General Issues
Cases
Bradley v. Coras Iompair Iareann
[1976] I.R. 217
Henchy J.
“Where a workman founds a claim for damages for negligence against his employer on an allegation that something was left undone that should have been done in the interests of his safety, the most commonly cited statement of the necessary degree of proof is that formulated by Lord Dunedin at p. 809 of the report of Morton v. William Dixon Ltd .8:
“. . . I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, eitherto shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, orto shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.”
This rule has been applied in numerous cases including the decision of the Supreme Court in Christie v. Odeon (Ir.) Ltd. 9 usually with the gloss given to it by Lord Normand in Paris v. Stepney Borough Council 10:
“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.”
The Lord Dunedin formulation, as thus glossed, continues to be the generally accepted statement of the standard and mode of proof in such cases, with the qualification that when it refers to “folly” it means no more than “imprudent” or “unreasonable”: see per Lord Tucker in Cavanagh v. Ulster Weaving Co. Ltd. 11 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 the present case, the first part of the test laid down by Lord Dunedin in Morton’s Case 12 was answered by uncontroverted evidence that the safety cage suggested by the plaintiff’s engineer was unknown in railway practice. The defendants’ engineer (who was the only expert in railway engineering called in evidence) said that although he was familiar with the systems of railway signals in Ireland, the United Kingdom and some continental countries, he had never seen a signal-post ladder with such a cage. His evidence to the effect that such a cage was unheard-of passed without cross-examination or any other attempt to controvert it. That being so, it would have been impossible for counsel for the plaintiff to argue that the provision of a safety cage was “a thing which was commonly done by other persons in like circumstances.”
To succeed, therefore. the plaintiff had to satisfy the second or alternative part of the test: although the defendants were following general practice in not having fitted the ladder with a safety cage, was such a cage so obviously wanted for the protection of the plaintiff from injury by falling that the defendants could be said to have been imprudent or unreasonable in not providing it? In applying this test it is important to bear in mind what was pointed out by Lord Reid in General Cleaning Contractors v.Christmas 13:
“A plaintiff who seeks to have condemned as unsafe a system of work which has been generally used for a long time in an important trade undertakes a heavy onus: if he is right it means that all, or practically all, the numerous employers in the trade have been habitually neglecting their duty to their men.”
As far as the evidence in this case goes, it shows that no railway company in Ireland, the United Kingdom or Holland (and possibly other European countries) fits a safety cage to this kind of ladder. Was it open on the evidence for the jury to say. as in effect they did say. that they are all wanting in reasonable care for the safety of their workmen? The answer lies in whether, notwithstanding the general practice, the provision of a safety cage was an obvious safety precaution which could reasonably have been provided.
First, as to whether the defendants ought to have noticed that a safety cage was obviously wanted. There was no suggestion in the evidence that the experience from a century and a half of railway operations had thrown up any need for a safety cage on these ladders. A specific search of the records of the defendants for the ten years prior to this accident showed
that, despite the fact that over 1,000 of these uncaged ladders were being operated in the defendants’ railway system, not one accident related to their use was reported. Looking outside railways, the plaintiff’s engineer could produce from his experience only two instances of a ladder with a safety cage, one being in the Ford factory in Cork city and the other in an Aer Rianta installation in West Cork. But cross-examination elicited that in each of those two cases the ladder in question was used as a stairway for regular access to a higher level of a building. So, in fact, no instance was given of a safety cage on an external vertical or near-vertical fixed ladder of this kind, although such ladders are to be seen on quaysides, ships, silos, gasometers, building sites and other buildings and installations. It is impossible, therefore. to say that it was, or should have been, obvious to the defendants that a safety cage was wanted on this ladder. The combination of long-established operation, the widespread use elsewhere of similar ladders, and the unbroken experience of an absence of a likelihood that these ladders would cause accidents must be held to rule out the conclusion that a safety cage was obviously wanted. Of course, a ladder such as this carries a risk of injury to a person working on it, particularly if he is carrying an object such as a lamp in one hand, but no more than does any other fixed ladder of this kind on which a person is required to work. In all such cases it might be said, at the most, that a safety cage would be desirable, but certainly as far as this case is concerned. it could not be said that it was obviously wanted.
However, even if the evidence enabled the jury to say that a safety cage was obviously wanted, it would not necessarily follow that the plaintiff had established negligence by proving that the defendants had not fitted one. It would be further necessary in such a case as this for the plaintiff to show that the obviously wanted precaution is one that a reasonably careful employer would have taken. 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. Thus, even where a certain precaution is obviously wanted in the interests of the safety of the workman, there may be countervailing factors which would justify the employer in not taking that precaution. As Lord Reid said in Morris v.West Hartlepool Steam Navigation Co. Ltd. 14:
“. . . It is the duty of an employer, in considering whether some precaution should be taken against a 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, and, on the other hand, the difficulty and expense and any other disadvantage of taking the precaution.”
The defendants were entitled to measure against the desirability of installing a safety cage on this ladder the fact that they would also have to install a safety cage on each of the thousand or more similar ladders scattered throughout their railroad system, thus incurring heavy installation and maintenance expenses, notwithstanding that such installations are not deemed necessary in neighbouring countries and notwithstanding the absence over a period of at least ten years of a single accident to suggest the necessity of taking such a precaution. Of even greater weight is the fact that, if they installed a safety cage on this particular ladder, they would reduce the clearance between the steel fixture thus created and each of the two adjoining railway lines from 4′ 61/2” to 3′ 91/2”thus breaching the rule of a minimum clearance of 4′ 6” which the defendants observe. That rule apparently derives from Board of Trade regulations which are not binding in this State. Therefore, it would have been open to the plaintiff to show that the margin of clearance observed by the defendants is unnecessarily wide and that they could reduce it to 3′ 91/2” without undue risk. However, no evidence on the matter was given on behalf of the plaintiff. The only witness who dealt with it was the defendants’ expert, and he left the witness box without a single question having been put to him in cross-examination to suggest that the observance of a 4′ 6” clearance was unnecessary. Therefore, at the end of the case there was no evidence to support a finding that a 4′ 61/2” clearance could responsibly be reduced to a 3′ 91/2” clearance. It may be that a minimum clearance of 4′ 6” is pitched unnecessarily high, but it would be unjustifiable to say so without evidence to that effect. It is implicit in the jury’s verdict that they reached that conclusion. In doing so without evidence, they took a leap in the dark. For all they knew, a reduction of the clearance to 3′ 91/2” might have produced a hazard of injury to others that would outweigh the risk of injury to the plaintiff through not fitting the ladder with a safety cage.
For the foregoing reasons, I am of opinion that there was not evidence to support the jury’s verdict, and that the application to have the case withdrawn from the jury should have been allowed. I would therefore allow the appeal and, in lieu of the order of the High Court, enter judgment for the defendants. I would allow the appeal without costs because counsel for the defendants, when applying to have the case withdrawn from the
jury, did not direct the trial judge’s attention to any of the authorities relied on in this Court or, indeed, to any authority.
Griffin J.
I agree.
Kenny J.
I agree.
Doyle -v- E.S.B.
[2008] IEHC 88
Quirke J.
“THE PLAINTIFF’S CLAIM
It is contended on behalf of the plaintiff, that the defendant ought to have known that repetitive and physically stressful work activities can cause soft tissue injuries to employees.
It is argued that the plaintiff’s injury comes into the category of a “repetitive strain injury” and that employers within this jurisdiction have been aware of the existence of such injuries since the late 1980s or the early 1990s.
Mr Counihan, S.C. on behalf of the plaintiff, argues that the plaintiff should have anticipated and foreseen that the work which the plaintiff was required to undertake with the Pfisterer machine was work which could have resulted in repetitive strain injury and ought to have taken reasonable steps to reduce the risk of the plaintiff contracting that injury.
Additionally, it is contended on behalf of the plaintiff, that an onus rests upon all employers to provide a safe system of work for their employees and that the system of work which the plaintiff was required to undertake was not safe because it exposed him to the risk of injury and accordingly, it is argued, the defendant failed in its obligation to provide the plaintiff with a safe system of work.
It is also alleged on behalf of the plaintiff that the defendant failed to comply with the obligations imposed upon the defendant pursuant to the provisions of sections 6 to12 of the Safety, Health and Welfare At Work Act 1989 (hereafter “the Act of 1989”).
Those statutory provisions impose certain “general duties” which require employers to ensure “so far as is reasonably practicable” the safety, health and welfare at work of their employees.
Section 12 of the Act of 1989 imposes upon employers a duty, inter alia, to:
“Prepare, or cause to be prepared, a statement in writing to be known and hereinafter referred to as a ‘Safety Statement’”.
It is contended on behalf of the plaintiff that no evidence was adduced in these proceedings, demonstrating that the defendant had complied with its obligations pursuant to s. 12 of the Act of 1989, and that is certainly the case.
However, no evidence has been adduced in these proceedings which would suggest that the preparation or publication by the defendant of a Safety Statement of the kind required by s.12 of the Act of 1989 would have reduced or eliminated the risk to the plaintiff of the injury which he says he sustained.
In particular, Mr Counihan S.C., on behalf of the plaintiff, relies upon the provisions of Regulation 10 of the Regulations of 1993, which impose upon employers a duty, when preparing a Safety Statement, to:-
“ . . (a) be in possession of an assessment in writing of the risks to safety and health at the place of work as required under section 12 (3) of the Act, such risks to include any which put groups of employees at unusual risk, and
(b) to decide on any protective measures to be taken and, if necessary, the protective equipment to be used.”
Mr. Counihan relies also upon the provisions of Regulation 13 of the Regulations of 1993 which imposes upon employers a duty to provide their employees with training on matters of safety and health.
Pointing to the evidence adduced at the trial, he argues that the plaintiff was instructed how to use the Pfisterer tool by his contemporaries but was not trained to adopt an appropriate and correct posture and stance in order to minimise the stress created by the use of the tool. He contends that the plaintiff was, therefore, not adequately trained in a manner contemplated by Regulation 13 of the Regulations.
Finally, it is contended on behalf of the plaintiff that the defendant was in breach of the requirement imposed upon it by Regulation 19 of the Regulations of 1993, which required the defendant to provide its employees with work equipment which was suitable for the work required of its employees.
DECISION
1. Duty at Common Law
The duty owed at Common Law by the defendant to the plaintiff was, and remains, the duty owed by all employers to their employees, that is the duty identified by O’Higgins C.J. in Dalton v. Frendo (Unreported) Supreme Court, 15th December, 1977), “to take reasonable care for the servant’s safety in all the circumstances of the case”.
It has been repeatedly confirmed by the courts that employers are not the insurers of their employees. They cannot ensure their safety in all circumstances and are not required to do so.
In Bradley v. Coras Iompair Éireann [1976] I.R.217, the Supreme Court (Henchy J.) confirmed at p.223 that an employer “will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances”.
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It follows from what I have found that the plaintiff has not discharged the onus of proof by way of evidence and on the balance of probabilities, that the defendant had, between 1991 and September 1996, or at any earlier time, failed to discharge its duty at Common Law to take reasonable care for the plaintiff’s safety at work, to take such steps as were to be expected from a reasonable and prudent employer to provide the plaintiff with a safe system of work in the circumstances which then pertained.
2. Statutory Duty
Sections 6 to11 inclusive of the Act of 1989 are described as “general duties” which require employers to ensure “so far as is reasonably practicable” the safety, health and welfare at work of their employees.
The terms of the sections are self-explanatory and can be said to restate the obligations already imposed at Common Law upon employers.
Of particular importance, however, section 60 of the Act of 1989 provides that:-
“(1) Nothing in this Act shall be construed –
(a) as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty imposed by or under sections 6 to 11 [of the Act]…”.
It follows that the plaintiff may not recover damages from the defendant on the grounds alone of a failure by the defendant to comply with any duty imposed by the provisions of sections 6 to11 of the Act of 1989.
I am satisfied, however, that the provisions of s. 60 of the Act of 1989 do not disadvantage the plaintiff since duties imposed by sections 6 to 11 of the Act of 1989 are, in fact, duties imposed at Common Law upon employers and the plaintiff has been entitled to and has made those claims against the defendant at Common Law.
It is claimed on behalf of the plaintiff that the defendant failed in its duty under s. 12 of the Act of 1989 to “. . . prepare or cause to be prepared, a statement in writing to be known and hereinafter referred as a ‘Safety Statement’”.
I am satisfied on the evidence and on the balance of probabilities that the defendant has not complied with its obligations pursuant to s.12 of the Act of 1989 because that breach of duty was expressly pleaded by the plaintiff and referred to repeatedly during the course of the trial of these proceedings and no evidence was adduced on behalf of the defendant indicating or suggesting that the Safety Statement required by s.12 of the Act of 1989 had, in fact, been prepared or published.
The plaintiff has therefore established a breach by the defendant of its statutory duty under s. 12 of the Act of 1989.
However, no evidence has been adduced in these proceedings which would suggest that the preparation or publication of a Safety Statement would have reduced or eliminated the risk to the plaintiff of the injury which he sustained.
Of greater relevance, however, is the contention made by Mr. Counihan S.C. on behalf of the plaintiff, that by failing to comply with the provisions of Regulation 10 of the Regulations of 1993, the defendant caused or contributed to the injury which the plaintiff has sustained.
Article 10 of the Regulations of 1993 requires the plaintiff, when preparing a Safety Statement, to:-
“. . . (a) be in possession of an assessment in writing of the risks to safety and health at the place of work required under section 12 (3) of the Act, such risks to include any which put groups of employees at unusual risks, and
(b) decide on any protective measures to be taken and, if necessary, the protective equipment to be used”.
No evidence was adduced on behalf of the defendant indicating or suggesting that such an assessment was undertaken or published in respect of the plaintiff’s job and the manner in which he was required to undertake his duties.
Undeniably, the defendant has a statutory obligation, with effect from 22nd February, 1993, to prepare and publish a risk assessment in respect of the plaintiff’s job and to decide on any protective measures which needed to be implemented in order to protect the plaintiff from the risk of injury or illness. The defendant was in breach of that statutory duty and, upon the evidence adduced in these proceedings, it may still remain in breach of that statutory duty.
However, no evidence was adduced in these proceedings which would support the contention that if the plaintiff had carried out a risk assessment on the plaintiff’s job between 1991 and 1996, the risk of his sustaining an injury of the type which he appears to have sustained, would have been apparent to the (presumably expert) assessor.
On the evidence, the Pfisterer tool had been in use by the defendant for many years prior to 1991. It was in widespread use through sixteen other countries worldwide and no report of injury had been associated with its use.
The medical experts, who examined the plaintiff in respect of his complaints between 1991 and 1996, did not appear to make a connection between his symptoms and the use of the Pfisterer tool until 1996, and there remains a difference of view between the medical witnesses who testified in these proceedings as to that connection.
Accordingly, whilst the plaintiff has established a breach by the defendant of its duty pursuant to the provisions of Regulation 10 of the Regulations of 1993, he has not established, on the evidence and on the balance of probabilities, that the defendant’s breach of statutory duty caused or contributed to his illness and injury because he has not established that a risk assessment, if undertaken, as it should have been, by the defendant between 1993 and 1996, would have disclosed a connection between his injury and the use by him of the Pfisterer tool.
It is also contended on behalf of the plaintiff that the defendant was in breach of its obligations pursuant to Regulation 13 of the Regulations of 1993 to provide the plaintiff with training on matters of safety and health and in particular to provide him with information and instructions relating to his particular task.
Mr. Saunders, in evidence, stated that the plaintiff ought to have been trained to adopt a correct posture and stance so as to minimise the stress factors associated with the use of the Pfisterer tool.
However, no evidence has been adduced indicating that between 1991 and 1996, that there were any particular stress factors associated with the use of the tool or that any particular type of posture or stance would have reduced or eliminated the risk of the type of injury which the plaintiff apparently sustained. Mr Saunders, in his report, candidly acknowledged that such was the case.
Finally, it is contended on behalf of the plaintiff, that the defendant was in breach of the duty imposed upon it by Regulation 19 of the Regulations of 1993 which requires employers “ . . to ensure that . . . 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”.
Reliance is placed upon the decision of the High Court (Kearns J.) in Everitt v. SIZE=2 FACE=”Arial”> Thorsman Ireland Ltd. [2000] 1 IR 256.
In that case, the plaintiff sustained an injury when a lever with which he was supplied by his employers, snapped and broke causing him to fall backwards onto the ground and sustained an injury. The evidence adduced in the case established that a latent defect within the metal lever caused it to snap and break. It was also established that the plaintiff’s employer could not have known of this defect. It had bought the lever in good faith from a seemingly reputable manufacturer.
Kearns J. asked at p.262:-
“What further steps could the employer have taken . . . 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 could have been 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.”
He held that the claim in Common Law against the employer failed.
However, at p. 263 he went on to find that Regulation 19 of the Regulations of 1993:-
“. . . imposes virtually an absolute duty on employers in respect of the safety of equipment provided for the use of their employees . . . 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”. As O’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”.
