much space between the pallet and the cages, he would have difficulty turning. However, he accepted that on the day of the accident, the space available to them was not too confined. He said that it was a busy day, but the pressure of work was normal.
39. Mr. Grecko accepted that he was trained just to lift whatever amount he was comfortable with. It was his choice as to how many trays he would lift at a time. However, he stated that if he only lifted one tray, he would be reprimanded by the supervisor. He accepted that they were working on the “light dairy” section, on the day in question. He stated that he would normally lift three trays of yogurt at a time. However, sometimes he would lift up to six trays. He stated that they were under pressure to work fast. There were several operatives doing the picking that day.
40. It was put to Mr. Grecko that there was a system for rotating the operatives between light and heavy duties. The witness did not agree that such system worked. He stated that if he had been lifting heavy items, such as fruit juices, he may be sent to another heavy area. He stated that while in general, the team leaders did rotate the heavy and light jobs, sometimes he would do three difficult days in a row.
41. Mr. Grecko accepted that some picks would only involve taking the docket from the items on the pallet, because those items were going to remain on the pallet. However, he stated that this happened very rarely.
42. In re-examination, the witness stated that they were trained only to lift what they were comfortable with. However, he stated that on occasion he would lift more items than he was comfortable with, due to the pressure to reach the target number of picks.
43. Mr. Grecko recalled the day when the plaintiff got injured. He had been working in the same area as the plaintiff and was working beside him. He was lifting yogurts but from a different pallet. He saw the plaintiff lift the trays of yogurts and put them onto the combi. Just after that the plaintiff was holding his back and he seemed to be in pain. The plaintiff left the area and went to the toilet. At lunchtime, the plaintiff told him that he had hurt his back. The plaintiff then spoke to Sharon Waters and was allowed home early.
Evidence of Mr. Alan Conlan, Consulting Engineer
44. Evidence was given by Mr. Alan Conlan, Consulting Engineer, on behalf of the plaintiff. He had attended at the defendant’s former premises for the purpose of a joint inspection on 18th September, 2015. At that time, the premises were being used by Musgraves. They allowed the plaintiff and the two consulting engineers and an interpreter to have access to the premises for the purpose of carrying out the joint inspection.
45. Mr. Conlan noted that if the plaintiff lifted five trays of yogurt, this would have weighed 16kg. If he had lifted six trays of yogurt, this would have weighed 19.2kg.
46. Mr. Conlan stated that in 1992, the authorities in the UK had issued guideline weights which could be lifted by operatives in the course of their work. The area in front of the operative’s body was divided into a number of zones. If in carrying out any lifting or lowering task, the hands should enter any zone, then the zone with the lowest weight should be considered the guideline weight for that task. The maximum guideline weight between knuckle and elbow height close to the body, is 25kg. This reduces as one moves the load closer to the ground, or further up from waist height and further away from the body. Close to ground level, close to the body, the guideline weight is 10kg. Guideline weights are not the maximum weight which can be lifted, however, lifting weights greater than the guideline weight has increased risk.
47. Guideline weights apply for 30 operations per hour. If the number of operations is once or twice per minute, the guideline figures should be reduced by 30%. If the operations are repeated five – eight times per minute, then the guideline figure should be reduced by 50%.
48. The risk was also increased if the operator twists/turns during the lifting process. If the handler twists to 45 degrees, the guideline figure should be reduced by 10%. If the handler twists through 90 degrees, the guideline should be reduced by 20%.
49. Mr. Conlan noted that the plaintiff had reported that the target pick rate in the chill area was around 1200 picks per shift, over a 7.5 hour period. Lifting five/six trays of yogurt would be considered as five/six picks. With a target of 1200 picks per shift, this would give a target of approximately 160 picks per hour. If the plaintiff was lifting heavy items, there might only be one pick per lift. However, if he was picking smaller or lighter items, the operative would be in a position to lift a number of items, thereby obtaining a number of picks per lift. Taking this into consideration, Mr. Conlan was of opinion that the guideline figures should be reduced by around 30%. This reduced the maximum guideline weight to 17.5kg. The guideline weight between the lower leg height and the ground close to the body would be reduced from 10kg to 7kg. Mr. Conlan stated that the lifting manoeuvre in this case was a complex manual handling activity as the plaintiff was lifting different products, from different heights and was lifting them to different levels. The guideline weights may also have to be reduced because there was a turning manoeuvre during the lifting operation. Mr. Conlan stated that there was particular risk where there was a turning component to the lifting action. If the operative is not trained to move his feet, this would increase the risk of back injury considerably.
50. Mr. Conlan came to the conclusion that there was considerable risk involved with this manual handling activity. The rate of work was a significant factor in relation to the risk. If the rate of work is too onerous, people will complain, or they will leave the job, or they will suffer injury. In this case, the plaintiff stated that he had made complaints to his team leaders about the pressure of work that was imposed upon him. Mr. Conlan noted that the pick rate had been increased from 1100 picks to 1200 picks per shift. This was an increase of almost 10%. In his opinion, increasing the target rate without assessing the workload on operatives was poor practice. He was of the view that the increase in the pick rate was a contributory factor in the plaintiff’s injury. If the target rate was set at a high level, people would be inclined to take shortcuts e.g. adopt incorrect lifting techniques, in an effort to achieve the targets. This can lead to injury to the operatives.
51. Mr. Conlan was further of the opinion that the plaintiff’s previous back injuries put him at additional risk of back injury. The employers were under a duty to take account of this fact when asking him to achieve a particular pick rate.
52. In relation to training, Mr. Conlan noted that the plaintiff had received some training in manual handling, when he first joined the company. Thereafter, there were periodic instances of refresher training. He accepted that this was good practice. However, he stated that in this case, there was a complex lifting operation involving lifting different products, from different heights and placing them at different heights in the cages; in such circumstances, the employee would need to be trained how to assess the task. Mr. Conlan stated that the training as described by the plaintiff was inadequate. Turning, without moving the feet, was very risky. The operative should be trained always to move their feet when carrying out a turning manoeuvre.
53. Mr. Conlan pointed out that there was a duty on the employer under s. 10 of the Safety, Health and Welfare and Work Act 2005, to ensure that the employee is provided with adequate training, in a language that he understands. Mr. Conlan pointed out that in some of the documents which had been put to the plaintiff, the trainer had just ticked the boxes, indicating that the refresher training had been given by means of a question and answer session. Mr. Conlan referred in this regard to the document dated 2nd November, 2011, headed “Employee Training Declaration” in respect of the activity of “Picking 25kg bags of bakery”. The plaintiff had stated in his evidence that he was only asked if he knew what to do when lifting a 25kg bag. He had said that he did know what was involved in lifting such an item. He had signed the declaration form. Mr. Conlan stated that this was not adequate refresher training. The operative should have been given a demonstration as to how to lift such items, then the operative should be asked to demonstrate the correct technique himself and this should be followed by a question and answer session.
54. The engineer pointed out that in the Risk Assessment document dated 28th March, 2008, under the heading manual handling risk – the task, it had been stated that the risk for repetitive handling was “trivial”. The witness stated that this was not correct. The operation was all about repetitive handling. It was a definite risk. The important thing was the technique used by the operative in carrying out such repetitive lifting tasks.
55. Mr. Conlan stated that there were a number of statutory duties which were imposed upon the defendant in the circumstances which arose in this case. In particular, s. 8(2) of the Safety, Health and Welfare at Work Act 2005 provided as follows:-
“(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;…
(e) providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;…
(g) providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;
(h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3.”
56. Mr. Conlan also referred to the provisions of the Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. 299/2007) and in particular to Regulation 69 thereof, which provides as follows:-
“An employer shall—
(a) take appropriate organisational measures, or use the appropriate means, in particular mechanical equipment, to avoid the need for the manual handling of loads by the employer’s employees,
(b) where the need for the manual handling of loads by the employer’s employees cannot be avoided, take appropriate organisational measures, use appropriate means or provide the employer’s employees with such means in order to reduce the risk involved in the manual handling of such loads, having regard to the risk factors specified in Schedule 3,
(c) wherever the need for manual handling of loads by the employer’s employees cannot be avoided, organise workstations in such a way as to make such handling as safe and healthy as possible, and—
(i) taking account of the risk factors for the manual handling of loads specified in Schedule 3, assess the health and safety conditions of the type of work involved and take appropriate measures to avoid or reduce the risk particularly of back injury, to the employer’s employees,
(ii) ensure that particularly sensitive risk groups of employees are protected against any dangers which specifically affect them in relation to the manual handling of loads and the individual risk factors, having regard to the risk factors set out in Schedule 3,
(iii) ensure that where tasks are entrusted to an employee, his or her capabilities in relation to safety and health are taken into account, including, in relation to the manual handling of loads by employees, the individual risk factors set out in Schedule 3, and
(iv) when carrying out health surveillance in relation to the manual handling of loads by employees, take account of the appropriate risk factors set out in Schedule 3.”
57. Schedule 3 of the Regulations deals with the risk factors for manual handling of loads. In sub paragraph 2 thereof, the following is provided:-
“A physical effort may present a risk particularly of back injury if it is:…only achieved by a twisting movement of the trunk…”
58. Paragraph 4 of Schedule 3 states:-
“The activity may present a risk particularly of back injury if it entails one or more of the following requirements: over-frequent or over prolonged physical effort involving in particular the spine… a rate of work imposed by a process which cannot be altered by the employee.”
59. Paragraph 5 of Schedule 3 provides:-
“Individual Risk Factors: The employee may be at risk if he or she:…does not have adequate or appropriate knowledge or training.”
60. Mr. Conlan was of the view that the defendant in requiring the plaintiff to work under considerable pressure, and in increasing the pick rate without assessing the workload on the operatives and in failing to train the plaintiff adequately, had acted in breach of the statutory duties outlined above.
The defendant’s case
Evidence of Ms. Sharon Waters
61. Evidence was given by Ms. Sharon Waters on behalf of the defendant. She had been employed with the defendant company since 2003. She started as a picker and remained in that position until 2007. She then became a team leader, where she was in charge of managing jobs on the depot floor. She stated that there was a daily team meeting held each morning, at which she would give out the various tasks to the team members for that day. The plaintiff was part of her team.
62. Ms. Waters outlined how the goods would arrive in on pallets and would be put into the yellow box areas, as shown in the engineer’s photographs. Pickers were assigned to a particular box or area. The pallets were close to the combi cages. There were ten female employees in the distribution centre. They did the same work as the male pickers. All employees were told just to lift whatever they could manage comfortably.
63. In relation to training, Ms. Waters stated that she had been shown how to lift safely. She was shown a video in relation to manual handling and was given a booklet. After that she had been retested, when she had to show that she could lift a box carefully. She was trained by Mr. McDermott and Mr. Gallagher.
64. In relation to the work duties, she stated that these were rotated among the workers in relation to heavy and light duties. She always rotated staff as often as she could. She stated that she was always fair about assigning people to the heavier work. There was overtime available, usually every second weekend. She stated that the plaintiff was always interested in doing overtime whenever he could.
65. Ms. Waters stated that she used to help with the picking. The target rate was raised in 2010, but she felt that it was not too onerous. She stated that if the plaintiff had been assigned to heavy items for two days in a row, he would ask to be moved. She would try to move him to light duties, or if this was not possible, she would try to send assistance to him.
66. In relation to the day of the accident, Ms. Waters said that she had been the team leader on duty that day. She recalled that on coming back from a break, the plaintiff approached her circa 12:00hrs. He said that his back was sore and he asked to go home. She stated that she asked the plaintiff whether he had injured it at work, to which he replied no, that he had injured it while changing a wheel on his car. She stated that she allowed him to go home early. As the plaintiff did not allege that it was an accident at work, she did not fill out any of the forms, or go through any of the relevant protocol, which would have to be adopted if there had been an accident at work.
67. Ms. Waters stated that the protocol referred to provided that if an accident had happened at work, the team leader would take the injured workman to the first aid room, where he would be attended to. She would then take a statement from him and then carry out an examination of the locus of the accident. She would also arrange for such further medical treatment as was necessary. Ms. Waters stated that she did not do this in relation to the plaintiff’s back complaint, as he did not allege that there had been any accident at work. She stated that she did not have any further discussion with the plaintiff about his back complaint. She just allowed him to go home early. Thereafter, he would have submitted a medical certificate to the HR department.
68. Ms. Waters stated that she was made redundant in the summer of 2014, when the company closed down. She was not aware that the plaintiff was making any case that he had been injured at work. In July 2014, she was contacted by Mr. David Condel, in relation to the matter, as she had been the team leader on duty on the day of the accident. She stated that on 11th July, 2014, she made the following brief statement to the company:-
“On 29th October, 2012, Salvormir Spes came to me asking to go home that he hurt his back. I asked Salvomir ‘did it happen in work’; he said ‘no it happened when he was putting the wheel back on his car’.”
69. Ms. Waters stated that she had had a good working relationship with the plaintiff. She stated that there was a good atmosphere on the warehouse floor. If people were slow in relation to a number of picks they did, they were called in to the office for “coaching” to improve their pick rate. She stated that she called the plaintiff in for such coaching on approximately three occasions in ten years.
70. Ms. Waters stated that there were three types of pick: (i) where goods were moved from one pallet to another pallet; (ii) where goods were moved from a pallet and placed in a combi cage; and (iii) where the items were left on a pallet, but were designated as “picks”. She stated that this third type of pick would apply where there was a full pallet of potatoes and if a supermarket needed a full pallet of potatoes, they would be left on the first pallet, but the operative would be able to get the number of picks that were applying to that pallet. She stated that this would happen approximately three times per week. She stated that the bags of potatoes were quite heavy and that the male employees would pick them. She sometimes lifted bags of potatoes, but no other female employees did so.
71. She stated that the plaintiff never complained to her in relation to the pick rate being too onerous. He might have complained if he had been doing heavy duties on the day before and, in such circumstances, she would try to rotate him as best she could.
72. In relation to the targets set, she thought that these were reasonable. She stated that she sometimes did up to 1600 picks per shift. She stated that the plaintiff did not report any earlier accident to her. She had heard his evidence that he had been hit with a pallet truck in 2009, but she was not aware of that; nor was she aware that he had had a back problem in 2011. She stated that he never told her of these problems and she was not aware that he had any history of back problems. She denied that the plaintiff had been singled out to do more heavy work than others. She stated that while she was in charge, the plaintiff would not have been allocated to heavy work over a number of days. She stated that if she had allocated the plaintiff to do heavy work one day, he might come to her and say that he had been assigned to that work yesterday when she was out. She would try to rotate him. She would not have been aware of the assignments for the previous day. In the circumstances, she accepted that it was possible that the plaintiff could have been assigned to heavy duties for two days in a row.
73. Ms. Waters stated that the increase in the pick rate had been brought about due to the fact that they changed the layout of the warehouse. Under the new system they had two rows of cages opposite each other. This had the effect of reducing the amount of walking involved. It was due to this fact that they decided to increase the pick rate. She thought that it was an achievable target.
74. Ms. Waters stated that she was not aware that the plaintiff had made any complaints to Jeff Fitzsimmons or David Kennedy. She stated that she was not present for the training which had been given to the plaintiff, so she could not say what training in manual handling he actually received. She stated that for refresher training, she had been shown a video, she had been given a booklet and she had to demonstrate how to lift a box. She stated that such training was usually four hours long. She stated that she was never asked to tick a box while out on the warehouse floor or in the office. She could not say whether if that had happened to the plaintiff.
75. In relation to the brief statement she had made on 11th July, 2014, she accepted that she had been asked to recall this brief conversation, almost two years after it had taken place.
Evidence of Mr. Cathal Maguire, Consulting Engineer
76. Finally, evidence was given by Mr. Cathal Maguire, Consulting Engineer, on behalf of the defendant. He stated that at the joint inspection held in September 2015, the plaintiff gave a demonstration of the lifting manoeuvre that he had done on the day of the accident. It was clear from this demonstration, that the plaintiff had been trained, because he had adopted a good lifting technique in the course of his determination.
77. Mr. Maguire noted that the plaintiff had complained in relation to the pace of the work. He noted that on the day of the accident, the plaintiff had been working in the “light dairy” section. In that section, he could lift several trays at one time. The target of 1200 picks a day, was normal for distribution warehouses. He stated that when the layout in the warehouse changed, such that the cages were moved closer to the pallets, it was appropriate to increase the pick rate. He noted that the workers had been told just to lift what they were comfortable with. This would vary from person to person. The plaintiff knew the weight of the trays, he had assessed the load and had carried out a number of previous lifts, prior to the one that caused him to suffer pain.
78. The plaintiff had accepted that he had received training when he started with the company and thereafter had been given refresher training, approximately every three years. Mr. Maguire stated that this was a reasonable training regime.
79. In relation to the guideline weights, Mr. Maguire noted that there were different weights for different heights and depending on closeness to the body of the item being lifted. At the bottom level, the guideline weight was 10kg. This could be to take account of tiredness during the day. So the guideline weight would be decreased to take account of increased risk. On the day of the accident, the accident occurred towards the beginning of the day after a couple of hours, so it was not necessary to factor in this reduction. A reduction of 30% in the guideline weight would only be appropriate when the lifting operation was being carried out over an entire day. If the plaintiff had lifted three trays, this would have been completely within the guidelines. At two hours into the shift, it would be reasonable for him to lift five trays; that was a decision for the picker himself.
80. The engineer noted that the plaintiff accepted that he had received some training, but stated that due to the fact that he was working under pressure, he was not able to adhere to good lifting techniques. He did not think this was an issue. The rate of 1200 picks per shift constituted a reasonable work rate. In his opinion, it was not undue pressure.
81. In cross examination, Mr. Maguire accepted that he had not been present at the time when the plaintiff received his training, so he could not say what actual training he had received. However, he understood from the documentation that had been produced, that the plaintiff had received adequate training in manual handling techniques. He noted that the plaintiff demonstrated a safe lifting technique, when he gave his demonstration at the joint engineering inspection. He was of opinion that the plaintiff hurt himself when he twisted, rather than turning, in the correct manner by moving the feet. Turning the feet was a basic part of a safe turning manoeuvre. The training should deal with turning rather than twisting. He noted that the plaintiff demonstrated safe turning technique, when he gave his demonstration at the joint inspection. He was of opinion that the plaintiff did not suffer his injury while doing the lifting part of the manoeuvre, but had suffered the injury while turning. This suggested that the plaintiff failed to turn his feet as he turned his body. A failure to turn correctly was a common cause of back injury.
82. Mr. Maguire stated that he had not spoken to Ms. Waters in advance of compiling his report. He had spoken to Mr. Condel, the health and safety manager. He was not aware that it was alleged that the plaintiff had said that he had hurt his back when changing the wheel of a car. That was never said to him. He was just aware that no accident at work had been reported. The joint engineering inspection had been carried out on 18th September, 2015 and his report was dated 28th September, 2015.
83. In relation to training, Mr. Maguire accepted that he could not state what training was actually given to the plaintiff. He accepted that in relation to some of the training documents, which had been produced to the plaintiff, there were some documents which suggested that it was just a box ticking exercise. In relation to the Employee Training Declaration dated 18th January, 2012, he accepted that the box at the bottom of the form, where the trainer was asked to give a narrative of the context of the training, had been left blank. This should have been filled in by the trainer. If this had been done, the court would know the extent of the training received.
84. In relation to the document dated 2nd November, 2011, concerning the task of “Picking 25kg bags of bakery”, the plaintiff had indicated that he was merely asked whether he knew how to lift a 25kg bag to which he had replied “Yes.” Mr. Maguire accepted that that would not constitute adequate refresher training. The person should be given a demonstration of the lifting technique. Mr. Maguire stated that he would be critical of this as a box ticking exercise.
85. Similarly, in relation to the Employee Training Declaration in respect of “Low level order picking” dated 2nd November, 2011, Mr. Maguire stated that he would likewise be critical of this document, where only a box indicating verbal questioning had been ticked by the trainer.
86. In relation to the Risk Assessment dated 28th March, 2012, some tasks were indicated to be “tolerable”, which would mean that it was a low risk activity. In relation to the heading marked “Repetitive Handling”, which was entered as being “trivial”, Mr. Maguire stated that there was repetitive handling in this case and therefore one could not say that the risk was not applicable. He thought that this may have been a risk assessment for a particular type of lift, being a 20kg load. On the following page, there was an entry reading “Risk level is dependent on capability of employee”, which was deemed to be “trivial”. Mr. Maguire was not able to interpret this portion of the document. He noted that under the heading “Risk to anyone untrained” it was deemed to be “substantial”. However, he did not think this was applicable to the plaintiff, as he had been trained in manual handling.
87. It was put to the witness that the plaintiff had stated that the only training he got in manual handling constituted a demonstration of lifting an empty box from the floor onto a table. Mr. Maguire said that this means of demonstrating a lifting technique was standard in the industry. It was put to him that the plaintiff had complained that he was not able to understand all the training due to his poor level of English. Mr. Maguire stated that he was not aware of that, but he accepted that it could be a problem for the plaintiff. He thought that the assistance of a work colleague, who did speak his language, would have been helpful.
88. It was put to Mr. Maguire that the plaintiff had stated that he could not adopt correct lifting techniques, due to the excessive pick rate which he was working under, the witness did not accept this. He stated that a pick rate of 1200 was not excessive. It was a standard pick rate, when the items are located close to each other. It was put to him that the plaintiff had said that the trainers knew that workers could not do that level of target, while adopting correct lifting techniques and that they had laughed when this was suggested to them. Mr. Maguire stated that he would be surprised if that had happened. In relation to not understanding the questionnaire that may have been given to him, Mr. Maguire stated that the plaintiff was an adult and that if he did not understand the questionnaire, he should have told his supervisor that he did not understand it. However, Mr. Maguire stated that he could not comment on the training given. He accepted that the records of the training could be more complete.
89. Mr. Maguire did not accept that if the plaintiff was working under pressure, this would lead to him taking shortcuts in the lifting manoeuvre. He stated that if the plaintiff had been under pressure, he should have complained to a team leader. It was put to him that the plaintiff had said that he had made complaints to his team leaders. Mr. Maguire stated that Ms. Waters said that he did not complain to her about the pick rate and this was because the pick rate was an industry average. It was not excessive. He did not accept that the plaintiff was working under pressure given the target rate and the weight of the items being lifted.
90. In relation to the plaintiff’s previous back problems in 2008 and 2011, Mr. Maguire pointed out that when an employee is out sick, he can only return to work when he is certified by his doctor as being fit to return to work. So this would not be a problem a year later in 2012.
91. Mr. Maguire stated that there should never be a twisting movement, but there could be turning, which would involve changing direction by moving the feet. If the operative was doing manual handling in a relatively open space, there should be no twisting at all. He accepted that there was an increase in risk if an operative was twisting; it was for this reason that people were told not to twist, if it could be avoided.
92. Mr. Maguire reiterated that during the joint engineering inspection, the plaintiff had demonstrated correct lifting techniques. It was for this reason he drew the inference that the plaintiff had received adequate training in manual handling. He accepted that under s. 10 of the 2005 Act, there was a duty on the employer to provide training in a language that the operative could understand. However, Mr. Maguire stated that if the plaintiff got refresher training, at a later time when his English had improved, this would cover any defect in the initial training. He did not think that there was any necessity to give additional training when the pick rate was increased. He accepted that under the 2007 Regulations, there was an onus on the employer to take account of the fact that the plaintiff had a previous back injury. In this regard, the employee could not return to work, until he had been certified as fit to do so by his doctor. There was then a duty on the employer to monitor him for a short while after he returned to work. The employer would not need to continue monitoring the employee if he had returned to work more than a year previously.
93. Mr. Maguire accepted that under the provisions of Schedule 3 to the Regulations, if the work was strenuous and involved twisting of the trunk, this would increase the risk of injury to the operative. However, he stated that if the load was too heavy, that was a matter entirely for the plaintiff, as he could select the amount of goods that he would lift at any one time. If he needed to turn as part of the manoeuvre, he should have moved his feet. Mr. Maguire stated that he accepted the points set out at item 4 of Schedule 3, relating to the rate of work imposed on an employee. However, he said that the rate of work which was imposed in this case was reasonable.
94. Finally, in the course of re-examination, Mr. Maguire pointed out that the plaintiff did not complain of inadequate training at the joint engineering inspection. His complaint was that he was put working with the heavy items too frequently and that the pick rate was too high, so that he had to abandon his training in respect of manual handling. The plaintiff complained that he had been treated differently to the other workers in relation to the items that he had to lift and that there was an excessive pick rate.
Conclusions on Liability
95. The central issue in this case is as to whether the plaintiff received adequate training from his employer. Mr. Conlan, the plaintiff’s engineer, has stated that in his opinion, if the plaintiff only received the training as described by him and Mr. Grecko, such training was deficient, as it did not cover how to turn safely while carrying a load.
96. Mr. Maguire, the defendant’s engineer, has stated that in his opinion, the accident was probably caused by the plaintiff failing to move his feet in the course of turning from the pallet, while holding five trays of yogurt. Mr. Maguire stated that the plaintiff knew the correct lifting and turning technique, because he demonstrated the lifting and turning procedure correctly at the joint engineering inspection held on 18th September, 2015.
97. That inspection was carried out at the defendant’s former premises, which is now used by Musgraves. From the photographs, it is clear that the area was un-congested at the time of the engineering inspection. When the plaintiff gave a demonstration of what he was doing at the time he experienced the back pain on the day of the accident, he did so slowly so that photographs could be taken of the various stages of the lifting manoeuvre. In such artificial circumstances, which were far removed from the actual conditions under which the plaintiff was working at the time of the accident, one cannot reach the conclusion that because correct lifting and turning technique was used at the time of the engineering inspection, that the plaintiff therefore had received adequate training in such techniques in 2005, when he started with the company, or in the course of subsequent refresher training on the job.
98. The clear evidence of the plaintiff and Mr. Grecko, was to the effect that they did not receive any training in how to turn safely, while carrying a load. The people who allegedly gave the training and refresher training to the plaintiff, being Mr. Fitzsimmons, Mr. Moran and Mr. McDermott, were not called to give evidence. The pocket book which was allegedly furnished to the plaintiff was not produced, nor were the videos which were allegedly shown to him as part of the training. This may be due to the fact that the company has since closed down. In such circumstances, the relevant witnesses, who gave the training to the plaintiff, may not have been available. Be that as it may, I cannot hold that the plaintiff received adequate training without some evidence in that regard.
99. No documentary evidence was produced in respect of the initial training given to the plaintiff when he joined the company in 2005. The forms which were produced in evidence, all related to training allegedly given to the plaintiff a considerable time after he had joined the company. The plaintiff has said that such refresher training was very brief, in that he was only asked a couple of questions and then told to sign the requisite form. No evidence was called as to the content of the refresher training given on the relevant dates. It does seem to have been somewhat of a box ticking exercise. In the absence of evidence from the trainers as to what training they gave in the refresher training sessions, I cannot hold that these sessions covered safe turning technique when carrying a load. I accept the evidence of the plaintiff that the refresher training only comprised a brief question and answer session. I note that evidence was given by Ms. Waters that such refresher sessions were fairly comprehensive and could last a number of hours. However, she accepted that she had never given any training to the plaintiff. In the circumstances, I prefer the plaintiff’s account as to the rudimentary nature of the refresher training given to him.
100. I note also the evidence given by Mr. Peter Keogh, Consultant Surgeon, that the plaintiff’s pain was due to annular tears in the discs in his lower back. Such tears are more likely to be due to repetitive bending, lifting and twisting rather than being due to just one incident. Annular tears could be due to wear and tear in the plaintiff’s back, which may have been asymptomatic, but trauma could have rendered them symptomatic. Mr. Keogh is of the view that one episode of lifting was not likely to be the cause of the annular tears. It was more likely to be one lift of a number of lifts which caused this injury. This supports the conclusion that the plaintiff’s back was damaged over time and that the episode on 29th October, 2012, was just the last in a series of lifting manoeuvres, which caused the plaintiff’s injury.
101. I am satisfied that the plaintiff and Mr. Grecko have given truthful evidence in relation to the training that they received from the company. I accept their evidence that they did not get training in how to turn correctly while carrying a load. That being the case, the defendant was negligent in its failure to provide adequate training to the plaintiff.
102. I note the evidence of Ms. Waters that she recalled the plaintiff coming to her on the day of the accident and saying that he had hurt his back when he changed the wheel on his car. She stated that as this was not an accident at work, she did not make a note of it, or fill out any accident report form. She just let the plaintiff go home early. The defendants have stated that the first they knew of any alleged accident at work, was when they received the letter of claim from the plaintiff’s solicitor in December 2013. It was some months later in July 2014, that Ms. Waters was approached by Mr. Condel, the defendant’s health and safety officer, and was asked to make a statement. I find it difficult to believe that at that remove, some 21 months post-accident, Ms. Waters was able to recall so clearly the content of a brief discussion, which she had had with the plaintiff when, according to her evidence, there was nothing particularly memorable about the conversation.
103. The plaintiff denied telling Ms. Waters that he had hurt his back changing the wheel of his car. He stated that he just told her that he had back pain and wanted to go home. He stated that while he did own a car, he had never changed the wheel on it.
104. Insofar as there is a conflict between the plaintiff and Ms. Waters as to what was said on the day of the accident, I prefer the evidence of the plaintiff in this regard. Having observed his demeanour while giving evidence, I am satisfied that he is a truthful witness. I find that on the balance of probabilities, the plaintiff’s version of this conversation is the correct one.
105. The plaintiff stated that while he did know correct lifting techniques as distinct from correct turning technique but that due to pressure of work in the distribution centre, he was not always able to adhere to correct lifting technique, particularly when working under pressure and in a confined space. In this regard, I note that photograph No. 4 of the defendant’s engineer’s book of photographs gives some idea of the number of combi cages on the premises at or around the time of the accident. It is clear from this photograph that the plaintiff could have been obliged to work in fairly confined spaces when unloading pallets.
106. I am satisfied that the plainitff’s injury arose due to a combination of factors, being: the lack of adequate training in safe turning techniques; the imposition of a rate of work that was excessive; that the workers were forced to take shortcuts when lifting items in an effort to achieve their targets and working in confined spaces, which increased the likelihood of suffering a twisting injury.
107. I accept the evidence given by the plaintiff that he made complaint to Geoff Fitzsimmons and David Kennedy in relation to the pressure which he was working under, in an effort to reach his pick rate target. Nothing was done in relation to these complaints. This evidence was not contradicted by the defendant.
108. I do not accept that the plaintiff has established that he was singled out for more heavy duties, such that, if it was quiet in the chill area, he would be moved to the ambient area, if it was busy. While this may have happened, I am not satisfied that it established any discrimination against, or unfair treatment of, the plaintiff. The plaintiff also complained that he was not rotated in the same way as other workers were, between light and heavy duties. Ms. Waters accepted that on occasion, the plaintiff had made complaint to her when he was assigned heavy duties, that he had been assigned to heavy duties on the previous day by another team leader. She stated that she would try to rotate him onto lighter duties if that was possible, and if it was not possible, she would try to send assistance to him. I accept Ms. Waters’ evidence in this regard. I am not satisfied that the plaintiff was discriminated against in relation to the rotation of workers between heavy and light duties.
109. Having regard to my findings as to the inadequacy of the training given to the plaintiff, I find that the defendant was also guilty of a breach of statutory duty and, in particular, breached s. 8(2)(e) and (g), and s. 10 of the Safety Health and Welfare at Work Act 2005. The defendant was also in breach of Regulation 69 of the Safety, Health and Welfare at Work (General Applications) Regulations 2007, and Schedule 3 thereto and in particular paras. 4 and 5 thereof.
110. In all the circumstances, I am satisfied that the defendant was negligent and in breach of statutory duty in failing to train the plaintiff in relation to safe turning techniques. This lack of adequate training was exacerbated by the fact that the plaintiff was obliged to work under excessive pressure so as to reach his targets. The company did not heed his complaints when he complained about this state of affairs. In addition, I am satisfied that on occasion, the warehouse was very cluttered with pallets and combi cages, such that it was very difficult for the plaintiff to carry out a satisfactory lifting and turning manoeuvre, when putting items onto the combis. In the circumstances, the defendant is liable for the injury to the plaintiff’s back which became apparent in October 2012.
111. There is no evidence that the plaintiff failed to take sufficient care in relation to the carrying out of his duties either on the day of the accident, or in the days and months leading up to it. Insofar as the plaintiff may have adopted an unsafe turning technique, I am satisfied that this was due to the fact that he had not been adequately trained in safe turning techniques. Accordingly, I decline to make any finding of contributory negligence against the plaintiff.
Quantum Issues
112. The plaintiff stated that after the accident, he had severe pain in his lower back. At first, he took painkillers. He tried to return to work after two days, but was not able for it. He went to his GP on 31st October, 2012, complaining of severe pain in the right side of his back. He could not move or bend. His GP referred him on to Mr. Keogh, Consultant Orthopaedic Surgeon.
113. The plaintiff stated that his back was very painful in the first few weeks after the accident. He had to take a large amount of painkillers. He could not sleep at night. He had constant pain.
114. He saw Mr. Keogh approximately six months after the accident in April 2013. He sent the plaintiff for an MRI scan, which was carried out in August 2013. The plaintiff stated that Mr. Keogh told him that he had damaged discs in his lower back and that he could not return to his pre-accident work. The plaintiff stated that at that time, he had a very stiff and painful back. He had difficulty bending to put on his socks. He was given the option by Mr. Keogh of having an epidural injection. The plaintiff stated that he refused this, as he was somewhat fearful of having an injection to this back. Instead, he returned to Slovakia and attended a spa, where he had massage and intensive physiotherapy over a period of ten days. He felt better for one month after receiving the treatment in the spa. However, the severe pain returned after approximately one month.
115. The plaintiff returned to see Mr. Keogh in April 2014. He told the doctor that he continued to have pain in his back. He was told that the problem was caused by his heavy workload. The plaintiff stated that on some days his back would be a little better, but that on other days it would be severely painful. In bad weather, the back was painful.
116. Towards the end of 2014, the plainitff’s GP, Dr. Mansour, told the plaintiff that he would only be fit for light work. By this time, the plaintiff had been made redundant by the defendant company, on its closure. The plaintiff enrolled on a FÁS course in forklift driving. This lasted for one month and he passed the course.
117. The plaintiff stated that he was not in work at the present time. He had applied for a number of forklift driving jobs, but all of the employers wanted somebody with experience. He had also applied to work in a sandwich bar, but got no response from them. He had also applied to do a computer course, but had not yet heard back from them. The plaintiff stated that he had been offered a job as a general operative in a public house premises and was due to start on the following Saturday. The work was part time being approximately three/four days per week. It was paying the minimum wage, approximately €9.15 per hour.
118. In relation to his present condition, the plaintiff stated that his back was improved, but was still painful in the morning. When he moves around, the back is much better. It would be sore after sitting for any period. In the months following the accident, he had had disturbed sleep due to pain, which led to anxiety and tiredness. He stated that at present, his sleep was a little better. He did not require to take painkillers at the present time. He stated that he had had physiotherapy treatment in Connolly Hospital and also acupuncture treatment. This had gone on over a period of six months. He continues to do the exercises every day as he had been shown in the hospital. He also does yoga.
119. A medical report from Dr. Anas Mansour dated 26th February, 2014, was admitted in evidence. In the report, Dr. Mansour stated that he had first seen the plaintiff on 31st October, 2012. He had been seen on approximately ten occasions between that time and the date of the report on 26th February, 2014. At that time, the doctor was of opinion that the treatment required would consist of a rest, analgesia and physiotherapy. He hoped for a full recovery within 15 – 18 months, but stated that this would depend on the plaintiff’s response to treatment organised by Mr. Keogh.
120. Evidence was given by Mr. Peter Keogh, Consultant Orthopaedic Surgeon at Connolly Hospital, Blanchardstown. He noted that the plaintiff had been referred to his clinic on 3rd April, 2013. He was seen at the triage clinic on 21st August, 2013, complaining of back pain and numbness in his left foot. He also mentioned increasing urinary frequency over the previous six months. Examination showed some restriction of lumbar spine movement. Neurological examination showed reduced power in the L4-S1 myotomes, with decreased sensation in this area. Straight leg raising was 45 degrees on the left. Mr. Keogh referred the plaintiff for an MRI scan.
121. The MRI scan was carried out on 27th August, 2013. This was reported as showing mild degenerative disc disease in the lumbar spine, with mild bulging at L3/4 and L4/5 with annular tears. At no level was there any significant thecal sac or nerve root compression. The plaintiff was reviewed again at the clinic on 22nd January, 2014, and further conservative treatment was advised.
122. When reviewed on 21st February, 2014, the plaintiff complained of ongoing lower back pain. He had constant pain in his back. He was taking painkillers. He complained of sleep disturbance and stated that he was stiff in the morning. He also had frequency of micturition, but this was not referable to the accident. He was awaiting physiotherapy treatment. He had been in Slovakia in November 2013 and had a programme of spa rehabilitation. He found that of benefit. The plaintiff stated that he felt down and somewhat depressed. He was on medication for this complaint but was uncertain if it was of any benefit. He felt that it was impossible for him to go back to his original job. At that time, Mr. Keogh prescribed a lumbar support for the plaintiff and he re-requested physiotherapy treatment. Mr. Keogh was of opinion at that time that the annular tears at the L3/4 and L4/5 levels were a major cause of the plaintiff’s ongoing lower back pain. The prognosis at that time was uncertain. It depended on how the plaintiff responded to conservative treatment which had been prescribed. Mr. Keogh was of opinion that he would not be fit to return to his pre-accident employment.
123. The plaintiff was reviewed by Mr. Keogh’s team in Connolly Hospital in April 2014. At that time, the plaintiff reported ongoing back pain with left sided leg pain radiating to the knee. The plaintiff returned to his clinic on 1st October, 2014, complaining of persisting low back pain and right leg pain. Injection with interventional radiology was suggested and although the plaintiff got an appointment for that, he declined to have it done.
124. The plaintiff was reviewed by Mr. Keogh on 16th October, 2015. He had ongoing soreness in his lower back. He was stiff in the morning and had difficulty dressing. He had some upper limb symptoms as well. He remained out of work. He had been assessed by his GP at the end of 2014 and deemed fit for light duties. He was on job seekers benefit and reported that he had successfully completed a course in forklift driving. He had ongoing urology symptoms. He felt that he would be fit for sedentary duties if toilet access were available. He felt occasionally depressed and had some financial worries. He was living off his savings from the previous ten years work, due to his inability to work following the accident. On examination, straight leg raising was 80 degrees bilaterally, hip joint was mildly stiff on the left. There was no motor deficit in the lower limbs. X-rays of his hips were normal.
125. Mr Keogh noted that the situation was essentially unchanged since his previous report. He noted that the plaintiff had hurt his back in an incident at work in October 2012. At that time he had been employed as a general operative. He remained out of work. He complained of back pain and intermittently right or left sided leg pain. He also had morning stiffness. An MRI scan had shown degenerative disc disease in the lumbar spine, with mild bulging and annular tears the L3/4 and L4/5 levels. At no level was there significant neuro-compromise. Mr. Keogh stated that it was likely that the annular tears in the lumbar spine were the major cause of the plaintiff’s ongoing lower back pain. These tears rarely occur as a result of one incident. They were more likely to be due to repetitive bending, lifting and twisting.
126. Mr. Keogh noted that he had ongoing urinary problems, but these were not thought to be related to the back injury.
127. The doctor noted that the plaintiff had responded to some degree to physiotherapy, he had declined spinal intervention. No surgery was planned for his back. Mr. Keogh was of the view that the plaintiff was going to have some ongoing lower back pain and would be unlikely to return to heavy manual work, but would be fit for sedentary or light duties. Mr. Keogh stated that the longer that the symptoms went on, the less likely the plaintiff was, to make a full recovery. He stated that he was not surprised that the plaintiff had ongoing back pain.
128. In cross examination, Mr. Keogh accepted that the findings on the plaintiff’s MRI were not uncommon for a person of his age. He stated that annular tears could be caused by wear and tear, they do not have to be traumatic in origin. They could be asymptomatic, but if trauma is applied, this may render them symptomatic. That the plaintiff did have degenerative changes in his lower back. These were mild in nature; they were definite but mild. There was no nerve root compression.
129. Mr. Keogh stated that when he saw the plaintiff, he had been to the GP on one occasion and had been prescribed anti-inflammatory medication. He first saw the plaintiff at six months post accident. He recommended physiotherapy treatment. He thought that the plaintiff had had such treatment after his second request had been put in. He accepted that a patient would have to adopt the physiotherapy regime and follow the instructions given in relation to doing exercises.
130. He was a little surprised that the plaintiff had been out of work all the time that he had seen him. However, he believed that patients can judge for themselves if they can return to work. They stated that the plaintiff had been fit for light work all along. He was glad to see that the plaintiff had done a forklift driver’s course.
131. He had suggested an epidural injection and discussed this with the plaintiff and an appointment had been obtained for such treatment, but the plaintiff had declined it. He stated that if a patient had unrelenting pain, he would give an epidural in an attempt to break the pain cycle. However, in this case, the plaintiff had declined the treatment; some people are frightened of needles going into their back. He did not push this treatment on patients. He stated that if that was him, he would not have the intervention unless he was in a very bad way. He would avoid surgery.
132. The plaintiff told him that he had injured his back while lifting cartons of yogurt. This was a repetitive activity. The plaintiff claimed there had been one incident, when he came to see him. However, one episode of lifting would not cause annular tears. Mr. Keogh stated that it was more likely to be one lift of a number of lifts which would cause the injury.
133. By agreement of the parties, two medical reports were handed in on behalf of the defendant. The first of these was a report from Mr. Brian J. Hurson, Consultant Orthopaedic Surgeon, from an examination carried out on 22nd January, 2015. He noted that the plaintiff complained of pain in the midline of his upper lumbar spine in the area of L2/3 and in the para-spinal muscles on both sides. He also experienced pain in the anterolateral aspect of his left buttock, left thigh, left leg and lateral foot. His symptoms could be aggravated by walking for 30 minutes. Thereafter, sitting helped. He noted that the plaintiff may have five to ten episodes of symptoms in a month. These used to be more frequent. The plaintiff complained of being stiff in the morning. He would loosen up with daily activities. Also he worked on a home exercise programme, which helped.
134. Examination of his back showed that it had a normal appearance with normal lordosis. The plaintiff could flex to touch his toes. Extension and lateral bending were normal. Straight leg raising was 80 degrees on the left. At this point, the plaintiff experienced mild pain in his left hip. He had a normal range of left hip movements. Neurological assessment of his lower limbs was normal. The doctor noted that the plaintiff used to experience pain in his lower back when working prior to the accident in October 2012. On one occasion, he took a week off work because of his back symptoms. That was two years before his accident.
135. In his summary, opinion and prognosis, Mr. Hurson noted that the plaintiff experienced pain in his back as he was lifting cartons of yogurt. This pain became progressively worse. He had been treated with anti-inflammatory medication and physiotherapy. This was against a background of having had aching pains in his lower back in the past. He currently complained of intermittent episodes of pain in his upper lumbar spine, which were associated with pain in his left leg. He also complained of stiffness in the morning time. The home exercise programme helped his symptoms. Examination showed that he had a normal range of back movements. Neurological assessment of his lower limbs was normal. He had no nerve tension signs. His MRI study showed mild degenerative changes. There was no evidence of nerve root compression. Mr. Hurson was of the view that essentially the plaintiff had suffered a soft tissue injury/sprain of his lumbar spine, aggravating previously existing back complaints.
136. The second report was from Dr. J. A. O’Dwyer, Consultant Neuroradiologist, dated 20th January, 2016. He reviewed conventional imaging of the lumbar spine dated 1st November, 2012, which was approximately three days following the incident. He noted that there was disc degeneration evident at L3/4, L4/5 and L5/S1 levels. This was manifest by narrowing of the L3/4 and L4/5 discs with marginal osteophyte formation anteriorly at L3 and L4. Further degenerative change was evident at T12/L1 and L1/2. There was normal vertebral alignment and there was no evidence of bone injury.
137. Dr. O’Dwyer noted that the plaintiff had had an MRI scan of the lumbar spine on 27th August, 2013. However, that scan had not been made available to him.
138. Dr. O’Dwyer noted that there was degenerative change evident on the plain scan which he had reviewed. He noted that there was reference to annular tears. He noted that there was no disc protrusion or nerve root compression evident. He stated that annular disc tears, possibly better known as annular fissures, are part of the degenerative process and are not traumatic in etiology. He stated that in his opinion there were no changes on the MRI scan report that could be attributable to the incident.
139. Evidence was given by Ms. Patricia Coughlan, Vocational Rehabilitation Consultant. She assessed the plaintiff on 7th December, 2015. She noted that the plaintiff had received secondary school education, taking his final year examinations in 1985. He had intended to go on to college and had an interest in going on to study logistics and applied to a military college and was accepted on this course. However, he left after six months, as he felt that the course did not meet his expectations. He was also interested in studying sociology, but he did not pursue that interest any further.
140. In terms of his work history, he had secured employment in 1985 in a local hotel. Between 1990 and 1995, he was employed as a terrain researcher, working out in the field looking for uranium sites to drill. He left when the company went into bankruptcy. Between 1995 and 2000, he was employed as a shop assistant in an electrical retail shop. From 2001 to 2004, he worked as a landscape worker on a Kipputz in Israel. In 2004, he came to Ireland and secured a position with Smurfit in Tallaght working as a machine operative. He was employed in setting and calibrating printing machines. He would feed cardboard to semi- automatic printing machines and assembled promotional advertising displays. He left this job when his contract ran out. From February 2005 to July 2014, he worked full time as a general operative with the defendant company at its warehouse in Blanchardstown, Dublin. He remained with the company until he had his accident on 29th October, 2012. Thereafter, he was out sick and was finally made redundant upon the closure of the company in July 2014.
141. Ms. Coughlan noted that the plaintiff reported ongoing lower back pain, which was worse some days more than others. He could walk for up to two hours, but could not do lifting or carrying of heavy loads. He had difficulty bending. He could not do heavy housework. Going down stairs seemed to aggravate his low back pain. His sleep was disturbed by pain. Ms. Coughlan noted that the plaintiff reported ongoing bladder problems and he was on medication for that. She noted that the plaintiff continued to have unpredictable back pain, that radiated into his left leg sometimes and he would get pins and needles in his left leg. She noted that the plaintiff had worked on his rehabilitation and had gone swimming regularly. He also used heat treatment, went walking and did exercises. He did the exercises for about 40 minutes each morning to loosen up his spine.
142. Ms. Coughlan noted that the plaintiff had successfully completed a forklift driver’s course. She noted that from a vocational point of view, he had been advised by his doctors not to return to heavy manual work. He was looking for light work at the time of her assessment.
143. Ms. Coughlan stated that as a result of the injury, the plaintiff had been left at a considerable employment disadvantage, given his lack of educational qualifications and his limited English. He was also at an employment disadvantage due to his ongoing back problems. If he is not fit for heavy work, he will have to look for light work. In trying to secure such employment, he will have to compete against younger people, who have no history of back problems and who have fluent English. In addition, his absence from the work market was also a disadvantage.
144. Ms. Coughlan advised that the plaintiff should see if there was any Community Employment Scheme in his area. He should also try to improve his English. She noted that he was anxious to get back to work and possibly he would be able to get light work as a car park attendant or a cinema usher, which would pay €9.15/€10 per hour. She recommended that he should also contact the National Learning Network.
145. Although he had obtained a qualification in forklift driving, nearly all forklift jobs require at least two years experience and good English. In addition, these jobs usually involve some lifting. She had advised the plaintiff to try some driving jobs, such as fast food delivery or flower delivery. She felt that he needed some retraining to break the pattern of unemployment. He realistically had two alternatives: (i) sedentary jobs; or (ii) light driving duties.
146. In cross examination, it was put to the witness that the plaintiff had been certified fit for light work since 2014, but had not done any work in 2015. Ms. Coughlan stated that this was not surprising, as he came from a labouring background, it was difficult for him to get light work. While there were jobs that he could do since 2015, not having fluent English would be a disadvantage. She accepted that according to his doctors, the plaintiff is fit for light duties. He would be fit for light duties that would involve some small physical elements, e.g. car park attendant, some factory jobs, cashier or switchboard operator, if his English was good enough.
147. It was put to the witness that the plaintiff had been certified for light work by his GP in December 2014. She stated that he had told her that he had been looking for work. He seemed to be trying to get back to work. He had done the forklift driving course but was not able to get a job because he did not have two years’ experience. He could do a computer course and hopefully get a part time job. She stated that his marketability would improve if he got a job. She stated that the fact that he had recently got a part-time job in a bar will be helpful. He was capable of fulltime hours, in light work.
148. Finally, evidence was given in relation to the plaintiff’s loss of earnings claim by Mr. Nigel Tennant, a Consulting Actuary. The parties had agreed that in respect of the period from the date of the accident to the date of closure of the company in July 2014, when the amount of the recoverable benefits and the sum paid by way of redundancy payment was subtracted from the relevant loss of earnings figure, there was a nil loss in this regard. The parties had further agreed that the figure for loss of earnings between the date of redundancy and the date of hearing of the action, was €33,150.
149. In respect of the plaintiff’s pre-accident earnings, he earned €501 gross per week, which came to €430 net per week. Mr. Tennant noted that Ms. Coughlan had stated that if the plaintiff returned to light work, he would earn between €9.15 and €10 gross per hour. For the purposes of his calculations, Mr. Tennant had assumed that the plaintiff would therefore be able to earn an average of €9.575 gross per hour. On these figures, if the plaintiff returned to full time light work, he could hope to earn €349 net per week. This would give rise to an ongoing loss of €81 per week.
150. Mr. Tennant calculated that on a real rate of return of 1% and based on a retirement age of 68 years, this would give a net weekly loss of €81 and the appropriate multiplier was €948, giving a capital value of the loss of €76,788. On a real rate of return of 2.5% and based on a retirement age of 68 years, the calculation was €81 x €858, giving a capital value of the loss of €69,498.
151. The multipliers and valuations furnished by Mr. Tennant did not take account of any contingency deduction along the lines of Reddy v. Bates. Mr. Tennant pointed out that under current government proposals, all employers in the State are to be obliged to make occupational pension schemes available to their employees in future years and to make contributions to those schemes on the employees behalf. This would mean that any future loss of earnings to the plaintiff will have “knock on effects” on these pension contributions, as the pension contributions will be a percentage of pay. The valuations given in the actuary’s report were in respect of future loss of earnings only and did not allow for ancillary loss in respect of such pension contributions in future years. The author suggested that the non-inclusion of any additional claim in this regard should serve as a potential offset to any Reddy v. Bates type contingency deduction from the above future loss of earnings figures.
Conclusions on Quantum
152. The plaintiff is 47 years of age having been born on 28th June, 1968. At all material times, he was employed as a general operative at the defendant’s warehouse premises in Northwest Business Park, Blanchardstown, Dublin. The plaintiff suffered injury to his back as a result of an accident which occurred on 29th October, 2012.
153. According to the evidence given by Mr. Peter Keogh, Consultant Orthopaedic Surgeon, it is likely that the plaintiff suffered injury to his back over a prolonged period of time, culminating in the pain which he experienced after carrying out a lifting and turning manoeuvre in the course of his work on 29th October, 2012. Mr. Keogh is of the view that the main cause of the plaintiff’s back pain, was the annular tears to the discs in his lower back. He is of opinion that such tears are unlikely to be caused by one single incident, but are more likely to have been caused by repetitive lifting, bending and twisting to the plaintiff’s spine in the course of his work. I am satisfied, on the basis of this evidence, that there is a causal link between the activities carried on by the plaintiff in the course of his work, and the onset of severe back pain in October 2012.
154. The plaintiff has received treatment in the form of physiotherapy and acupuncture which was carried out over six months in 2013. In addition, he also returned to his home country, Slovakia, and attended a spa there, where he received physiotherapy and massage treatments over a period of ten days. While this gave him considerable relief from his symptoms, this only lasted for approximately one month, before the back pain returned.
155. I am satisfied that the plaintiff has given a truthful account of his injuries and of their effect upon him. He states that at present, while there has been considerable improvement in the back pain, he continues to experience pain on a daily basis. He experiences pain on waking each morning, and has to do a series of exercises to loosen up his back. His back becomes sore after sitting for any appreciable period of time. He also has disturbed sleep, although it has to be noted that some disturbance of the sleep is due to unconnected urological problems. The plaintiff stated in evidence that at present, he does not require painkilling medication. The plaintiff stated that his back pain would be somewhat unpredictable and that on occasions it would radiate into his left leg and sometimes he would get pins and needles in the leg. The plaintiff goes swimming regularly, as this is helpful for his back. However, he is not able to play water polo or go cycling, as he had done prior to the accident.
156. Of some importance, is the fact that the plaintiff has been rendered unfit for his pre-accident employment as a result of his injuries. His doctors are of opinion that he is only fit for light duties and will be so disabled for the rest of his life. He has become somewhat depressed as a result of this disability and as a result of the financial hardship that it entails.
157. The plaintiff was offered the opportunity of having an epidural injection to ease his pain. However, due to fears that he had concerning the nature of this treatment, he declined to have this treatment. Mr. Keogh stated that it was reasonable for the plaintiff to have these concerns. He stated that he would not push this treatment onto his patients. He said that if that was him, he would not have the intervention unless he was in a very bad way. He stated that he would avoid surgery.
158. I am satisfied that the plaintiff has suffered a significant injury to his back, which has given rise to ongoing sequelae. Of more significance, it has rendered this relatively young man unfit for heavy work.
159. The defendant’s doctor, Mr. Hurson, was of the view that the plaintiff had sustained a soft tissue injury/sprain of his lumbar spine aggravating previously existing back complaints. In this regard, it has to be noted that the plaintiff did have pre-existing degenerative changes in his back. Furthermore, he had suffered previous injuries to his back in 2009 and 2011, which had rendered him unfit for work for a short period on each occasion.
160. Taking all of the medical evidence into account, I am satisfied that the plaintiff has suffered a significant injury to his lower back, which has rendered him permanently disabled in the work aspects of his life. I accept the plaintiff’s evidence that he continues to experience back pain on a frequent basis, particularly when he awakes in the morning. In the circumstances, I award the plaintiff €40,000.00 for general damages for pain and suffering to date.
161. In relation to the assessment of general damages into the future, while I note that the plaintiff has made considerable improvement, he has nevertheless been left with a significant disability into the future, in that he is now only fit for light work. In these circumstances, I award the plaintiff €30,000 for pain and suffering and disability into the future.