He found that there was a breach of statutory duty on the part of the employer and awarded the plaintiff damages against his employer who, in turn, was entitled to recover a full indemnity from the company from which the faulty lever had been purchased by the employer.
In the instant case, I have found that the plaintiff has not established a breach by the defendant of any duty at Common Law owed by the defendant to the plaintiff as his employer.
However, with effect from 22nd February, 1993, (when the Regulations of 1993 came into force), a statutory duty was imposed upon the defendant which has been described (by Kearns J.at p. 263 in Everitt) “as virtually an absolute duty” which requires the defendant “ . . . to ensure that . . . 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”.
I am satisfied that it has been established on the evidence and on the balance of probabilities that the use by the plaintiff of the Pfisterer compression tool caused or contributed to the bilateral epicondylitis of his elbows. It follows that, insofar as the plaintiff was concerned, the Pfisterer compression tool was not suitable for the work which he was required to carry out by the defendant.
The evidence has also established that hydraulically operated and battery powered tools were available between 1993 and 1996 which could have been used by the plaintiff to do his job without risk to his health or safety. Accordingly, I am satisfied that the plaintiff has established on the evidence and on the balance of probabilities that between February, 1993 and September, 1996, the defendant was in breach of the verystrict duty imposed upon him by Regulation 19 of the Regulations of 1993 to ensure that the work equipment, and in particular the compression tools which the plaintiff was required to use in the course of his work on behalf of the defendant, were suitable and could be used by the plaintiff without risk to his safety and health.
It has been established on the evidence and on the balance of probabilities, that by 1993, the plaintiff had already been diagnosed with persistent symptoms in his right elbow which had been treated by way of physiotherapy in 1991. He is not entitled to recover damages in respect of those symptoms.
In evidence he stated that it was October, 1995, before his symptoms became sufficiently severe to require him to consult his General Practitioner, Dr. Casey.
By then both of his elbows were very painful and he noticed that when he returned to work his condition became aggravated and worsened. He was out of work from 30th April, 1996, until 26th September, 1996, when he was placed on light duties.
He has not had severe symptoms since his return to work although he was depressed for some time after his return to work in 1996.
On the evidence, the plaintiff had developed tendonitis in his right lateral elbow in 1991 and was also complaining of what was described as “some slight pain” in his left elbow. It is likely that epicondylitis had already developed in his right elbow and had commenced in his left elbow by February, 1993, in the absence of negligence or breach of duty on the part of the defendant. He is not entitled to recover damages for his pain and discomfort before February, 1993.
Between February, 1993 and October, 1995, the plaintiff’s epicondylitis worsened considerably in both elbows and he required treatment in October, 1995 and September, 1996 when he returned to work and was put on light duties. Between October, 1995 and September, 1996, he required considerable treatment and had ongoing symptoms which seriously disrupted his life and indeed prevented him for working at all between April, 1996 and September, 1996.
He is entitled to recover damages to compensate him for the pain, suffering, distress, inconvenience and disruption of his life during that time and thereafter.
After September, 1996, the plaintiff suffered from depression but has now recovered largely from that condition.
Since he has been placed on light duties, he has not had a recurrence of his symptoms to any great extent but he will have an ongoing need to take appropriate care in the choice of his activities and he may be slightly restricted in vigorous manual activity. On the evidence, however, if he is careful, his life should not be altered appreciably in the future as a result of this condition.
In the circumstances, I am satisfied that this is a case where a single award for general damages is appropriate and I would assess general damages at €45,000.”
Kennedy v. East Cork Foods
[1973] I.R. 244
O’Dalaigh C.J.
“ The speech of Lord Wright in Caswell’s Case 11 is that most frequently quoted. At pp. 178-180 of the report he said:” “What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his preoccupation in what he is actually doing at the cost perhaps of some inattention to his own safety . . . 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.” In the course of their speeches Lord Wright and Lord Atkin referred with approval to the statement of Lawrence J. in Flower v. Ebbw Vale Steel, Iron & Coal Co. Ltd. 12 at p. 140 of the report where he said:” “I think, of course, that in considering whether an ordinary prudent workman would have taken more care than the injured man, the tribunal of fact has to take into account all the circumstances of work in a factory and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence.”
In the cause of action for breach of statutory duty, the jury were, in my opinion, entitled to acquit the plaintiff of contributory negligence. After the overhaul of the machine had been completed during the previous night-shift, the guard had been replaced and the plaintiff expected that that guard was still in position. The suggestion that the plaintiff, before attempting to re-adjust the hopper, should have turned off the dicer came to nothing when the
defendants’ production manager said in his direct evidence that, from his point of view, there would be an objection to turning off the machine because (it is to be inferred) of the consequent hold-up in the work of the factory. As to the surrounding conditions of work, the evidence paints a picture of water, steam and “cabbage everywhere” which would make it far from easy to observe that the guard had been removed from the dicer. It should be added that it appears that the guard in question was intended to be a permanent fixture and not one which there would be any occasion to remove in the course of the ordinary operation of the machine.
The defendants have urged that the finding of 331/3 per cent. fault against the plaintiff in the cause of action at common law is inconsistent with a finding of no contributory negligence in the cause of action for breach of statutory duty. The three grounds advanced by the defendants for saying the plaintiff was guilty of contributory negligence were, first, his failure to switch off the machine; secondly, his failure to look and see that the guard was no longer there, and, thirdly, that he should have held the hopper at the top when positioning it and not have held it with one hand at the bottom.
I have already dealt with the first two grounds. As to the third ground, the judge pointed out that the normal condition of the hopper was that it was wet, that it had no knob or other handling device ” the hopper on the left-hand side had a handle ” that its weight was 10 lbs. and that it would, he thought, be rather risky to hold it at the top. My difficulty is to find any adequate justification for the jury’s finding in the common-law cause of action of 331/3 per cent. fault against the plaintiff. If it were necessary to do so, I would set the finding aside; but I would not disturb the finding in the cause of action for breach of statutory duty.”
Keith Williams v. T.P. Wallace Construction Ltd & another
[2002] 2 I.L.R.M. 62
MORRIS P.
“….In my view it is clear that the duty owed to Mr Williams must be identified by reference to his status on site at the relevant time. It is submitted by counsel on behalf of the defendants that at the relevant time Mr Williams was on the building site as a trespasser, which is defined in the Occupiers’ Liability Act 1995 as meaning ‘an entrant other than a recreational user or visitor.’ It is submitted that in these circumstances the only duty owed to the plaintiff by the first named defendant was, as is provided in s. 4 of the Act:
(a) Not to injure the person or damage the property of the person intentionally, and
(b) Not to act with reckless disregard for the person or the property of the person.
It is submitted that, as occurred in this case, to leave a ladder leaning against scaffolding but untied is not to act with reckless disregard for the person or his property.
On behalf of the plaintiff it is submitted that he was on site as a visitor. The term ‘visitor’ is defined by the 1995 Act as
(a) An entrant, other than a recreational user, who is present on the premises at the invitation, or with the permission, of the occupier or any other entrant specified in paragraph (a), (b) or (c) of the definition of recreational user.
It is further submitted on the plaintiff’s behalf that as he was invited on to the site by the workman in the circumstances which are outlined above and since he was therefore a visitor, he was owed the duty of care referred to in paragraph (3) of the 1995 Act. That duty of care is the ‘common law duty of care’ which is defined as meaning an obligation to ‘take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.’
It is further submitted on behalf of the plaintiff that irrespective of the status of the plaintiff on site at the relevant time, s. 8 of the Safety Health and Welfare at Work Act 1989 imposes a duty on the occupiers of the site, because Mr Williams was on the site ‘for the purpose of carrying out work’ to
… take such measures as is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the place of work, all means of access thereto, or egress therefrom available for use by persons using the place of work, and any article or substance in the place of work … is or are safe and without risks to health.
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I approach the evidence of these three gentlemen on the basis that the plaintiff is a long term business associate of Mr McConnell and was at the relevant time employed by the same company as Mr Cooke. I am unable to accept their evidence on their account of how they came to be on the roof as being at the invitation of the workman or anybody else. I have not been satisfied that the plaintiff is entitled to be regarded at law as a visitor within the meaning of the Occupiers’ Liability Act 1995 .
That being so the standard of care imposed upon the first named defendant was not to injure the plaintiff intentionally and not to act with reckless disregard for his person. I am satisfied that no case has been made out that the first named defendant acted in such a reckless way and therefore the plaintiff is not entitled to any relief under the Occupiers’ Liability Act .
I now pass to consider the duty of care owed to the plaintiff under the Safety, Health and Welfare at Work Act 1989 .
This Act imposes duties upon employers towards employees but in addition pursuant to s. 8 imposes duties to persons other than employees. s. 8 provides as follows:
(1) This section has effect for imposing on persons duties in relation to those who are not their employees but who are either the employees of other persons or are self-employed and who for the purposes of carrying out work use a non-domestic place of work made available to them or in which they may for the purpose of carrying out work use any article or substance provided for their use there, and it applies to places of work so made available and other non-domestic places of work used in connection with them.
There is no doubt that the plaintiff in this case was a person who was not the employee of either defendant but who was an employee of another person namely Lindab Ltd. There is no doubt that the building site in question was a non-domestic place of work. There is however, in my view, a third element that the plaintiff must establish in order to avail of rights under s. 8 and that is that he must be carrying out work using a non-domestic place of work ‘made available to him’ . In my view this clearly envisages something far more than the plaintiff unilaterally deciding to enter on to the site without the knowledge of Mr Maher. I am satisfied that there is no evidence which establishes that the premises was ‘made available to the plaintiff’ and accordingly I hold that he is not entitled to any rights under s. 8 .
For the purposes of clarification I should make it clear that I accept the evidence of Mr Tennyson that there is a responsibility on the main contractor if a ladder is allowed to be left unattended and unsecured leaning against a scaffolding and if a visitor as defined in the 1995 Act uses the ladder and suffers personal injuries as a result of a fall. However, not being satisfied that the plaintiff was a visitor within the terms of the Act and not being satisfied that the defendant acted in a reckless way the plaintiff is, in my view, not entitled to succeed in this action.
That being so no question of contribution or indemnity arises in so far as the third party is concerned.
Sweeney -v- Ballinteer Community School
[2011] IEHC 131
Herbert J.
2. Despite being fully aware of the plaintiff’s long and totally uncharacteristic absences from work, in 2005, 2006 and 2007, medically certified on each occasion as being due to work related stress, which he knew, or would have known had he chosen to consider the matter, rendered the plaintiff very vulnerable to some form of mental illness such as nervous breakdown, Dr. C. arranged for this single lady to be stalked by a private investigator. I find that it was reasonably foreseeable by him, that if the plaintiff for whatever reason, accident, her own hyper vigilance or the ineptitude of the investigator, became aware of being pursued by an unknown male the effect upon her was likely to be so traumatic as to precipitate her, vulnerable as she was, into mental illness. It was not necessary that he should have been able to foresee the actual injury ultimately suffered by the plaintiff. For Dr. C. to have so acted, whether deliberately or with reckless indifference even though he was or ought to have been aware that mental harm to the plaintiff might result from his actions, amounted in my judgment to malicious targeting and harassment of the plaintiff. I find it significant that Dr. C. did not seek prior sanction from the Board of Management of B.C. C. for this extraordinary course of action. Even if he believed that members of the Board whom he considered to be well disposed towards the plaintiff might warn her of his intentions, he did not consult the Rev. Chairman of the Board as he had in the case of other difficulties with the plaintiff since the 28th March, 2007.
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43. It is well established in this jurisdiction, both at common law and now by s. 15 of the Employment Equality Act 1998, that even if the Board of Management of B.C.C. did not know or could not reasonably have known (which was not the situation in the present case), that the plaintiff was being bullied and harassed by Dr. C. in the course of her work, it is still vicariously liable for the wrongful acts of Dr. C. once those acts were committed by him within the scope of his employment. If find that the Board of Management of B.C.C. did not authorise any of the acts of Dr. C. which I have held amounted to bullying or harassment of the plaintiff. The Board of Management of B.C.C. was not aware that Dr. C. had engaged the services of a private investigator to carry out covert surveillance of the plaintiff during the course of her work which I have found amounted to harassment of the plaintiff. However, all these acts took place during the official school day and, in my judgment were related to his work and were a wrongful way of performing the task which Dr. C. as principal of B.C.C. was authorised to perform, that is, to manage the business of the college. This involved ensuring that teachers were present and were carrying out their duties properly and responsibly. The Board of Management of B.C.C. decided at its meeting on the 6th March, 2008, having queried Dr. C. at length about the matter, that he had acted within the scope of his employment in engaging the services of the private investigator and in paying for those services out of a college fund administered by Dr. C. Therefore, the vicarious liability of the Board of Management of B.C.C. for the acts of Dr. C. is not an issue in this case. What are involved are issues of foreseeability, causation and damage.
44. On the 22nd December, 2006, Dr. McMahon who had been the plaintiff’s General Medical Practitioner since 1980 concluded that the plaintiff was then suffering from anxiety disorder: prior to this his diagnosis had always been one of stress due to being bullied at work. On the 1st September, 2006, he had advised the plaintiff to take time off from work to recover from this stress which he attributed to being bullied and harassed at work by Dr. C.. On the 27th March, 2007, Dr. McMahon was satisfied that the plaintiff was sufficiently recovered to return to work and he noted that she was very keen to do so. The plaintiff did return to work on the 28th March, 2007, and, despite the events described previously in this judgment, it was not until the 1st April, 2008, that she again felt a need to consult Dr. McMahon.
45. On this occasion the plaintiff complained of being very anxious, unable to sleep, distressed and worried. Her complaint was that she had been followed on her house visits as Home-School Liaison Coordinator by a private investigator engaged by Dr. C.. She felt very despondent that the Board of Management of B.C.C. would do nothing. On this occasion, Dr. McMahon formed the opinion that the plaintiff was bordering on depression. However, he did not prescribe anti-depressants or anti-anxiety medication. He told the court that this was his normal practice as he considered that drug therapy should always be the option of last resort because of the danger of a patient becoming drug dependent.
46. The plaintiff presented again on the 28th August, 2008, following the death of her father, to whom she was very close. On that occasion she told Dr. McMahon that she was, “still fighting for her work conditions and trying to reinstate her service to pupils and parents”. On the 2nd October, 2008, the plaintiff next visited Dr. McMahon. He found her depressed. She asked to be referred to Dr. Abbie Lane, a consultant psychiatrist. Dr. McMahon agreed. He told the court that since she had first become his patient in 1980 and despite a difficult marriage and a very traumatic separation, the plaintiff had never previously needed such a referral. Department of Education sick leave records show that Dr. McMahon issued medical certificates to the plaintiff on the following dates: 9th September, 2008, 10th September, 2008, 2nd October, 2008, 20th October, 2008, 27th October, 2008, 17th November, 2008, 24th November, 2008, 10th December, 2008, 22nd December, 2008, 9th January 2009, 19th January, 2009, 26th January, 2009, and finally on the 9th February, 2009.
47. In cross examination Dr. McMahon accepted that he had never diagnosed the plaintiff as suffering from clinical depression or from any form of psychological or psychiatric illness. He considered that the plaintiff was suffering from severe stress and anxiety which he considered to be a psychological crisis but not an illness. He considered that the plaintiff should see a consultant psychologist, but she asked to be referred to Dr. Lane. She was seen by Dr. Lane on the 10th November, 2008. Dr. McMahon told the court that he had last seen the plaintiff on the 4th December, 2008. On that occasion she had told him that she had decided that resuming work was out of the question. He said that he was not at all in favour of this. He hoped that the plaintiff would resume her work as a teacher which she obviously enjoyed and he tried to persuade her to this effect. He considered that it was too early for her to retire and that it was not in the best interests of her own psychological welfare to retire. He felt that on this occasion she could overcome her problems just as she had done in relation to the very traumatic separation in 1999/2000.
48. Dr. Lane, a consultant psychiatrist, told the court that she saw the plaintiff for the first time on the 10th November, 2008, on referral from Dr. McMahon. On presentation, the plaintiff appeared stressed and pale and wept frequently during the consultation. The plaintiff complained of down mood present all day every day for more than two weeks, lack of interest in or enjoyment of everyday things, disturbed sleep, loss of appetite, constant fatigue, lack of motivation and, poor concentration. Dr. Lane concluded that the plaintiff was suffering from severe clinical depression with an overlay to post traumatic stress disorder. Because of the plaintiff’s description of feeling hopeless and worthless, Dr. Lane considered that there was a possible risk of self-harm and endeavoured, unsuccessfully, to persuade the plaintiff to undergo a period of in-patient treatment. She therefore prescribed anti-depressant and anti-anxiety medication, – Lustral, – at the maximum permitted dosage.