162. In relation to the plaintiff’s loss of earnings claim, the parties have agreed that the sum of €33,150.00 should be allowed for loss of earnings between the date of redundancy and the hearing of the action.
163. The final area is the plaintiff’s claim for future loss of earnings. I am satisfied, having regard to the evidence given by Mr. Keogh, that the plaintiff is capable of returning to light duties, on a full-time basis. Adopting the rates of pay as put forward by Ms. Coughlan and subtracting that from the plaintiff’s pre-accident net earnings, gives rises to a weekly loss of €81. Based on a retirement age of 68 years and assuming a real rate of return on a 1% basis, gives rise to a capital value of the loss of €76,788.00. If a real rate of return of 2.5% is used, the capital value of the loss until a retirement age of 68 years is €69,498.00.
164. The figures given by the actuary do not take account of any reduction along the lines of the decision in Reddy v. Bates. Indeed, in this case, a contingency provided for in that case actually occurred, in that the defendant company closed down in July 2014. Thus, even if the plaintiff had not been injured, he would have been made redundant at that time. The essential difference being that, but for the accident, he would have been put back into the labour market as a healthy man, capable of taking on heavy work. As a result of the accident, he finds himself in the labour market but only capable of doing light duties. This is a particular handicap to him, given that he has somewhat limited educational qualifications and does not speak fluent English. Thus, as postulated by Ms. Coughlan, his chances of securing full time light duties, when competing against younger and healthier candidates, who speak fluent English, must be seen as somewhat limited.
165. The picture is further complicated by the fact that just before the hearing, in or about January 2016, the plaintiff did, in fact, secure employment albeit on a part time basis, working in a public house. For the basis of this calculation, I am going to ignore the fact that the plaintiff has taken up part time light duties and I will assume that he would be able to find full time light duties if he wanted. This will give rise to an ongoing loss of €81 per week, which on a 2.5% basis until retirement at age 68, gives rise to a capital value of the loss of €69,498.00. As the plaintiff would have a further 21 years of working life ahead of him, it seems to me that there must be some reduction on the basis of the Reddy v. Bates decision. In the circumstances, I will allow the sum of €50,000 for future loss of earnings.
166. In the actuary’s report, it was suggested that there should be no reduction along the lines of Reddy v. Bates, due to the fact that, under current government proposals, all employers would be obliged to make occupational pension schemes available to their employees and to make contributions to those schemes on behalf of their employees. It was submitted that as the contribution to such scheme would be based on the employee’s earnings, the plaintiff would therefore suffer a loss due to the fact that, as he was only fit for light duties, his earnings would be less than would otherwise have been the case. In these circumstances, it was submitted that the loss of pension contribution should be set against the Reddy v. Bates deduction and that therefore no such deduction should be made from the figure given for the capital value for the loss of future earnings.
167. I do not propose to adopt this suggestion. There was no evidence before the court as to what the terms of this proposal might be, nor was it indicated when the particular scheme might be put in place. In these circumstances, it is not appropriate to take into account a particular scheme which has not yet been placed on a statutory footing, nor were any concrete figures given in relation to the scale of the contribution that might be made. For this reason, I think that it is appropriate to make the Reddy v. Bates deduction as outlined above.
168. Adding the component parts together, the plaintiff is entitled to judgment against the defendant in the sum of €153,150.00.
Martin v Dunnes Stores (Dundalk) Ltd
[2016] IECA 855
JUDGMENT of Ms. Justice Irvine on the 14th day of March 2016
1. This is the defendant’s appeal against an award of damages in the sum of €67,450 made in favour of the plaintiff by O’Neill J. in the High Court in Dundalk on the 21st May, 2014.
2. On this appeal the defendant not only contests the quantum of the aforementioned award, but it also contends that the liability finding on the part of the High Court judge was misplaced having regard to the facts as found and the relevant legal principles.
Background
3. The plaintiff was born on the 16th October, 1951 and at the time of the events, the subject matter of her claim, she had been working for Dunnes Stores for a period of approximately 26 years. It is accepted that on the 10th August, 2011, while working as a checkout operator, she left her till to replace a 10kg pack of potatoes for a customer who had arrived there with a bag which was torn. In the course of procuring one such bag from a pallet in the fruit and vegetable department, the plaintiff sustained a partial tear to the biceps muscle of her right arm. There is no dispute that the bag in question was wedged between two adjacent bags of potatoes such that it could not freely be moved at the time the plaintiff tried to extricate it for the benefit of the customer.
4. The claim made on the plaintiff’s behalf in the High Court was first, that she had not been provided with a safe system of work on the day in question in that, in practical terms, there was nobody at the checkout that she could call upon to carry out the customer’s request. She had been indirectly pressurised into carrying out the errand for the customer and the defendant had thus been negligent in failing to provide her with proper assistance and a safe system of work. Second, the plaintiff maintained that she had not received adequate training to allow her safely carry out the operation in question, namely, the lifting of a 10kg bag of potatoes from a pallet not much above floor level and where the bag concerned was wedged between other bags of potatoes.
Judgment of O’Neill J.
5. The trial judge accepted the plaintiff’s evidence as to the manner in which the injury had been sustained. Namely, that she was “yanking it [the bag] out” from between the other bags of potatoes when she suffered the injury to her arm.
6. As to the liability issue, the trial judge was satisfied that insofar as checkout operators might have to respond to customers requests, the defendant had in place a system whereby employees would first seek assistance from staff at or near the checkout and, in default of finding a member so available, would seek backup assistance by deploying the tannoy located in the checkout area. This system was reasonably assiduously followed by the defendant. O’Neill J. concluded, however, that on the day in question the store was short staffed and the plaintiff could see no one available to assist her. He found that in such circumstances the plaintiff had no alternative but to leave the checkout and go and get the customer’s bag of potatoes herself. He thus found that the plaintiff had not been provided with adequate assistance or a safe system of work.
7. The trial judge also concluded that, having regard to the circumstances in which she had been required to lift the bag off the pallet, namely from almost ground level and out from her body, that the weight of the bag was excessive. He further found that the additional force required to extricate the bag from the adjacent packages presented a very significant risk of injury to any employee and that the lift which the plaintiff had been required to carry out was excessive, inappropriate and potentially dangerous.
8. While the trial judge found that the plaintiff had been well trained in the theory of manual handling and lifting and that the courses provided for her by the defendant were “adequate”, he nonetheless went on to conclude that they were “very inadequate” in that they did had not address the practicalities of what employees might be expected to lift. He instanced a number of products such as bags of dog food, compost and potatoes and found the defendant negligent in its failure to incorporate within its training programme the practicalities of lifting such products.
9. In such circumstances the trial judge concluded that the defendant was negligent in requiring the plaintiff to carry out a lift that was excessive, inappropriate and potentially dangerous and was one for which the plaintiff had not been adequately trained.
10. This is how the trial judge voiced his conclusions:-
“So I am satisfied that the accident which happened to the plaintiff was caused by a dangerous lift and an absence of adequate training in the proper lifting of objects such as this and then the failure of the defendant’s system for providing assistance on the day in question. The plaintiff did her best on the day and I see no evidence of any contributory negligence on her part and it seems to me that the defendants are entirely liable for and responsible for this accident because of their failure in their duty to the plaintiff to provide her with a safe system of work on the day and they are, therefore, obliged to compensate for the full amount for damage.”
Appellant’s submissions
11. Mr. Mohan S.C. on behalf of the defendant maintains that the trial judge’s finding that the plaintiff was not provided with adequate assistance while working at the checkout and that she had no option but to carry out the task of fetching the bag of potatoes herself was not supported by the evidence. The defendant’s system required checkout staff, if they needed help, to call for help, if necessary by using the tannoy system. It was at the end of the check-out aisle and the plaintiff chose not to use it. The uncontroverted evidence was that there were five people who might have assisted her had she done so. However, she decided to depart from the system which the judge had found was reasonably assiduously applied and in such circumstances the defendant could not held in breach of any duty of care to the plaintiff nor liable for what later occurred.
12. Mr. Mohan reminded the Court that an employer is not the insurer of the welfare of their staff members. The defendant’s obligation is to take such measures as are reasonable and practicable to protect the employee from injury having regard to the circumstances of the work being performed at any given time. He maintained that the measures deployed by the defendant and which were detailed in the course of the evidence were reasonable in all the circumstances. It was neither reasonable nor practicable to require additional staff to be available at the checkout to immediately deal with a request from a checkout operator for assistance. Even if there was a member of staff deployed full time for this purpose at times they would be off dealing with one problem when another might arise in which case it was reasonable that additional assistance might be provided by the checkout operator seeking assistance of another staff member using the tannoy.
13. As to the trial judge’s findings that the plaintiff had been asked to carry out a lift which was excessive, inappropriate and dangerous and one for which she had not been trained, on the facts of the case this was not so. The plaintiff was not lifting a bag of potatoes from the floor at a distance from her body at the time she sustained her injury. A 10kg lift, on the evidence, was only excessive if such a weight were being lifted in that manner and this was not how the injury had been sustained.
14. As to the trial judge’s finding that the plaintiff’s training had been inadequate, Mr. Mohan submits that it is wholly unreasonable to expect an employer to train an employee as to how they might go about lifting every potential type of product or object they might have to handle in the course of their employment. This would be unreasonable, impracticable and would impose an unfair burden on an employer. It would involve the employer in trying to identify every potentially difficult product that an employee might potentially have to handle in the course of their duties after which there would have to be given practical training as to how they might carry out any manoeuvre or lifting action. He submitted that the training provided to the plaintiff was sufficient to protect from the risks and hazards she was likely to encounter as a result of the manual handling or lifting of any of the defendant’s products. Further, even if the plaintiff had been trained in the manner proposed by the trial judge as required to meet the defendant’s obligations, the high likelihood was that she would not have been trained to lift potatoes in the imponderable circumstances that had occurred in this particular case and thus training would not have avoided what had occurred. He relied upon the fact that the plaintiff had expressed herself comfortable about how to lift a 10 kg bag of potatoes.
15. Mr Mohan submits that the trial judge ought to have concluded that there was no negligence on the part of the defendant in so far as its training of the plaintiff was concerned. The evidence established that the plaintiff had been trained to identify a dangerous load. The documentation completed by her following her manual handling training evidenced the fact that she should have comprehended the danger of seeking to extricate the bag of potatoes and she should not have attempted it. Further, insofar as she was injured carrying out this type of manoeuvre no evidence was led to the effect that she ought to have been trained to deal with what she should have done when faced with a bag of potatoes which was clearly wedged in place. Mr Osborne, the plaintiff’s consulting engineer, never mentioned the defendant’s obligations in such circumstances.
The plaintiff’s submissions
16. Mr. Kilfeather S.C. submits that the trial judge was quite correct in finding the defendant negligent in its failure to provide adequate assistance to the plaintiff when she was at the till. He submits that but for that negligence she would not have been faced with the lift which caused her injury. She had no practical assistance on the day in question having regard to the shortage of staff and this created a foreseeable risk of injury, particularly in circumstances where staff on the tills were under pressure and the company policy was to ensure that the customer was served with all due expedition.
17. Mr. Kilfeather further submits that the trial judge was correct in concluding that the lift that the plaintiff was undertaking at the time she sustained her injury was excessive and unsafe having regard to its weight, its position at almost floor level and the distance between the bag of potatoes and the plaintiff. He maintains that the finding of the trial judge to the effect that the defendant was negligent in failing to adequately train the plaintiff, in practical terms, how to lift a load such as a bag of potatoes or other like heavy product was to fall short of their obligations as the plaintiff’s employer.
Legal principles
18. Time and time again the courts, in personal injuries litigation, have stressed that the duty of the employer to their employee is not an unlimited one. The employer is not to be taken as an insurer of the welfare of their employees. In Bradley v. C.I.E. [1976] I.R. 217 at 223, Henchy J. stated as follows:-
“The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances.”
19. The duty owed by an employer of course varies depending upon the knowledge and experience of the employee. Further, the more hazardous the work in which the employee is involved the more stringent the duty of the employer to protect the worker. However, their duty is met once they take reasonable and practicable steps to avoid accidental injury. As has often been stated, it is not possible to eradicate all risks and accidents.
20. The Safety, Health and Welfare at Work Act 2005, provides at s. 8(1) thereof that:
“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”
21. What the words “reasonably practicable” mean are defined in s. 2(6) of the 2005 Act, namely:-
“For the purposes of the relevant statutory provisions, ‘reasonably practicable’, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.”
Decision
22. It is not in contest that this court is bound by the decision of McCarthy J in Hay v. O’Grady [1992] I.R. 498. Thus, findings of fact made by the trial judge which are supported by credible evidence cannot be displaced by the appellate court. This is because the appellate court, unlike the trial judge, does not enjoy the opportunity of seeing and hearing the witnesses. Likewise, were inferences are drawn based upon oral evidence heard by the trial judge, an appellate court ought to be slow to interfere with or draw different inferences than those drawn by the High Court judge. However, insofar as inferences are drawn from circumstantial evidence, an appellate tribunal is in just as good a position as the trial judge to reach its own conclusions.
23. There are a number of matters which are not in dispute between the parties. Firstly, the plaintiff was a hard-working and loyal employee of the defendant and the judge found her to be a credible and honest witness. Secondly, there is no dispute that the defendant had a system in place whereby members of the checkout staff could access assistance from other members of staff should they require it. If necessary, the system included their recourse to the tannoy which the trial judge found was to be located at the end of the checkout aisle. Thirdly, it is accepted that the plaintiff was trained in manual handling techniques on a regular basis. After each such manual handling course she was tested in respect of her knowledge. This involved her considering a range of questions on a questionnaire and answering them. albeit in a tick box format.
24. Critical to my conclusions on this appeal is the extent of the onus placed on an employer to take due care for the safety and welfare of their employee. I have already referred to the statutory obligations in this regard. In the context of this case it is reasonable to say that the obligation of the defendant was to identify potential hazards likely to affect the safety and health of the plaintiff and then, whether through training or the implementation of procedures and precautions which were practicable in all the circumstances, to guard against those risks: see Quinn v. Bradbury [2011] IEHC per Charlton J.
25. Insofar as the trial judge concluded that the defendant failed to comply with its duty of care to the plaintiff when she was stationed at the checkout, I fear that I must disagree with his findings based upon the evidence heard in the course of the trial. From that evidence it would seem to me that there is very little potential hazard or risk faced by an employee working at a checkout in Dunnes Stores in Dundalk, regardless of its expectation that its customers needs would be met by checkout operators as a matter of priority. From time to time in the course of any given day they might be asked, as occurred in the present case, to fetch or exchange a product for a client and most of those products are ones which, in the normal course of events, the customer would themselves bring to checkout.
26. The defendant had a system in place whereby any member of the checkout staff who required assistance was instructed to seek assistance from such members of staff as might readily have been available to them. If they were not so available they were trained to call for assistance using the tannoy. The undisputed evidence in this case was that Mr Joe Smith, Mr David Robinson and other members of staff were available to respond to a request for assistance had such a call been made over the tannoy. However, the plaintiff did not follow her training. She ignored the system that was put in place by her employer to make sure that she would not be required to undertake any unwarranted tasks. The trial judge’s finding of fact that there was no other help available to the plaintiff and that she had no option but to go and get the potatoes herself, is not actually supported by the evidence.
27. I can well understand how the plaintiff, anxious to please the customer, and, indeed, her employer, immediately went off to replace the bag of potatoes when asked by the customer to do so. She made a judgement call based upon her belief that the store was short staffed because it was a holiday period. She knew that her direct supervisor was on holidays and her acting up supervisor was working at the express checkout till. She assumed Mr Smith was on his lunch, which he was not. He was available to assist had he been called. Further, the evidence was that there were other members of staff on the floor who were also in a position to render assistance had she used the tannoy. She did not follow the system which she had been trained to operate and which was designed to best protect her interests.
28. I am quite satisfied from the evidence that Dunnes Stores had a policy and procedure in place to protect the welfare and safety of those working at their checkouts. Those procedures took into account the possibility that, from time to time, there would be no one immediately available at the tills themselves in which case the checkout operator has been trained to seek assistance from a member of staff using the tannoy. I agree with Mr Mohan’s submission this was a reasonable procedure to deploy and that the trial judge erred in law in concluding that the defendant had failed in its obligations to provide proper assistance for the plaintiff on the day in question.
29. For my part I believe that it would be neither reasonable not practicable to expect the defendant to have an employee ever present available to deal with any query as might be brought to the checkout operator by a customer. As Mr. Mohan pointed out, even if the store had one or more full time assistants available to checkout operators, it would invariably happen that from time to time these would be deployed on the floor when another problem needing attention. In such circumstances assistance would only be available over the tannoy. The temporary unavailability of a staff member in such circumstances could not, in my view, be considered sufficient to establish a breach of duty on the part of an employer.
30. Thus, a system which depends on the occasional use of the tannoy is, in my view, perfectly acceptable as providing a system which is practical and reasonable for the purposes of protecting the health and safety of the employee working as a checkout operator. I agree that this was a reasonable system to have an operation and it was one which, had the plaintiff operated it, would have brought Mr Smith to the checkout to assist the plaintiff. Contrary to the trial judge’s conclusions, the system on the day in question did not fail and there was no evidence to support that finding or his finding that no other help was available to the plaintiff.
31. Further, even if the defendant was negligent in failing to provide the plaintiff with adequate assistance while she was working at the checkout, a proposition which I reject for the reasons earlier advanced, the same was not causative of her injuries for the reasons to which I will shortly refer.
32. As to the trial judge’s finding that the defendant was negligent in failing to afford the plaintiff adequate practical training as to how she might lift a product such as the 10 kg bag of potatoes, or a like weight packet of dog food or compost and/or his finding that the lift which she was required to make was excessive, inappropriate and potentially dangerous, I once again find myself in disagreement with his conclusions.
33. From his judgment, it is clear that O’Neill J. found, as a matter of fact, that the plaintiff had sustained her injury when she was trying to “extricate” the bag of potatoes by leaning in over the pallet and “yanking it out” from its wedged position between other bags of potatoes. The plaintiff did not sustain her injury by lifting a 10kg load from floor to shoulder height out from her body in the manner depicted as being excessive for women in the document providing guidance in respect of the management of manual handling in the workplace, and which was attached to the report of Mr Joseph Osborne, consulting engineer, dated 6th October 2011. Thus, his finding that the load which she was lifting was excessive is not, in my view, sustainable on the evidence.
34. It is also clear from the evidence and the findings of the trial judge that he accepted that the plaintiff had been trained and assessed on a regular basis in relation to manual handling skills and techniques. The plaintiff, in the course of her evidence agreed that she had been trained how to lift heavy items, albeit by way of training using an empty cardboard box. She knew that the load was to be lifted as possible to her body. Further, she had been instructed as to how to assess the size and weight of any load which she was expected to handle and she also agreed that she understood that when pulling a load any stretching or twisting action might cause injury. She acknowledged these factors by reference to an assessment test sheet dated 7th March 2006 referable to a manual handling course which she had completed at that time. She also accepted under cross-examination that she had been taught to look for help if she needed it and that she must not lift or handle any load which she felt uncomfortable about handling.
35. For my part, I am not satisfied that trial judge’s finding that the defendant was negligent in failing to have in place a manual handling training system which included practical training for employees concerning products of the nature referred to by the trial judge in his judgement is supported by the evidence. Such a system, I believe, would be neither reasonable not practicable for any employer particularly one such as the defendant, who presumably has an ever changing range of products from groceries to furniture to household goods which employees have to handle on a regular basis. However, the more significant point is that there could be no causative link between any such failure on the part of the defendant and the plaintiff’s injuries. Even if the defendant had had such a system of training in place it would not have covered the situation which arose in the present case. The injury was not sustained because the plaintiff was lifting a 10 kg bag of potatoes from a pallet. It was sustained when the plaintiff lent in sideways over the pallet and “yanked” this product from between two other bags of potatoes, which for some reason she left in situ while trying to extricate the bag concerned. This precise scenario was unlikely to be covered by any manual handling course practical or otherwise.
36. I am quite satisfied that for an employer, such as the defendant in this case, it reasonably discharged its obligations to the plaintiff by training her on a regular basis as to the principles of safe manual handling which it was then up to her to deploy when faced with any given task. The fact that the training in respect of safe lifting techniques may have been done using empty cardboard boxes or boxes with handles cannot, on the evidence, be considered to amount to a failure on the part of the defendant to meet its common law and statutory obligations to the plaintiff. Its obligation was to identify potential hazards and then implement procedures designed to protect the employee from the risks pertaining to such hazards, which it did.
37. In this particular case the hazard faced by the plaintiff did not emanate from lifting a 10kg bag of potatoes. The plaintiff knew the weight of the pack – it is printed on the bag. She said in evidence she had no concerns about lifting such a bag. She had also been trained to identify lifting or handling activities which might potentially place her at risk. In the course of the evidence she demonstrated that she well knew that twisting her body while pulling a load might expose her to a risk of injury. She had been trained to seek assistance if she was uncomfortable about any task she had been asked to perform. It was readily apparent to her when she went to lift the bag of potatoes that it was stuck. She was also, according to own evidence, standing sideways onto the pallet when she lent in to try and move the pack of potatoes. It was obvious from the very start that the bag of potatoes could not readily be moved. She accepted that if she felt uncomfortable about performing a lift or any other manual handling exercise that she ought to have sought assistance rather than undertaking it herself. Based upon that training she should have assessed the lift in these circumstances to be unsafe.
38. This is, indeed, an unfortunate case. The plaintiff, a loyal and hard-working member of the defendant’s staff, because of her commitment to her employer and her desire to meet a customer’s needs, took on a task which was contra indicated by her training and did so in circumstances where she knew or ought to have known she might sustain an injury. She did not seek assistance at the checkout, as she might have done having regard to her training, and further, when faced with moving a heavy bag of potatoes which was obviously wedged in position such that it could not be easily extracted without force, proceeded to try to yank it free thus causing herself an injury.
39. Having considered all of the evidence that was before the High Court, I am not satisfied that the plaintiff’s injuries can be ascribed to any negligence, breach of duty or breach of statutory duty on the part of the defendant who, to my mind, had taken all reasonable precautions and had implemented all reasonable practices to protect the plaintiff from injuring herself in circumstances such as those which presented in the present case.
40. While it is impossible not to have great sympathy for the plight and predicament of the plaintiff, the law on the matter is, I fear, very clear.
41. In these circumstances I am satisfied that the defendant’s appeal must be allowed.
Fitzell v South Tipperary County Council
[2016] IEHC 590,
JUDGMENT of Mr. Justice Barr delivered on the 25th day of October, 2016
Introduction
1. The plaintiff is 47 years of age and is employed as a store manager. He is also a part-time fire fighter and has been employed in that role since 1992. He has risen to the rank of Station Officer in Cashel Fire Station.
2. On 4th January, 2012, there was an oil spillage at Cooper’s Lot, Clonmel Road, Cashel, Co. Tipperary. Oil had leaked from a tanker, resulting in a large covering of oil on the road surface over an extended area. A fire tender was dispatched from Cashel Fire Station to carry out the clean up operation. The plaintiff was the most senior fire fighter present and as such he was the designated Incident Commander.
3. One of the plaintiff’s duties as Incident Commander, was to radio back reports to his station as to how the operation was progressing. This required him to ascend and descend from the fire tender on a number of occasions during the clean up operation.
4. The fire tender in question is shown in the photographs taken by Mr. Michael Fogarty, the plaintiff’s consulting engineer. The passenger side of the cab is shown in photographs No. 2 and 3. It can be seen that there are two yellow handles at the front and back of the cab opening, which can be used by people ascending or descending from the cab. The cab floor is at a height of 4ft above ground level. There are two steps between the cab floor and ground level. The lower step is at a height of 1ft, 5 inches, while the second step is at a height of 2ft, 8 inches. There is a rubber mat on the floor of the cab and there is metal nosing at the edge of this mat. This can be seen clearly in photographs 4, 5 and 6. The metal nosing has a width of 2 inches and is ribbed. The metal nosing is located at the edge of the cab floor and is, therefore, also at a height of 4ft above ground level.
5. The accident occurred on one of the occasions when the plaintiff had ascended into the cab of the tender to give a progress report to the station. Having given the report, he used his left hand to grab onto the grab rail, which was in front of him and to his left. He pulled himself up from a seated position. The plaintiff’s left foot, slid forward along the nosing in the direction of the arrows as shown in photographs 5 and 6. His foot then slipped off the nosing and the plaintiff was caused to fall to the ground, causing injury to his right ankle.
6. The plaintiff states that he was caused to fall due to the presence of oil on the soles of his boots, allied to the fact that the ribs on the nosing ran lengthways from the front to the back of the tender, such that his boot was caused to slip along the ribs and then came off the nosing altogether.
7. The plaintiff’s case is that the defendant was negligent and in breach of statutory duty in the following ways:-
(i) Failing to provide a means of cleaning the boots while on site.
(ii) Failing to provide nosing which would provide better grip in all directions. In this regard, he submitted that the defendant should have used nosing which had diamond shaped ribs such that there would be good slip resistance in all directions.
(iii) The plaintiff also argued that the defendant should have had the nosing treated by a company in the United States, who provide a special paint, or covering, which has been applied to the surface of travelators to make them more slip-resistant.
(iv) Failure to make employees aware of the risks involved in cleaning an oil spillage and in particular the risk that their boots would become contaminated by the oil, thereby giving poor slip resistance.
(v) The plaintiff also alleged that the defendant was in breach of statutory duty, in particular that the defendant breached ss. 8, 9, 10 and 19 of the Safety, Health and Welfare at Work Act 2005.
8. The defendant denies liability on the basis that the plaintiff was a senior fire fighter, who had experience of dealing with oil spillages. They state that the plaintiff would have known that it was inevitable that oil would adhere to the soles of his boots and that they would become prone to slip as a result. They stated that it was obvious to all fire fighters that their boots would become slippery after working at the scene of an oil spillage and that as a consequence, fire fighters would have to take extra care when climbing into or out of a fire tender.
9. The defendant pointed out that the plaintiff was aware of the rule that when ascending into or descending from the cab of a fire tender, a person should always use both hands on the handrails provided. They should ascend or descend from the vehicle by facing into the cab. They should maintain at least three points of contact with the vehicle at all times. The defendant further pointed out that the plaintiff himself had given training to new recruits at the station as to the correct method of mounting a fire tender.
10. The defendant submitted that the nosing on the vehicle was of a type that was standard throughout the industry. The vehicle was a Scania model, which was a reputable manufacturer of these types of vehicle. The vehicle itself and, in particular, the steps leading to the cab and the nosing at the mouth of the cab, were in good condition.
11. In essence, the defendant submitted that on the day in question, the plaintiff knew that there was oil on his boots and that as a result they would be more slippery. He knew that he would have to take extra care to ensure that his foot did not slip. The defendant submitted that the accident simply happened because the plaintiff did not take sufficient care when descending from the vehicle.
12. In relation to the assertion that the defendant should have provided some means of removing the oil from the soles of fire fighters’ boots at the scene of the spillage, the defendants produced email correspondence with the manufacturer of the boots as to whether there was any product that could be used to remove oil from leather boots, to which the manufacturer had replied that there was no such product on the market. The defendant pointed out that this was after the plaintiff’s accident.