49. Dr. Lane reviewed the patient at two monthly intervals thereafter. By March 2009, she noted that the plaintiff’s mood had improved somewhat, but that she was still anxious, depressed and tearful. Dr. Lane considered that the plaintiff was just about able to cope with the normal chores of day to day living and was not fit to return to work. Throughout 2009, Dr. Lane provided the plaintiff with cognitive behaviour therapy. By June 2010, Dr. Lane was satisfied that the plaintiff was considerably recovered: her mood was up, she had recovered motivation and interest in things, her enjoyment of life had returned and she felt more hopeful. However, she remained anxious at times and was subject to occasional flashbacks and nightmares of persons following her. Dr. Lane concluded that the plaintiff was no longer depressed and was able to go out on her own without being overanxious or over vigilant. At this time Dr. Lane considered that the plaintiff was physically and mentally able to return to work at B.C.C. but she remained, very concerned that the plaintiff might become re-traumatised by a classroom incident, a difficulty with a parent or, continuing friction with the college administration or with colleagues on the teaching staff.
50. Dr. Lane produced in evidence the referral letter dated the 3rd October, 2008, sent to her by Dr. McMahon. This letter referred to bullying and harassment at work and to the fact that the plaintiff’s father had died recently. Dr. McMahon also referred to the fact that on the previous day he had detected what he considered to be signs of a depressive illness. It was Dr. Lane’s expert opinion, which I accept, that given the plaintiff’s history, the death of her father was not the cause her symptoms, though it probably added to her low mood. The fact that these symptoms had continued even though the plaintiff was away from the work environment since the 1st October, 2008, was an indication to Dr. Lane of the severity of the plaintiff’s depressive illness. I am satisfied that Dr. Lane was not shaken in her opinion that there was no other reasonable or rational explanation for the plaintiff’s illness in her history, other than the alleged bullying and harassment. Dr. Lane told the court that the plaintiff had informed her that on the 20th October, 2007, the Investigating Officer under the Code of Procedure had found that she had not been harassed or bullied at work in relation to the matters then at issue. The plaintiff told Dr. Lane that she did not accept this conclusion and that the bullying and harassment by Dr. C. had continued despite the investigation. Dr. Lane conceded that the investigation and its outcome would have had a traumatic effect on the plaintiff. However, she stated that she was quite satisfied by reference to the entire history that this was not what had caused the plaintiff’s illness: in her opinion that was the workplace situation. Dr. Lane accepted that prior to 1st April, 2008, there had been no diagnosis of depression in the plaintiff’s case. She told the court that constant stress and anxiety can lead to depression and that when she saw the plaintiff for the first time on the 10th November, 2008, she had no doubt whatever but that the plaintiff was then suffering from a psychiatric illness, – serious depression.
51. Dr. Lane told the court that in order to form a diagnosis that the plaintiff was suffering from severe depressive illness on the 10th November, 2008, she had to be satisfied that her symptoms had commenced no later than two weeks prior to the date of the consultation. However, given the severity of the plaintiff’s illness on that date she was satisfied that the plaintiff must have been suffering from depression for a very considerable time before that, probably for as long as two years. I find it very significant that on the 1st April, 2008, – almost five moths before her father died on the 25th August, 2008, – the plaintiff was diagnosed by Dr. McMahon as “bordering on depression this time”. Dr. Lane stated that she was aware that the plaintiff had applied to the Department of Education in 2009, for leave to retire on the basis of, “permanent ill health”. Dr. Lane stated that she was not aware that Dr. McMahon had strongly urged the plaintiff not to retire. Dr. Lane told the court that she did not have any role whatever in the plaintiff’s decision to retire.
52. Dr. Lane told the court that she was satisfied that the plaintiff was also suffering from post traumatic stress disorder. She said that the causative trauma was the threat to the plaintiff’s career and therefore her security, the feeling of helplessness in the face of the continuous bullying and harassment and, the profound threat to her core values. Dr. Lane considered that the accumulation of these matters would be sufficiently traumatic to induce post traumatic stress disorder in the plaintiff. In the plaintiff’s case she felt that all the classic symptoms of post traumatic stress disorder had become evident within the expected period: the plaintiff had intrusive memories of the events, nightmares and flashbacks, she was hyper aroused and tense which manifested itself especially in the form of hyper vigilance and hyper alertness, she avoided returning to the College, going out on her own, or anything which reminded her of the trigger events. However, Dr. Lane did not give evidence that the plaintiff had suffered a psychiatric injury because of an immediate fear for her own safety consequent on being followed by the two men. Dr. Lane admitted that she did not seek copies of Dr. McMahon’s’ clinical notes. I accept her explanation that she would not do so unless the plaintiff had a history of mental problems in the past. Dr. McMahon told the court without any reservation or equivocation that the plaintiff, in his medical opinion had not suffered from any psychiatric injury while she was under his care. No medical data studies or literature was advanced in support of the contention that a feeling of helplessness in the face of a perceived threat, not to one’s personal safety but to one’s career and not from a single traumatic event but from an accumulation of events over a period of nineteen months would be a sufficient trauma to give rise to post traumatic stress disorder.
53. It is significant that in the work, “Understanding Mental Health (Blackhall Publishing: 2006), which she produced in evidence by her, Dr. Lane at chap. 2, p. 27 states in respect of “post traumatic stress”, that:-
“This is a common condition which occurs some weeks after a person has been involved in or has witnessed a traumatic event. Examples include being involved in a road traffic accident, being held at gunpoint, being involved in a fire or an explosion. Symptoms come on between two and six weeks following the trauma . . . (etc.).”
54. In the circumstances and having regard to the decision this Court in Mullally v. Bus Éireann [1992] I.L.R.M. 722 and of the Supreme Court in Kelly v. Hennessy [1996] 1 I.L.R.M. 312 I find that the plaintiff has not established, – the onus of proof being on her, – on the balance of probabilities, that she suffered post traumatic stress disorder as a consequence of bullying or harassment by Dr. C..
55. Dr. Mohan a consultant forensic psychiatrist, who gave evidence in the case for the defendant, told the court that he had a consultation with the plaintiff on the 2nd December, 2008, and that he had also considered the following documents: the Report of the Investigating Officer dated the 26th October, 2007, the Pleadings in the instant case, the Clinical Records of Dr. McMahon, Dr. Lane’s Report, the Department of Education Attendance records relating to the plaintiff and, the views of Dr. C. and of his Solicitors. He accepted that the plaintiff did not have a personality disorder. However, he considered that she demonstrated an impaired judgment and a distorted interpretation of work place events, coupled with a tenacious sense of personal rights out of keeping with reality and, an excessive regard for her contribution to B.C.C.. Dr. Mohan agreed that he had come to this opinion principally from his analysis of the report by the Investigating Officer.
56. Dr. Mohan accepted that stress and anxiety, such as that reported by Dr. McMahon in his clinical notes relating to the plaintiff could be a significant causative factor in the onset of depression. However, he felt that the fact that the plaintiff had continued to work after the incident involving the private investigator in early February 2008, until the 1st October, 2008, with only very few days absent was, more consistent with stress than with clinical depression. Dr. Mohan told the court that if the plaintiff was in fact suffering from severe depressive illness on the 10th November, 20008, as was the opinion of Dr. Lane, he considered that evidence of the onset of that illness would have to be sought at least six months prior to that date, but not as far back as two years. He noted that the plaintiff had received no medical treatment for depression prior to the 10th November, 2008. Dr. Mohan considered that the very considerable emotional stress and feeling of victimisation reflected in Dr. McMahon’s clinical records, compounded by feelings of disappointment and anger on the 26th October, 2007, following receipt of the Investigating Officer’s report, followed by the death of her father, to whom she was very close, on the 25th August, 2008, could be capable of causing the plaintiff to become depressed. However, he considered that there was no evidence on the medical record of severe and persistent symptoms, at any rate prior to the 1st April, 2008. It was his opinion that the plaintiff was suffering from anxiety and stress as a normal response to the pressures and problems in the work place.
57. I find on the balance of probabilities that the plaintiff has discharged the onus on her of establishing that she did suffer a psychiatric illness, in the form of clinical depression and, that a direct causative connection existed between that injury and the continuous bullying and harassment of her by Dr. C. from the 28th March, 2007, onwards. The evidence established that Dr. McMahon considered that the plaintiff was fit to return to work on the 28th March 2007, and he furnished a medical certificate to that effect. I accept his evidence that the plaintiff was herself most anxious to return to work at that time. On the 1st April, 2008, Dr. McMahon found the plaintiff to be, “bordering on depression”. This was almost five months before her father died. Undoubtedly she continued to work, but it is not at all unusual for persons suffering from depression to continue to work and from what I observed of this plaintiff, I am satisfied that this would be entirely in keeping with her character. I am prepared to infer that the distress which the plaintiff experienced following the death of her father as noted by Dr. McMahon in his clinical notes for the 25th August, 2008, may have temporarily lowered her mood further, if it was already low. However, I am satisfied from her personal and medical history and from the evidence of Dr. McMahon based upon his unique insight into her character and psyche, as her general medical practitioner for over 30 years, that this bereavement did not cause or materially contribute to the onset of her depression which was noted for the first time by Dr. McMahon a few weeks later on the 2nd October, 2008.
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62. In my judgment the evidence establishes that the plaintiff was subjected to deliberate and continuous bullying and harassment by Dr. C. as a direct consequence of which she suffered mental injury in the form of clinical depression, a result which was reasonably foreseeable. I am satisfied that from some short time after the 7th February, 2008, until June 2010, the plaintiff suffered a serious depressive illness. She has now recovered from this, but I accept Dr. Lane’s evidence that she remains at present anxious at times, is subject to occasional flashbacks and nightmares of persons following her and is vulnerable to becoming re-traumatised by any form of significant confrontation. However, neither Dr. Lane nor Dr. McMahon advised the plaintiff not to return to work or to take early retirement from teaching. On the contrary, Dr. McMahon strongly advised her against such a course. There was no evidence which would lead me to conclude that it would be irrational and unreasonable to expect the plaintiff to continue to serve as Home-School Liaison Coordinator or in some other teaching capacity in B.C.C.. She did so between the 7th February, 2008 and the 1st October, 2008 and with very few days absent from work. There is nothing I can see on the facts in this case which would in any way inhibit a simple and just resolution of the difficulties which have arisen between Dr. C. and the plaintiff which would enable them to continue to work efficiently together as professional colleagues, even if not as friends. The evidence in this case clearly established that it is quite usual for some teachers in large schools and colleges not to be on speaking terms with other teachers in the same school or college.
63. The court has already held that the defendants were negligent in causing or permitting the plaintiff to be harried, watched and beset in the course of her employment with the Board of Management of B.C.C.. I find that the same acts or omissions may form a basis for an action for breach of an implied term of contract. In Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57, Sellers L.J. delivering the judgment of the Court of Appeal held at p. 66 as follows:-
“It is perhaps sufficient if I say that, in my view, this question is a somewhat artificial one. The existence of the duty arising out of the relationship between employer and employed was recognised by the law without the institution of an analytical inquiry whether the duty was in essence contractual or tortious. What mattered was that the duty was there. A duty may exist by contract, express or implied. Since, in any event, the duty in question is one which exists by imputation or implication of law and not by virtue of any express negotiation between the parties, I should be inclined to say that there is no real distinction between the two possible sources of obligation. But it is certainly, I think, as much contractual as tortious. Since in modern times the relationship between master and servant, between employer and employed, is inherently one of contract, it seems to me entirely correct to attribute the duties which arise from that relationship to implied contract. It is a familiar position in our law that the same wrongful act may be made the subject of an action either in contract or in tort at the election of the claimant, and, although the course chosen may produce certain incidental consequences which would not have followed had the other course been adopted, it is a mistake to regard the two kinds of liability as themselves necessarily exclusive of each other.”
64. In the instant case I think it will be found that the plaintiff elected to present her case in tort. In these circumstances I feel that it can only lead to confusion to deal further with implied contractual terms and remedies for breach of contract.
65. In my opinion the actions of Dr. C. in this case do not amount to what Griffin J. described in Conway v. I.N.T.O. [1991] 2 I.R. 305 at 323 as, “wilful and conscious wrongdoing in contumelious disregard of another’s rights”. In such circumstances the court is not disposed to awarding exemplary, otherwise punitive damages to the plaintiff. In the same case Finlay C.J. defined “aggravated damages” as compensatory damages increased by reason of:-
“(a) The manner in which the wrong was committed involving such elements as oppressiveness, arrogance or outrage or,
(b) Conduct of the wrongdoer after the commission of the wrong: refusal to apologise or ameliorate the harm done, or threatening to repeat the wrong, or
(c) The conduct of the wrongdoer or his representatives in defending the claim up to and including the trial of the action.”
66. In my judgment the behaviour of Dr. C., towards the plaintiff in the present case was oppressive and arrogant and, I find caused her additional hurt and insult. I therefore consider that this is an appropriate for the court to mark its abhorrence of such conduct by awarding aggravated damages to the plaintiff. The court will therefore award damages to the plaintiff for the personal injuries which she has suffered to the date of this judgment in the sum of €60,000 of which the sum of €5,000 represents the increased amount of the compensatory damages. The court will award the plaintiff additional damages in the sum of €15,000 in respect of personal injuries which she may suffer in the future. €13,625 agreed specials.”
English v Wilsons & Clyde Coal Co Ltd
[1937] UKHL 2 [1938] AC 57 [1937] 3 All ER 628
Lord Wright
“The extent of the employer’s obligation has several times been stated by this House. Thus in Wilson v. Merry, I Scot. Appeals, 326, at p. 332, Lord Cairns said: ‘What the master is in my opinion ” bound to do, in the event of his not personally superintending and ” directing the work, is to select proper and competent persons to do ” so, and to furnish them with adequate materials and resources for ” the work.” To this must be added a third head, viz., to provide a proper system of working, see per Lord Colonsay in Merry’s case at p. 434. By this is meant not a warranty but a duty to exercise (by himself and his servant and agents) all reasonable care. In addition to Merry’s case I may refer as authorities to the same effect to Brydon v. Stewart, 2 MacQ 30, Bartonshill Coal Co. v. McGuire, 3 MacQ 300, Weems v. Mathieson, 4 MacQ. 215, in which at p. 226 Lord Wensleydale said, ” the employer was responsible in law for ” defect on his part in not providing good and sufficient apparatus ” and in not seeing to it being properly used.” -These latter words” I take to refer to system. It was the effect of these and similar cases in this House that was compendiously and accurately expressed in Smith v. Charles Baker & Sons, 1891, A.C. 325, by Lord Halsbury, Lord Watson and Lord Herschell. Lord Herschell’s language has already been quoted by me. Lord Watson at p. 353 says, ” It ” does not appear to me to admit of dispute that, at common law, ” a master who employs a servant in work of a dangerous ” character is bound to take all reasonable precautions for the ” workman’s safety. The rule has been so often laid down in this House by Lord Cranworth, and other noble and learned ” Lords, that it is needless to quote authorities in support of it.” In the Court of Appeal these observations were put aside. It was said they were obiter dicta, which may in one sense be true, but, though the issue was concluded by what happened in the County Court, this House thought fit to explain the reason on which the employers could properly be held liable, viz., the defective system of working.
It was said that the observations need not be seriously considered, because the relevant authorities were not cited to their Lordships. It would, however, be strange to imagine that these three great lawyers did not trouble to appreciate the authorities relevant to the principles which they were enunciating. But Lord Watson does actually refer to and quote from Bartonshill Coal Co. v. McGuire, Bartonshill Coal Co. v. Reid and Weems v. Mathieson and explain Sword v. Cameron, 1 D. 493). I venture with all respect to say that in my opinion it was the failure of the Court of Appeal to appreciate the effect of these authorities which led them to lay down the rules which they did, and to fall into the fallacy of not distinguishing between what has been called the master’s province of duty and what has been called the servant’s province of duty to his fellow servants. When it is said that the workman takes the risk of his fellow workman’s negligence, it must be added that he does not take the risk of his master’s negligence. The distinction between these provinces of duty was fully discussed in, among other places, Merry’s case. The workman succeeded there because it was held that the actual defect in the ventilation of the pit was not a defect in the system of ventilation for which the employers were liable, but a defect caused by a temporary structure erected in the actual conduct of the operations owing to error of judgment on the part of the mine’s manager, who was a fellow workman within the rule of common employment.
It may often be difficult to draw the line in any particular case between these two categories. But the Court of Appeal seem to base their conclusion on a number of cases in which the negligence was that of those who were fellow servants, however exalted their grade. Wigmore v. Jay, 5 Ex. 354, which was strongly relied on by Scrutton L.J. at p. 320, was I think such a case.
The use of the defective scaffold pole may well have been merely an act of negligence on the part of the foreman, the master having taken due care to provide a proper supply of scaffold poles. I think the same observation applies to the other cases cited by Scrutton and Greer L.JJ. Thus Cribb v. Kynoch, Ltd., 1907, 2 K.B. 548, and Young v. Hoffmann, 1907, 2 K.B. 646, are cases in which the foreman being generally competent was negligent in the instruction of the young person or apprentice, a particular duty which was reasonably held to appertain to the fellow servants’ and not to the employers’ province. If in any of these cases the principles which I have stated as to the extent of the master’s duty are not correctly applied to the facts, such decisions cannot stand against the authori ties in this House to which I have referred. But 1 doubt if there is any such case. In Toronto Power Co. v. Paskwan, 1915, A.C. 734, Sir Arthur Channell, delivering the judgment of the Privy Council, aptly observed, ” It is, of course, true that a master is not bound to ” give personal superintendence to the conduct of the works, and ” that there are many things which in general it is for the safety of ” the workman that the master should not personally undertake.
” It is necessary, however, in each case to consider the particular ” duty omitted, and the providing proper plant, as distinguished ” from its subsequent care is especially within the province of the ” master rather than of his servants.” I think that the decision was correct and that its effect was accurately stated in the headnote.
There is perhaps a risk of confusion if we speak of the duty as one which can, or cannot, be delegated, The true question is what is the extent of the duty attaching to the employer. Such a duty is the employer’s personal duty, whether he performs or can perform it himself, or whether he does not perform it or cannot perform it save by servants or agents. A failure to perform such a duty is the employer’s personal negligence. This was held to be the case where the duty was statutory and it is equally so when the duty is one attaching at common law. A statutory duty differs from a common law duty in certain respects, but in this respect it stands on the same footing. As Lord Macmillan said in the Lochgelly case, with reference to a duty to take care, at p. 18, “It appears to me quite ” immaterial whether the duty to take care arises at common law or ” is imposed by statute. It is equally imperative in either case, and ” in either case it is a duty imposed by law.” To the same effect Lord Atkin at p. 9 says, “Where the duty to take care is expressly im posed upon the employer and not discharged, then in my opinion ” the employer is guilty of negligence and of ‘ personal’ negligence.”
The same opinion is expressed by the other members of the House who took part in that case. The House in overruling Rudd’s case did I think inferentially overrule Fanton’s case.It is not perhaps necessary to add that the employers’ duty at Common Law in these matters is not affected by the Workmen’s Compensation Act or by the Employers Liability Act.
I think the whole course of authority consistently recognises a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company and whether or not the employer takes any share in the conduct of the operations. The obligation is threefold, as I have explained.
The obligation to provide and maintain proper plant and appliances is a continuing obligation. It is not however broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow servant or a merely temporary failure to keep in order or adjust plant and appliances or a casual departure from the system of working, if these matters can be regarded as the casual negligence of the managers, foremen or other employees. It may be difficult in some cases to distinguish on the facts between the employers’ failure to provide and maintain and the fellow servants’ negligence in the respects indicated. I have already referred to Wilson v. Merry: the same distinction was discussed in Hedley v. Pinkney, 1894 A.C. 222, where it was held that there was no fault of the employer but only negligence of the fellow servant, the shipmaster. Griffiths v. London and St. Katherine’s Dock Co., 12 Q.B.D. 493, is, on the facts, as I think, such a case, though the judgments are unsatisfactory because this distinction was not clearly appreciated. The same failure to appreciate this distinction may be seen in some other cases relied upon by the Court of Appeal in Fanton’s case and indeed may account for the conclusions enunciated by the Court of Appeal.
In the result I am of opinion that the true rule of law (common both to English and Scots Law) on the subject has been stated by the Lord President and those of his learned brethren who formed the majority of the Court. I agree that the appeal should be dismissed.”
Paris v Stepney BC
[1950] UKHL 3 [1951] AC 367
HL Lord McDermott
“The Appellant’s action for damages in respect of the injury thus sustained alleged negligence and breach of statutory duty on the part of the Respondents. The latter cause of action was abandoned at an early stage and the negligence relied upon was, to state the substance of the allegation, that the Respondents had tailed in their duty to the Appellant in that he had not been provided with and required to use suitable goggles for the protection of his eyes during the work to which I have referred. At the trial Lynskey, J. found for the Appellant. He held that the Respondents, knowing that the Appellant had .only one useful eye, were, in the circumstances, under a duty to him to provide and require the use of goggles, and that they had failed in that duty.
The Court of Appeal took a different view and ordered judgment to be entered for the Respondents. This decision appears to have been based on two conclusions—first, that on the evidence there was no duty upon the Respondents to provide goggles for the ordinary, two-eyed workman engaged upon this work ; and, secondly, that there was therefore no such duty upon the Respondents in respect of the Appellant because, though the consequences for him were more serious, the risk of the accident occurring was no greater in his case than it was in the case of his two-eyed fellows.
The proposition underlying this second conclusion is succinctly stated by Asquith, L.J. in a passage which, I believe, represented the unanimous opinion of the Court. It reads as follows: ” The disability can only be relevant to the ” stringency of the duty owed to the Plaintiff if it increases the risk to which ” the Plaintiff is exposed. A one-eyed man is no more likely to get a splinter ” or a chip in his eye than is a two-eyed man. The risk is no greater, but the “ damage is greater to a man using his only good eye than to a man using two good eyes; but the quantum of damage is one thing and the scope of duty is another. The greater risk of injury is not the same thing as the risk of greater injury, and the first thing seems to me to be relevant here.”
This view of the law raises a question of far-reaching importance for, if sound, it must, in my opinion, pervade, if not the whole domain of negligence, at least a very large part of it. It was, however, stated only in connection with the duty of care imposed upon an employer of labour and it will be sufficient for present purposes to consider it in relation to that particular branch of the law and without engaging upon the wider question of its compatibility with the concept of reasonable care.
My Lords, the general nature of the obligation resting upon an employer regarding the safety of those who work for him under a contract of service is not in dispute. It is, in the words of Lord Wright in Wilsons and Clyde Coal Co. Ltd. v. English (19381 A.C. 57 at 84, ” to take reasonable care for the ” safety of his workmen “. In Smith v. Baker & Sons [11891] A.C. 325 at 362, Lord Herschell described the same duty somewhat more fully but without any material difference when he said: ” It is quite clear that the contract between ” employer and employed involves on the part of the former the duty of taking ” 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.” It is no less clear that the duty is owed to the workman as an individual and that it must be considered in relation to the facts of each particular case.
Now if the law is as stated by the Court of Appeal it means that this duty of reasonable care can be discharged without regard to the gravity of the harm which is likely to fall upon the workman concerned. Reasonable care is, indeed, to be taken in respect of risk that may cause injury ; but the requisite degree of care is determinable irrespective of the likely consequences for the particular workman. In short, where the risk of an injury-producing event is the same for all, the standard of reasonable care is the same towards all, and the foreseeable extent of the resulting injury in any given case becomes irrelevant to the issue of liability.
My Lords, this doctrine finds no support in authority and is. in my opinion, entirely alien to the character of the relationship to which it has been applied by the Court of Appeal. For workman and employer alike such expressions as ” risk “, ” danger ” and ” safety ” would lose much of their everyday meaning if divorced from the results to life and limb. In this sphere they must surely, in the very nature of things, connote consequences as well as causes. If a bricklayer says that the risk is greater at the top of a building he means that a slip there is more likely to bring him death or injury, and if he says that a particular form of scaffolding is dangerous or not safe he means not merely that it may fall, but that those who use it may get hurt. What may happen to those engaged is no less important than how it may happen. It is the consequences that necessitate the precautions in this field. The habitual association of cause and effect in workshop and factory is perhaps nowhere more clearly recognised than in the nature of some of the safeguards in common use. Suitable goggles, for example, must be worn by those employed at grinding machines. The particles that fly upward may strike the cheeks as readily as the eyes, but the eyes are protected and the cheeks are not because the eyes are delicate organs and the consequences of their being struck are likely to be serious. Again, special precautions to prevent electric leakage are the usual practice in places like wash-houses where those working are well ” earthed ” and a shock might prove fatal. Instances of this sort could be multiplied, but I think it is enough to say that the employer’s duty to take reasonable care for the safety of his workmen is directed—and, I venture to add, obviously directed—to their welfare and for that reason, if for no other, must be related to both the risk and the degree of the injury. If that is so and if, as was very properly conceded, the duty is that owed to the individual and not to a class, it seems to me to follow that the known circumstance that a particular workman is likely to suffer a graver injury than his fellows from the happening of a given event is one which must be taken into consideration in assessing the nature of the employer’s obligation to that workman.
For these reasons I am of opinion that the Court of Appeal was wrong and that Lynskey, J. was right regarding the relevance of the Respondents’ knowledge of the Appellant’s eye defect. It remains to consider whether the learned trial Judge’s finding of negligence is justified on the evidence. As I read his judgment he did not find that the Respondents were under a duty to provide goggles for other workmen engaged on the same work who had, or might be taken as having, the use of both eyes. Whether the evidence would have warranted such a finding is, I think, a question of some difficulty. On the one hand, the whole trend of the testimony indicates that it was not the general practice in garages and establishments of the kind to provide protection for the eyes in such circumstances. On the other, it is clear that the wearing of goggles would not have hampered the work in question and there is, I think, material from which it might reasonably be inferred that, for men working underneath these vehicles and in close proximity to the parts they were stripping, the provision of suitable goggles would have been a sensible and obvious way of keeping falling dirt and flying particles out of their eyes. I incline to the view that a jury weighing these considerations would not be perverse in finding that it was the duty of the employers to make such provision. The .point, however, is a balanced one and I will proceed on the assumption that the Court of Appeal was right on this aspect of the case and that the Respondents were not under any general obligation of this kind. So assuming, the question then arises whether the additional element, the fact that the Respondents knew that the Appellant was a one-eyed man, made it proper to arrive at a different conclusion regarding their duty to him. In my opinion it did. Not merely was the risk of this sort of accident occurring to those engaged upon this work known; it was also known that that risk was fraught with much graver consequence for the Appellant than for his two- eyed companions. His chances of being blinded were appreciably greater and blindness is an affliction in a class by itself which reasonable men will want to keep from those who work for them if there are reasonable precautions which can be taken to that end. To my mind whatever may be said of the Respondents’ duty to their two-eyed employees, there was ample evidence to sustain the view that they failed in their duty to the Appellant. I would allow the appeal and restore the finding as to liability of the learned Judge.”
Stokes v Guest Keen and Nettlefold(Nuts and Bolts) Ltd
[1968] 1 WLR 1776
Swanwick J
‘the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
Thompson v Smiths Shiprepairers (North Shields) Limited
[1984] 1 QB 405, [1984] 1 All ER 881
Mustill J
‘I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed ‘without mishap.’ Yet even the plaintiffs have not suggested that it was ‘clearly bad,’ in the sense of creating a potential liability in negligence, at any time before the mid-1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552. The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.’
McGarvey v Eve NCI Ltd & Anor
[2002] EWCA Civ 374
CA TUCKEY LJ
This is an appeal from the judgment of His Honour Judge Lightfoot given in Leeds County Court on 9th April 2001 in this personal injury claim. The claimant was seriously injured when he fell from a ladder while working on the construction of a new warehouse in Pontefract. The first defendant company, his employer, was sub-contracted by the second defendant. The judge found the first defendant (the respondent) two-thirds to blame and the second defendant (the appellant) one-third to blame for the accident. The appellant says it was not to blame at all because it assumed no responsibility for the claimant’s safety.
The claimant was 20 at the time of the accident in February 1999. He had been employed by the respondent as a labourer for about a month. The appellant was the electrical contractor for the warehouse, but it employed the respondent as a specialist sub-contractor to do some of the work which included running cables along the purlins supporting the roof of the warehouse. Some of the cables laid in this way came loose and needed to be fixed to the purlins by means of clips. The claimant was assigned by his foreman to this task and reported to the appellant’s foreman, Mr Learoyd, at the warehouse.
Mr Learoyd provided the claimant with clips and pointed out a ladder for him to use to do the work. The judge found that Mr Learoyd had told the claimant to use this ladder and had then left him to get on and do the work on his own.
The ladder was nearly five metres long. The claimant fell from the top of it when it slipped while he was trying to clip a cable to a purlin in the roof. The ladder was not lashed at the top or footed and the claimant was not wearing a safety harness. It transpired that the respondent had not given the claimant any safety training in the use of ladders or other means of working safely at heights. For this reason neither defendant pursued allegations of contributory negligence against him at trial.
Based on the evidence of the appellant’s site safety officer Mr Bennett, the judge found that use of the ladder for this work was “inappropriate and dangerous”. The ladder was too long even if it had been lashed or footed because it had to be set at too acute an angle for safety. The claimant was having to work in a confined space at the top of the ladder, using both hands. The appellant’s witnesses -including Mr Learoyd – said that the claimant should have used an “A” frame ladder or a scaffold tower, both of which were available on the site and would have provided him with a safe working platform.
The judge rejected the respondent’s defence that the claimant had been “lent” to the appellant in circumstances which relieved them of all responsibility for his safety. This inevitably meant that they were found liable both for breach of statutory duty and negligence. Their failure to give the claimant any safety training was, as the judge found, the major cause of the accident.
But the judge found that the appellant was also negligent. He succinctly summarised his reasons for this finding by saying:
” ….. a wholly inappropriate ladder was given to him, and he was told, in effect, to get on with it. No thought was given to this at all, and here was a young man being sent up a ladder to work at a height with no apparent means of support, and on a ladder that was unsuitable.”
Mr Stuart Brown QC, for the appellant, says that this finding was wrong. It took no responsibility for the claimant’s safety. He was not employed or supervised by the appellant and it had no knowledge of his experience, training or aptitude. It was entitled to assume that the claimant, as an employee of specialist contractors, would know how to use ladders safely or obtain assistance or other equipment if he needed it. There was nothing wrong with the ladder as such and the judge’s conclusion that it could not be used to do this job safely was not justified by the evidence. The sole cause of the accident was the respondent’s failure to give any safety training to the claimant.
Mr Stuart Brown supported these submissions by reference to this court’s decision in Makepeace v Evans Brothers (Reading) [2001] ICR 241. The judge distinguished this case, but Mr Stuart Brown argues that he was wrong to do so.
In Makepeace an experienced painter employed by sub-contractors had fallen from a scaffold tower provided by the main contractors because he had incorrectly erected or and mis-used it. The trial judge acquitted the main contractor of negligence because he held that their duty of care did not require them to ensure that the sub-contractor’s men were able to erect and use the tower safely. It was an ordinary piece of equipment, commonly used on building sites, and the responsibility for ensuring that those of their employees who used it were able to do so in safety rested on the sub-contractors alone. This court dismissed the appeal against that finding. Lord Justice Mantell, giving the leading judgment with which Lord Justice Nourse agreed, accepted the judge’s approach. That approach derived support from a number of cases to which he referred. It also derives support from the passages in Munkman to which we have been referred by Mr Stuart Brown this morning. This shows that there is no general duty on a main contractor or occupier to ensure the safety of someone else’s employees unless there has been something in the nature of an assumption of responsibility. As the court made clear in Makepeace, there are cases where a main contractor or occupier will be shown to have assumed some responsibility. Each case must therefore depend upon its own facts.
Here, the judge distinguished Makepeace because in that case an experienced painter was offered the use of a tower suitable for work he had to do. Whereas in this case “the young [claimant] was told to use a ladder which could not be used safely”. Of the ladder he said:
” ….. it was too long. It couldn’t be used for this purpose. It was something that Le[a]royd should have known, and [the claimant] had, clearly, been left in his presence to take instructions from him, and he told him to use that ladder …..
Even if lashed or footed, this ladder was not suitable or safe for this work, and it was perfectly clear to Le[a]royd, or it should have been, that the claimant was to work alone.”
So there was a very clear and valid distinction between the facts of this case and the facts in Makepeace and I can see no basis for criticising the judge for making it. There is nothing in the decision in Makepeace which compelled him to reach the conclusion that the appellant was not in any way to blame for this accident.
If the ladder which the claimant was told to use could have been used safely to do this work the appellant would be on much stronger ground. This, it seems to me, is the crux of the matter. Unless Mr Stuart Brown can successfully challenge the judge’s primary finding of fact that the ladder could not have been used safely to do this work his appeal does not get off the ground. But Mr Stuart Brown at first disclaimed any ambition to do this, but when pressed by the court he had to accept that this is in fact what he was trying to do both as to the suitability of the ladder and that Mr Learoyd knew that the appellant was to work from the ladder on his own.
Having looked at the evidence of Mr Bennett the safety officer, it seems to me that there was ample evidence to support the judge’s finding that this ladder could not have been used safely at all for the work which Mr Learoyd knew the claimant was to do. There is no basis either for challenging the judge’s finding that Mr Learoyd knew that the claimant would be working alone. Even if this ladder had been lashed or footed and the claimant had been working in a safety harness, it was still not a suitable ladder on which to carry out this work because at least for part of the work it could not be set at a safe angle. Mr Learoyd obviously assumed some responsibility for the claimant’s safety when he instructed him to use the ladder in such circumstances. It is onething to provide someone with a piece of equipment whichis suitable it used properly; it is quite another to provide someone with a piece of equipment which is unsafe however it is used.