13. In evidence, the plaintiff stated that he had suggested to his senior officer that perhaps the Oil Free product, which was applied to the road surface could be applied to the soles of their boots at the scene. He stated that he was told that management had made inquiry of the manufacturer of the boots, but that they had advised against applying Oil Free to the soles of the boots, as that would damage the boots themselves. The defendants denied that the plaintiff had made any such request or suggestion before his accident.
14. In relation to the boots, the plaintiff had been supplied with new leather boots in 2009. He stated that he had requested replacement leather boots prior to the time of the accident, but had been told that he could only have new rubber ones if he wished. While the plaintiff seemed to suggest that his boots were deficient at the time of the accident, his engineer was not supportive of such assertion. The boots themselves were not put in evidence, nor were any photographs of them produced. There was only a general photograph showing another pair of boots at the station at the time of the engineering inspection. In these circumstances, the plaintiff has not established that his boots were defective at the time of the accident.
15. The plaintiff also relied on alleged breaches of statutory duty on the part of the defendant. In particular, he alleged that the defendant had breached ss. 8, 9, 10 and 19 of the Safety, Health and Welfare at Work Act 2005.
16. The effect of these sections can be summarised as follows:-
Section 8 sets out the general duties of an employer. The plaintiff relied in particular on sub-para (g) which provides that an employer’s duty extends to providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees.
Section 9 provides that an employer shall, when providing information to his or her employees under s. 8 on matters relating to their safety, health and welfare at work, ensure that the information includes the following information:-
(i) the hazards to safety, health and welfare at work and the risks identified by the risk assessment,
(ii) the protective and preventive measures to be taken concerning safety, health and welfare at work under the relevant statutory provisions in respect of the place of work and each specific task to be performed at the place of work.
Section 10 provides that the employer must provide instruction, training and supervision of employees and must ensure that the instruction, training and supervision is provided in a form, manner and, as appropriate, language that is reasonably likely to be understood by the employee concerned.
Finally, s. 19 relates to hazard identification and risk assessment. It provides that every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (known as a “risk assessment”) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions.
17. The plaintiff alleged that in breach of statutory duty, the defendant had not provided adequate training in relation to dealing with oil spillages and, in particular, in relation to the danger of their boots becoming contaminated by oil and, thereby rendering the boots slippery. In addition, he alleged that the defendant had not produced any specific risk assessment in relation to the dangers faced by fire fighters in respect of slipping, due to oil on their boots.
18. The plaintiff also relied on a guideline document issued by the Health and Safety Authority in 2010, entitled “Workplace Transport Safety – Falls from Vehicles”. In summary, this document stated that each year falls from vehicles accounted for a significant number of workplace transport incidents. It stated that multiple factors may contribute to a fall from a vehicle. One of the most common contributory factors were slips and trips and often by reducing the risk of slips and trips on vehicles, this would also help reduce the risk of falls. Factors which may contribute to falls from vehicles, included surfaces with no or low slip resistance. Another contributory factor was inadequate instruction, information and training: for instance, employees not aware of how to access and egress a vehicle safely. The document further stated that the employer should identify and assess where falls from vehicles could occur in the course of work operations. If a risk of falling was identified, they should eliminate or control the risk taking account of the General Principles of Prevention set out in Schedule 3 to the 2005 Act. The employer should ensure that vehicle steps were anti-slip and large enough for the foot. Where possible they should specify materials that are slip resistant during wet and dry conditions. The employer should also provide employees with adequate instruction, information and training. It also suggested that the employer should consider using anti-slip coatings or finishings on critical areas, or non-slip colour contrast on the edges of load areas, steps and tailboard goods lifts. Finally, the document suggested that the employer should specify that there should be good access when purchasing vehicles. They should provide and maintain safe vehicles, with safe access to all parts of the vehicle such as the vehicle cab and other areas.
19. Based on the statutory provisions and the guideline document, the plaintiff submitted that the defendant should have been aware that at oil spillages, there was a particular risk of people slipping while ascending onto or descending from vehicles. The plaintiff should have been given specific instruction in relation to the dangers posed by this risk. The plaintiff further alleged that while the defendant had carried out a risk assessment of various aspects of a fire fighter’s duty, they had not provided any specific risk assessment in relation to the danger posed by boots becoming contaminated by oil.
Conclusions on Liability
20. The plaintiff in this case was a very experienced fire fighter. He was the Station Officer in Cashel Fire Station and was the designated Incident Commander at the oil spillage clean up operation which took placed on 4th January, 2012.
21. The plaintiff knew the correct procedure for ascending into and descending from the cab of the fire tender. In the past, he had trained new recruits in the use of these safe procedures. In particular, he was aware of the need to maintain three points of contact with the vehicle at all times.
22. Fire fighters are required to attend to all manner of different situations. On many such occasions, their boots will become slippery, perhaps due to the presence of mud, ice or water at the scene or where, as in this case, there is a spillage of oil. The plaintiff knew that his boots had oil on their soles and that as a result they were more prone to be slippery. He knew that he had to take extra care in these circumstances when walking around and in particular, when alighting from the fire tender.
23. Accidents happen and sometimes they happen without any fault on the part of the employer. In this case, the accident happened when the plaintiff was getting out of the cab. I am satisfied that this accident was not due to any negligence or breach of duty on the part of the defendant. If anything, the plaintiff may not have taken sufficient care as to where he was placing his foot, having regard to the fact that he had oil on the soles of his boots.
24. I turn now to deal with the specific allegations of negligence and breach of statutory duty. In relation to the absence of a risk assessment in relation to the risk posed by oil getting onto fire fighters’ boots when dealing with an oil spillage, I am not satisfied that any specific risk assessment in this regard was relevant to the accident. It was patently obvious to anyone, that if you walk through oil in the course of dealing with a spillage, some oil will adhere to the boots and make them more prone to slip. The plaintiff, as a very experienced fire fighter and instructor was well aware of this risk. In the circumstances, it was not necessary for his employer to specifically draw this risk to his attention.
25. In relation to the alleged failure to provide a means for removing oil from the boots at the scene of the spillage, I accept the evidence of the defendant that they made inquiry of the manufacturer of the boot, who told them that there was no such product on the market. I also accept the evidence of the plaintiff, that when he asked about applying the Oil Free product to the boots, he was told not to do this, as it would damage the boots. In such circumstances, I cannot see that there was any breach of duty on the part of the employer in failing to provide a means of removing the oil from the boots at the scene of the spillage.
26. In relation to the allegation that there should have been a different rib pattern on the nosing at the edge of the cab floor, I am satisfied that given that the correct procedure for ascending into or descending from the cab of the tender, was for fire fighters to ascend and descend to and from the cab by facing into the cab, this meant that their feet would be approaching the nosing perpendicular to the ribs and as such, the rib design on this vehicle was perfectly adequate.
27. As regards the assertion that the defendant should have sent the nosing to the United States for the application of a special paint or covering, such as is used on travelators, I do not think that this is relevant. On a travelator, a person is walking in the direction of the ribs, so there is a risk of slipping, whereas on these vehicles, the fire fighter, if using correct techniques, will have his feet at right angles to the ribs on the nosing, so the application of the paint or covering is not needed.
28. Furthermore, I accept the defendant’s evidence that this fire tender was designed and manufactured by a reputable company and conforms to the standards generally applicable in the industry. The defendant was not negligent in selecting this make of vehicle. Furthermore, the vehicle was in good condition at the time of the accident.
29. In relation to the alleged breach of statutory duty, I have reached the following conclusions: in relation to the alleged breach of s. 8 of the 2005 Act, to the effect that the plaintiff had not been provided with information, instruction, training and supervision necessary to ensure his safety, health and welfare at work, I am satisfied that the plaintiff had received adequate training in relation to the correct method of ascending into or descending from the cab of a fire tender. Indeed, as already pointed out, the plaintiff himself was an instructor who gave instruction to new recruits on the use of these procedures. In relation to the alleged breach of s. 9 of the 2005 Act, I am satisfied that the plaintiff was well aware from his training and more particularly from his extensive experience as a fire fighter, of all the risks involved in cleaning up an oil spillage. In relation to s. 10, which deals with instruction, training and supervision of employees, the plaintiff has not established that he did not receive adequate training to enable him to deal with an oil spillage in safety. Finally, in relation to the alleged breach of s. 19 and the absence of a specific risk assessment dealing with oil spillages and contamination of boots by oil; in the circumstances of this case, such a risk assessment was not necessary, as the oil was plainly obvious to anyone involved in the clean up operation and in particular, was well known to the plaintiff as an experienced fire fighter and instructor. He was well aware of the risks posed by oil contamination of the boots and therefore, the absence of any specific risk assessment in this regard, was not relevant.
30. Finally, turning to the document issued by the Health and Safety Authority in 2010, this is a guideline document, it does not establish any additional legal duty on an employer. It merely sets out best practice in relation to the area of prevention of falls from transport vehicles. Even if it did impose a legal duty on the defendant as the plaintiff’s employer, I am not satisfied that the defendant acted in contravention of its terms. The plaintiff purchased a vehicle that was manufactured by a reputable manufacturer, the vehicle was in good condition at the time of the accident and the defendant had provided training to the plaintiff in the correct method of ascending and descending from the cab.
31. In summary, it was inevitable that when dealing with an oil spillage, some oil would adhere to the soles of fire fighters’ boots. The plaintiff knew that he had oil on his boots and that this would make them slippery. He knew that as a consequence of that, he would have to take extra care when moving about and, in particular, when getting into and out of the fire tender. Unfortunately, he slipped while getting out of the cab of the tender. This was an unfortunate accident. However, I am satisfied that it was not caused by any wrongdoing on the part of the defendant. Accordingly, I dismiss the plaintiff’s action against the defendant.
McMahon v. Irish Biscuits Ltd.
[2002] IEHC 15 (28th January, 2002)
Judgment of Mr. Justice Diarmuid B. O’Donovan delivered on the 28th January, 2002
1. The Plaintiff in this case, Thomas McMahon, is a fifty three year old sales representative, a married man, the father of four grown up children one of whom; his only daughter, regretfully suffers from Multiple Sclerosis and is very dependent on that account and he presently lives outside the town of Monaghan. Mr. McMahon comes to Court seeking damages by way of compensation for injuries which he suffered on the 10th day of June, 1996 in the course of his employment as a sales representative with the first named Defendants, Irish Biscuits Ltd., while checking stock on the supermarket premises of the second named Defendants known as “ Quinnsworth” in the town of Cavan. To understand the circumstances of the incident which gave rise to this claim and the basis upon which the Plaintiff blames the Defendants for what happened to him on that occasion, it is necessary, I think, to review what was required of the Plaintiff in the course of his employment with the first named Defendants viz-a-viz their relationship with the second named Defendants and how he was expected to fulfil his obligations in that regard. In this connection, the Plaintiff impressed me as being, basically, an honest person and a reliable historian of the events which he described in evidence although, as will appear later on in the course of this judgment, insofar as his injuries were concerned, I thought that there were some inconsistencies between what he told to his doctors and what he said in the witness box. That as it may be, however, insofar as the obligations of his employment and the circumstances of the incident which gave rise to this claim were concerned, I was satisfied that the Plaintiff’s evidence painted an accurate picture; particularly, as to a considerable extent, his evidence was corroborated by that of Mr. Noel Gorman, a merchandiser in long term employment with Irish Biscuits Ltd., who used to do relief work for the Plaintiff when he( Mr. McMahon )was on holidays or was on sick leave and also by that of Mr. Michael McHugh who, at the material time, was employed by the first named Defendants as an area sales manager and, in that capacity, was the Plaintiff’s immediate superior.
2. The Plaintiff told me that, on the 10th June, 1996, he was required to visit the second named Defendant’s supermarket premises in Cavan Town for the purpose of checking their stock of biscuits with a view to preparing an order with regard to biscuits for the forthcoming week on behalf of Quinnsworth after consultation with one of their staff. In this regard I gather that Irish Biscuits Ltd. supplied Quinnsworth with between 60 and 75 lines of their product and that, in an average week, some 220 cartons of biscuits would be delivered to Quinnsworth. In this regard , Quinnsworth required a delivery of fresh supplies of biscuits on the Wednesday of each week (apparently, because their big competitor Dunnes Stores Ltd. got deliveries on that date) and to achieve that, Mr. McMahon was required to submit a fresh order on behalf of Quinnsworth to Irish Biscuits Ltd. on or before 10.30 am on the Monday in each week. If he did not make that deadline, the order would not be delivered until the Thursday in that week; in which event, Mr. McMahon would find himself in “ hot water ” with both his employers and with Quinnsworth. In fact, as I understand the position, on only one occasion during all the years that he worked as a sales representative for Irish Biscuits Ltd. and he did so for many years, did Mr. McMahon miss that deadline and, on that occasion, he was severely criticised, following complaint by Quinnsworth to Irish Biscuits Ltd. Therefore, so far as Mr. McMahon was concerned, it was very important to make that deadline, but it was not all that easy to do so, for the reason that, on every Monday morning, before visiting Quinnsworth, Mr. McMahon was also required to visit Dunnes Stores Ltd. in Cavan Town and, there, to carry out a similar exercise of checking stock and ringing in an order on behalf of Dunnes Stores Ltd. to his employers. Accordingly, it was not until approximately 9.40 – 9.45 am that he reached Quinnsworth so that he only had about forty five minutes to check their stock, agree an order for the forthcoming week with their manager, or assistant manager, and then phone the order in to his employers; a phone call which he told me and I accept, would, itself, take up to ten minutes of his time. Accordingly, Mr. McMahon was under considerable pressure to meet his deadline and his task was not made any easier by the fact that, more often than not, he had to use a public telephone on Quinnsworth premises to call his employers because their office phone was not made available to him. Indeed, I understand there were even occasions when the public phone was busy and Mr. McMahon had to go out onto the street to look for a telephone. All in all, therefore, I am quite satisfied that Monday mornings were very stressful for Mr. McMahon if he was to get the Quinnsworth order in on time. Furthermore, it was clear from the Plaintiff’s evidence, which was fully corroborated in that regard by Mr. Gorman, that the task of checking stock in the Quinnsworth storeroom for the purpose of preparing an order for the forthcoming week was, itself, anything but a straightforward exercise. In this regard, stocks of biscuits in the storeroom were located in racks with metal shelving; the top shelf, of which there were three, being 9’3” from the ground, as I learned from Mr. Joseph Osborne, an engineer, who examined the Quinnsworth storeroom on the Plaintiff’s behalf. All things being equal, access to those of the shelves which the Plaintiff could not reach while standing on the ground could be gained by means of a mobile platform which was in the storeroom and eminently suitable for that purpose. However, on the day of the incident of which the Plaintiff complains and, indeed, as I understand and accept the Plaintiff’s evidence, on most Monday mornings, that platform could not be used for the reason that the aisles between and in front of the racks of goods in the storeroom were cluttered with pallets of stock; some of which had been lying there for some time and more of which were actually being delivered to Quinnsworth at that time. The result was that there was no room for the mobile platform in the aisles and, therefore in its absence, Mr. McMahon had no option but to climb up the shelving to gain access to stock on the upper shelves for the purpose of checking it. This, Mr. McMahon told me and I accept was a procedure which he followed on the day of his accident and, indeed, on many previous occasions. Moreover, it was a procedure of which one of his area managers, Michael McHugh, was well aware because, not only did Mr. McHugh concede that he had actually witnessed the Plaintiff climbing shelves to check the stock but that he, himself, actually did so on one occasion. In that regard, having been referred to photographs of the type of shelving involved, I concluded that an attempt to climb it would be an extremely hazardous exercise and, my view in that regard was confirmed by Mr. Osborne, the engineer, who gave it as his professional opinion that to attempt to climb that shelving involved high risk and, accordingly, was a very dangerous exercise. Indeed, the Plaintiff, himself, conceded under cross-examination that he recognised that it was a risky activity; particularly, for a man, like himself, who had a vulnerable back, but he protested that the job had to be done and given the constraints with regard to time under which he had to operate there was no way, other than by climbing the shelving, that he could check the stock. He added that, while he agreed that the activity was a hazardous one, he could never recall actually having it in his mind that he was risking injury when he was climbing the shelving. He also said that, from time to time, he complained to members of the Quinnsworth staff, both management and on the floor, about the fact that the aisles were so cluttered with stock that he could not conveniently gain access to stocks of biscuit and, more often than not, the reply which he got was “ what else can we do ”; a reply with which, incidentally, Mr. McMahon said he sympathised because he recognised that they were also under pressure on Monday mornings. In this regard, Mr. Owen Jones, who was assistant manager at Quinnsworth at the material time, said that climbing racking was wholly unacceptable so far as Quinnsworth were concerned and that he never saw the Plaintiff climbing shelves nor did he know that the Plaintiff was accustomed to doing so although he agreed he used to meet the Plaintiff on most Monday mornings. He also said that he had no recollection of ever having had any complaints from the Plaintiff with regard to his inability to access stocks of biscuits. Moreover, he said that if it was a fact that access to those stocks was blocked, the impediment should be moved so that the portable platform could be used. Mr. Jones added that, if it were the case that the Plaintiff was in the habit of climbing shelving every Monday, he thought that he (Mr. Jones) would have noticed it although he agreed that he was always very busy on a Monday morning. However he acknowledged that the injuries of which the Plaintiff complained had resulted from his falling while in the act of climbing shelving. Mr. Jones also pointed to the fact, as he maintained, that there were signs fixed to the shelving containing legends such as “ THINK SAFETY – ALWAYS USE A LADDER ” and “ CLIMBING UP OR DOWN RACKING IS FORBIDDEN ” and he produced photographs showing those signs on racks of shelves. For his part, the Plaintiff empathetically denied that such signs were on the racks of shelving that he climbed and Mr. Osborne gave evidence that there were no such signs on the shelving which he examined, which is evident from the photographs which he produced. While, in the light of the photographs produced by Mr. Jones, I have no doubt but that, at some stage, such signs were affixed to the racks of shelving in the Quinnsworth warehouse, I am satisfied by the Plaintiff’s evidence that he was never aware of them and that neither were they brought to his attention. Indeed, if they were there at the time of the Plaintiff’s accident, as Mr. Jones asserted, I cannot comprehend why they would have been removed before Mr. Osborne examined the shelving or, indeed, why Mr. Osborne was not told about them. I am also satisfied that whether or not Mr. Jones ever saw the Plaintiff climbing shelving, or whether or not he was aware that the Plaintiff was accustomed to engaging in that activity, other members of the Quinnsworth staff, including management, must have been aware that that was going on and, nevertheless, did nothing about it although they must have recognised the inherent danger in the activity. Insofar as Mr. Jones is concerned, I will give him the benefit of the doubt and accept that he was so busy on Monday mornings that he just did not notice what the Plaintiff was doing. Insofar as Irish Biscuits Ltd. were concerned, it is clear that, through the medium of their area sales manager, Mr. Michael McHugh, they were aware that the Plaintiff was engaging in the potentially dangerous practice of climbing racks of shelving to check stock in the warehouse of Quinnsworth and, yet, they took no steps whatsoever to ensure that that practice was discontinued. Indeed, I am satisfied that the Plaintiff complained to Mr. McHugh that he found it difficult to gain access to stocks of biscuits in the Quinnsworth warehouse although he does not appear to have complained in that regard to anyone else in Irish Biscuits Ltd. and neither does it appear that he followed up that complaint when nothing was done about it. In this regard, it is noteworthy that Ms. Derbhla O’Brien, who was National Sales Manager with Irish Biscuits Ltd. at the material time never heard of any complaint with regard to the conditions under which their sales representatives, including the Plaintiff, had to work and to check stock in the Quinnsworth warehouse and, as I interpreted her evidence, she seems to believe that, in the absence of such complaints, Irish Biscuits Ltd. had no obligation to carry out any checks on the working conditions of their sales staff. Indeed, she never visited the Quinnsworth warehouse; her excuse being that, as Irish Biscuits Ltd. had over a 1000 outlets for their products, it was impractical to check them all. Ms. O’Brien denied ever having seen a declaration signed on behalf of Irish Biscuits Ltd. on the 30th March, 1994 whereby Irish Biscuits Ltd. purport to acknowledge that all of their employees who were likely to visit the second named Defendant’s premises had been made aware of their obligations under Section 9 of the Safety, Health and Welfare at Work Act 1989 and that she never saw the safety notice which purports to have been attached to that declaration although it was agreed by the parties that that document was signed on behalf of Irish Biscuits Ltd.
3. The circumstances of the Plaintiff’s accident, as recounted by the Plaintiff in the course of his evidence, were that, on the 10th June, 1996, which was a Monday, he attended at the Quinnsworth premises at Cavan Town, as was his wont, at about 9.45 – 9.50 am. He said that he collected his stock sheets and then set about checking stocks of biscuits but he found as there were pallets full of stock on the floor in front of the biscuit section whereby his access to that section was inhibited. He said that he asked a young lad, who was driving a pallet truck, to move those pallets and the young man responded that he would when he was finished what he was doing but the fact of the matter is that he never came back. Accordingly, as the Plaintiff was under his usual time constraint, he felt that he had no option but to climb the shelving to check the biscuit stocks. In particular, he climbed on to the third shelf so that he might check stocks of biscuits on the top shelf, which he did with his right hand while steadying himself by holding a vertical bar in the centre of the rack with his left hand. While he was so engaged, he heard someone speaking and apparently he turned in the direction of the voice and, as he did, his hand slipped and he fell to the ground. Given that what he was doing at the material time was inherently dangerous and obviously so, as the Plaintiff, himself, conceded in evidence, although he protested that the risk was not to the forefront of his mind while he was actually climbing the shelving, it might be suggested that Mr. McMahon is entirely the author of his own misfortune. However, I think not. In this regard, I am satisfied that, at the material time, and, indeed, on all Monday mornings, Mr. McMahon was under pressure to ensure that the Quinnsworth order for biscuits for the forthcoming week was with his employers before 10.30 am and that he reasonably feared that there would be serious consequences for him in the event that he failed to meet that deadline. It was suggested on behalf of the Defence that he could have avoided that pressure by coming to the Quinnsworth warehouse earlier that morning (apparently, it is open from 7.00 am) but, while that may well be so, it appears that no one; either from Irish Biscuits Ltd. or from Powers Supermarkets, suggested that he might do so, and in any event, his duties on that morning also required that he visit the premises of Dunnes Stores Ltd. in Cavan Town for the purpose of carrying out the self same exercise to that which he was carrying out in Quinnsworth at the time of his accident. Accordingly, what ever order in which he visited the two premises, it seems to me that he was always going to be under pressure. I have great sympathy for and accept his assertion that as he was prevented from using the mobile platform by reason of the presence of pallets of product in front of the shelves on which biscuits were located the only way that he had to gain access to those biscuits was to climb the shelving and, as the stock had to be checked within a very limited time, that is what he had to do. His only alternative was to wait around until the aisles were clear so that he could use the moving platform, in which event he would miss his deadline with all the undesirable consequences for him which he envisaged. In those circumstances, I do not fault the Plaintiff for doing what he did at the material time. In my view, he had little alternative but to do so. However, given that he acknowledged in evidence that he recognised that he was taking risks in climbing the shelving in question; particularly, as he had a vulnerable back, although I note that the risk was not to the forefront of his mind at the time that he was actually climbing the shelving, I think that he can be faulted for not following up the complaint which he made to Mr. McHugh and, in particular, for not putting more pressure on his employers to do something to ensure that he was not required to climb shelving for the purpose of checking stock in the Quinnsworth warehouse. However, if the Plaintiff can be faulted on that account, I think that his blame worthiness in respect of the incident which gave rise to this claim is minimal compared with that of his employers and that of Powers Supermarkets.
4. Insofar as Irish Biscuits Limited are concerned, it is settled law that, as the Plaintiff’s employers, they owed him a duty, as was stated by the Supreme Court in the unreported case of Dalton v Frendo (judgment delivered on the 15th of December 1977) “to take reasonable care for the servants’ safety in all circumstances of the case”. This does not mean that Irish Biscuits Limited are the insurers of the safety of the Plaintiff in the course of his employment with them but, in my view, it does mean that they were required to take all reasonable steps to ensure that he was not exposed to avoidable risk of injury in the course of his employment.
5. To that end, it is my view that they had a duty to acquaint themselves of the facilities which were provided by their customers to enable their (Irish Biscuits Ltd) sales staff to carry out duties, which were for their mutual benefit, and to satisfy themselves that those facilities and the system operated by their customers whereby their sales staff carried out their duties did not pose a threat to their well being. In my view, Irish Biscuits Ltd. fell down badly with regard to that duty. In this regard, it was clear from the evidence of Ms. Derbhla O’Brien, the National Sales Manager for Irish Biscuits Ltd. at the material time, that she and, presumably, her employers did not consider it necessary to visit their various sales outlets to ensure that the facilities afforded to their sales staff were appropriate. Indeed, in the circumstance that Irish Biscuits Ltd. appear to have 1,000 outlets for their product, Ms. O’Brien maintained that it was not practicable for them to inspect all those outlets. I do not agree. However difficult it might be, it is my opinion that the duty of care which Irish Biscuits Ltd. owed to its employees obliged them to ensure that the facilities afforded to their employees by their customers to enable their employees to carry out duties for the mutual benefit of themselves and their customers did not threaten the safety of their employees. This, it appears, Irish Biscuits Ltd. did not do; at least, insofar as the Plaintiff was concerned. However, the Plaintiff’s immediate superior at the material time, Mr. Michael McHugh, was aware of the risks which the Plaintiff was taking and, indeed, he gave evidence that he passed on the Plaintiff’s complaints in that regard to his superior; a Mr. Freehill so that the fact of the matter appears to be that while Irish Biscuits Ltd. do not, as a matter of practice, inspect all of the facilities afforded by their customers for their sales staff; insofar as the Plaintiff was concerned, senior management in Irish Biscuits Ltd. were aware of the risks to which the Plaintiff was exposed while checking stock in the Quinnsworth warehouse and, yet, they did nothing about it. In my view, their failure to do so amounted to negligence which significantly contributed to the Plaintiff’s fall and the resultant injuries which he suffered. In this regard, I reject the submission by Counsel for Irish Biscuits Ltd that, in the absence of any relevant complaint, it is unreasonable to expect an employer to inspect premises of a third party in which members of the employers staff are expected to carry out duties on behalf of the employer, or to make enquiries with regard to the system of work maintained for members of their staff on the premises of the third party for the purpose of satisfying themselves that their staff are not exposed to avoidable risks. If that were so, it seems to me that an employer would be entitled to abrogate the duty of care he owes to his employee in favour of a third party which I do not perceive to be the law in this country and neither do I think that the judgment of the Court in the case of Mulcare v Southern Health Board (1988 ILRM at page 689), to which I was referred, is authority for that proposition. Accordingly, it is my view that, not only were Irish Biscuits Ltd negligent for their failure to act upon the complaint made by Mr McMahon but I think that they were also negligent for failing to appraise themselves of the system of work involving their employee which was tolerated in the Quinnsworth warehouse.