For these reasons I do not think the judge’s conclusion can be faulted. There is no challenge to his apportionment of responsibility between the appellant and the respondent. I would therefore dismiss the appeal.”
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] UKHL 2 [1942] AC 509
HL Lord Wright
“The main issue in this case is whether the Respondents were liable for the rash and careless act of their lorry driver Davison in striking a match to light his cigarette, and throwing it on the floor of the garage, while he was engaged in the process of transferring from the tank lorry a consignment of petrol into the underground tank at Catherwood’s garage at Belfast. The Respondents’ case is that they were liable, and on this they based their claim to recover under the policy of insurance issued to them by the Appellants, Section II of which deals with Liability to Third Parties. There was a separate claim not here material by the Respondents for the destruction of their lorry. The questions in debate in regard to the third party liability were (1) whether at the material time Davison was the servant of the Respondents or of Holmes Mullin and Dunn, Ltd., with whom the Respondents had a running contract lor the carriage and delivery of petrol in their tank lorries; (2) whether, if Davison was the servant of the Respondents, his act in lighting his cigarette was in the circumstances an act of negligence in the course of his employment in the Respondents’ service, involving the liability of the Respondents to compensate the various parties whose property was injured by the explosion which resulted from Davison’s rash act, including Catherwood, whose garage was damaged and whose car was destroyed, and the owners of adjoining premises affected by the accident. I am only referring to the claims under Section II of the policy.
The dispute came in the first instance before a learned Arbitrator, who stated his award in the form of a Special Case for the opinion of the Court. His own decision on both points was in favour of the Respondents. The question thus is whether the arbitrator was, on the facts stated in the award, wrong in law in so deciding. His award was set aside by Brown J. on the ground that Davison was the servant of Holmes Mullin and Dunn, Ltd., at the material time, so that the Respondents were not liable for his act.
The Judge agreed that, if he was then the servant of the Respondents, his act in lighting his cigarette was in the circumstances an act done in the course of his employment. The judgment of Brown J. was unanimously reversed by the Court of Appeal, who upheld the arbitrator’s award. The Appellant company appeals.
My noble and learned friend the Lord Chancellor has stated the facts. I agree with his reasoning and conclusions, and I may add with the judgments of the Lord Chief Justice and the Lords Justices. I should be content simply to express my concurrence with the Lord Chief Justice’s convincing judgment. I add a few words merely on the two questions of law.
First of all comes the question in whose employment Davison was. This problem and its decision have produced a good many reported cases in the books. In McCartan v. Belfast Harbour Commissioners, 1911, 2 I.R. 143, this House emphatically stated that it is a question of fact how the maxim respondent superior is to be applied in any particular case of this character. The problem is to determine who is the ” superior ” in the particular instance. Lord Dunedin said categorically that the facts of one case can never rule another case and are only useful so far as similarity of facts (for identity, the word so often used, is really a convenient misnomer) are a help and guide to decision. But all the same, it has been sought to find some general idea, or perhaps mere catchword, which may serve as a clue to solve the problem, and for this purpose the idea or the word ” control” has been introduced. Thus Lord Dunedin in Bain v. Central Vermont Railway Co., 1921, 2 A.C. 412 at p. 416 quotes the following language of Bowen L.J. in Donovan v. Laing Syndicate, 1893, 1 Q.B. 629, at p. 639. ” We have only to consider in ” whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant ” the person who has a right at the moment to control the doing ” of the act”. If that were a complete statement of what Bowen L.J. said, I should be driven to question whether it was not too vague and indeterminate to afford any useful guidance. But Bowen L.J. did not stop there. Indeed Lord Dunedin merely gives the quotation as the first sentence of what Bowen L.J. said. The Lord Chief Justice in the present case quotes the remainder of the passage and this indicates that the word ” control” needs explanation and gives some notion of what is necessary before one man’s servant becomes pro hac vice the servant of another man.
It seems to be assumed in all these cases, no doubt rightly, that the man acquiesces in the temporary change of master, though that may have consequences to him in regard to wages, workmen’s compensation, common employment and the like. Bowen L.J. completes his statement thus: ” There are two ways in which ” a contractor may employ his men and his machines. He may ” contract to do the work and, the end being prescribed, the means ” of arriving at it may be left to him. Or he may contract in a different manner, and, not doing the work himself, may place his servants and plant under the control of another—that is, he may ” lend them—and in that case he does not retain control over the ” work”.
It was held on the facts of that case, that the latter description applied. In his judgment in Moore v. Palmer, T.L.R. 781, Bowen L.J. states a more concise criterion: “The ” test is this, whether the servant was transferred or only ” the use and benefit of his work”. Control is not here taken as the test. There are many transactions and relationships in which a person’s servant is controlled by another person in the sense that he is required to obey the latter’s directions. Such was the case of Quarman v. Burnett, 6 M. & W. 499. Its authority has never been questioned. The Defendants there were sued for the negligent driving of a coachman employed by a jobmaster, who had contracted with the Defendants, who were two ladies, to send horses and a driver for their coach. It is clear that the ladies were intended to direct the times when and the places to and from which they took their drives. That was certainly a measure of control, but what, it was held, was there transferred was the use and benefit of the coachman’s work.
The coachman did not become the servant of the Defendants. Instances of this sort are common. In McCartan’s case (supra) the use and benefit of the Harbour Company’s crane and its driver were transferred. The driver of necessity had to obey the directions as to lowering and hoisting given by those conducting the operation, but it was held that there was no transfer of employment. Another illustration is afforded by Cameron v. Nystrom, 1893 AC 308. The question there was whether stevedores could plead the defence of common employment against a servant of the shipowner whose vessel they were discharging. The Plaintiff had been injured by the negligence of one of the shipowner’s servants. It was held that there was no common employment because the negligent employee had not become the shipowner’s servant. No doubt he had in many respects to obey the directions of the shipowners. Lord Herschell, however, thus summed up the position: ‘There was ” no express agreement with regard to the extent to which the ” master and mate should have control over them [sc. the stevedore’s servants]. That control is only to be implied from the ” circumstances in which they were employed. The relation of ” stevedore to shipowner is a well-known relation, involving no ” doubt the right of the master of the vessel to control the order in ” which the cargo should be discharged, and various other incidents ” of the discharge, but in no way putting the servants of the stevedores so completely under the control and at the disposition of ” the master as to make them the servants of the shipowner, who neither pays them, nor selects them, nor could discharge them, nor stand in any other relation to them than this, that they are the servants of a contractor employed on behalf of the ship to do a ” particular work “. Lord Herschell there emphasises that it is the extent of control which is material to be considered. But he also stresses the other elements which make up the relationship of master and servant and which have to be considered before it can be held that there has been a transfer of the man’s service from his general employer to the other who is said to be his temporary employer. It is, I think, clear that the presumption is all against there being such a transfer. Most cases can be explained on the basis of there being an understanding that the man is to obey the directions of the person with whom the employer has a contract, so far as is necessary or convenient for the purpose of carrying out the contract. Where that is the position the man who receives directions from the other person does not receive them as a servant of that person, but receives them as servant of his employer.
Where the contract is a running contract, for the rendering of certain services over a period of time, the places where, and the times at which, the services are to be performed, being left to the discretion (subject to any contractual limitations) of the other contracting party, there must be someone who is to receive the directions as to performance from the other party, and they are given to the employer, whether he receives them personally or by a clerk or by the servant who is actually sent to do the work. That I think is the position here. The contract is of a character very common between the owner of lorries or other vehicles and one who wants to hire them for the conveyance of his goods. In principle the facts here are indistinguishable from those in Quarman v. Burnett (supra). Davison was subject to the control of Holmes Mullin and Dunn, Ltd., only so far as was necessary to enable the Respondents to carry out their contract. In doing so he remained the Respondents’ servant. They paid him and alone could dismiss him. Even in acting on the directions of Holmes Mullin and Dunn, Ltd., he was bound to have regard to paramount directions given by the Respondents and was to safeguard their paramount interests. This appears from the course of business followed, and is confirmed by the agreement dated the 11th October, 1934, made between Holmes Mullin and Dunn, Ltd., and the Respondents’ predecessor in title, in whose shoes it is admitted that the Respondents stand. It is a contract which was intended to remain in force and has remained in force over a period of years, and provided for the carriage of petrol or like products to any destination within Northern Ireland at the request of Holmes” Mullin and Dunn, Ltd. Clause 9 provides that the employees of the Respondents or their predecessors engaged in the delivery should accept the orders of Holmes Mullin and Dunn, Ltd., ” regarding such delivery, the payment of accounts and all matters incidental thereto “. These are just the matters in respect of which, for the convenient performance of the contract, the lorrymen employed would naturally be required to obey the wishes of those for whom the petrol was being carried.
I do not find anything in the rest of the agreement to lead to any other conclusion. It is not, however, necessary to make any nice examination of its terms. A question of this sort must be decided on the broad effect of the contract. I do not attach any decisive effect to the proviso to Clause 9 that nothing in the agreement is to be construed to mean that the Respondents’ employees are to be taken as employees of Holmes Mullin and Dunn, Ltd., because it could not bind third parties. I think on the whole the agreement goes to support the view that the parties did not ontemplate that what the agreement stipulated should involve any transference of servants, as contrasted with transference of service.
Each case of this character must be decided on its particular facts. I therefore do not think it necessary to refer to any other of the cases which have been cited. In the great majority the conclusion has been against the servants being transferred from the general employer. Nor do I consider the cases where a man has been held to have become the servant of someone who was not otherwise his employer, by voluntarily doing work for him.
On the other question, namely, whether Davison’s negligence was in the course of his employment, all the decisions below have been against the Appellants. I agree with them and need add little.
The act of a workman in lighting his pipe or cigarette is an act done for his own comfort and convenience and, at least generally speaking, not for his employer’s benefit. But that last condition is no longer essential to fix liability on the employer (Lloyd v. Grace Smith and Co., 1912 AC 716). Nor is such an act prima facie negligent. It is in itself both innocent and harmless. The negligence is to be found by considering the time when and the circumstances under which the match is struck and thrown down. The duty of the workman to his employer is so to conduct himself in doing his work as not negligently to cause damage either to the employer himself or his property or to third persons or their property, and thus to impose the same liability on the employer as if he had been doing the work himself and committed the negligent act. This may seem too obvious as a matter of common sense to require either argument or authority. I think what plausibility the contrary argument might seem to possess results from treating the act of lighting the cigarette, in abstraction from the circumstances, as a separate act. This was the line taken by the majority judgment in Williams v. Jones, 3 H. & C. 602. But Mellor and Blackburn JJ. dissented, rightly as I think. I agree also with the decision of the Court of Appeal in Jefferson v. Derbyshire Farmers, Ltd, 1921, 2 K.B. 281, which is in substance on the facts indistinguishable from the present case.
In my judgment the appeal should be dismissed.”
Corr v IBC Vehicles Ltd
[2008] UKHL 13
LORD BINGHAM OF CORNHILL
“(1) The scope of duty issue
Mr Cousins adopted and applied to this case the pithy statement of Spigelman CJ in AMP General Insurance Ltd v Roads & Traffic Authority of New South Wales [2001] NSWCA 186, [2001] Aust Torts Reports 81-619, para 9, AustLII “There was no duty upon the employer…to protect the deceased from self harm”. Mr Cousins pointed out that different duties arise in different situations but that, as Lord Hope of Craighead observed in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, 379, “It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately”. Mr Cousins invoked the important principle of personal autonomy, illustrated by St George’s Healthcare NHS Trust v S [1999] Fam 26 and recently upheld by the House in the criminal field in R v Kennedy (No 2) [2007] UKHL 38, [2007] 3 WLR 612, to submit that if an adult of sound mind chooses, for whatever reason, to inflict injury upon himself, that is an act for which responsibility cannot be laid on another.
I would agree with the broad thrust of this submission. The law does not generally treat us as our brother’s keeper, responsible for what he may choose to do to his own disadvantage. It is his choice. But I do not think that the submission addresses the particular features of this case. The employer owed the deceased the duty already noted, embracing psychological as well as physical injury. Its breach caused him injury of both kinds. While he was not, at the time of his death, insane in M’Naghten’s terms, nor was he fully responsible. He acted in a way which he would not have done but for the injury from which the employer’s breach caused him to suffer. This being so, I do not think his conduct in taking his own life can be said to fall outside the scope of the duty which his employer owed him.
(2) The foreseeability issue
As Lord Rodger’s summary quoted above makes clear, and despite the differences of opinion which formerly prevailed, it is now accepted that there can be no recovery for damage which was not reasonably foreseeable. This appeal does not invite consideration of the corollary that damage may be irrecoverable although reasonably foreseeable. It is accepted for present purposes that foreseeability is to be judged by the standards of the reasonable employer, as of the date of the accident and with reference to the very accident which occurred, but with reference not to the actual victim but to a hypothetical employee. In this way effect is given to the principle that the tortfeasor must take his victim as he finds him. Mr Cousins submits that while psychological trauma and depression were a foreseeable result of the accident (and thus of the employer’s breach), Mr Corr’s conduct in taking his own life was not.
This submission was accepted by the deputy judge (Mr Nigel Baker QC) at first instance. He held that reasonable foreseeability of the suicide must be established both in respect of the duty and the recovery of damages: the suicide fell outside the employer’s duty and was not reasonably foreseeable (judgment, paras 33, 34 (ii) and (iii)). Dissenting in the employer’s favour in the Court of Appeal [2006] EWCA Civ 331, [2007] QB 46, Ward LJ drew a distinction (para 57) between what was logically foreseeable and what was reasonably foreseeable, and concluded (para 64) that the suicide was not reasonably foreseeable. Both the deputy judge and Ward LJ attached significance in reaching this conclusion, as I think mistakenly, to the personal qualities of the deceased. The majority in the Court of Appeal reached a different conclusion. Sedley LJ (para 66) referred to the admitted fact that depression was a foreseeable consequence of the employer’s negligence and to the uncontroverted evidence that suicide was a not uncommon sequel of severe depression. He described it (para 67) as correct but irrelevant that the employer’s duty did not extend to anticipating and preventing suicide. It was not the claimant’s case that it did. But the law drew no distinction, for purposes of foreseeability and causation, between physical and psychological injury, and on the evidence (para 68) the suicide of Mr Corr was grounded in post-traumatic depression and nothing else. Wilson LJ observed that the claimant did not have (para 98) to establish that, at the date of the accident, the deceased’s suicide was reasonably foreseeable. He did not accept (para 98) the view of Spigelman CJ in the AMP case, above, that suicide was a kind of damage separate from psychiatric and personal injury, and therefore having to be separately foreseeable.
I have some sympathy with the feeling, expressed by Ward LJ in paragraph 61 of his judgment, that “suicide does make a difference”. It is a feeling which perhaps derives from recognition of the finality and irrevocability of suicide, possibly fortified by religious prohibition of self-slaughter and recognition that suicide was, until relatively recently, a crime. But a feeling of this kind cannot absolve the court from the duty of applying established principles to the facts of the case before it. Here, the inescapable fact is that depression, possibly severe, possibly very severe, was a foreseeable consequence of this breach. The Court of Appeal majority were right to uphold the claimant’s submission that it was not incumbent on her to show that suicide itself was foreseeable. But, as Lord Pearce observed in Hughes v Lord Advocate [1963] AC 837, 857, “to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable”. That was factually a very different case from the present, but the principle that a tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which the damage may take in my view applies. I can readily accept that some manifestations of severe depression could properly be held to be so unusual and unpredictable as to be outside the bounds of what is reasonably foreseeable, but suicide cannot be so regarded. While it is not, happily, a usual manifestation, it is one that, as Sedley LJ put it, is not uncommon. That is enough for the claimant to succeed. But if it were necessary for the claimant in this case to have established the reasonable foreseeability by the employer of suicide, I think the employer would have had difficulty escaping an adverse finding: considering the possible effect of this accident on a hypothetical employee, a reasonable employer would, I think, have recognised the possibility not only of acute depression but also of such depression culminating in a way in which, in a significant minority of cases, it unhappily does.
(3) The novus actus issue
The deputy judge made no express finding on this question. But Ward LJ, having reviewed a number of authorities, concluded (para 49) that the chain of causation was not broken by the suicide of the deceased. This was an opinion which Sedley LJ shared. In paragraph 76 of his judgment he said:
“But once the law accepts, as it does, the foreseeability of psychological harm as a concomitant of foreseeable physical harm, it is only if a break dictated by logic or policy – or, of course, by evidence – intervenes that it is possible today to exclude death by suicide from the compensable damage where that is what the depression leads to.”
He expressed his conclusions in paragraphs 82-83:
“82 To cut the chain of causation here and treat Mr Corr as responsible for his own death would be to make an unjustified exception to contemporary principles of causation. It would take the law back half a century to a time when the legal and moral opprobrium attaching to suicide placed damages for being driven to it on a par with rewarding a person for his own crime. Today we are able to accept that people to whom this happens do not forfeit the regard of society or the ordinary protections of the law.