6. Insofar as Powers Supermarkets are concerned, there is no doubt but that they were in control of the situation at the time of the Plaintiff’s accident and I have no doubt but that members of their staff, including members at managerial level, were aware of the manner in which the Plaintiff was accustomed to checking stocks of biscuit and, being aware of that, they must also have been aware of the risk of injury to which the Plaintiff was exposed and, yet, they did nothing to avoid that risk. In my view, that also was a negligent omission which contributed to the Plaintiff’s accident, and indeed, was the main contributing factor. In my view, as between Irish Biscuits Ltd. and Powers Supermarkets, insofar as blame worthiness is concerned, in the circumstance that Powers Supermarkets were in control of the situation at the material time and had the immediate opportunity of doing something which might have avoided the accident which befell the Plaintiff, I think that they are the more to blame. In this regard, I am very much influenced by the fact that the Plaintiff’s visit to the Quinnsworth warehouse on a Monday morning was a scheduled visit of which Powers supermarket were well aware and a scheduled visit during which the Plaintiff would be under severe constraints with regard to the time within which he had to do whatever was necessary to ensure that they (Powers Supermarkets) got a fresh supply of biscuits on the following Wednesday, as the second-named Defendants were also well aware. Accordingly, they should have ensured that their premises were in a state of preparedness for the Plaintiff which they, obviously, were not.
7. In the light of the foregoing, I would apportion fault for the Plaintiff’s accident as to 60% against Powers Supermarkets, 30% against Irish Biscuits Ltd, and, notwithstanding that the negligence of the Defendants would, in my view, also amount to breach of their statutory obligations under the relevant provisions of the Factories Acts and Regulations made thereunder, I find that the blameworthiness of the Plaintiff to which I have already referred amounts to contributory negligence to the extent of 10%.
8. Insofar as damages are concerned, in the light of Mr. Osborne’s evidence, it would appear that the Plaintiff fell to the ground from a height of a little over 9’. He says that he landed on his bottom in a more or less sitting position between two pallets and, in the course of his fall, that he broke jars of coffee which were on one of the pallets. He claimed that he was immediately conscious of pain in his lower back. Members of the Quinnsworth staff came to his assistance and he rested for a while and was then taken by a Mr. Curtis to a general practitioner in Cavan Town, who gave him a pain killing injection. Following that, Mr. Curtis drove the Plaintiff home. However, notwithstanding the injection, Plaintiff said that the journey was a very painful one. When Mr. McMahon got home, he went to bed where he says that he had a dreadful night, which I interpreted as meaning that he had a lot of pain and little sleep. On the following day he went to his own general practitioner, Dr. O’Gorman, who gave him more pain killing injections which only afforded short term relief. By the 14th June, 1996 (four days after his accident) Mr. McMahon says that he was experiencing considerable low back pain which radiated into both legs; so much so that Dr. O’Gorman saw fit to send him to Monaghan County Hospital where he came under the care of Mr. Archie Moore, a general surgeon. X-Ray examination of the Plaintiff’s spine revealed Spondylosis but no evidence of fracture. The plaintiff spent one week in Monaghan County Hospital where he had more pain killing injections and also a C. T. scan which revealed degenerative changes in the facet joints but no disc prolapse. However, there were also degenerative changes at the level L. 5/S. 1 disc. The Plaintiff was then referred to Mr. Imran Sharif F. R. C. S. I., an orthopaedic surgeon, who had him admitted to Navan County Hospital for a further two weeks during which he had an epidural injection which gave him some relief from his symptoms for about six to eight weeks. During that time, Mr. McMahon also had physiotherapy treatment and was advised with regard to exercises which he could carry out at home to ease his back. He told me and I accept that he carries out these exercises to the present day. Shortly after his discharge from Navan Hospital, the pain in the Plaintiff’s lower back returned and he experienced shooting pains down both legs; principally into his left leg. He continued to attend Mr. Sharif, who prescribed pain killing medication but the pain persisted. So Mr. Sharif then arranged for a M. R. I. scan of the Plaintiff’s lumbar spine which was carried out on the 21st January, 1997. This showed osteophytic changes and a disc bulging at the Level L. 2 with some compression on the Thecal Sac. In addition, there were long standing degenerative changes at the Level L. 5/S. 1 and some disc space narrowing at that level. In the light of those findings, Mr. Sharif referred the Plaintiff to Mr. Frank Dowling F. R. C. S. I., another orthopaedic surgeon, who specialises in treating back injuries. In this regard, it is significant that the Plaintiff told me that from in or about the year 1992, he used to experience occasional twinges of pain in his lower back but that, if he did, it did not interfere with his capacity to work or, indeed, his capacity to indulge his hobby of long distance cycling which involved riding a racing bicycle over a hundred miles a week. In this regard, he told me that he had been accustomed to riding 75 miles every Saturday, 30-35 miles every Sunday and, in the summertime 15/20 miles on two or three evenings in the week. However, in the summer of 1994, he experienced an episode of severe pain in his back which radiated into his left leg and which incapacitated him from work for a period of thirty nine days. At that time, he was referred to Mr. Fred Kenny F. R. C. S. I., an orthopaedic surgeon who had him admitted to Navan Hospital where he was subjected to a bone scan, which was normal. Accordingly, Mr. Kenny told me that he was satisfied that Mr. McMahon had not suffered a disc injury but rather had been suffering from irritation of a nerve root at the Level L. 5/S. 1. Accordingly Mr. Kenny prescribed an epidural injection and some traction which afforded the Plaintiff some considerable relief and, although he was involved in a road traffic accident on the 16th July, 1994 in the course of which, while cycling his bicycle, he was in collision with an army vehicle as a result of which he was thrown across the bonnet of that vehicle, the resultant injuries which he suffered were more related to his neck than to his back and in fact he was able to return to work a few days later and from that time until 10th June, 1996, when he was involved in the incident which gave rise to this claim, Mr. McMahon was able to carry out his work and to indulge his hobby of cycling without any interruption on account of back problems although he did admit that, occasionally, he experienced an odd twinge of pain in his back which necessitated pain killing medication. In this regard, Mr. Kenny told me that he monitored Mr. McMahon’s progress from the time that he had had the epidural injection on the 9th June, 1994 until the 2nd February, 1995 and that he was satisfied that, by that time, Mr. McMahon had fully recovered from the back problem which he had experienced in June, 1994. However, Mr. Kenny agreed that he had advised Mr. McMahon that he ought to be a back conscious person and for his part, Mr. McMahon accepted in evidence that, ever since the summer of 1994 he had been conscious that he had a vulnerable back and that he behaved accordingly. As a result, I am satisfied that he had no significant problems with his back from this summer of 1994 until his accident on the 10th June, 1996.
9. As I have already indicated, following the M. R. I. scan which the Plaintiff had in January 1997, Mr. Sharif referred him to Mr. Frank Dowling. In that regard, Mr. Dowling gave evidence that in the light of the result of the M. R. I. scan, he was satisfied that Mr. McMahon did not suffer a prolapsed disc but rather that, as a result of the incident which gave rise to this claim, he had aggravated pre-existing degenerative changes in his lumbar spine which gave rise to the pain which he has experienced since that time. However, it was Mr. Dowling’s opinion that, while surgery was not indicated, the likelihood is that, to a greater or lesser extent, Mr. McMahon would experience pain in his back for the rest of his days and that, as a result, he would have to be a back conscious person and, in particular would only be fit for light work in the future. However, Mr. Dowling expressed the view; a view which was subsequently endorsed by both Mr. Kenny and by Mr. Sharif that, had it not been for the incident which gave rise to this claim, the likelihood is that Mr. McMahon would have been able to continue to work as a sales representative for Irish Biscuits Ltd. until he would normally have retired at age sixty five although they accepted that, even before the incident which gave rise to this claim, Mr. McMahon had a vulnerable back. Mr. Dowling also expressed the view that the Plaintiff’s current complaints with regard to his back were genuine, as were his efforts to rehabilitate himself, and it seems to me that, essentially, Mr. Dowling’s views were ad idem with the views subsequently expressed by Mr. Kenny and by Mr. Sharif; namely that, for the rest of his life, the Plaintiff was going to experience recurring pain in his back of variable severity, that he was going to have to be a back conscious person and that, in particular, he would only be fit for light work in the future and, especially, must avoid lifting heavy objects, stooping or bending to any great extent. Furthermore, it is their view that he will never again be able to resume his pre-accident cycling activities although Mr. Dowling agreed that he might derive some benefit from cycling a mountain bike; a suggestion which the Plaintiff has adopted with, apparently, some beneficial results. In this regard, the Plaintiff himself told me and I accept that, since his accident, the pain in his back is aggravated by standing or sitting in one position for long periods of time, that he is restricted by pain from long walks and that he has been unable to resume riding a racing bicycle though, as I have indicated, in the light of Mr. Dowling’s advice, he rides a mountain bicycle for short distances from time to time. However, Mr. McMahon made it clear that a mountain bike was no substitute for the long distance cycling in which he was accustomed to engage prior to his accident and that he very much missed being unable to continue to participate in that activity as, indeed he is disappointed by the fact that he can no longer resume his work with Irish Biscuits Ltd. as a sales representative. Indeed I have rarely come across a Plaintiff who is so upset at being unable to resume his pre-accident employment and one who is so anxious and motivated to get some work to occupy himself. In this regard, I accept that, since he was let go by Irish Biscuits Ltd. Mr. McMahon has done all that could reasonably be expected of him in his efforts to obtain alternative employment and his failure to do so is a source of considerable disappointment to him. In this regard, he said with feeling “ I do not want to be stuck with the Social Welfare for the rest of my life ” and I have little doubt that he will continue to do all that he can to avoid that situation. Regretfully, however, in the light of the evidence which I heard from Ms. Susan Tolan, a rehabilitation therapist, and notwithstanding the views of Messrs. Dowling and Sharif and, indeed, those Mr. Martin G. Walsh F. R. C. S. I., an orthopaedic surgeon, who examined the Plaintiff on behalf of the Defendants, whose views with regard to the Plaintiff’s capacity for work are similar to those of Messrs. Dowling and Sharif, that, despite his ongoing back problems Mr. McMahon will have a capacity for light work, it is my opinion that he will never again obtain worthwhile employment and that his worst fears; namely, that he will live on Social Welfare payments for the rest of his life, will be realised. In this regard, in the absence of any contradictory evidence, I accept Ms. Tolan’s view that the Plaintiff will never again succeed in obtaining a worthwhile job for the reasons that it is well known that would be employers are reluctant to hire people who have a history of back injury and, in any event, the fact that he has now been out of work for nearly six years will deter prospective employers from taking him on. Moreover, while he may be fit for light work, his lack of education levels, his poor tolerance for sitting and standing and the fact that he will be competing on the labour market with younger, fitter and better educated people will, in my view, all combine to make it extremely unlikely that he will ever again get a worthwhile job.
10. Insofar as the views of Mr. Walsh with regard to the extent of the Plaintiff’s recovery from his injuries are concerned, it seems to me that, as he made a very good recovery from the back problems which he experienced in 1994 and, from that time, until the happening of the incident which gave rise to this claim, he was able to undertake all the responsibilities of his employment and the demands of his long distance cycling without significant difficulty, I cannot accept Mr. Walsh’s view that he is fully recovered from the injuries which he suffered as a result of the incident which gave rise to this claim and I prefer the views of Messrs. Dowling and Sharif in that regard.
11. With regard to the evidence of Dr. Declan O’Keeffe, the pain specialist, as I interpret what he had to say; that his view that the Plaintiff will require repeat lumbar rhizotomies at regular intervals for the rest of his life in order to palliate the ongoing pain which he experiences, is based on the suggestion which, apparently, the Plaintiff made to him that his ongoing pain includes episodes of excruciating pain. Now, while the Plaintiff does appear to have told his general practitioner, Dr. O’Gorman, that he experienced very severe pain in his back from time to time, it seems to me that the implication of the complaints in that regard which he made to both Mr. Dowling and Mr. Sharif was that his ongoing pain is tolerable and certainly, I have no recollection that, when he was in the witness box, he claimed there are times when the pain which he experienced was excruciating. Accordingly, I am not convinced that it has been established on the balance of probability that he will require repeat lumber rhizotomies for the rest of his life.
12. In the light of the foregoing, it seem to me that an appropriate sum for general damages to compensate Thomas McMahon for all that he has suffered on account of the injuries which he sustained in the accident in which he was involved in the course of his employment with the first named Defendants some 5½ years ago and for the fact that he has been deprived of the enjoyment of many aspects of his living during that period is a sum of €40,000.00. Having regard to the fact that, for the rest of his days, Thomas McMahon will have to be a back conscious person, and even if he is, the probabilities are that he is always going to experience a certain amount of back pain and given that he has been permanently deprived of the employment with the first named Defendants which it is clear that he thoroughly enjoyed, that it is extremely unlikely that he will ever again be gainfully employed, and that he will never be able to resume long distance cycling which he also thoroughly enjoyed, I think that an appropriate sum for general damages for the future is €63,500.00.
13. Apart from general damages, it is agreed by the parties that the Plaintiff’s special damages to date amounts to €112,255.08 which comprises loss of earnings of €109,197.00, fees to Dr. O’Keeffe amounting to €2285.53, fees to Mr. Dowling amounting to €107.93, fees to the Blackrock Clinic amounting to €126.97, fees to Dr. O’Gorman amounting to €148.56, fees to the Adelaide Hospital amount to €79.99, pharmaceutical fees amount to €144.75, and damage to a watch amounting to €165.07.
14. As for the future, I am told that, were the Plaintiff still in the employment of the first named Defendants, his net weekly salary would be €593.00 on top of which he could reasonably expect a bonus of approximately €22.00 per week. Accordingly, if he were still employed by the Defendants, he would be taking home an average €615.00 per week. In this regard, Ms Frances Keogh, an actuary, told me that the capital value of the loss of €1.00 per week for this Plaintiff from the present date to age 65, capitalised at 3%, which the parties have agreed is the appropriate rate at which such capitalisation should be made is €505.00. That being so, it follows that the capital value of the loss of the income which the Plaintiff will suffer as a result of being unable to resume his pre-accident employment for the rest of his working life is €310,575.00. However, this does not allow for the fact that, even had the Plaintiff not been involved in the incident which gave rise to this claim, there is a possibility that, at some stage in the future during his normal working life, he would have lost his job with the first named Defendants for one reason or another or that he would have developed some illness which would prevent him from working. Therefore in accordance with the views expressed by the Supreme Court in the course of their judgment in the well known case of Reddy .v. Bates , (1983 I.R. p.141) I think that a discount should be allowed against the Plaintiff’s future loss of earnings on that account. In the circumstance that the Plaintiff had a vulnerable back, before the incident which gave rise to this claim, and notwithstanding his good work record, I think that the appropriate amount of that discount should be 20%. Accordingly, I will allow a sum of €248,460.00 in respect of future loss of earnings. In addition, however, because of the premature determination of his employment I am advised that the Plaintiff’s pension will be reduced by a sum of €386.25 per week and that the appropriate multiplier for capitalising that loss is €338.00. According, I will allow a sum of €130,552.05 in respect of the diminution of the Plaintiff’s pension rights.
15. Having regard to the foregoing, I find that the Plaintiff’s gross damages in respect of his claim herein is €594,768.30 and allowing that that figure falls to be reduced by 10% on account of the Plaintiff’s contributory negligence, I will award the Plaintiff the sum of €535,291.47 payable as to €356,860.98 by the second named Defendants and as to €178,430.49 by the first named Defendants.
Hollywood v Cork Harbour Commissioners and Ronayne Shipping Limited
[1992] I.R. 457
O’Hanlon J.
13th March 1992
These proceedings arise out of a fatal accident in which Patrick Joseph Dunphy of 284 Connolly Road, Ballyphehane, Cork, was involved on the 8th March, 1989. He was employed at the time by the second defendant, Ronayne Shipping Ltd., who are a Cork based firm of stevedores and was assisting in the unloading of containers from the M.V. Wicklow in the Cork harbour area. While standing on top of a container on the deck of the said vessel, he was swept off the container by another container, suspended from a crane, which was in the process of being brought ashore by crane from the vessel. He fell to the deck and sustained injuries from which he died on the 31st March, 1989.
The plaintiff, who is a daughter and personal representative of the deceased brings these proceedings claiming damages for negligence and breach of statutory duty on the part of the defendants leading to the death of the deceased, and she sues on her own behalf and on behalf of all the members of the family of the deceased who are entitled to claim under the provisions of the Civil Liability Acts, 1961 and 1964.
It is alleged that the second defendant, in its capacity as employer of the deceased, was negligent in failing to provide a safe system of work and place of employment for the deceased and in failing to take all reasonable steps for his safety in the course of his work. The first defendants are sued as owners and operators of the crane from which the load was suspended which caused the deceased to fall from the container on which he was standing.
The issue of liability
It is clear that this was an accident which need never have happened if proper care had been taken in the manner in which the operation was carried out. The evidence given was sufficient to satisfy me that the crane-man should have seen the deceased standing on top of the container at some stage before he was swept to his death by the container which was suspended from the crane, and in sufficient time to enable the crane-operator to halt the progress of the load towards the shore. I rely in particular on the evidence of Joseph O’Sullivan, engineer, the photographs produced on behalf of both the plaintiff and the defendants and also on the evidence of Anthony O’Keeffe, B.E.
The crane-driver, Derry Sexton, was aware that at times the dock-workers climbed on top of containers standing on the deck of vessels, during the unloading process, although he said it would not be normal for them to do so. Other witnesses said that it was done normally, and was a regular occurrence. Either way, once the crane-driver knew that men were on top of the containers from time to time during the unloading process, it obliged him, in my opinion, to keep a careful look-out to ensure that the path to the shore was clear when a suspended container was being brought across from ship to shore. The other obvious and simple precaution he could have taken (but did not take) was to raise the suspended container sufficiently high above the containers it had to pass over on its way to the shore to ensure that even if a man were standing in a position of danger on a container and were unobserved by the crane-driver, nevertheless the load could pass safely above his head.
On this basis I find that the crane-driver and his employers, Cork Harbour Commissioners, were negligent on the occasion of the accident.
I make a further finding which affects both defendants. In my opinion the method of work adopted was unsafe in that the practice of bringing suspended loads of this character and magnitude over the heads of the men working on deck was inherently dangerous and should not have been accepted in practice either by Cork Harbour Commissioners or by the man’s employers, Ronayne Shipping Ltd.
I am satisfied on the evidence in the case that the system of work which was in operation on the day of the accident, whereby the stevedore’s employees were required to go up on the containers and remove the “shoes” at each corner in preparation for the lifting operation, and to do so at a time when suspended loads were being brought out over their heads, was a regular practice for many years, and was inherently dangerous and could have been avoided quite easily by adopting a different and equally efficient unloading procedure. The crane could simply have moved on to a different tier of containers after one tier had been cleared, leaving the way free for the “shoes” to be removed on the lower tier without any loads passing overhead while they were doing so.
The risks inherent in the operation should have been equally apparent to both defendants and I am satisfied on the evidence that the second defendant, as employer of the deceased, failed to take all reasonable precautions for his safety while he was engaged in his work.
So long as the defendants were operating the system of work which was described in evidence, it also appears to me that it was incumbent on them to establish a regular means of communication between the stevedores and the crane-driver to ensure that warning was given to the crane-driver in good time when the operation of the crane threatened danger to any of the men assisting in the discharge of the cargo. Such a means of communication was available, in that the stevedores had a walkie-talkie link with the crane-driver, but this was only used for the general purpose of giving directions to the crane-driver about what he should do in relation to the different containers, and there was no banksman employed to watch out for the safety of the men at all times. There was ambiguous evidence given by a fellow-worker of the deceased to the effect that a banksman “in practice doesn’t be there, but is employed”. The deceased and some of his fellow-workers tried to attract the attention of the crane-driver by shouting and waving their hands, but all to no avail.
Under the safety rules of the Cork Harbour Commissioners which were produced in evidence it is provided (inter alia) that “hoisting a load over people is strictly forbidden” and Mr. Murphy, senior engineer with the Harbour Commissioners, said in evidence that “anyone working under a suspended load (is) a recipe for disaster . . . (an) accident is inevitable.” I agree with the general view taken by him as to the dangers inherent in such an operation, but the evidence has convinced me that such a practice was allowed to continue over a long period of time up to the date of the accident by both defendants and may well be continuing ever since.
I find that the accident which occasioned the death of Joseph Dunphy was attributable to negligence on the part of both defendants, their respective servants and agents. In apportioning fault as between the two defendants it appears to me that a greater degree of blameworthiness is attributable to the second defendant, as employer of the deceased, having regard to its obligation to take all necessary steps to ensure the safety of its employees in the course of their work, and I apportion fault as between the two defendants, as to 60% as against the second defendant, Ronayne Shipping Ltd., and as to 40% as against Cork Harbour Commissioners, the first defendant. These percentages will apply in relation to the claim for indemnity sought by each of the defendants against the other defendant. The first defendant, however, claims to be indemnified by the second defendant in respect of any damages that may be awarded in favour of the plaintiff, by reason of the terms of contract applicable in relation to the hire of container cranes and other lifting equipment at Tivoli, Cork, where the accident occurred.
Clause 14 of the form of indemnity and conditions of hire document reads as follows:
(14) The hirer shall be responsible for all loss or damage done to or by the crane which may arise from any improper use of the crane or from any other cause whatsoever, except in so far as such damage is caused by the proved willful neglect or misconduct of the crane driver or is caused by or due to any defect in the structure of the crane.
It was accepted in evidence that Ronayne Shipping Ltd. had executed a document at some stage agreeing to be bound by the said form of indemnity and conditions of hire on any occasion on which they contracted for the use of a container crane to be provided by the Cork Harbour Commissioners, and on the occasion of the offloading of the containers from the M.V. Wicklow on the 8th March, 1989, the application for the use of the container crane was signed by “A. Ronayne”and the name of the firm was given as “Ronayne Shipping”.
This would be sufficient to give rise to a prima facie presumption that the second defendant was bound by the terms and conditions of the indemnity form and conditions of hire on the occasion in question including the obligation to indemnify the Cork Harbour Commissioners against claims which fell within the ambit of condition 14.
It was contended by Michael Ronayne, representing Ronayne Shipping Ltd. (managing director), that while a general form of indemnity to cover future hire of cranes was signed on behalf of his company in the year 1987, and while the form relevant to the crane hire on the day of the fatality referred to his firm and was signed by a representative of the firm, nevertheless this had only been done as a matter of convenience, and that the true hirer on the occasion in question was the B & I Line (otherwise the British and Irish Steampacket Co. Ltd.). In fact, the form which was produced in evidence had the letters “B. & I.” indorsed on it and Mr. Ronayne said these were put in by someone representing Cork Harbour Commissioners.
It was suggested that on the occasion in question the stevedoring company were acting as agents for a known principal, to the knowledge of Cork Harbour Commissioners; that this practice had continued for a lengthy period and that the crane charges were always invoiced direct to the B. & I. Line, without having to go through Ronayne Shipping Limited. The stevedores presented charges to the B. & I. Line for the stevedoring services only, and did not include any charges for crane hire, which were dealt with directly between the Cork Harbour Commissioners and the shipping company.
Mr. Cronin, a B. & I. representative in Cork for over 20 years, confirmed this evidence. He said that the B. & I. Line had also signed the standard indemnity form for the Cork Harbour Commissioners in October, 1987. From the mid-1980s the company had only one vessel coming into Cork and this was the M.V. “Wicklow” which arrived almost every Wednesday throughout the year. The stevedores were to provide labour and checking but no other services. Mr. Cronin handed in a berthing request to the Harbour Master on a weekly basis, always accompanied by a request for a crane to be provided. He added: “The stevedore has no authority to hire a crane, and never did . . . I have always understood the contract for the hiring of the crane was with us.”
I am satisfied, on this evidence, that the agreement for the hire of the crane was made between the Cork Harbour Commissioners and the B. & I. Line, and that the preparation and signing of the relevant documentation by the stevedores was only carried out by them as a matter of convenience, and as known agents for a known principal, the B. & I. Line. In these circumstances I am satisfied that the indemnity clause in the conditions of hire document is of no avail to the Cork Harbour Commissioners as against their co-defendants in the present proceedings, and it is unnecessary for me to consider the further question whether it would have been sufficient to provide an indemnity in the circumstances.
The issue of damages
I was informed during the course of the proceedings that agreement had been reached between the plaintiff and the defendants on the amount of damages which should be awarded in respect of the claim, leaving only the issue of liability as between the two defendants for decision by the court. The agreed figure was the sum of £43,000, and I approved the settlement on behalf of the members of the family of the deceased for whom the claim was being maintained.
While Beatrice Arm Dunphy, described in the statement of claim as”consort to the deceased” was initially named as one of the dependants of the deceased in respect of whom a claim was put forward, it was decided not to press this claim and the settlement monies fall to be apportioned among the other persons named as members of the family of the deceased in the statement of claim.
The deceased man, Patrick Joseph Dunphy, was born on the 12th October, 1930, and was aged 58 when he died on the 31st March, 1989. He married in 1951 when he was about 21 years of age and had two children by his marriageMrs. Kathleen Grimes and Mrs. Helen Murphy. His marriage was of short duration, however, as it appears that his wife, Kathleen (otherwise Kitty) Dunphy left him around the 1953/54 period and went to England and has not been heard of since.
Some time later, but still during the 1950s, he set up house with Beatrice Ann Greenaway who became known as Beatrice Ann Dunphy. They lived together for the rest of his life and she bore him five children. He provided for all her material needs over a period of thirty years or more and she looked after the household and the family and the upbringing of the children.
While it is unnecessary for me to decide the issue in this case, in view of the terms of settlement which have been agreed between the parties, I would not rule out the possibility that in some future case if the current legislation is not amended to deal with this kind of family situation that a valid claim may be held to arise in favour of a surviving consort of a deceased person based on the concept that the deceased should be regarded as having been in loco parentis to the surviving partner in such a relationship.
The purpose of the Civil Liability Act, 1961, as amended, is to give a claim for damages where the death of a person is caused by the wrongful act of another, “for the benefit of the dependents of the deceased.” (Civil Liability Act, 1961, s. 48, sub-section 1).
“Dependant” is defined in s. 47 as meaning “any member of the family of the deceased who suffers injury or distress”; “member of the family” is further defined in the same section, and in sub-s. 2 (c) it is provided that “a person in loco parentis to another shall be considered the parent of the other”.
While it may seem bizarre to suggest that someone should be regarded as standing in loco parentis to a partner in a relationship which has all the characteristics of a marital relationship save the blessing of the law, the phrase can, in my opinion, be construed as referring to any situation where one person assumes the moral responsibility, not binding in law, to provide for the material needs of another. The following passage appears in the judgment of Stirling J. in In re Ashton, Ingram v. Papillon [1897] 2 Ch. 574:
“In the well-known case of Powys v. Mansfield 3 My. & Cr. 359, Lord Cottenham says: “‘The authorities leave in some obscurity the question as to what is to be considered as meant by the expression, universally adopted, of one in loco parentis. Lord Eldon, however, in Ex parte Pye, (1811) 18 Ves. 154, has given to it a definition which I readily adopt, not only because it proceeds from his high authority, but because it seems to me to embrace all that is necessary to work out and carry into effect the object and meaning of the rule. Lord Eldon says it is a person ‘meaning to put himself in loco parentis; in the situation of the person described as the lawful father of the child’;it is to be observed in that portion of the judgment that Lord Eldon passes from parent to father without taking any notice of the change’but this definition must, I conceive, be considered as applicable to those parental offices and duties to which the subject in question has reference, namely, to the office and duty of the parent to make provision for the child. The offices and duties of a parent are infinitely various, some having no connection whatever with making a provision for a child; and it would be most illogical, from the mere exercise of any of such offices or duties by one not the father, to infer an intention in such person to assume also the duty of providing for the child.’ There, again, Lord Cottenham passes from the word ‘parent’ to the word ‘father’ without making any distinction between them; and later on he says: ‘The rule, both as applied to a father and to one in loco parentis, is founded upon the presumed intention. A father is supposed to intend to do what
he is in duty bound to do, namely, to provide for his child according to his means. So, one who has assumed that part of the office of a father is supposed to intend to do what he has assumed to himself the office of doing. If the assumption of the character be established, the same inference and presumption must follow. They having so acted towards a child as to raise a moral obligation to provide for it, affords a strong inference in favour of the fact of the assumption of the character; . . . Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person.”