83 Once it is accepted that suicide by itself does not place a clinically depressed individual beyond the pale of the law of negligence, the relationship of his eventual suicide to his depression becomes a pure question of fact. It is not a question which falls to be determined, as the deputy judge in significant measure determined it, by analogy with the duty of care resting on a custodian. Once liability has been established for the depression, the question in each case is whether it has been shown that it was the depression which drove the deceased to take his own life. On the evidence in the present case, it clearly was.”
Wilson LJ (para 100) agreed with Ward and Sedley LJJ.
The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible. This is not the less so where the independent, supervening cause is a voluntary, informed decision taken by the victim as an adult of sound mind making and giving effect to a personal decision about his own future. Thus I respectfully think that the British Columbia Court of Appeal (McEachern CJBC, Legg and Hollinrake JJA) were right to hold that the suicide of a road accident victim was a novus actus in the light of its conclusion that when the victim took her life “she made a conscious decision, there being no evidence of disabling mental illness to lead to the conclusion that she had an incapacity in her faculty of volition”: Wright v Davidson (1992) 88 DLR (4th) 698, 705, CanLII. In such circumstances it is usual to describe the chain of causation being broken but it is perhaps equally accurate to say that the victim’s independent act forms no part of a chain of causation beginning with the tortfeasor’s breach of duty.
In the present case Mr Corr’s suicide was not a voluntary, informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future. It was the response of a man suffering from a severely depressive illness which impaired his capacity to make reasoned and informed judgments about his future, such illness being, as is accepted, a consequence of the employer’s tort. It is in no way unfair to hold the employer responsible for this dire consequence of its breach of duty, although it could well be thought unfair to the victim not to do so. Mr Cousins submitted that on the agreed findings Mr Corr was not, in M’Naghten terms, insane, and it is true that in some of the older authorities a finding of insanity was regarded as necessary if a claimant were to recover for loss attributable to suicide: see, for example, Murdoch v British Israel World Federation (New Zealand) Inc [1942] NZLR 600, following McFarland v Stewart (1900) 19 NZLR 22. I do not for my part find these cases persuasive, for two main reasons. First, so long as suicide remained a crime the courts were naturally reluctant to award damages for the consequences of criminal conduct. Thus a finding of insanity, which exculpated the deceased from criminal responsibility, removed this obstacle. Modern changes in the law overcome the problem: there is now no question of rewarding the consequences of criminal conduct, although it remains true that the more unsound the mind of the victim the less likely it is that his suicide will be seen as a novus actus. The second reason is that whatever the merits or demerits of the M’Naghten rules in the field of crime, and they are much debated, there is perceived in that field to be a need for a clear dividing line between conduct for which a defendant may be held criminally responsible and conduct for which he may not. In the civil field of tort there is no need for so blunt an instrument. “Insane” is not a term of medical art even though, in criminal cases, psychiatrists are obliged to use it. In cases such as this, evidence may be called, as it was, to enable the court to decide on whether the deceased was responsible and, if so, to what extent. I agree with Sedley LJ that it would be retrograde to bar recovery by the claimant because the deceased was not, in M’Naghten terms, insane.
(4) The unreasonable act issue
In his summary of principle quoted above, Lord Rodger refers to both a novus actus interveniens and unreasonable conduct on the part of the pursuer as potentially breaking the chain of causation. No doubt there is room for a theoretical distinction between the two. But having regard to the reasons I have given for holding the suicide of the deceased not to be a novus actus I would find it impossible to hold that the damages attributable to the death were rendered too remote because the deceased’s conduct was unreasonable. It is of course true that, judged objectively, it is unreasonable in almost any situation to take one’s own life. But once it is accepted, as it must be, that the deceased’s unreasonable conduct was induced by the breach of duty of which the claimant complains, the argument ceases in my judgment to have any independent validity.
(5) The volenti issue
It is a salutary and fair principle that a tortfeasor cannot be held responsible for injury or damage to which a victim, voluntarily and with his eyes open, consents. But it is not suggested that Mr Corr consented in any way to the accident and injury which befell him on 22 June. It is an argument addressed only to his suicide. But that was not something to which Mr Corr consented voluntarily and with his eyes open but an act performed because of the psychological condition which the employer’s breach of duty had induced. I conclude, again, that this is an argument which has no independent validity.
(6) The contributory negligence issue
The employer pleaded contributory negligence in its defence, and it featured in Mr Cousins’ submissions to the trial judge. The judge, however, made no finding, which he may have thought unnecessary since he was dismissing the claim. In the Court of Appeal, Ward LJ referred to the defence of contributory negligence, observing (para 8) that it had rightly not been the subject of much argument in the appeal. It may be inferred that he considered the defence to have little substance whatever the outcome of the appeal, an impression fortified by the omission of Sedley and Wilson LJJ, both of whom allowed the claimant’s appeal and awarded her the additional damages claimed, to mention the point at all. In argument before the House, the issue was again raised, but addressed by both parties with extreme brevity.
I very much question whether it is appropriate for the House to conduct what is in effect an independent enquiry into a matter on which the courts below have made no findings and on which, to the extent that it raises any question of law, we have heard no more than cursory argument. I would for my part decline to conduct that enquiry.
If, however, my noble and learned friends are of a different opinion, we must pay attention to the terms of section 1(1) of the Law Reform (Contributory Negligence) Act 1945:
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage….”
Thus attention is directed to the fault of the deceased and to his causal contribution to the damage which ensued.
For reasons already given, I do not think that any blame should be attributed to the deceased for the consequences of a situation which was of the employer’s making, not his. Consistently with my rejection of arguments based on novus actus and unreasonable conduct, I would similarly absolve the deceased from any causal responsibility for his own tragic death. I would accordingly assess his contributory negligence at 0%. That, in my opinion, reflects the responsibility of the deceased for his own loss (see Reeves v Commissioner of Police of the Metropolis [1999] QB 169, 198).
For these reasons, largely those of the Court of Appeal majority, and also the reasons of my noble and learned friend Lord Walker of Gestingthorpe, which I have had the advantage of reading in draft, and with which I wholly agree, I would accordingly dismiss the employer’s appeal with costs.”
Neill -v- Dunnes Stores
[2010] IESC 53
SC Fennelly J.
“In Bradley v CIE [1976] IR 215, the Supreme Court outlined a test of negligence in the context of employment, but which is of wider application. Henchy, J. cited the formulation of Lord Dunedin in Morton v William Dixon Ltd [1909] SC 807:
“… It is absolutely necessary that the proof of the fault or omission should be one of two kinds, either – to shew that the thing which he did not do was the thing which was commonly done by others 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.”
Subsequent glosses on that passage have emphasised that the fundamental test is the conduct and judgment of the reasonable and prudent man, and have explained that the reference to folly means no more than “imprudent” or “unreasonable”. Henchy, J. concluded that the test “does no more than provide a mode of testing whether in the class of cases to which it refers the employer is taking reasonable care for the safety of his employee or, as it was sometimes put, whether he has subjected him to unnecessary risk”.
……
Indeed in this regard, I would be very slow to impose through the law of negligence some inflexible rule that there must always be a minimum of two security guards in any store, at least on the limited evidence proffered in this case. I would be even more reluctant to stigmatise as negligent, the acts of the security guard who confronted, chased and detained a shoplifter – especially one who appeared unruly, intoxicated and given to violence. It is one thing for prudence to suggest caution rather than courage in certain circumstances; it is quite another that the law should demand caution and penalise courage.
However, there is a more narrow basis for the conclusion that in this case Dunnes Stores failed to adhere to an appropriate standard of care. Perhaps the most telling piece of evidence was that volunteered by Mr Byrne in cross-examination that it was completely against procedure to involve a member of the public. Mr Byrne gave that evidence while denying that he had requested Mr O’Neill’s assistance, but the trial judge found that Mr Byrne had indeed asked Mr O’Neill for help and on the evidence, that conclusion was entirely appropriate and cannot now be challenged on this appeal. On one view, it might be said that involving a member of the public in breach of certain procedures makes Mr Byrne negligent, and Dunnes Stores vicariously liable for his default. However, I think that that analysis would be more than a little artificial: I am not sure that it can be said that any security guard (no more than any citizen), can be said to owe a duty of care to members of the public not to involve them by asking them for help to detain a suspect. It is I think preferable to see that evidence as the clearest possible indication that if there was any system in place on the evening, it had gone badly wrong. In the absence of evidence of common practice it may not be possible to say with certainty that there ought to have been another security guard to assist Mr Byrne, but there certainly ought to have been someone available to assist him. The image of the two-way radio which was useless because there was no one to communicate with, is itself telling. It is clear that there were managers on duty, (indeed Mr Byrne said that he asked Ms Stapleton to get them) and that such managers could have assisted Mr Byrne if alerted to the situation. It seems clear that there ought to have been a more effective and immediate method of communication with managers than having to resort to asking a passing cleaning lady to call them. It does not appear that there was any system in place where the two-way radio could be held by another person for the evening or any arrangement for Mr Byrne to be able to communicate with any other member of staff. Even on the limited evidential record therefore, I consider that the trial judge is entitled to come to the conclusion that this state of affairs was unreasonable and, if necessary, amounted to the type of “folly” which Lord Dunedin identified more than 100 years ago.
The third and fourth points argued by the Appellant can be taken together. Even assuming some default on the part of Dunnes Stores (such as that identified above) it was nevertheless said that Dunnes Stores were not liable because their action or inaction did not cause the peril or give rise to the necessity for rescue. On the contrary, it was said Mr O’Neill’s injures were caused by the wrongful and indeed criminal acts of third parties. The Appellant also stressed the fact that at the time of the assaults on Mr O’Neill, Garda Delaney had arrived and was sufficiently in charge to tell Mr McCormack to go away. It was also emphasised that the actual assault on Mr O’Neill had come out of the blue and clearly was not anticipated by the Garda.
The consideration of these arguments involves surveying a difficult intersection between two areas of the law of negligence which have posed problems of analysis over the years; the rescuer cases and those cases in which it is contended that an alleged tortfeasor is responsible for injury caused by the wrongful acts of a third party.
At the outset it is necessary to consider if this was truly a rescue case at all. The Appellant referred to the decision of this Court in Phillips v Durgan [1991] ILRM 321. In that case, a couple had been retained by the first named plaintiff’s brother to clean a house and then to decorate it. The kitchen was very greasy. The gas cooker which was the only means for heating water, was itself defective, producing only a guttering flame. The first named plaintiff slipped and a towel she was carrying caught light from the cooker. She was badly burned and her husband, the second plaintiff, also sustained burns trying to rescue her from the fire. In the High Court, the trial judge had rejected the contention that the defendant’s negligence was a primary cause of the fire but had found for the plaintiffs, considering that it was a form of rescue case. The Supreme Court held that the case could not be treated as a rescue case but nevertheless upheld the award on the grounds that the defendant had been in breach of a primary duty of care owed to the plaintiff and since the defendant was the occupier of premises, which posed a danger to lawful entrants, including the plaintiffs. It appears to be suggested that this case is similar in that it is suggested that the true cause of Mr O’Neill’s injuries was the wrongful, indeed criminal, act of Ciaran McCormack.
When Phillips v Durgan is analysed, it seems to me to illustrate precisely why this is indeed a case which is properly addressed by reference to the principles established in the rescue cases. As Cardozo, J. memorably observed in Wagner v International Railway (1921) 133 NE 437:
“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences.”
In the classic rescue case therefore, a member of the public with no previous connection to the incident or the parties responds either to a cry for help or to a situation which itself cries out for help. However the relationship of the Phillips to Mr Durgan was established by the existing contract between them. They did not come upon a scene and respond to it: they were required to be there by virtue of their agreement with Mr Durgan and his invitation to his unsafe premises. It was entirely understandable therefore that the Supreme Court rejected the attempt to characterise them as somehow akin to rescuers. By contrast, the Plaintiff here is almost in the classic situation. A member of the public with no prior knowledge or contact with any of the parties, he responded not just to the situation but to a positive cry for help.
Quite apart from the dearth of evidence, this case is undoubtedly made more complex as a matter of law by the fact that the direct cause of the Plaintiff’s injury was the wrongful acts, both criminal and tortious, of another party, Ciaran McCormack, for whom Dunnes Stores were not responsible. Looked at from one perspective it might be said – and was said by the Appellant – that the source of the peril giving rise to the need for rescue by Mr O’Neill was Mr McCormack’s violent act and not the carelessness of Dunnes Stores. Alternatively, it was said that the wrongful acts of Ciaran McCormack were the proximate cause of Mr O’Neill’s injuries and constituted a novus actus interveniens breaking any causal link between the negligence of Dunnes Stores and the injuries suffered. I should say at this point that I am using the term negligence in its meaning in common usage even among lawyers, rather than as a term of art. It is technically incorrect to speak of negligence in the absence of establishing a duty of care, and in one sense the question whether Dunnes Stores owed a duty of care to members of the public to protect them from the risk of assault is at the very heart of this case.
There is no reason in principle why, if on the established law a party can be liable for injury caused by the wrongful act of a third party, the first party’s liability should not extend to any rescuer who is injured in an attempt to rescue an individual. As Cardozo, J. observed in Wagner the “wrongdoer may not have foreseen the coming of the deliverer. He is accountable as if he had”.
It is necessary however to separate those two strands of authority. The classic case where an initial act of negligence made a party responsible for the loss caused by the wrongful act of the third party is the well known case of Home Office v Dorset Yacht Company [1970] AC 1004, considered recently in this Court, in Breslin v MIBI [2003] 2 IR 203. The principle in the Dorset Yacht case was expressed succinctly, by McWilliam, J. in a Circuit Court case of Dockery v O’Brien (1975) 109 ILTR 127:
“With regard to a novus actus interveniens, Lord Reid, in the Dorset Yacht Company case, said that, if what was relied on as a novus actus interveniens is the very thing which is likely to happen if the want of care which is alleged takes place, the principle involved in the maxim is no defence, and he added that, unfortunately, tortious or criminal action by a third party may be the very kind of thing which is likely to happen as a result of the wrongful or careless act of the defendant … This was the very kind of thing which a reasonable person should have foreseen.”
Applying that test here, it seems to me there is a strong connection between the wrongdoing identified on the part of Dunnes Stores and what occurred here. Mr Byrne sought help. Had no help been forthcoming from any member of the public and had Mr Byrne been badly injured, I apprehend that Dunnes Stores would have been liable to him. (See e.g. Walsh v Securicor (Ireland) Limited [1993] 2 IR 517). In the event, Mr O’Neill responded to the request for help. Mr Byrne had to seek assistance from a member of the public, against all procedure, precisely because he had no effective method of seeking help from his co-employees. As Mr Byrne frankly admitted, the risk of some struggle, violence and perhaps injury, was an inescapable part of the job. It was therefore entirely foreseeable that if a security guard was put in a situation requiring assistance and was obliged to seek assistance from a member of the public, and if that member of the public responded, then he may well have be injured in offering assistance. In this regard I think it is irrelevant that the precise nature of the savage attack on Mr O’Neill may not have been foreseen: it is enough that the type of damage – here physical injury caused by an attempt to restrain a wrongdoer – was readily foreseeable.
If the foregoing analysis is correct, then the rest of the case follows quite readily. There is no logical or conceptual difficulty in permitting recovery by a rescuer in circumstances where the defendant is or would be liable for the foreseeable wrongful acts of a third party. To illustrate this, it may be useful to adapt the facts of the leading case of Smith v Littlewoods Organisation Ltd [1987] AC 241, which was also considered in Breslin v MIBI. There, fire was started by vandals in the defendants’ vacant cinema premises which spread to adjoining buildings. The owners of those buildings sued the defendants. It was known that trespassers had used the vacantcinema, but on the facts of the case the defendants succeeded because there was no evidence that the defendants had knowledge of the fact that vandalising trespassers were in the habit of lighting fires in the disused cinema. However, had the defendants been so aware, there is no doubt that they would have been liable in such circumstances to their neighbours. If that finding had been made, I do not think there would have been any difficulty in extending liability to any rescuer who was injured while entering any of the buildings attempting to rescue someone, even though the direct cause of the peril – in that case the fire – would have been the vandals rather than the cinema owners.
The conceptual difficulty with the rescuer cases is the sometimes attenuated chain of causation and the indulgent view that courts take of the issue of the duty of care. An often quoted observation is that of the late Professor Fleming in The Law of Torts 5th Edition (1992) p.170:
“A remarkable change has overtaken the legal position of the rescuer; once the Cinderella of the law, he has since become its darling.”