It was accepted in that case, and in the earlier cases referred to in the decision of Stirling J., that the description of one person as standingin loco parentis to another had reference to a single circumstance, namely, that he or she had assumed a moral obligation to “make provision” for such other personthat is to say, to provide for their material needs and welfare and did not refer to any of the other functions and duties which devolved on a parent in the relationship of parent and child.
Viewed in this light it appears to me that the dependant party need not be a child but may be an adult and that the relationship between the parties need not be a blood relationship of the kind which would in ordinary circumstances subsist between the “members of the family”referred to in s. 47, sub-s. 1 of the Civil Liability Act, 1961.
However, I can understand the natural reluctance on the part of a plaintiff in a fatal case to put forward such a claim as is here envisaged having regard to the issue of costs and the possibility of an appeal to the Supreme Court before the matter could be decided. It would be preferable if the matter could be clarified at some stage by legislation to give effect to what already appears to be the intention of the Act, namely, to establish a claim in favour of those who were really and genuinely financially dependent on the deceased at the time of his death.
I turn now to the apportionment of the damages which are to be awarded in the case, totalling £43,000, and I apportion that sum as follows (in each case the amount awarded has regard to any claim based on financial dependency and mental distress):
Beatrice Ann Hollywood
(daughter and personal representative)
Funeral and testamentary expenses: £4065
Mental distress: £1500
Total: £5565
Susan Dunphy, daughter of deceased £6581
Francis Martin Dunphy, son £9005
Patrick Dunphy, son £4461
John Dunphy, son £5637
Kathleen Grimes, daughter £1687
Helen Murphy, daughter £1687
Thomas Dunphy, brother £3655
Francis Grimes, grandchild 79
Karen Grimes, do. 197
Catherine Grimes, do. 316
Sabrina Grimes, do. 731
Noelle Crimes, do. 755
Aisling Grimes, do. 706
Richard Murphy, do. 112
Victoria Murphy, do. 313
Suzanne Murphy, do. 675
Angela Murphy, do. 838
I give judgment against both defendants for the sum of £43,000 and apportion that sum between the several dependents of the deceased as referred to above.
In the case of
Aisling Patricia Grimes
Sabrina Maria Grimes
Noelle Maureen Grimes
Suzanne Helen Murphy
Angela Catherine Murphy
– grandchildren of the deceased who are still under age, I direct that the sum apportioned in favour of each such child be brought into court and lodged to the separate credit of such child; the money to be invested, dividends to accumulate and future applications may be made to the Master of the High Court.
Richard Kennedy v Hughes Dairy Ltd
1987 No. 176
Supreme Court
22 July 1988
[1989] I.L.R.M. 117
(Finlay CJ, Hederman and McCarthy JJ)
FINLAY CJ
delivered his judgment on 22 July 1988 saying: This is an appeal brought by the plaintiff against the order of the Supreme Court dated 15 May 1987 whereby Blayney J upon application at the conclusion of the evidence on behalf of *118 the plaintiff withdrew his claim for negligence against his employers from the jury.
The plaintiff was employed by the defendants who are the well-known dairy, as a forklift driver and had been so employed for a considerable number of years prior to 8 February 1985 on which date he suffered an unfortunate accident.
On that date he was carrying out a task which was part of his work on a regular basis of clearing up after the lorries containing crates of milk bottles had taken their supply from the depot in the early hours of the morning. The evidence was that after this collection a significant number, possibly over a hundred crates, would be left as rejected by the lorry drivers on the basis that each of them contained one or more broken bottles. The task of the plaintiff was to sort out the broken bottles out of these rejected crates; to collect the crates with good bottles left in them in a particular area, and to remove them by forklift truck to a different part of the factory premises. In addition, it was part of the work of the plaintiff to collect the broken glass from the surface of the depot where the crates had been, by brush and shovel, into bins which were provided there.
On the occasion of this accident the uncontradicted evidence was that the plaintiff was carrying a crate of milk bottles to place them in the position from which he would subsequently remove them with the forklift truck. Whilst so doing he stood on the neck of a broken bottle and fell. He put out his arm in order to save himself as he was falling and the crate of milk bottles broke one against another and he received an injury which he described by demonstration to be near the wrist and which was described by the surgeon who attended him, Mr Seamus O Riain, as being on the forearm, above the wrist. The plaintiff was not able to remember whether before his fall the crate of milk bottles which he was carrying contained any broken bottles, but clearly stated that the accident happened when in the fall the bottles contained in the crate broke one against the other.
At the conclusion of the evidence for the plaintiff the sole ground of negligence asserted on his behalf as being fit to be left to a jury was that his employers had failed to provide him with a gauntlet type glove made of leather or other strong material sufficient to prevent injury through it of broken glass, extending up to his elbow.
Evidence was given by an engineer that in his view the provision of such a glove for a person dealing with broken glass was an obvious precaution which should have been provided by the management. This witness was not in a position to give any evidence as to what was commonly done in the dairy business or milk supply business with regard to dealing with broken bottles in the way of protective clothing, nor was there any other evidence of any common practice.
Counsel for the plaintiff and the defendant both at the hearing in the High Court and in this Court agreed that the case fell to be dealt with in accordance with the principles laid down by this Court in Bradley v CIE [1976] IR 217.
In that case Henchy J in delivering the judgment agreed with by the other members of the court, accepted with approval the principle laid down in Morton v William Dixon Ltd [1909] SC 807 together with the ‘gloss’ placed on that in the decision in Paris v Stepney Borough Council [1951] AC 307, resulting in the *119 proposition that in a claim for breach of duty by an employee against his employer at common law, where the fault complained of is that of omission that the plaintiff must either prove that the precaution omitted was one which was commonly done by other persons in like circumstances or must establish that it was a thing that was so obviously wanting that a prudent and reasonable person would think it foolish to omit it. In accepting this principle Henchy J at p. 221 stated:
In fact it does no more than provide a mode of testing whether in the class of cases to which it refers the employer has taken reasonable care for the safety of his employee or, as it is sometimes put, whether he has subjected him to unnecessary risk.
In this case it was conceded on behalf of the plaintiff that he could not bring himself within the first part of the proposition laid down in Bradley v CIE but it was asserted that the evidence of the engineer, which I have shortly summarised, coupled with the evidence of the happening of the accident, brought him within the second principle.
I cannot accept that it does.
Having regard to the description of the accident given by the plaintiff it is clear that this is not a case where he suffered his injury by reason of the necessity of having to handle a broken glass. In such a case one could well conceive of evidence establishing that a reasonable precaution to avoid that particular injury would be to provide the person who had to handle broken glass with protective gloves which would prevent the glass cutting his hand or wrist. In the instant case the accident happened because he fell while carrying a crate containing glass bottles and it happened because those glass bottles in the fall broke each other and landed on his arm which he had put on the ground to save himself from the fall. It seems to me an inescapable conclusion from the description of the accident that the injury which the plaintiff suffered might just as easily have been inflicted on his side, his shoulder or his chest, as it was on his arm. It would clearly not be reasonable or practicable for an employer to seek to protect his workmen as to the whole of his body or the upper part of his body from cutting by broken glass in the carrying out of the type of work which the plaintiff was doing on this occasion. The mere fact that a precaution which could be considered necessary to prevent a different type of accident would by coincidence have also ameliorated or prevented injury from this type of accident, is not, in my view, a good ground for reaching a conclusion that it was a precaution which a reasonable and prudent man would consider obviously necessary to provide against the happening of this accident and injury.
In these circumstances, I would dismiss this appeal.
HEDERMAN J:
This appeal by the plaintiff is against the order of the High Court dated 15 May 1987, when at the conclusion of the plaintiff’s case alleging negligence against the defendant, Blayney J on an application on behalf of the defendants, withdrew the case from the jury.
The plaintiff sustained injuries near his right wrist on 8 February 1985 whilst working at the defendant’s premises at Rathfarnham, Dublin. Prior to the accident the plaintiff had been employed by the defendant for seventeen years. His duties *120 were to bring crates of milk from the defendant’s premises to trucks for loading. The loading took place between 3 and 4 a.m. each morning. To move the crates to the trucks’ area the plaintiff used a forklift and had the assistance of a young man.
Each morning there would be between 3,000 and 4,000 crates, each containing 20 milk bottles for loading on to between 100 and 150 trucks.
If while loading there was a broken milk bottle in a crate the suppliers threw the whole crate to one side. At the end of each loading session there would be between 100 and 120 crates thrown aside. It is part of the plaintiff’s job to tidy up the crates containing the broken bottles. This is done by bringing the crates back into the defendant’s premises. There the broken milk bottles are taken out of the crates and thrown into a bin of about 9 feet deep. The empty crates are stacked and the crates now containing only unbroken bottles are brought around to the ‘Returns’ section of the defendant’s premises.
On the morning of 8 February 1985 the plaintiff, in the course of his work, piled up a crate of milk bottles (whether any bottles were broken or unbroken is unclear), stood on the neck of a milk bottle, went over, fell down on his side, put his arm down to save himself, the crate came over on his arm and the breaking bottles cut his arm above his wrist.
The plaintiff, in his pleadings, pleaded as one of the particulars of negligence, that the defendants failed to provide him with any proper protective gloves.
In his direct evidence the plaintiff stated that he was supplied with gloves by the defendants, but on the morning of the accident was not wearing them because of the fact that a few days before the accident he had asked the foreman for gloves and was told that there were no gloves in the store. He was shown a glove by counsel for the plaintiff and stated that the particular glove was of the type he normally was supplied with. It is not clear from the transcript but it appears that the plaintiff was also shown a different glove made of pigskin with a gauntlet attached. This latter glove he stated had previously been issued to men using the forklift like himself, but the defendants stopped issuing them when they ran out of stock about four years prior to the date of hearing.
In cross-examination the plaintiff stated that the gloves were issued to him to keep his hands warm in the winter, they would not be needed in summer. It was also put to him that the green gauntlet gloves which were produced at the hearing were in stock at the time of the accident and he replied that those particular gloves were not given out to forklift drivers. He stated that he did not think glass would go through them if he had been wearing them when the accident occurred. He also stated that the broken glass on the ground would be swept up by using a brush and shovel.
Mr Michael Hand, a consulting engineer, gave evidence on behalf of the plaintiff. He visited the factory and met the safety manager on two occasions. He stated that as demonstrated to him, in the method used of lifting cartons or crates, there is a risk of getting a cut in the arm area. He added that in his view the brown glove which had been produced in evidence and which had a short gauntlet, would not be suitable for dealing with glass because of the lack of protection to the wrist *121 or arm area and further said that the glove itself is easily penetrable by broken glass. In answer to the specific question — ‘You heard a description of the type of work Mr Kennedy was doing — have you any view as to the foreseeability of anybody doing that work suffering injuries such as he did suffer to his forearm or wrist’? Mr Hand replied ‘I would say there is a degree of foreseeability dealing with glass as he was, there is a degree of foreseeability’.
Q. ‘In view of that should workmen engaged in that work be supplied with a new type of glove and sleeves’?
A. ‘Yes’.
Q. ‘Is your view supported by work practices that are employed by other people in the glass industry’?
A. ‘Yes, in the glass industry, there is none for the milk bottle industry’.
In further direct evidence Mr Hand stated:
I investigated this particular case and I formed the view that in the particular work that this particular person was carrying out they (the smaller gloves) are not adequate. The risk is obviously of cuts, of increased incidence of cuts.
Cross-examined by counsel for the defendants, Mr Hand said he got no assistance in trying to establish from other dairies the practice they operate, as he was refused access to two dairies similar to the defendant’s.
Further questioned at Qs. 121 and 122:
Q. You have come here and offered an expert view that the practice in dairies should be to provide gauntlet type gloves with the arm sleeves as well for people engaged in clearing up broken glass. You have offered that as a view that the dairy industry should follow.
A. In this particular incident that is my view.
Q. I want to find out how you can offer such a view to the jury when you have not the remotest idea what other dairies in Ireland and elsewhere do.
A. My experience in the construction industry, I have dealt with safety on several major sites, and supervised the safety elements so that from that point of view each individual case had to be dealt with on its merits and it is on my reading of the various Safety Acts I formed the view.
At Question 134 in cross-examination of Mr Hand:
Q. I suggest that the glove (the green gauntlet glove) is little or no use, it might produce some sort of barrier but not effectively?
A. I consider it would be pretty effective, but to come back to my earlier point, to provide absolute protection, you would need something as hard as the glass itself.
And later he was asked at Questions 147, 148 and 149:
Q. And if your theory is correct, that should be guarded against by giving every milk-man and delivery boy a pair of these.
A. I don’t agree.
Q. Why not?
A. What I am saying is that if you are a manager somebody responsible has to make a decision based on what is a risk obviously we all have a risk. We can be killed by a car every day. At the same time it doesn’t mean you don’t cross the road. My point is if there is a foreseeable and major risk area then you are protected against it. (In) Your scenario of the milk boy there isn’t a major risk of him getting badly injured by broken bottles.
Q. I suggest that there is no major risk of somebody like Mr Kennedy clearing up broken bottles as part of a much larger job than he had and you are using your benefit of hindsight and applying *122 standards that are unreal. Isn’t that the fact of the matter?
A. I disagree with you.
The Law
Having regard to the evidence which was then before the jury, if there was no further evidence in the case, the jury could have found for the plaintiff if they accepted the evidence tendered on behalf of the plaintiff, as, in my view, the case fell to be dealt with in accordance with the principles laid down by this court in Bradley v CIE in that the plaintiff could establish that it was a thing that was so obviously wanting, in not providing proper gloves for the plaintiff in the work in which he was engaged when the accident occurred, that a prudent and reasonable person would think it foolish to omit it. In other words, a question should have been left to the jury, if the case had ended at that stage — ‘Had the employer taken reasonable care for the safety of his employee or had he subjected him to unnecessary risks’?
The accident of which the plaintiff complains happened on or just above the wrist and the simple issue of negligence claimed by the plaintiff was that he should have been provided with adequate protective gloves for the work in which he was engaged.
In my view the learned trial judge should not have withdrawn the case from the jury at the end of the plaintiff’s case as at that stage there was a question for the jury to determine. The plaintiff’s evidence and the expert evidence, if accepted, by the jury, was sufficient to enable the jury reasonably to conclude that there was a foreseeable risk of injury to the plaintiff in the area in which he was injured, because of the nature of his work and the absence of the provision of adequate protective gloves by the defendants could be held by a jury to expose the plaintiff to unnecessary risks of injury.
I would therefore allow the appeal.
McCARTHY J:
On 8 February 1985, the plaintiff, a longtime employee of the defendants, was working as a forklift driver at the defendants’ dairy. His work involved both getting out the bottled milk for delivery and tidying up at the end of a loading session. Between 100 and 120 trucks would be loaded and about 3,000 crates of bottled milk brought out for that purpose. In the normal course of the work it is inevitable that there would be one or more broken bottles in a number of crates. At the end of a loading session there might be up to 100 or 120 of these rejected crates on the ground. The plaintiff’s job included sorting out the broken bottles by hand and stacking crates containing sound bottles. Inevitably the working area contained a variety of bottles broken in one form or another. Whilst carrying such a crate the plaintiff stood on the neck of a bottle and fell, causing the bottles to fall out of the crate thereby breaking and causing injury to the plaintiff by cutting his right arm. He sues his employers for damages for personal injury on the express basis that he was not supplied with proper protective clothing such as appropriate gloves with gauntlets. At the time, the employers did have in stock green gauntlet gloves described as welders’ gloves, but the plaintiff, if it is relevant, was unaware of this.
The evidence of the plaintiff included that of an engineer who testified as to the need to wear appropriate gloves in the glass manufacturing industry but had been unable, due to refusal of access, to learn what was the established practice in commercial dairies of which the defendants’ dairy is one of the largest. There was, therefore, no evidence of such practice, if any; the expert evidence was limited to saying that there was a foreseeable and major risk of a person in the plaintiff’s position getting injured by broken bottles in the manner described.
At the conclusion of the plaintiff’s case, counsel for the defendant successfully applied to the learned trial judge (Blayney J) to withdraw the case from the jury on the grounds that the plaintiff had failed to establish that employers in the same business followed a practice of providing the appropriate gloves etc, or if not that it was obviously imprudent or unreasonable to fail to provide them, citing in support of this as a comprehensive statement of the law the case of Bradley v CIE which was accepted by counsel for the plaintiff as ‘the law on the case’. Blayney J, acceded to the application to withdraw the case from the jury holding that in the absence of evidence that the management was being imprudent or unreasonable in not providing the particular gloves and gauntlets, the plaintiff had failed to ‘qualify’ under the second test in Bradley’s case. In my judgment, he was in error in his conclusion.
In Bradley’s case, there was uncontradicted evidence that the ‘set-up’ in use where the plaintiff was injured was common to the practice in railway systems throughout Ireland, the United Kingdom and Holland without so far as known any like incident at least on the CIE system within the previous ten years. In my view, Bradley’s case is not to be construed as laying down for all time two unchanging compartments into one or both of which every plaintiff’s claim must be brought if it is to succeed. Indeed, the judgment of Henchy J in Bradley itself demonstrates the manner in which in different jurisdictions the wording used has been qualified or added to by gloss or otherwise. The essential question in all actions of negligence is whether or not the party charged has failed to take reasonable care whether by act or omission. That prime question may be broken down to subsidiary questions appropriate to the circumstances of different cases. In actions resulting from injuries sustained in what may be termed static conditions — those prevailing in a particular employment or a particular premises or the like, expert evidence may properly point, as a primary matter, to the foreseeable risk of injury and the consequent requirement of special care. The practice of the trade or of occupiers of similar premises may be powerful rebutting evidence but, in my view, in a changing world, it should seldom, if ever, be conclusive. On the other hand, a failure to comply with the trade practice etc., would be powerful evidence in support of expert testimony as to the breach of duty. If Bradley’s case is to be construed as excluding any approach other than that specified in Morton v Dixon Ltd. I would await a conclusion to that effect expressed by a full court.
For the purpose of this appeal, however, applying the test as laid down in Bradley, and accepted as appropriate for the purpose of this case, in my view there was adequate evidence upon which the jury might conclude that it was unreasonable on the part of the employers not to provide appropriate protective gloves and *124 gauntlets to employees whose work involved the carrying of crates of empty bottles, some of them broken and consequently jagged, in an area where any such employee might trip or stumble over or on another bottle broken or otherwise thereby causing injury to the most vulnerable but most easily protected part of his body, his hands and lower arms. For this reason, I would allow the appeal and order a new trial.
In the course of argument, the question arose as to whether or not an employer is liable to pay damages to an employee who sustains injury which might have been avoided or lessened if he had been provided with some protective clothing or equipment, which itself was required not to prevent the injury sustained but another type of injury. An example would be where workers on a building site are required by law to be supplied with helmets in order to lessen the risk of injury sustained from falling objects. Where such an employee has not been provided with a helmet but is injured, not by a falling object, but by, for instance, contact with some equipment being carried, may the employer be liable when the injury sustained is not that against which the precaution was taken? In the light of the conclusion to which I have come and sought to express, it is not necessary to consider this question.
Caulfield v. Bell and Company Limited
[1958] IR 330
Murnaghan J. 330
This is a motion for further and better particulars of, inter alia, the negligence alleged in the statement of claim. The solicitors for the defendant Company, by notice dated the 14th May, 1957, detailed the particulars which they required, and a reply was furnished to that notice by the plaintiff’s solicitors on the 23rd October, 1957. The defendant Company, by their counsel, now complain, first, that all the required particulars have not been given, and second, that where purported particulars have been given the replies
to the notice are equivocal, unsatisfactory, and insufficient.
In the statement of claim after pleading that “. . . owing to the negligence and breach of duty of the defendants their servants or agents a piece of timber which was then being lifted by crane from the said steamship to the quayside fell upon the plaintiff,” “particulars of negligence” are therein set out as follows:
“1. The defendants failed to provide and maintain a safe system of work for the plaintiff.
2. The defendants failed to provide and maintain adequate protection from injury for the plaintiff and other workers.
3. The defendants failed to provide to the plaintiff and his fellow-workers adequate and proper appliances and equipment to enable them to carry out their work in safety.
4. The defendants failed to supervise or properly supervise the unloading of the said ship.
5. The defendants failed to ensure that the ropes provided for tying up the loads which were being hoisted from the holds of the said ship were suitable for and safe to use in the said work.
6. The defendants their servants or agents provided unsuitable, unsafe and dangerous appliances and equipment to the plaintiff and required him to carry out the said work with same.”
Particulars when given in a statement of claim are not part of the pleading and are intended to be what the word,”particulars,” ordinarily connotes. Unfortunately in my experience what nowadays in the vast majority of cases passes for “particulars of negligence” is a type of dragnet often in the guise of a supplementary pleading, not intended to give any information to the defendant but, on the contrary, designed to cover all possible cases which the plaintiff might by some lucky chance find himself at the last moment able to make against the defendant. It has appeared to me many times in cases of claims for damages for negligence arising out of motor vehicle accidents in particular that the”particulars of negligence” given in the statement of claim have been slavishly copied from a stock precedent without any regard to the facts of the particular case.
Mr. Humphries has told me that the “particulars of negligence” which I have set out were intended to convey to the defendant Company:
By replies 1 and 2, that the system of work in operation was unsafe because of the failure to provide adequate protection to the plaintiff and his fellow-workmen from timber falling when timber was being hoisted from the ship.
By replies 3, 5 and 6, that the defendant Company failed to provide proper appliances, namely, suitable ropes for the operation.
By reply 4, that the defendant Company failed to supervise or properly supervise the unloading of the ship.
If stated in this way in the first instance the defendant Company could not now complain, except perhaps on the ground of insufficiency.
When so understood the defendant Company is told generally the different ways in which it is alleged by the plaintiff that it was negligent, and it becomes a question as to whether any further information should have been given.
The whole object of a statement of claim, in the words of O’Byrne J. in Irish People’s Assurance Society v. City of Dublin Assurance Company (1), “. . . is to show the defendant the case which is being made against him, and which he has to meet at the trial of the action.” Sufficient emphasis is, I think, at times not laid on the latter part of this quotation.
Order XIX, r. 4, provides inter alia:
“Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. . . .”
Order XIX, r. 7, provides in so far as relevant:
“A further and better statement of the nature of the claim or defence, or further and better particulars of any matters stated in any pleading . . . may in all cases be ordered upon such terms, as to costs and otherwise, as may be just.”
The object of particulars, in the often quoted words of Cotton L.J. in Spedding v. Fitzpatrick (2), is “. . . to enable the party asking for them to know what case he has to meet at the trial, and so to save unnecessary expense, and avoid allowing parties to be taken by surprise.”
The function of particulars in the words of Scott L.J. in Bruce v. Odhams Press, Ltd. (3) is “. . . to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.”
The word “information,” in this extract deserves to be underlined.
When all the necessary material facts have been pleaded in the statement of claim the question under r. 7, as to whether particulars should be ordered to be given, is one of discretion, depending often on a view of fairness or convenience which is essentially a matter of degree.
The expression, “a safe system of work,” which has become increasingly familiar in the Courts, has not, as far as I am aware, ever been precisely defined, nor, beyond saying that the obligation involved presupposes a system,am I going to attempt a definition. The expression has to be considered in every case, to which it is appropriate, in relation to the particular circumstances of the job in hand. In the expression the word, “safe,” means no more than”as safe as is reasonably possible in the circumstances.”The degree of safety would depend on the particular job, and would vary between wide limits.
In work of the kind which I gather was being performed by the plaintiff and which appears to have been of a repetitive nature I imagine it could not be said that there was not “a system” of work of some kind in operation. I do not know to what extent there was a risk of timber falling when being hoisted from the ship involved in that operation.
The plaintiff’s complaint in the present case is that the system of work, which he has not detailed, was unsafe in as much as the plaintiff had not adequate protection from timber falling when being hoisted from the ship. He does not complain that there was no system. The defendant Company now complains that it does not know in what respect the system of work is alleged by the plaintiff to have been unsafe and that, as a consequence, it does not know what case it will have to meet at the trial, where, Mr. Sainsbury says, the plaintiff, unless required to give particulars, can spring any surprise.
This is the first occasion, in these Courts as far as I am aware, on which the question has arisen as to what particulars (if any) should be given of an alleged unsafe system of work. The question is one of considerable importance and is not free from difficulty.
Mr. Sainsbury contends for the proposition contained in the words of Viscount Simon L.C. in Colfar v. Coggins and Griffith (Liverpool), Ltd. (1):
“. . . the advisers of the present appellant realized that his claim (independently of the Workmen’s Compensation Act) was bound to fail unless it could be established that the accident was due to the respondents’ failure to provide and maintain a proper system of work. To raise this issue, the statement of claim ought to set out, so far as relevant, what the proper system of work was, and in what relevant respects it is alleged that it was not observed.”
Mr. Humphries, on the other hand, submits that there is no duty on the plaintiff to show “what the proper system of work was” and that to have to do so would place an intolerable burden on the plaintiff. He seems to concede that the plaintiff must allege how the system, whatever it was, was defective, but he submits that in the sense of the replies to the notice for particulars which I have given earlier the plaintiff has given sufficient information in this regard to the defendant Company.
The plaintiff may show that a safe system of work was not in operation by evidence that what was omitted by way of protection either was a thing commonly done by other employers in like circumstances, or was so obviously required that it would be folly for an employer to neglect to provide it; in other words, that no reasonable and prudent employer would have omitted it.
The plaintiff must, in my opinion, in order to establish his case prove first that the system was not safe; second, what his employer could reasonably have done to make the system reasonably safe; and third, that his employers’ failure so to do was the cause of the accident.
I respectfully dissent from the view of Viscount Simon L.C., unless the passage I have quoted, where it says that “the statement of claim ought to set out, so far as relevant, what the proper system of work was, and in what relevant respects it is alleged that it was not observed,” is to be understood as meaning that following an allegation of negligence in the statement of claim particulars should be given to the effect shortly that the system of work in operation was unsafe, and that it could have been made safe in such and such a manner.
I turn now to consider the plaintiff’s reply to the notice for particulars, and for the moment pass over the reply to query 1.
Query 2 is obviously based on the words of Viscount Simon, and, as I have held, the plaintiff is strictly entitled to take up the attitude that it was not for him “to show what the proper system of work was.” No complaint can be heard about the opening part of the reply to this query. The plaintiff, however, goes on in this reply to give particulars of the manner in which he alleges the system was unsafe. This part of the reply can be divided into two parts. The first part, namely, “that the plaintiff was required to work with unsafe and unsuitable appliances and equipment,” is not a particular of an unsafe system of work, but of one of the other sub-heads of an employer’s duty to his workmen, namely, that of taking reasonable care to provide proper appliances and of maintaining them in a proper condition. The second part does very little more than state in different language what might reasonably have been gathered from the information already given in the statement of claim. The result is that the defendant Company is still at a loss to know what the plaintiff alleges should be done in order to make the particular system safe.
In my opinion, the plaintiff can now be required in fairness to save unnecessary expense and to prevent surprise at the trial to give reasonable particulars of what he alleges the defendant Company should have done in order to give him the protection which he alleges he should have had in the circumstances.
The reply to query 4 is equivocal, but Mr. Humphries tells me that it was intended to mean only that the ropes were unsuitable because they were wet and damp. This intimation also covers queries 6 and 7.
Mr. Humphries further says that the complaint of failure to supervise or properly to supervise is based on the fact that the ropes were unsuitable as I have just mentioned.
To return to query 1, I fail to see how the defendant Company can be prejudiced or taken by surprise if not given the particulars asked for at (a). For practical purposes, if it obtains the information to which I have indicated it is entitled in reply to the other queries no reply is required to (b).
I propose to deal with the items numbers 1 to 7 inclusive in the notice of motion by directing the plaintiff within ten days 1, to give to the defendant Company reasonable particulars of what he alleges the defendant Company should have done, to give him protection from timber falling when being hoisted from the ship;
2, To answer item number 4 in the sense that the ropes were unsuitable only because they were wet and damp;
3, To answer item number 5 in the sense that the lack of supervision was involved in the provision of ropes which were wet or damp.
The items numbers 8 to 13 inclusive in the notice of motion were not dealt with by Mr. Sainsbury and, consequently, I make no order in respect of these.
Christie v Odeon (Ireland) Limited
Supreme Court.
31 October 1956
[1957] 91 I.L.T.R 25
Maguire C.J., Lavery, Kingsmill Moore, O’Daly, Maguire JJ.
Maguire C.J.:
The judgment of the Court will be delivered by Mr. Justice Kingsmill Moore.
Kingsmill Moore J., delivering the judgment of the Court said that the plaintiff, a married woman of middle age, was accustomed to take work as a casual kitchen helper in catering establishments On the night of New Year’s Eve, 1954, a large dance at which some five hundred people were present was being held at the Metropole Ballroom, which was owned by the defendant company, and the plainiff was employed to give help in disposing of the bowls, plates and cups which had been taken away from the supper tables after use.
The supper was served partly in the ballroom and partly on a balcony above, and surrounding the balroom Ballroom and balcony were connected by a service stairs some 4 feet 8 inches wide and halfway up the stairs was a landing 14 feet 6 inches wide and 5 feet 6 inches deep The side of the landing opposite to where the stairs abutted was almost entirely occupied by a long service hatch from which the waiters use to take the various plates, bowls and other utensils on which the food had been put by the kitchen staff, and used to carry them up and down the stairs to the tables where the customers were seated.
On the right hand side of the landing, looking from the service hatch, was placed a table 4 feet x 2 feet touching or nearly touching the wall On it was a large wooden tray of the type used by bakers to carry bread, and a container Underneath the table and projecting slightly was another metal container The plaintiff’s task was to stand at this table and to stack the used bowls or plates when brought by the waiters on to the tray in such a way that they could be easily removed by a kitchen porter to the washing-up room. In more detail, the system was as follows.
The waiters removed from the tables, where the guests were seated, the used utensils. Any spoons, forks or knives were collected by a woman at a table elsewhere and the other utensils were then carried on by the waiters to the table where the plaintiff was posted. The waiters placed them on the table or the tray and the plaintiff, apparently with some assistance from the waiters, stacked them on the tray. The first course was soup, served in small bowls, and the waiters brought these back nine at a time. As there was often some soup left at the bottom of the bowls it was the custom to empty the contents of eight bowls into the ninth, to empty the ninth bowl into one of the containers and then to stack the bowls one inside the other on the tray. When the meat course was being removed the waiters used to bring four plates at a time, the debris from three plates was scraped onto the fourth, the fourth was emptied into the containers and the plates piled up on the tray. At intervals, when the tray was full, the utensils on it were removed by the kitchen porter.
There was evidence that it was not unusual for some soup to be spilled on the *27 tray and that the soup so spilled found its way from tray to table and table to floor. It also happened that in scraping the plates some scraps might be dropped on to the floor. It was part of the duty of the plaintiff to keep table and floor clear and she was provided with a damp cloth and two towels for the purpose. She had to find time for cleaning among her other duties and she said twice that she “had not very much time” to wipe the floor, but she did not make the case that her other duties made it impossible for her to keep the floor clean If necessary she could call on the kitchen porter to help her. On the night in question, soup—a clear soup—had dripped to the floor and plaintiff had wiped it upon a couple of occasions; she had also cleaned some scraps from the floor.
One of the waiters put down two or three plates on the second steps of the stairs leading up to the balcony, which would leave them about two feet from the edge of the table at which plaintiff was working. Without moving her feet she turned and stooped to pick up the plates and as she did so her right foot “shot out” in front of her “real quick” and she fell, injuring her right leg severely. She was picked up by two waiters, taken the staff room, and thence to hospital.
The plaintiff sued the defendant company, alleging that her injuries were due to the negligence of the company. Broadly speaking, the plaintiff claimed that the company was in breach of its duty to her as an invitee on the premises and also had failed in its duty to her, as a servant, to provide a safe system of work. At the conclusion of the evidence for the plaintiff, counsel for the defendant applied to the trial Judge to withdraw the case from the jury on the ground that there was no evidence of negligence to be submitted to a jury. The Judge refused to direct and the defendant then went into evidence which did not substantially affect the issues either way. Three questions were submitted to the jury. Did the plaintiff slip on some foreign matter on the floor? Were the defendants negligent? Damages? The jury answered “disagree” to all three questions. The defendant company now appealed on the ground that the trial Judge misdirected himself in law in holding that there was evidence fit to be submitted to a jury either that the plaintiff’s fall was due to a slip on some foreign matter, or that the defendant company were negligent, and that he was in error in not withdrawing the case from the jury.
The plaintiff raised a preliminary point that the appeal did not lie as counsel for the defendant company did not, after going into evidence, make a second application to the judge to withdraw the case from the jury. Reliance was placed on the judgments of Halsbury L.C., and Lord Morris in Seaton v. Burnand [1900] A. C. 135 at 143, 144, 145 and of Sir James Campbell C., in Steele v. Corporation of Belfast [1920] 2 I. R. 125 at 139. Those judgments establish that where a trial judge submits to counsel the questions which he intends to leave to a jury and counsel agree to their correctness, objection cannot subsequently be taken to the form of the questions on appeal; and it would seem that even if counsel do not expressly consent to the questions, yet a consent may be implied from their conduct taken together with the whole course of the trial. In Nevill v. Fine Art and General Insurance Company [1897] A. C. 68 at 76, Lord Halsbury L.C., said: “Where you are complaining of non-direction of the judge, or that he did not leave a question to the jury, if you had an opportunity of asking him to do it and you abstained from asking for it, no court would ever have granted you a new trial; for the obvious reason that if you thought you had got enough you were not allowed to stand aside and let all the expense be incurred and a new trial ordered simply because of your own neglect.” This passage was cited and followed in Barber v. Pigden [1937] 1 K. B. 664.
When counsel for the defendant have applied at the close of evidence for the plaintiff for a direction withdrawing the case from the jury and, on being refused, have then elected to go into evidence, it is in general desirable and may be necessary that if they desire to persist in their contention at the close of the evidence they should renew their application. To neglect to renew the application might mislead both judge and opposing counsel into the belief that the objection had been withdrawn, having regard to the evidence subsequently given. Again, counsel who was doubtful whether he could sustain his application on appeal might prefer to take his chances of a favourable verdict from the jury, and so deliberately abstain from making a second application. If he took that course and failed to convince the jury, he should not then be allowed to fall back on a legal point which he had advisedly refrained from making. In the present case the Judge had very clearly stated his views when the application for a direction was made to him. Nothing, *28 in the opinion of the Court, had emerged from the subsequent evidence which could have caused him to modify or withdraw those views and a second application would have been a formality which could not have been successful and which, if pressed, would have wasted the time of all concerned Nor was there anything to suggest that counsel had changed their attitude and wished to withdraw their application. In the circumstances the Court was of opinion that counsel for the defendant were not precluded from raising on appeal the contention that there was no evidence such as would warrant the case being left to a jury.
The contention that the defendant company failed in their duty to the plaintiff as an invitee rested largely on the evidence of an architect that the floor underneath and for some inches around the table was covered with linoleum and that this linoleum when wet would be slippery and dangerous The plaintiff, however, asserted on several occasions that, when she fell, she was not standing on the linoleum but on the rough concrete surface of the landing outside the linoleum, and there was no evidence that mere wetness would make such a surface slippery or dangerous A piece of fat on such a surface might make it slippery, and it was next contended that scraps of meat occasionally were dropped in the process of cleaning the plates, but there was no direct evidence that there was any foreign matter on the floor when the plaintiff fell. The two waiters who picked up the plaintiff after her fall did not say that they had seen any foreign substance on the floor nor did they say that there was any mark on the floor suggesting a slip. If there had been such a substance and if the substance had caused the plaintiff to fall, the danger, on the plaintiff’s own evidence was not unusual, was one which she knew to be recurrent, and one which she could have seen and avoided consistently with adequate performance of her duties The Court was of opinion that there was no evidence of a breach by the defendant company of its duties to the plaintiff as an invitee.
Was there, queried his Lordship, any evidence of a breach of the duty owed to a servant to exercise all reasonable care in providing a proper system of working? No evidence had been given to show anything unusual in the system or to suggest in what way it was defective; or how it would be bettered. A tentative suggestion made by one witness that the lighting was inadequate had been abandoned by counsel and, though counsel did suggest that what he called a “non-skid” mat might have been provided, there was no evidence as to the nature of such a mat or its practicability or desirability Such a mat might, in some respects, increase the danger inasmuch as it might provide opportunity for tripping. A further suggestion of counsel was that someone might be employed for the sole and express purpose of mopping up the floor, but that would be to cause further congestion on the landing.
The only suggested failures to exercise reasonable care were failures of omission. In regard to such omissions Lord Dunedin said in Morton v. Willaim Dixon Ltd 1909 S. C. 807 at 809. “I think it absolutely necessary that proof of that fault of omission should be one of two kinds, either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it” Commenting on those words Lord Normand said in Paris v. Stepney Borough Council [1951] A. C. 367 at 382. “The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances But it does not detract from the test of the conduct and judgment of the reasonable and prudent men. If there is proof that a precaution is usually observed by other persons a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.” The test was recently adopted in the House of Lords in Morris v. West Hartlepool Steam Navigation Co Ltd. [1956] 1 W. L. R. 177.
It is of little avail to show, after an accident has happened, that such and such a precaution might in the circumstances have avoided the particular accident. The matter must be considered as it would have appeared to a reasonable and prudent man before the accident Such a man would take into account the probability of an accident, its probable seriousness should it occur, the practicability of measures to avoid it. An employer is not an insurer, and to make accidents impossible would often be to make work impossible. In the opinion of the Court there was no evidence of any failure on the part of the employer to take any precaution which a reasonable and prudent *29 man would think it was folly to omit, nor was there evidence of any failure to exercise all reasonable care in providing a proper system of working.
Appeal allowed, with costs in both Courts.
Adams v Galway County Council
[2008] I.E.H.C. 57,Judgment of Mr Justice Michael Peart delivered on the 12th February 2008:
For eighteen years prior to 23rd April 2000, being the date on which the plaintiff states that he received an injury for which he seeks damages in these proceedings, he was, amongst other things, employed by the defendants as a part-time fireman. At that date he was forty nine years of age. The evidence suggests that the plaintiff is an experienced fireman, including in relation to dealing with bog fires at night. Over his eighteen years it would appear that the records indicate that he has been called out on about forty nine occasions to deal with a night-time bog fire.
In addition to serving the community as a fireman, he was a teacher of arts and crafts to traveller families, and also to young offenders. In addition to those activities, he had about two weeks’ employment per year with Lydons Catering during Galway Races week.
The plaintiff has given evidence of receiving basic training after he joined the fire service, and that there has been ongoing training from time to time thereafter. But he says that none of this training was related specifically to dealing with fires on a bog.
However, in the evening of 23rd April 2000, a ‘999’ call was received by the Galway fire service, because a bog-fire had been reported as burning in the area of Glenamaddy in Co. Galway. The local fire service to which the plaintiff was attached at Mountbellew was alerted, and the plaintiff and three others attached to that station responded to the call and attended for duty at the fire station. They were the Station Officer, Michael Hughes, Eamonn Colleavy who was the driver of the fire appliance, Pat Keating, who was a sub-officer, and the plaintiff, who was a fireman. The plaintiff says that he was alerted by bleeper at about 8.40pm.
Having loaded up the appliance at the station with what equipment was required they set off to the fire, arriving at the bog at about 9pm. It was not yet dark at that stage, but clearly must have been getting dark.
While each of these men had many years’ experience of bog fires, they do not appear to have been out on this particular bog before. They arrived and parked the appliance at a point where the public road ended, and where a small lane leading around the bog commenced. A local man met them where they parked, and offered to bring them and their equipment in his car along that lane, and appears to have suggested to them that he would bring them to a convenient point so that they could commence tackling the fire from the back of the fire from that position. The size and weight of the appliance meant that it could not have safely travelled along this particular lane.
The plaintiff’s evidence was that he laid three large torches on the ground, as well as some beaters and a bucket. According to the plaintiff he assembled the equipment on the ground prior to the party setting off into the bog to extinguish the fire. He say that he himself picked up a beater and the lamp, but that the officer in charge, Michael Hughes directed him to bring the bucket, and that upon being told to do so he handed over his lamp to Mr Hughes and proceeded with a beater and the bucket. The presumption from the plaintiff’s evidence at this stage is that the others each took up a torch and a beater, but it appears from Mr Hughes’s evidence later that only one large torch was taken into the bog, and that was carried by Mr Hughes. It would appear that the other men carried only a beater.
In addition to this equipment each man had his own personal small torch. I am satisfied that this personal torch is intended to enable a fireman to illuminate instruments such as a gauge on a breathing apparatus or to read a map. It is part of standard equipment, and while it has the capacity to provide some light for these purposes, it was clearly never designed or intended to provide sufficient light to illuminate a path along a bog, as the single larger torch which was brought onto the bog. This personal torch fitted into a small pocket on the foreman’s uniform. I will for convenience refer to the larger torch as a lamp in order not to confuse it with the smaller personal torch.
This night was described by the plaintiff as being a “mucky night”. It was not raining at the time but he described the bog as being very wet. In fact he described this bog as being the wettest that he had ever been in over his eighteen years’ experience, and he found the terrain difficult to negotiate.
According to the plaintiff they all set out in the local man’s car and at a convenient point they alighted and made their way to the fire across the bog. He thinks that it took about fifteen minutes to reach the fire. Mr Hughes led the team across the bog, and the plaintiff was at the rear of the party of four. He recounted that he fell onto his knees at one stage on the way across to the fire and into about three inches of water. He sustained no injury as a result of this fall, which I shall refer to as ‘the first fall’, because it is as a result of a second fall into a ditch or drain that the plaintiff sustained the injuries complained of herein, and for which he seeks to recover damages.
I should refer to the fact that there has been some dispute arising from the history of the incident as taken from the plaintiff his expert fire engineer, Mr Williamson, as to whether the first and second fall occurred on the return rather than that the first being on the way to the fire and the second on the way back. I do not find it necessary to dwell on that aspect of the disputed evidence. In my view nothing turns on that question.
The plaintiff stated that they walked about a quarter of a mile to the fire, which was burning on the top of the heather on the bog at this time. The plaintiff stated that there was no house in the immediate vicinity of the fire, although he saw some people at a grassy area at the edge of the fire, and these people appear to have been beating the fire at that position with some bushes. The fire appears to have been progressing in the direction of that grassed area.
He says that on the way to the fire itself they had to cross a number of ditches, and, as I have said, he fell on one occasion as the party made their way to the back of the fire. The party extinguished the fire in due course, and then commenced the journey back to the fire appliance. The journey back did not retrace the route taken to the fire along the laneway in the local man’s car, but rather took a route directly across to where the fire appliance had pulled up at the end of the road.
Even though the plaintiff’s evidence was that he had put three lamps on the ground at the appliance before they set off across the bog to the fire, his evidence was that as they travelled across the bog and on the return journey, Mr Hughes held a lamp, that Mr Colleavy and Mr Keating each held a beater and a lamp, and that he himself was carrying the bucket and a beater. Each man also had the personal torch in their uniform pocket. As I have said none of these men had been on this particular bog before and were therefore unfamiliar with it, and of course by the time they had extinguished the fire a couple of hours had passed and it was dark. Since the fire was extinguished they no longer had the benefit of the light from the fire.
The journey back to the appliance was therefore in complete darkness, save for any light available from the lamp being carried by Mr Hughes. I have stated that the plaintiff has assumed in his evidence that all these men apart from himself carried a lamp. But in fact I am satisfied from the evidence of Mr Hughes the officer in charge of the party that in fact only one lamp was brought onto the bog and that this was held at all relevant times by him. He said that it was normal practice to carry one lamp into a situation like this. If the plaintiff is correct that he placed three lamps on the ground before they set out in the car, two must have been left behind. That is improbable, and I conclude that the plaintiff’s evidence is the less reliable in that respect. In fact, as it turns out, it is in ease of the plaintiff that I so conclude as will become apparent.
As the party made its way back across the bog to the fire appliance parked on the road, they were in single file, with the plaintiff at the rear. The leader was Mr Hughes, and there is no doubt from the evidence that the distance between Mr Hughes at the front and the plaintiff at the rear was about twenty to thirty feet. The plaintiff states that the journey back across the bog to the fire appliance involved negotiating various ditches or drains in the bog. He described these as being two to three feet wide and filled with water, but that he had no knowledge about this in advance. He was asked if there was any plan discussed in relation to negotiating this terrain, and he stated in reply that no plan was discussed, and that it was a matter simply of following the leader i.e. Mr Hughes. The plaintiff was at the rear of this party as they went back. There has been some evidence from the plaintiff that at this time he was not fully fit, though not in the sense of having any injury. He described himself as being a little overweight, and not as fit as in earlier years. He stated in his evidence in this regard that he did not feel ‘right’ going into the bog and that he felt tired and overweight, and had difficulty keeping up with the others. He accepted in cross-examination that he had not mentioned to anybody that night that he did not feel ‘right’ or that he was tired.
Nonetheless the undisputed evidence is that a distance of only twenty or so feet separated him at the rear from Mr Hughes at the front as they made their way back across this bog to the fire appliance.
The second fall:
In spite of the fact that Mr Hughes was only about twenty feet ahead of the plaintiff, he states that he was unable to see him at the head of the party due to the lack of light. The plaintiff stated that he could see the other two men ahead of him as they had what he says were lamps and stated at one point that while they were shining these from time to time behind them, these lamps were dazzling him somewhat. That evidence is also not reliable given the evidence of Mr Hughes that he alone carried a lamp. Mr Hughes’s view is that Mr Colleavy and Mr Keating must have been using their personal torches, and in fact he used this fact in order to suggest that these personal torches were strong enough to light the way a bit if they had the capacity to dazzle the plaintiff. The plaintiff certainly did not use his personal torch at all.
At any rate the plaintiff has described that he came to a ditch which he said was about four feet wide and that before he jumped across it he threw his beater and his bucket across to the other side and then made to jump across himself. He says that as he commenced the jump across, the edge of the ditch gave way beneath his foot, that his chest hit the top of the bank on the other side, and that as a result he fell back and down into the water in the ditch. The plaintiff claims that it was the lack of light which caused him to fall into this ditch, and that if he had been provided with a lamp he would have been able to see that the bank of the ditch was unstable, and that he was prevented from knowing the state of the bank and from making a decision to perhaps go around the ditch rather than jump across it in the way he did. Eileen Lydon SC for the defendant put it to the plaintiff that it was the bank giving way which caused him to fall, and not the lack of light, but the plaintiff is insistent that it was the lack of light since, if he had had a lamp he would have been able to be aware of the condition of the bank from which he was jumping.
He demonstrated with his hand that the water came up to his chest, and states that he called out and that he panicked. It was suggested in cross-examination that the water had come only up to his knees but he insisted that it had reached his chest.
Upon hearing his call, Mr Colleavy came back to him, as did Mr Keating, and that they pulled him up out of the water. He said that his Wellington boots were full of water and that his clothing was soaked with water. He also described that at this stage he was in great pain, and that he sat down for about five minutes, and that Mr Colleavy and Mr Keating remained with him there. He could not recall having seen Mr Hughes getting over this particular ditch.
The pain which he felt was in the area of his groin and stomach. It was a sharp and powerful pain which radiated up his legs to the middle of his stomach, and he described breaking out in a sweat after it. He had never had this type of pain before this incident. Having rested for about five minutes with Mr Colleavy and Mr Keating, he states that they assisted him back across the bog to the appliance, but not to the extent of having to carry him.
After they returned to the appliance they stopped at a food outlet to get something to eat. The evidence is that at that stage, the plaintiff did not at first get out of the appliance with the others, but remained in it, because he was till in great pain. However he says that he was told to go in and join the others which he did. He says that there was some joking from the others about his being injured. I take this to have been some form of good-humoured banter, as one can imagine might happen among men who have known each other and fought fires together over so long a time.
The plaintiff has stated that Mr Colleavy asked him if he needed a doctor, but the plaintiff said that he did not, and he was driven home. He had made his way on his bicycle to the station after he received the call to go to the fire station. When he got home he went to bed, but did not sleep because of the pain which he still felt. He believed at the time that he had pulled something, and took some painkillers. He in fact lay down for a while on the hall floor, as others in the house were in bed by the time he got home. He was well enough to attend a routine fire drill the following day and he turned up for that in the evening. But it appears that during the course of that fire practice/ drill he felt great pain when he attempted to lift a hose. He went back to the station and then immediately went back home.
The plaintiff never reported this injury in any official way. He agreed that he had never told Mr Hughes that he had been injured in the fall, but he stated that Mr Hughes was aware by the following day that he had been injured because he asked the plaintiff how he was feeling. In fact he states that he was not aware that there was a book at the station in which accidents or injuries were supposed to be entered. There is some dispute in the evidence which has been given by Mr Hughes as to whether the plaintiff knew that there was such a book, because there is in fact an entry from 1996 where a minor injury to the plaintiff is noted. However, I do not find it necessary to determine that particular matter.
In his evidence the plaintiff stated that he went to see his doctor the following day, a Tuesday. However, I am satisfied that his recollection of this is incorrect, and that it was, as his doctor’s evidence has been, some five days after the date of the injury that he first went to see his doctor. He was prescribed some painkillers. But he has never returned to fire duties since this accident. Some nine months later he was retired from the fire service on health grounds. It appears also that some months after this accident the plaintiff was diagnosed as suffering from Type 2 Diabetes, and it is suggested that it is possible that because the plaintiff has put on weight due to inactivity following his injury, that this at least contributed to the onset of diabetes. I will come to that in due course.
This injury has had some impact on the other teaching jobs which I have referred to, particularly since one of them involved an amount of driving which he finds difficult and uncomfortable as a result of his current back complaints. I will also deal with this aspect of the case later.
Mr Colleavy gave evidence for the defendant. He has also been a member of the fire station for eighteen years, and eleven for eleven of those years he has known the plaintiff. He has dealt with abut a hundred bog fires over this time, and described them as a common occurrence in the area. In response to the evidence given by Mr Williamson and by an engineer called by the plaintiff, Mr O’Tuairisg that this fire ought to have been left to burn until daylight and then be attended in daylight since there was no immediate threat to life or property, Mr Colleavy stated that in his experience an emergency ‘999’ callout was never ignored in that way. He also said that it was not unusual for a party of four men to attend to a bog fire. That evidence was in response to Mr Williamson’s evidence that certain fire regulations referred to state that such fires should be dealt with by a minimum of six fire personnel.
Mr Colleavy stated that the fire extended for about three quarters of a mile to a mile in length. He said that there was a house and some forestry in the general area of the fire, and although it was heading in the general direction of the house, it was not near the house at the time.
His evidence was that on such occasions he would never carry a lamp as such, since it would be troublesome when using a beater which its weight required the use of both hands. Although the bog was soft he had had no difficulty getting across the bog to the fire, and that any ditches has been negotiated easily with the aid of the beater, which he stated could be used as an aid to cross soft ground and ditches. He agreed that they had made their way to and from the fire in a single line with the plaintiff bringing up the rear. He believes that from time to time he would have assisted the plaintiff crossing ditches if he needed or had asked for any help, but he could not recall any particular difficulties in this regard.
He thinks that they took about one and a half to two hours to extinguish the fire with the beaters. The direction from which they fought the fire took them back in the general direction of where they had left the appliance on the road before they were driven in the car to the back of the fire. It appears also that when they had put out the fire they were advised by an elderly man, perhaps the occupant of the house which has been referred to, that the easiest route back to the appliance was not to retrace their steps the way they had arrived, but a direct route across to the road from where they had finished extinguishing the fire. Mr Hughes’s evidence was to the same effect. He agreed also that Mr Hughes was at the front and that he had directed them to follow him out of the bog, and that Mr Hughes had the lamp and guided them along the way. He stated also that the plaintiff was the last in the line of four men.
He could not recall actually negotiating the ditch into which the plaintiff had fallen but assumed that he must have since they were all in a line. He said that he had encountered no particular difficulties on this route. He recalled that the plaintiff had called for help after he fell into the ditch, but believes that the water was up to the plaintiff’s knees, and that he had stretched his beater back to the plaintiff and that the plaintiff had got out of the ditch by grabbing the beater and hauling himself up the bank and out of the ditch. He did not regard the plaintiff’s fall as unusual in a bog, and recalled that they had had a laugh about it when the plaintiff had got out. He recalled that they had rested for a few minutes and then made their way back to the appliance. He had not had to lift the plaintiff. He recalled the plaintiff complaining of pain in his side, and that he had asked the plaintiff if he wanted to be brought to a doctor, but that the plaintiff had declined that offer.
He stated that Mr Hughes had carried the lamp, but that if he had needed light himself he would have used his personal torch. He accepted that the personal torch provided less light than the lamp, but that it was better than no light at all. He did not recall that the plaintiff was complaining of pain on the following day when they had all attended a routine fire drill.
Ronald Robins Sc cross-examined Mr Colleavy in relation to his evidence. He accepted that this fire was never out of control, and that there had been no question having to station a man near the house referred to since it was never in danger from the fire, and that no evacuation had been necessary. He accepted also that he would not consider crossing that bog with no lamp whatsoever.
Mr Robins referred Mr Colleavy to a written statement which he had made shortly after this incident, and in which he had stated that the plaintiff was finding the journey on the bog difficult. This contrasted with his evidence in court that no particular difficulty was encountered by the plaintiff on this occasion. He agreed that the statement made at the time was different to his recollection of events now in evidence. Mr Robins referred also to the fact that in his statement he had referred to the plaintiff’s fall being on the way to the fire and not on the way out, and that there was no mention of a fall on the way out. He agreed that this account was different to his evidence in court. It was put to him that his recollection of this night therefore was not now reliable, and, in fairness to Mr Colleavy, he accepted, when pressed, that this was the case.