The rest of the paragraph which explains this observation is also worthy of quotation:
“It used to be that his claim for injury in coming to the aid of someone imperilled by the defendant was defeated in short shrift on the grounds that his “voluntary” intervention either severed the causal link with the defendants negligence or showed that he voluntarily assumed the risk. These theories have all toppled like nine pins; indeed in its anxiety to support the rescuer, modern law has generally evinced little interest in the conventional requirements of “foreseeability” and “duty”.” (emphasis added)
Indeed, Professor Fleming draws an instructive comparison between the foreseeability requirements of rescue cases and those for example, in nervous shock cases:
“In any event, foreseeability must here be a very broad notion, in marked contrast especially to the nervous shock cases of the opposite end of the spectrum. The divergent judicial reaction to these two situations strikingly illustrates the fact that, far from foreseeability being a true or sole determinative duty, weighty policy considerations militate, in the one case in favour, in the other against the plaintiff’s claim to legal protection. Behind the ambivalence of the foreseeability formula lies the desire, on the one hand, to encourage altruistic action and, on the other a decided hesitation based on administrative grounds to permit recovery from mental distress.”
In my view, this case fits comfortably within the approach so described. Indeed, for the reasons set out above, this is a case in which there is a particularly close connection between the negligence established against the Defendant and the injury caused to the Plaintiff.
This analysis also disposes of the argument that the peril giving rise to the need for rescue was not caused by the Defendant, but rather by the wrongful act of a third party. Because this case involves the complication of third party wrongdoing, it is I think necessary to consider whether the Defendant was a cause, rather than necessarily the proximate cause if any, of the Plaintiff’s injuries, as long as the wrongdoing itself was the very thing which was to be anticipated as a result of the Defendant’s negligence. Furthermore, while it might be said that the situation was caused at least in part by the wrongful shoplifting and attempt to escape of Alexander Colville, there is little doubt that the need for rescue by a member of the public was caused by the negligence of Dunnes Stores. If Dunnes Stores had not been negligent as outlined above, Mr Byrne and Ms Stapleton would not have had to ask Mr O’Neill or any other member of the public for help; if Mr O’Neill had not responded to the requests for help he would not have been injured.
In these circumstances, and notwithstanding the somewhat rudimentary nature of the case made and the tenuous evidential basis for the trial judge’s conclusions, I consider that the appeal in this case should be dismissed. This is a result which I think accords with both legal principle and common sense. It would indeed be regrettable if the message delivered by the law of tort to a member of the public faced with a cry for help, is that if they intervene they do so at their own risk and that in all the circumstances it would be wiser to pass by on the other side. Lord Atkin observed that the example of the Good Samaritan in the parable may not answer all the questions of the law of negligence, but neither the law nor morality has ever sought to encourage imitation of the Levite.”
JUDGMENT of Mr. Justice Fennelly delivered the 16th day of November 2010.
“11. The decision of this court in Bradley v Córas Iompair Eireann [1976] I.R. 217 suggests that, at least 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.”
12. 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.”
13. The authority of Bradley v CIE was accepted by this Court in Kennedy v Hughes Dairy Ltd [1989] I.L.R.M., though McCarthy expressed doubt that Bradley “should be regarded 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.” In that case, a majority of this Court held that the High Court had been wrong to withdraw a case from a jury on the authority of Bradley. The plaintiff’s claim that his employer had been negligent in failing to provide him with protective gloves or gauntlets to protect him against broken glass had, however, been supported by the expert evidence of an engineer.
14. I agree with the view of McCarthy J that Bradley should not be treated as laying down a rigid formula. The test in all cases is as to whether the plaintiff has been able to show that the defendant has done something or, as failed to do something, which a reasonable man, exercising reasonable care, would have done or not done, as the case may be. Has the defendant been in breach of the duty of care he or she owes to the plaintiff? Nonetheless, it is necessary to look for some objective guidance as to what is or is not a safe system, whether of work or of anything else. That is why it is customary, even if not absolutely necessary in principle, to seek to support a claim for damages for negligence by expert evidence. The plaintiff must show that the defendant has fallen short of the standard of care that the plaintiff is entitled to expect of him in all the circumstances of the relationship between them. The notion of standard connotes something objective and, if not measurable, at least capable of objective assessment. It is not, therefore, a mere matter of subjective judgment or impression. It must be consistent, not random. The following passage form Charlesworth and Percy on Negligence (Sweet & Maxwell, 8th ed. Par 6-06) explains that the problem is to relate the generality of the duty and standard of care in negligence to particular practical circumstances:
“……to say that the standard of care is that of a reasonable man is to beg the question. A tribunal of fact can only be directed to apply the standard of care, if it is explained what amount of care the law regards as reasonable under the circumstances of the case being tried.”
15. Applying these principles to the present case, I fail to see, in the evidence, any basis for concluding that negligence has been established against the defendant in failing to have more than one security guard on duty on the evening in question. O’Donnell J suggests that there was “a sparse evidential basis” to sustain the plaintiff’s claim but I would go further. The learned trial judge appears to have attached importance to the fact that Mr Byrne was responsible for a drapery as well as a grocery and an off-licence, a fact which he established himself at the end of the evidence. Mr Byrne’s physical area of responsibility had not featured in the evidence and it is not clear that it played any part in the events of the evening in question, where all relevant action took place in the off-licence or on escape from it. More fundamentally, I do not think he had any foundation in the evidence for concluding that more than one guard was necessary. No comparative standards were established. The only point of reference was the protocol which was not produced in court. The existence of the latter document emerged only in cross-examination. The plaintiff had not sought discovery of documents. Mr Byrne’s interpretation was that he was not out-numbered. He considered that he was not in breach of the protocol and he was the only witness to have seen it. In effect, the plaintiff relied on cross-examination of Mr Byrne to establish the existence of the protocol and give a partial account of its undisclosed contents, but rejected his interpretation of it.
16. It follows from the foregoing that the absence of two-way radio was not in any way relevant. It could only be relevant if the absence of a second security guard amounted to negligence.
17. Finally, I do not agree with the conclusion of the learned trial judge that the defendant was negligent insofar as Mr Byrne chose to pursue Colville rather than merely watch him and call the gardaí. In an obvious sense, that would, of course, have been the safer course. However, it was not negligent of the defendant to try to pursue and catch an obvious shoplifter. No attempt was made to establish a departure from standards in this respect. It is true that Mr Byrne was vigorously cross-examined to the effect that he had disobeyed the protocol by pursuing in the way he did but he disagreed. I simply do not see how Dunnes Stores were negligent in pursuing a shoplifter rather than adopting the alternative course of simply watching, noting the evidence and calling the gardaí.
18. In these circumstances, I do not believe that any finding of negligence was justified. Accordingly, any question of rescue simply does not arise. Liability in rescue cases is predicated on some act of want of care on the part of the defendant leading to the creation of the risk which prompted the voluntary act of rescue. Thus, the necessary precondition does not exist. I would add that I am not at all convinced that liability for the creation of a situation of danger could, on any view, be placed at the door of the defendant. In Philips v Durgan [1991] I.L.R.M., 321, Finlay C.J. expressed the view, at page 326, that the principle of rescue “ truly consists only of a situation in which the court will rule on as a foreseeable consequence of the negligent commencement of a fire that persons seeking to put out that fire, either by reason of their duty as officers of a fire brigade or by reason of their desire to prevent damage, whether to persons or property may be hindered by the existence of the fire.” It appears to me at least possible that the true analogy with the present case would be the behaviour of the suspected shoplifters, including the criminal behaviour of McCormack, rather than Dunne Stores’ security arrangements. The former was a danger which was not created by Dunnes Stores. However, I would prefer to leave the issue of liability to rescuers to be decided by a larger formation of this Court in a case where it more directly arises.
19. I would allow the appeal and dismiss the plaintiff’s claim.”
Phelan v. Coilte Teoranta
[1993] 1 I.R. 18
H.C. Barr J.
“….the plaintiff arrived at the scene he helped Mr. Carwood to repair the sprayer tanks. In course of that work it transpired that some new brackets were required for the tanks and the plaintiff was dispatched to the depot in Clonmel to get what was needed. During the course of the afternoon they finished work on the tanks and Mr. Carwood asked the plaintiff to give him a hand in lifting one of the arms of the sprayer into position. He intended to bolt it to the frame. The plaintiff bent down close to the machine and while in the act of lifting his end of the sprayer arm, a substantial section of the frame, which was about five feet above him, fell, struck his lower back and knocked him to the ground. As a result of the accident he sustained personal injury.
Mr. Carwood explained to the plaintiff how the section of frame had fallen on him. It appears that he (Carwood) had cut it from the frame by severing various steel members, removed it for repair and then had realigned it in its original position to await welding. It appears that the section of frame fell of its own volition and without warning.
It was conceded by counsel for Coilte that what Mr. Carwood had done was patently negligent and that the unwelded section of frame was a potential hazard for anyone working in its vicinity. The issues on liability concern the status of Mr. Carwood vis-Ã -vis Coilte and are twofold. Was the negligent fitter/welder a servant of Coilte or an independent contractor employed by it? If he was employed under a contract of service then, of course Coilte would be vicariously liable for his negligence and answerable to the plaintiff in damages. However, it was also argued on his behalf that even if it were held that Mr. Carwood was an independent contractor at the time of the accident who was working for Coilte under a contract for services, the employer would be liable to the plaintiff because it had failed to provide him with a safe system of work and safe place of workduties which it cannot delegate to a third party.
The status of Mr. Carwood vis-a -vis Coilte
In 1968, Mr. Carwood was an experienced fitter/welder. Coilte required the services of such a tradesman but had decided that the person engaged would not be employed on the same basis as its forestry workers, who had contracts of service which provided, inter alia, that they would receive a weekly wage, holiday pay and pensions on retirement.
They also worked subject to the direction and control of their superiors who instructed them what to do and, if necessary, how to do it.
The law
Having regard to the wide range of particular circumstances from case to case, it is not possible to devise any hard and fast rule as to what constitutes a servant and what constitutes an independent contractor. Each case must be considered on its own special facts in the light of the broad guidelines which caselaw provides. The predominant thread which runs through most of the authorities is that of control of the employee by the employer…….
…..
……
It seems to me that where an employer and full-time employee decide to structure their relationship in such a way that it is most cost-effective for both, but in so doing they do not interfere with the work aspect of an agreement which has the hallmark of a contract of service, it would be quite unreal and also unjust for a court to hold in such circumstances that the rights of an injured third party against the employer would be thereby fundamentally altered to such an extent as to render the employer free from vicarious liability which otherwise he would have had for the negligence of his employee. The court ought not to ignore the realities of the relationship, in particular the control exercisable by the employer over the employee and his work if unaffected by the financial aspects of the contract between them.
In my view the proper course is to examine the work aspect of the employment contract under review in all its facets and decide whether it is indicative of a contract of service or a contract for services. I am satisfied that the work aspect of the agreement which Mr. Carwood had with Coilte clearly indicates a contract of service and for that reason the employer is vicariously liable to the plaintiff for Mr. Carwood’s negligence.
There is another way of looking at the problem. It might be argued that if the financial aspects of Mr. Carwood’s contract with Coilte are held to establish that it is one for services and not of service, then the employer could not be held vicariously liable for his negligence, whatever the position may be as to Coilte’s right of control over his work. I do not regard that proposition as being well-founded in law. In terms of an employer’s vicarious liability to an injured third party arising out of the negligence of his (the former’s) employee, Mr. Carwood, it is irrelevant, in my view, whether the particular contract of full-time employment is one for services or of service, if the evidence establishes on the balance of probabilities that the employer’s right of control over the employee’s work would have been the same, whatever the nature of the contract of employment. In the light of such a finding it would be patently absurd if the plaintiff was held to have no cause of action against his employer, Coilte, in negligence merely because the financial aspects of the contract of employment between the employer and the wrongdoer indicated that it was one for services rather than of service. I am satisfied that if it is held, as I have done, that in practical terms the degree of control which was exercisable by Coilte over Mr. Carwood was the same as one would expect a master to have over a tradesman servant, then the employer is vicariously liable to the plaintiff for Mr. Carwood’s negligence, even if the relationship between the latter and Coilte is found to be that of independent contractor and employer.
In the light of the foregoing findings, it is unnecessary to address the second submission advanced on behalf of the plaintiff i.e. that Coilte is liable to him in negligence because it failed in its duty to provide him with a safe system of work and a safe working place.”
Daly v. Guinness Peat Aviation Ltd
[1998] IEHC 25
O’Donovan J.
delivered on the 13th day of February, 1998
“1. The Plaintiff in this case, Thomas Daly, is a forty-nine year old man who resides at Tullyglass, Court Lower, Shannon in the County Clare. He is a married man with three children; the youngest of whom is sixteen years of age and, at the time of the events which gave rise to this claim, was employed by the second named Defendant as their assistant security manager. He comes before the Court seeking damages by way of compensation for injuries allegedly suffered by him as a result of an incident in which he was involved on the 12th July, 1993 in the course of his said employment with the second named Defendant at certain premises, the property of the first named Defendant, situate at the Shannon Industrial Estate in the County of Clare. In this regard, the Plaintiff alleges that, while carrying out security duties in the course of his said employment with the second named Defendant in an office located on the said premises of the first named Defendant, he collided with a glass panel which was adjacent to the door of the said office as a result of which he suffered the injuries of which he complains. The Plaintiff purports to blame his employers and the first named Defendant for the said occurrence on the grounds that the glass panel with which he collided contained no markings or other manifestations whereby its presence beside the door to the said office was indicated and highlighted. He further complains that because the glazing in the said panel was not sufficiently thick and toughened, the injuries which he sustained were considerably more severe than they might otherwise have been. I heard evidence from Mr. Patrick O’Connell B.E., on behalf of the Plaintiff and
2. Mr. Anthony Brennan B.E., on behalf of the second and third named Defendants. Both engineers produced photographs of the glass panel with which the Plaintiff is alleged to have collided showing its propinquity to the door of the office in which the Plaintiff had been carrying out his security duties. Moreover, they established to my satisfaction that the said door was eighty-two inches high and thirty-three and a half inches wide whereas the panel was one hundred inches high and thirty-five and seven-eighth inches wide. Both engineers agreed that the relevant code of practice requires that glazing which is located close to a door in a business premises should be manifested and that, in the absence of such manifestation, the glass panel in question would be a hazard. they also agreed that relevant regulations require that the glazing in such a panel be toughened so as to reduce the risk of injury to any person who might come in contact with it. In this connection, Mr. O’Connell gave evidence, which I accept, that the glazing of the panel in question is not toughened, that it contained no safety characteristics and was, therefore, unsuitable for such a panel. For his part, Mr. Brennan said that the glazing in the said panel was six millimetres thick whereas relevant regulations dictated that it should have had a thickness of ten millimetres. It was common case that, at the time of the incident of which the Plaintiff complains, the glass panel in question was without any manifestation whatsoever.
3. That the Plaintiff collided with the glass panel in question, there can, in my view, be no doubt and I am equally satisfied that he did not do so deliberately. Clearly, he did so in the mistaken belief that he was passing through an opening and I have no doubt but that, had the glass panel been properly manifested, he would not have made that mistake. Moreover, while I accept that the glazing in the panel was of such thickness that it required considerable force to break it, which, in fact, the Plaintiff did when he came in contact with it so that he must have been moving at some speed, I am equally satisfied that, had that glazing been of the thickness required by the relevant regulations, it would not have broken and the injuries suffered by the Plaintiff would not have been anything like as severe as they actually were. In the foregoing circumstances, I have no doubt but that the first and second named Defendants were negligent for failing to ensure that the said panel was adequately manifested and toughened and that, as a result of that negligence, the Plaintiff suffered the injuries of which of he complains. On the other hand, I had evidence which satisfied me that the Plaintiff was very familiar with the layout of the office in question and, in particular, with the juxtaposition of the said glass panel and the door to the office. This familiarity arose from the fact that, during the previous two years and nine months, he had carried out security duties in the first named Defendant’s premises, including the office in question, on a daily basis. He would also have known that there were many similar glass panels with adjoining doors located throughout the premises. Given that familiarity, it was submitted on behalf of the Defence that the Plaintiff was largely, if not totally the author of his own misfortune, in that, irrespective of any manifestation, he knew well where the glass panel was located and it only required the minimum of care on his part to avoid colliding with it. Alternatively, it was suggested that there was a high degree of contributory negligence on his part. In this regard, Mr. Dalyprotested that he was not as familiar with that office as he was with other portions of the first named Defendant’s premises because, more often than not, that office was locked. However, I am inclined to accept that he would have been very familiar with the layout of that office. There was controversy as to whether or not, at the time that the Plaintiff collided with the glass panel, the door of the office was closed; Mr. Daly maintaining that, in fact, it was, having been blown shut by a draught through an open window in the office although he, himself, did not appreciate that fact as he was leaving the office. For their part, the Defendants argued that, in the light of the evidence of Mr. Brennan that as the door was somewhat stiff and not easy to close, it was extremely unlikely that it would have been blown shut by a draught and that, if it was not closed, there was even less excuse for the Plaintiff to collide with the glass panel. While I am inclined to think that, at the material time, the door of the office was closed, it seems to me that, for the purpose of determining liability in this case, it does not much matter whether or not it was closed. As I have already indicated, I am satisfied that the Plaintiff did not deliberately collide with the glass panel. He did so because he believed that he was passing through an opening and he was lured into that belief by the fact that there was no manifestation on that panel. Had it been appropriately manifested, it is my opinion that the Plaintiff would not have walked into it and that we would not be here today. The whole incident would have taken no more than a split second and, notwithstanding his familiarity with the first named Defendant’s premises, I can well understand that, when he went to leave the office in question, the Plaintiff was not thinking of glass panels but of leaving the office through what, in that split second, appeared to him to be the exit. I am firmly of the view that Mr. Daly would not have mistaken the glass panel for an exit had it been properly manifested and, therefore, not only do I not consider him to have been the author of his own misfortune, but I do not think that he was guilty of any culpable negligence whatsoever.