Michael Hughes, the Senior Officer, also gave evidence. He retired from the service in 2004, but had spent the previous thirty years in the fire service on a part-time basis. I should perhaps add that all these men were part-time members of the service. In his experience bog fires are a common occurrence, and that attending such a fire with four men was usual, and that it was very much a matter of what personnel were available when a call came to the station to go to a fire. There are apparently eight men attached to the station in question, but not all would at all times be available for duty. In any event, he stated that if it became necessary to do so, he could always call for additional resources, but that on this occasion no back-up had been necessary.
He stated that training for bog fires was part of in-service training, rather than being taught in a classroom setting as part of a training programme. He had worked with the plaintiff since the plaintiff joined the service in 1982, and he regarded the plaintiff as an experienced fireman, including in relation to bog fires.
He recalled this particular evening when the emergency call was received to go to this bog. He understood at the time that it was a gorse fire and that some forestry was under threat. He said that when they arrived at the bog they could see the fire clearly, and that it was not a small fire but extended for perhaps a mile in length. He stated that upon arrival at the location he directed that three beaters, a bucket and the lamp be brought to the fire, and that while the light was diminished, there was no difficulty making their way to the fire.
As to whether he ought to have made a decision to leave this fire until the following morning, rather than go over the bog in darkness, he stated that in his thirty years’ experience he had never done that, and that on all occasions he had extinguished a fire once called out to deal with it. He said that there had been no difficulties getting to the fire, and that he had been aware of a house in the area, and had been aware of some people who were at the fire. He had apparently heard them before actually seeing them. He then saw that they were beating the fire with some bushes.
He regarded the suggestion that on this occasion there was no risk to life and property and that accordingly he should have left the fire until the morning as “nonsense”. He stated that as far as he was concerned their job was to fight fires, taking all reasonable safety precautions, and he did not consider that there was any reason not to do so on this evening. He believes that there was a risk to people and to property given that there were people actually trying to beta the fire with bushes and that there was the house referred to. He also stated that there is a danger that the smoke from the fire can cause a hazard to traffic on the road, and that it was correct to fight the fire that night, taking into account the safety to his men at all times. He believes that with all fires on a bog there is some element of risk, but that this is part of the job involved. He felt that this fire was not particularly difficult to extinguish since the vegetation was not too dry.
As far as the terrain was concerned, there were cuttings and trenches, drains and mounds of various kinds to be negotiated, but nothing unusual for a bog.
He stated that when the fire was extinguished, he had a conversation with an elderly local man as to the best route to take out of the bog and back to the appliance. That man suggested a route directly over to the appliance rather than to go back the way they had come, and he told them to watch out for a river that was close.
He stated that he was the one holding the lamp and that he led the others out of the bog with the use of that lamp. He stated in his evidence that it was normal to bring only one lamp because more than one lamp poses difficulties if the men are using their beaters. He led them out carefully, urging them to take care, and he stated also that he could not recall jumping any ditch on his way, and that if he came to any particular difficulty he would call back to the others to watch out for it. He said that there would have been a couple of yards between each man, and that in any event each man had his personal torch.
He had been aware that the plaintiff had fallen into a ditch, but did not regard such an occurrence as particularly unusual on this sort of terrain, and had not actually seen it happen. It was a common enough occurrence in his experience. Once out of the bog, all the equipment was put away and they made their way back in the appliance, stopping off on the way for something to eat. He stated that all the men were exhausted by this time, and that the plaintiff was very tired and sore. Again, he did not regard this as being an unusual complaint after dealing with a bog fire for a couple of hours. He did not recall that the plaintiff’s clothing was particularly wet either.
He recalled the plaintiff attending the fire drill on the following day. He said that he would not have been surprised of the plaintiff had not turned up for the drill as the plaintiff had in fact arrived a little bit late. He recalled that he had asked the plaintiff if he was feeling better, and that the plaintiff had pointed out some pain, without being specific about the pain, and that he had made some friendly remark about that. He says that if the plaintiff had asked to complete an accident report he would have facilitated that, but that he did not do so.
In relation to Mr O’Tuairisg’s evidence that Mr Hughes ought to have considered leaving this fire till morning, Mr Hughes stated that his view was that it was better to get on with fighting the fire when it was small rather than run the risk of it becoming much more extensive before putting it out. He said that there was no point in watching it and considering leaving it till morning, and that that had never been his practice and he would never do that. He was shown a number of photographs taken at this bog and which show quite large ditches and drains. He stated that he had not come across ditches and drains of the size shown in these photographs when they were on the bog that night.
Mr Robins cross-examined Mr Hughes. In the course of this cross-examination Mr Hughes was prepared to say that some bogs can be extremely dangerous, but was sure that this particular bog was not dangerous as far as he was concerned on this night. He accepted that it was not possible for someone to gauge the depth of water that may be in a ditch that needed to be crossed, such as that which the plaintiff says that he attempted to cross on this occasion, and he accepted also that the edges of ditches could become disguised by overgrowth, and also that one function of a beater is to assist in crossing difficult patches of bog. He accepted also that the level of danger on a bog can be increased if on it at night, and that more caution is required at night. He accepted that at night it was more dangerous than in daylight.
He was asked also why he had seen fit to inquire of the plaintiff the next day at the fire drill how he was if his state of knowledge about the plaintiff was simply that he had been very tired after they had returned from the fire. Mr Hughes stated simply that the plaintiff had looked much better and fresher than the night before, and he simply asked how he was feeling. He was adamant that he had no knowledge that the plaintiff had suffered any injury as such, although he stated that he had heard Mr Colleavy ask the plaintiff if he wanted to see a doctor, and that this had been declined by the plaintiff.
As to whether he had read the regulations and guidelines to which Mr Williamson had referred, Mr Hughes stated that he felt sure that he had read them at some stage, but could not recall specifically if he read the passages in question about fighting bog fires. He reiterated that he was of the view that one lamp was sufficient to bring onto the bog that night, and that the lamp had provided sufficient light for the task undertaken that night.
He also stated that he had never been on that bog before and neither had he been on it since that night. He did not consider it necessary to revisit the bog before giving his evidence in court, and he accepted that his evidence was based solely on his recollection of events eight years ago. He regards that night as being not unusual in any way and that it was completely routine.
He accepted that on the way to the fire they had encountered some difficulties with the terrain but nothing out of the ordinary, and that he had taken the advice of the man referred to earlier as to the most convenient route to exit the bog after the fire had been extinguished in order to return directly to the fire appliance parked at the road. It was a journey of about 300-400 yards as far as he could recollect now.
He accepted also that the small personal torch which each man carried as part of his standard equipment was a torch specially designed to enable instruments to be read in a fire situation. It is a sealed torch which will contain within the spark which lights the torch, so that no explosion will be caused when it is lit in potentially explosive situations, but he added that nonetheless it was capable of providing some light on a bog, even if it is not designed for that purpose. He accepted also that he would not choose to cross a bog at night without a torch.
Evidence of John Williamson, Fire Consultant:
Mr Williamson’s report contains a CV which clearly indicates that he is a man of great experience stretching back some thirty seven years during which time he advanced up the ranks of the British Fire & Rescue Service in Lancashire, Grampian and Strathclyde from being a fire fighter, through to being Assistant Chief Fire Officer, Divisional Fire Commander, and Senior Fire safety Officer. There is no need to elaborate further on his qualifications and experience. He has an impressive CV, and a very extensive on the ground experience of fighting fires and commanding fire teams. This experience extends to fire-fighting on bog fires in the United Kingdom. Indeed his qualifications are not disputed by the defendant.
Mr Williamson came over to inspect the bog in this case on the 19th January 2005, and he took photographs of relevant parts of the bog, based on what he was told by the plaintiff who accompanied him.
He stated that bogs by their very nature are dangerous places to be at night, and that it is advisable when called out to a bog fire to assess the situation and decide if it was justifiable to bring firemen onto the bog at night in order to deal with the fire. He stated that in his view unless there was a risk to life or to property resulting from the fire, he would not allow men to go onto the bog to fight it. It should be avoided if at all possible.
In this particular case, and based on what he had been told by the plaintiff, he is of the view that the house referred to was not in danger, and that there was not the sort of risk apparent which would have justified going onto the bog at night to put out the fire. While the house may have been in view it presented no danger, particularly since the bog was wet, and the fire was travelling on the top of the bog. He does not believe that the fire would have spread easily given the conditions.
He had been instructed that the route taken by this party to exit the bog was considerably longer than the route taken to reach the fire. On that basis he described it as “folly” to exit the bog by a longer route in order to get back to the appliance. However, I am satisfied from the evidence which I have heard and the markings on the map which was handed in, that in fact there is no significant difference in the length of the route out of the bog from the route taken into the fire. His instructions in this regard may not have been correct.
From his own experience he was able to say that walking across a bog can be very tiring especially given the heavy uniform clothing, heavy boots, fire helmet and equipment being worn and carried.
By reference to the photographs taken of ditches pointed out to him by the plaintiff as being typical of what was encountered on this night, Mr Williamson stated that these were part of the reason why it was unsafe to go into the bog at night.
He regarded it as “absolute folly” for four men to go into the bog at night with only one lamp between them, and does not understand why that was done in this case. He described the smaller personal torches as “virtually useless” for lighting purposes on the bog. He stated that even when he visited the bog in daylight he fell while crossing the bog, and that at night the danger was much worse.
He was asked to express a view on the wisdom of just four men going onto the bog to extinguish the fire at night, and he stated that this was not in accordance with standing orders, and that it constituted what he described as a “serious error”, particularly where there was no danger to life present. He went as far as describing this error as being potentially a disciplinary offence. It appears that standing orders are that not less than six personnel should attend such a fire, and he stated in this regard that if there are six persons involved, it means that one can remain with the fire appliance so that radio communication to the station can be maintained, and one other person could have the sole responsibility for providing light to the others, though even that may not be sufficiently effective. Mr Williamson was at a loss to understand why the plaintiff and the others besides Mr Hughes were not provided with a lamp each.
In his report and in his evidence he stated that this team should not have gone to the fire with just four personnel, and that to do so was in breach of the Galway County Fire and Emergency Operations Plan which states a minimum of six persons, and that the Department of the Environment and Local Government Review of Fire safety and Fire Services in Ireland, Final report dated January 2002 recognises a minimum number of crew as five. The former document states at paragraph 4.5 thereof:
“Galway City retained personnel operate a rostered duty system on call every second week. Retained personnel in County stations must be available for duty at all times except with the permission of the Station Officer which shall be given only in the circumstances which will permit manning levels to be maintained at a minimum acceptable level, currently six personnel available for turnout.”
I should perhaps refer again to Mr Hughes’s evidence that at his station there are nine or perhaps eight men attached to the station, and that not all may be available at the same time. But he does not see this recommendation as meaning that for all fires there must be six men attending the fire. It is more that there must be no less than six available if required. In the present case he stated that when the call went out to the men, four turned up at the station and he goes with whoever turns up, in this case those four. Mr Hughes did not consider it an option that because he had only four he should not go out and attend at the fire.
However, Mr Williamson stated also that since this was what he called ‘a low risk fire’ it was not justifiable to attend it with just four men, and that this was potentially dangerous. He believes that this number resulted in the plaintiff being injured in the way that he states he was. He has made a number of complaints in his report about the manner in which this incident was dealt with. It is not necessary to set these out in full detail. He believes that the Senior Officer should have assessed the situation and that unless there was an apparent risk to life or property the fire should have been left until daylight, and that to go in at night increases the risk to the fire-fighters.
Mr Williamson referred also to a Manual of Firemanship, and to certain passages therein which deal with bog fires. I will not set out each passage to which he referred, but one in particular is relevant to the question of lighting. It refers to the existence of trenches in bogs, and states in this regard:
“These trenches are a danger at night, for it is extremely difficult for a person who has fallen into one of them to get out unaided. Plenty of light should, therefore, always be used to mark routes across the peat beds.”
Another passage with relevance reads:
“Men working on peat fires rapidly become fatigued owing to the fact that at every step taken the feet sink into the ground. When the fire is in the peat moss itself and not in the hogs, it is advisable to tread carefully, for the top layer may have burnt away and will crumble when weight is put upon it; there is then a danger of falling into holes where the peat is burning.”
There is also a reference in this Manual to beating a fire being “a very exhausting operation….”
Mr O’Tuairisg, Consulting Engineer gave evidence for the plaintiff also, and without going into his report and evidence in detail, it suffices to say that he is of the opinion that the manner in which the plaintiff was required to attend this fire at night on a bog breached statutory provisions regarding safety and welfare at work, and safety guidelines in relation to the numbers of men, the provision of adequate lighting, failure to carry out an adequate risk assessment on the night before entering the bog, and the failure of Mr Hughes who had a lamp to stay close enough to the plaintiff to ensure that his way was adequately lit. He is also critical about the level of training given to the plaintiff in relation to fighting fires on a bog. He is of the view that the plaintiff was not responsible for what happened to him when he fell into the ditch, and that he was following orders given by Mr Hughes and using what equipment was provided to him. In these circumstances, Mr O’Tuairisg considers that the plaintiff was not the author of his own misfortune as the defendant has pleaded.
On the defendant’s behalf, Mr Tony Gillick, Fire Consultant gave evidence. He is of the view that Mr Hughes’s decision to go into the bog to deal with the fire was a correct decision even with four men, since in his view there was a risk to the house described as well as to the people who were seen there trying to quench the fire with bushes. He also considered that there was the risk that the fire might spread if left unattended. He also considered that it was adequate to have one lamp only, since each person had his own personal torch in his pocket if required. He stated that it was normal practice for one lamp to be used by the officer in charge of the operation. In cross-examination, Mr Gillick accepted that he had never visited this particular bog before he prepared his report or after doing so. Mr Robins suggested to him that in such circumstances he was in no position to criticise the evidence of Mr Williamson and Mr O’Tuairisg who had visited the bog and were therefore able to form a view as to its dangers. He also accepted that some of the information which forms the basis of his report was gleaned from Mr Colleavy, and Mr Robins pointed to the fact that even Mr Colleavy had conceded at the end of his evidence that his recollection of this night was unreliable. Mr Gillick accepted that he would not go onto a bog without a torch, and he also accepted that if a man was carrying a beater, he could still manage to hold a lamp to light his way.
Conclusions on liability:
First of all I am satisfied that the plaintiff injured himself when he fell into the ditch on the occasion referred to as the second fall. While I have formed the view that in the time which has passed since this incident the plaintiff has developed a recollection of the size of the ditch and the depth of water into which he fell which is greater than what actually occurred, that does not alter the fact that a fall occurred which resulted in his injury. By that I mean that it is improbable in my view that this ditch was four feet wide. It is improbable also that the depth of water was as far as his chest area. I cannot see how, if all these men were proceeding in a straight line and if the distance from the lead man, Mr Hughes, back to the plaintiff was in the order of twenty/thirty feet, the other men would not remember clearly having had to negotiate an obstacle of such width. Indeed, if the ditch was so wide, the plaintiff would be expected to have hesitated before jumping it and to have called for assistance and/ or more light before attempting to jump across it.
I am of the view that it was much less than the four feet which he has described, and that the plaintiff formed the opinion that he could cross it successfully, as the others had done ahead of him.
The plaintiff has stated clearly that his allegation against the defendant is not simply that the ground beneath him gave way, but rather that because he had no lamp or other adequate means of light from the others, he could not see the ground beneath him or the exact width of the ditch, and that it was the lack of a lamp which caused him to misjudge the jump and fall into the ditch and the water therein. This lack of light also in m y view deprived him of an adequate opportunity to see that the edge of the bank from which he was to jump across was unstable or at least posed some risk.
Many allegations of negligence against the defendant are pleaded in the Statement of Claim, many of which in my view are not made out by the evidence which I have heard. For example, I am not satisfied that the failure to have more than four crew on the bog contributed to any significant extent to the plaintiff’s fall. Similarly, I am not satisfied that any lack of training on bogs was causative. Neither am I satisfied that proper Wellington boots were not provided. Those used were standard issue, and had been in use by the plaintiff and the others over many years and without causing any problem while out on a bog. I am equally satisfied that there was no requirement that high-beamed lights be provided in order to light up the area. In fact Mr Robins conceded that he was not suggesting that ‘arc lights’ or similar should have been available for this fire. Similarly I am not satisfied that the defendant ought to have ensured that the party was accompanied by a person who was familiar with the bog since none of these men had ever been on this particular bog before that night. It is pleaded also that that the defendant was negligent by failing to recruit younger people for the job so that the plaintiff, then aged forty eight, would not be required to attend such a fire. The plaintiff never made any complaint or made it known that he was not able to perform such a duty.
However, I am satisfied by the evidence, and in my view it seems somewhat obvious, that the lighting of the route back to the appliance across the bog at night was inadequate to ensure the reasonable safety of the plaintiff. In that matter, the defendant was negligent by failing to provide the plaintiff with a lamp, and that the defendant did thereby expose the plaintiff to a foreseeable danger, given the darkness and the terrain having to be negotiated. The fact that Mr Hughes had a lamp and, as far as he was concerned at least, was conscious of the men behind him, was insufficient to ensure the reasonable safety of the plaintiff, given that he was at the back of the line.
The fact that Mr Hughes conducted himself on this bog in the way that always occurred as a matter of regular practice is not sufficient to discharge the responsibility he had for the safety of those men under his command on that night. The fact that this was the first occasion on which any mishap leading to injury of personnel had occurred by the use of one lamp in such circumstances can be seen as good fortune rather than as an approbation for, or vindication of, the methodology adopted. I accept that Mr Hughes was a man of great experience on bogs at night, and that this is the way things were normally done, but different considerations apply from a legal perspective when an injury actually occurs. It is only on such occasions that the shortcomings of a normal practice become apparent.
Reference has been made to the standing orders applicable and the guidelines adopted by the defendant for dealing with fires on bogs, which are a common occurrence in this area, according to the evidence in this case. I accept that for someone in the position of Mr Hughes, such regulations and guidelines would have been read by him at some stage, but I am left, having heard him give his evidence, that he is of the view to a large extent, that these standing orders and guidelines are theory based and bear little reality to the actual job of fire-fighting. I appreciate that the fire service concerned is a part-time service, and I accept that as a matter of practicality, the Senior Officer in charge deals with the call on the basis of what resources are available at the time, and relies on practical experience over many years. To do so, without any apparent regard for what the rules state, and on the basis of what is normally done in such circumstances, is to ignore the ultimate purpose of regulations of any kind, namely to set down a benchmark for safety standards for persons at work. In ninety nine cases out of a hundred the time-honoured method of carrying out a job will prove successful whereby the job is done without any harm to personnel. Unfortunately, in the one case out of a hundred when an injury does occur, it is easy to point to ways in which safety has been compromised by a failure to adhere to the rules and guidelines. In my view there was a failure to have regard to the very sensible recommendation that when fighting a fire on a bog at night personnel must be provided with adequate lighting for the terrain involved. At a minimum, in m y view, each person ought to have had a lamp available to him which would assist in providing adequate light in darkness. One lamp between four does not seem to me to serve that important purpose, albeit that each man had as part of standard equipment a smaller torch not intended for that purpose.
Contributory negligence:
In its Defence the defendant has pleaded that the plaintiff failed to discharge the duty of care that he owes to himself. It pleads that he failed to use his personal torch; failed to rely on his own skill and experience as a fireman, including on bogs; failed to follow the footsteps of the other members of the crew; failed to concentrate on what he was doing; failed to remain adequately fit for his job; failed to have due regard for his own safety; was the author of his own misfortune; and failed to walk with a proper and adequate stride. It is pleaded also that he failed to comply with relevant legislation.
In my view none of these pleas are established by the evidence save that which states that he failed to have due regard for his own safety. The evidence clearly establishes that the plaintiff is a mature, and experienced fireman, well used to attending on a bog in order to deal with fires there. He has been doing it for eighteen years. He must be regarded as someone who is fully aware of the hazards which are normally encountered on a bog, especially at night. It is unreasonable that he should expect the leader of the party, in this case Mr Hughes, to nurse-maid him back across the bog to the fire appliance. In my view it was reasonable for Mr Hughes to expect that the plaintiff would speak up and alert him or some of the others to any particular difficulty encountered and for which he needed assistance whether by way of the provision of light from the lamp, or otherwise. There is no evidence that the plaintiff did so on this night. He appears to have encountered what he says was a four foot wide ditch containing water of an unknown depth within it, and his evidence has been that this was mucky night in which conditions were wet and unfavourable. Nevertheless he took a decision for whatever reason simply to jump the ditch having thrown his equipment across ahead of him. In my view he must be held to some extent responsible for the fact that he failed to take notice of the extent of the jump required of him, especially when he acknowledges himself in his evidence that on this night he was not feeling ‘right’ on the bog, and he knew that he was fatigued and not as fit as maybe he was in former years.
In my view it is appropriate to attribute 20% blame to the plaintiff.
The injuries and damages:
As already stated the plaintiff attended his General Practitioner five days following the accident. He reported that he had fallen into a bog-hole and that he had felt a sudden pain in the perineal region. He was given an anti-flammatory injection, and prescribed anti-flammatory medication. He was reviewed again about a week later and was referred for X-ray of his lumbar spine and pelvis because of continuing complaint of pain in the low back area. By the 19th May 2000 (4 weeks post accident) he was considered unfit for work.
The x-ray taken revealed that the plaintiff had moderate degenerative disc space narrowing at the thoraco lumbar junction, T12 through L13, with degenerative osteophyte formation throughout. The lower lumbar disc spaces were well preserved, but it was noted that there was “marked osteophyte formation involving both superior acetabule…”. There was minimal narrowing of the medial joint space bilaterally, and both sacro-iliac points were normal.
On examination on the 21st June 2000 (two months post accident) the plaintiff complained of getting a stabbing-type pain in his lower back, relating that it was worse in the mornings. He also complained of pain on lifting weights, constipation and weight loss.
Dr Moore states in his report at this time that straight leg raising on the right was restricted to 30 degrees and 60 degrees on the left, his reflexes were normal, and that he had decreased movement at his right hip due to pain. Dr Moore’s conclusion at that time was that the plaintiff had previous degenerative disease in his lumbar spine, and that x-rays of his pelvis showed early arthritic changes in both hip joints. He states that it is likely that the accident herein aggravated a pre-existing arthritic condition which was present in his back and hips.
The plaintiff was referred to Orthopaedic Consultant, Dr Mangan, who examined the plaintiff in August 2000 and again in September 2000. He opines that the plaintiff suffered a soft tissue injury to his lumbar spine and hips, and that since there were chronic degenerative changes in both areas, it is likely that he will suffer pain in these areas into the future, but that the intensity will vary from time to time, and that the plaintiff will have to be careful about his back.
Physiotherapy was recommended but the plaintiff attended only one session, stating to Dr Moore in August 2001 that he felt worse after it rather than better.
By August 2005, Dr Mangan reports that x-rays taken at that date showed little change from those taken in 2000. He stated that from the plaintiff’s account of his symptoms at that stage, most of the pain seems to be emanating from his hip joints. The question of considering hip replacement is mentioned in this report and a later one in 2006, but Mr Robins has confirmed that the plaintiff is not seeking to recover damages to cover that eventuality should it arise.
Dr Mangan’s opinion is that the accident on the bog in this case made the plaintiff symptomatic in his lumbar spine and hip joints, whereas he had previously been asymptomatic. He states that the accident accelerated the process of degeneration.
Diabetes:
I have already referred to the fact that in the months following this accident the plaintiff was diagnosed with diabetes. It is suggested that because of inactivity resulting from this injury he had put on weight and that this may have caused the onset of diabetes. The reference by Dr Mangan in his August 2000 report to the plaintiff having put on weight by August 2000 is strange given that in a report dated June 2000 Dr Moore stated that the plaintiff complained of weight loss. However, one way or the other I am not satisfied that the case is made out that as a matter of probability whatever weight the plaintiff may have gained following the accident (in evidence Dr Moore stated that he had at some stage put on about one and a half stones) caused the onset of Type 2 Diabetes. It is possible according to some of the reports that this may have contributed to the diabetes, but as a matter of probability the case is not established on the evidence before me.
The defendant has also sought to argue that because the plaintiff developed diabetes by the summer of 2000, he would have been required to resign as a fireman on the basis that diabetes is one of the conditions which disqualifies a person from acting as a fireman. Again, I do not believe this has been established as a matter of evidence. It may well be that in a relatively short time after 2000 the plaintiff’s physical condition and fitness may have deteriorated further, both as a result of diabetes and the ongoing degenerative changes in his hip joints and spine, and I am taking that factor into account in any event in relation to the latter, and no further account need be taken of it related to diabetes.
General Damages:
I have no doubt that as a matter of probability on the evidence before the court the injury which the plaintiff sustained that night on the bog rendered the degenerative changes in his spine and hip joints symptomatic and that it has caused an acceleration of the degeneration process. Nevertheless, it is clear that at some relatively early stage this plaintiff would have become symptomatic. There is little room for doubt about that given the extent of the degeneration described. While the plaintiff is therefore entitled to be compensated for the acceleration of these changes, and the fact that he suddenly became symptomatic, the measure of those damages must take into account the fact that even without this incident, he would have in the reasonably short-term have begun to suffer pain and discomfort, leading to his having to resign from his fire duties with the defendant.
The plaintiff has not tried to make too much of his injury. He has been very open and honest in that regard. He can still go about much of his previous activities, but cannot work as a fireman, and driving any significant distances causes him great discomfort. The plaintiff is now aged fifty seven years. I have taken the view that given the extent of the pre-existing degenerative changes shown on the x-rays taken, it is probable that by eight years post accident he would have begun to be symptomatic. It seems to follow therefore that he is not entitled to be compensated for any pain and suffering into the future from the present date, since he would unfortunately have suffered in that regard in any event.
As far as general damages from the date of accident to date are concerned, I assess a sum of €55,000. This sum represents damages for the actual pain and discomfort experienced during the almost eight years since the accident happened. I cannot award damages in relation to the onset of diabetes for the reasons stated.
Special Damages:
The figures for special damages are agreed subject to liability for them being established by the plaintiff. The only area of possible controversy relates to whether the plaintiff is at a loss of salary in relation to work he did for his employment with the National Association of Training Centres for Travellers. He had fifteen hours work per week with that organisation but gave it up because there was too much driving involved and he was unable to continue it. However, by way of mitigation of his losses, he seems to have picked up other work in his town which involves cleaning statues in the town and such like, and he is paid about €325 per week. In my view this offsets any claim for the fifteen hours work which he gave up, and this heading of loss should be discounted as a result.
I intend to calculate the plaintiff’s losses on the basis that he would have had to retire as a fireman at age 55 on account of his significant degenerative changes. It is heavy work, and it is reasonable to conclude that he would not have been able to do that type of work beyond that age.
Accordingly, and by reference to the figures agreed I calculate his special damages as follows:
1. Loss of earnings as a fireman – €41274
2. Loss of value of Retirement Gratuity – €16632
3. Medical expenses – € 2417
4. Pharmacy expenses – € 1326
5. Travel expenses – € 788
6. Guttering Contractor – € 800
Total Special Damages: € 63237
The total of general damages and special damages amounts to the sum of €118237, from which must be deducted 20% for contributory negligence. That means that judgment will be entered for the plaintiff in the sum of €94589.60.