Behan v AIB Plc
[2009] IEHC 554,JUDGMENT of Mr Justice Roderick Murphy delivered 18th day of December, 2009.
1. Pleadings
By personal injury summons dated 15th July, 2008 the plaintiff, a bank official working with the defendant bank claimed that on or about 12th June, 2008, she was “caused to suffer and sustain severe personal injury, loss and damage when she was caused or permitted to fall from a chair upon which she was seated owing to the congested and cluttered nature of the area where she was required to work”.
In its defence dated 18th February, 2009 the defendant bank claimed that it was not liable for any injuries suffered by the plaintiff. The injuries did not arise from the negligence wrongdoing or breach of duty of the bank which had provided a safe place and system of work. The bank relied on statutory instrument no. 236 of 1989 and no. 44 of 1993 (in particular s. 14) in relation to safety, health and welfare at work. The bank also relied on s. 9 of the 1989 Act and s. 13 of the 2005, Safety Health and Welfare at Work Acts. The bank also gave notice that the plaintiff failed to mitigate her loss in accordance with the Civil Liability Act 1961.
The plaintiff had worked in the off-counter office of the bank. That office dealt with the checking of night safe bags or wallets and counting the contents thereof. The plaintiff was the senior official of that office. The money bags were placed in a basket on the floor between the plaintiff and two other bank employees. Access to the office for these bags or wallets was through a hatch. No one other than those employees and a porter had access to the off-counter area.
The personal injury summons particularised the act and the circumstances relating to the commission of the alleged negligence and breach of duty.
It was alleged that the off-counter area had been allowed to become and/or to remain congested, cluttered and in an unsafe and dangerous condition. The bank, it was claimed, failed to warn the plaintiff and others of the danger. In particular it was alleged that the bank caused, permitted or allowed the wheel of the plaintiff’s chair to become caught in a money bag and to overbalance thereby causing the plaintiff to fall.
As a result of the incident the plaintiff claimed that she suffered personal injury, loss and damage and, in addition, she was extremely shocked and distressed. She struck her right knee whilst falling. She had already suffered from early onset arthritis in the knee. The impact caused severe symptoms in the knee. She was diagnosed as suffering from soft tissue injuries and having a torn meniscus. She was prescribed anti-inflammatories and painkillers. She was unable to work. She underwent an arthroscopy for the removal of a loose body in her right knee.
The summons described the continuation of suffering and pain and stiffness and the significant debilitating effects of the same. She had difficulty standing, climbing stairs, sitting and walking; the latter which caused pain. As a result of the pain in her right knee she developed a habit of favouring the left knee which caused an exacerbation in her left knee and referred pain into her back. In addition she was caused to sprain her left ankle while trying to protect the right knee. She had sprained her back by jerking backwards when she felt she was losing her balance. Her mobility was extremely limited as a result of a broken toe in her left foot which injury occurred on or about February 2007.
The plaintiff’s affidavit of verification on 14th July, 2008 was in the standard form:
“2. The assertions, allegations and information contained in the said personal injury summons, which are within my own knowledge, are true. I honestly believe that the assertions, allegations and information contained in the said personal injury summons, which are not within my own knowledge, are true.”
The bank served a notice of particulars dated 29th August, 2008 asking inter alia as follows:
“37. Has the plaintiff ever had any illness, sickness, disease, handicap, surgical operation or medical complaint, physical or otherwise, either prior to or subsequent to the alleged incident referred to? If so … (the plaintiff was asked to give details under seven different headings).”
By reply dated 8th September, 2008 the plaintiff’s solicitor replied:
“37. None relevant to these proceedings.”
By defence dated 18th February, 2009, the defendant bank required proof of Mrs. Behan’s alleged duties, details of how she was caused to suffer or sustain severe personal injuries, loss or damage as alleged on 12th June, 2006, how she was caused or permitted to fall from the chair and how the area was congested or cluttered. The grounds upon which the bank says that they are not liable were that the plaintiff was provided with a safe place of work and a safe system of work and that if the plaintiff had personal injuries, the same did not arise from the alleged instances the subject matter of the proceedings. If she did so suffer this occurred as a consequence of her own negligence and breach of duty and that there was no wrongdoing, negligence, breach of duty or breach of statutory duty or breach of contract on the part of the bank.
The grounds upon which the bank claimed that the injuries were occasioned by the plaintiff’s own acts included her failure to report any concerns regarding the area being in any way unsafe; causing of her chair to be overbalanced, her failure to sit on the chair properly and that if the area were cluttered such was caused or contributed to by the plaintiff herself who failed to have regard for her experience, failed to exercise care, failed to have the area tidied, failed to comply with the safety legislation, was the author of her own misfortune and failed to mitigate her loss.
2. Evidence of the plaintiff
The plaintiff, born on 27th August, 1958, had worked with the Bank of Ireland, from 1970 to 2001 when she became redundant. She worked in the defendant bank in Westport from 2004. Her duties with the bank were known as off-counter duties which involved collecting night safes and taking them into her office to be opened and counted.
She showed photographs taken by her a year after the accident and gave evidence that the office was the same as before other than the presence of a basket in the centre of the floor.
She said that Mondays were always busy as was the Monday, 12th June, 2006 when the incident occurred. The content of the night safes, 80 to 100 bags, were distributed at 11.00 o’clock. She was working with another bank official and a student. There was no space on the desk so the bags were put on the floor. She said she was trained in that system but made some changes. The night safe wallets or bags were in a basket in the centre of the room.
She said that the photographs she had taken one year after the incident showed that all the clutter had gone.
On the day in question she was balancing one of the night safe contents. She said she was about to stand up to talk to the porter when one of the bags on the floor caught in the castor of her chair. As the chair propelled backwards she caught her right knee on the second drawer of the pedestal which was slightly open as the weight of its contents tended to pull the drawer out.
The right part of her knee hit the open drawer. There was no blood. She fell on her head, neck and shoulders and back.
She said that the off-counter workload fluctuated from time to time. There was low morale amongst staff. A third person was present in the off-counter office on Mondays and Fridays and on Wednesday afternoons.
She referred to a staff seminar in 2004 where she was one of a group to make a presentation. The staff levels were down. There was low morale. Staff were working in jobs they were not trained on. She said she was constantly giving out about staff.
There were night safe bags on the floor. She would then put them to the side and then on top of the second safe. The basket in the centre of the floor was equidistant from the desks. On occasions the basket overflowed with night safe bags. On two occasions bags were moved and the money sent back to the customer. The staff working there changed. She could not say who the staff were.
She described the injuries to her head and knee. She was brought upstairs to the tea room and given Panadol. She continued to work Monday 12th through Friday 16th June when she went on a holiday to West Cork and returned to work on 3rd July, 2006. The pain was so bad that her sight seeing was curtailed.
When she realised it was not getting any better she went to Dr. John Keane, her G.P., on 13th July, 2006 who gave her anti-inflammatory medication. An appointment was made with Mr. Ken Karr, Consultant Orthopaedic Surgeon on 26th September, 2006. The knee was extremely sore. Work was difficult. This was due to the bending and kneeling. She continued at work.
Mrs. Behan was asked if she had previous problems with her knee and she said that she had her left knee checked some years beforehand. She said her pre-existing arthritis had not caused the problem.
Then she described the treatment by Mr. Karr which involved X-rays and arthroscopy involving keyhole surgery. The surgery showed more than the X-ray. She needed a full knee replacement. She was two nights in hospital and then on crutches. She did not go back to work as, she said that the doctors had told her that she was not fit to go back. She said that Mr. Karr and Mr. Derek Bennett, Consultant Orthopaedic Surgeon of Castlebar whom she saw on 23rd July, 2008 advised her of a replacement of the right and later the left knee.
Her right knee was extremely painful. She was prescribed anti-inflammatory medication. Her walk was strained. Her left knee deteriorated as a result and her left ankle keeled over in January 2007 after the operation and developed a bruise.
She said that 30 years before she had been assaulted. There was a criminal case in 1990. Her nose was broken and fixed.
She had disc supplementation therapy with Dr. Gibbs who gave her injections of steroids. He was a rheumatologist.
She gave evidence of her earning capacity. She had full salary to 16th April 2007, then half salary and social welfare payments to October 2007.
The pension scheme had an income continuous plan.
She was paid two thirds of her salary up to October, being one third social welfare and one third income continuous. She has now only social welfare. The one third income continuous plan is being reviewed.
In cross-examination she was referred to her verifying affidavit and to her reply to in particular no. 37.
She said that she got over the assault in 1990 which had no effect on her working life. She was treated by Dr. Waldron and Dr. Siobhan Hoey for joint pain in her right elbow.
She denied that she had been dogged by bad health.
She said she had gone to see Dr. Marrinan, who was her husband’s doctor, for asthma. She did not say when. He had referred to her left knee pain. She said that it had healed.
She agreed that she had seen Dr. Chris Pigeon in 2003 regarding a trapped nerve where she had jerked her neck while starting the lawnmower which made her fingers numb. He had referred to a disc hernia at C5/6.
She had started work with the bank in 2004. In June 2004 she was prescribed Cortisoid for her left knee as a result of banging it off the counter at the bank. It did not involve her right knee.
She said that the staff survey in which she prepared a presentation when she became permanent related to getting more staff. She could not recall the names of the group she represented. She agreed that there was no reference to the off-counter office in that presentation.
She agreed that she had met Dr. Gibbs who had diagnosed her with Fibromyalgia.
She agreed that from March 2004 to December 2004 when she joined A.I.B. that she had 24 days sick leave; 22 to 26 days sick leave in 2005 and was four months off work in 2006 with laryngitis which was caused by the air conditioning at work.
She said she had complained about the air conditioning to Mrs. Kathleen Keane of the Human Resources department of the bank. She had a good relationship with her. She said that others suffered from sinusitis but she could not remember their names.
She came back to work in mid-May 2006 and referred to the social welfare certificate of 29th May, 2006.
She said the incident on 12th June, 2006 did not involve her falling off the chair. It was the chair which fell with her. She agreed that she was in charge of the cabinet drawer and the chair, which were under her control. She was the most senior member of staff in the off-counter area.
Then she said she did not think of moving the basket. She did not see the wallet on the floor before the fall. She had no idea why the wallet caused the chair to topple.
As a result there was weakness in the left knee following the injury to the right knee. She said she never had a fall of any significance before. She agreed that she had fallen in James’s Street in Westport in January 2007.
She was asked whether she had told Mrs. Kathleen Keane about falling off a bench in Clew Bay Hotel. She said she went to the ground on the grass. She fell on her back.
She said she started back after her holiday in West Cork on 3rd July, 2006. She agreed that on 13th July, 2006 she hit against the filing cabinet door outside the corridor of the off-counter office and gashed her left leg. The incident was reported and signed. She agreed that the incident of the 12th June was not signed by her. After the incident on 13th July, 2006 she went to see the doctor. She said she was not aware of arthritis.
She said she went back to work until October 2006.
She said that as a result of the incident on 12th June, 2006 her right knee was injured which caused her left knee and ankle to be affected. This resulted in a loss of income. The doctors had advised her that she could not work.
She said she made no application for any other job. She had not sought any work as she was unfit for work due to her knee.
In re-examination she was asked about her arthritis. She said that neither knee was symptomatic and that she was able to kneel. She was not on medication for asthma.
In relation to the incident on falling off a bench in Clew Bay Hotel she said that that occurred at 5pm on the Monday after she returned to work. She sat at the end of the bench.
3. The porter’s evidence
Mr. Richard Gavin was the bank porter. On 12th June, 2006 he had collected the contents of the night safes which mainly contained paper money and sometimes coins though customers were not supposed to put in coinage. The bags went into the off-counter office on the floor or were kept in the safe.
He said he did not know where he put the bags on that date. He had no recollection of being outside the hatch when the accident occurred.
He described the plaintiff’s desk as being six foot by three foot (less than 1000 x 5000mm) with loads of room as there was nothing on it except a totting machine.
On that Monday, 12th June, 2006 there were 40 to 50 of what he termed pouches and 20 to 30 plastic bags. He said there would not be pouches on the floor unless they were thrown on the floor. The plastic bags were in a bin bag.
In cross-examination he said he had no recollection of the incident. He said he would take the baskets out when asked. Mrs. Behan could ask him to put the baskets out. He did not remember her asking him to put the baskets anywhere other than on the floor.
4. Engineering evidence
The third witness was Dr. Mark Jordan, consultant forensic engineer who made a technical investigation on 23rd January, 2009 when he visited the off-counter area.
He described the desk as being 1600mm by 800mm. His evidence was that there was no room on the desk and that the basket was on the floor. He said that putting anything on the floor was against the regulations as it created a hazard. He described how a castor could become snagged.
He believed that the basket should have been on the trolley which could have been moved around. Fifty wallets would weigh 15 kilos. They would be a strain if you were lifting all of them. It was feasible that the wallet or coin bag could snag a castor. It would put a break on the castor and act as a chock. The person in the chair could topple the chair as the centre of gravity was on the top.
He described the room as being too small for three people. The recommended space was 8 to 12 metres squared with a standard of 9.4 metres squared. The order regulations, revoked in 1995 was 4.5 m2 per person.
He calculated the floor area of the off-counter office as being 12 metres squared. He said the space was too cluttered and was unsafe where material was placed on the floor.
In cross-examination he said he had no criticism of the chair nor of the drawer being opened and agreed that Mrs. Behan had been in charge of the drawer.
He believed it to be plausible that something on the floor acted as a chock on the chair castor. It was less likely that she was pushing herself back and lost balance.
Mrs. Behan had said that the chair stopped. But he agreed that she did not say to him what stopped the castor. He agreed that the chair was stable. He would expect workers to keep their place of work tidy.
It was put to him that the evidence of Mr. Gavin, the main porter, was that Mrs. Behan had asked for the basket to be left on the floor. He said there appeared to be no room on her desk but that the basket should not have been left on the floor. He agreed that employees had a general duty as to their own care. It was safer to put it on the desk or on a trolley.
He agreed that the plaintiff was the senior employee and that there was no evidence of her complaining about the position of the basket. Her report was confined to manning.
He said that the 4.5 metres square per employee would exclude the area taken up by the safe and filing cabinet.
He said he had excluded the outside of the office where the bank’s engineer, Mr. Mooney had included in his measurements, the office as 4.4 x 3.6m2.
Dr. Jordan believed that the plaintiff should have made a complaint. She was one of the people in charge of the wallets and had put the wallets into the basket. He agreed that he did not know that it was a wallet which stopped the chair.
In re-examination of Dr. Mark Jordan he disagreed that a trolley in the middle of the floor would constitute a hazard. He was concerned about trip hazards in circulation areas and not a trolley or desk.
5. Medical evidence
The fourth witness, Mr. Kenneth Karr, Consultant Surgeon, saw the plaintiff on 26th September, 2006 when she presented with a pain in her right knee. She also had some pain on the left but not as severe. The accident that she sustained was a fall from a sitting height of a chair at work in June. She told Mr. Karr that she had a very similar event in July of that year also.
She complained of knee pain on the right hand side and also on the left to a lesser degree. There was also some pain around the right hip at times and over the sacroiliac joint and the posterior aspect of her pelvis. There was some right wrist pain, chest wall pain and ankle pains also.
She did have some background pain in her knees of an aching nature but it was very much aggravated by the injuries at work, she said.
This report dated 24th April, 2008 referred to his clinical evaluation and radiographs which suggested a diagnosis of osteoarthritis developing particularly in the right knee. His working diagnosis was that she had perhaps developed a degenerative miniscule tear that would require surgical treatment. She underwent this surgery during 16th October, 2006. He performed a right knee arthroscopy and partial lateral meniscectomy and removal of a loose body. She recovered well. The effusion following her surgery had largely settled on the 28th November and her range of movements was quite good and full extension was possible. She was referred to physiotherapy. Her prognosis was good. There was in all likelihood going to be a progression of her arthritis in due course and consideration might well have to be given in latter years to total knee arthroplasty.
A follow up report was made on 8th September, 2009 where Mr. Karr said that Mrs. Behan continued to have significant problems with the right knee. She had seen numerous doctors for evaluation as regards this problem including Dr. Adrian Gibbs, Consultant Rheumatologist. He understood she had obtained benefit from interarticular injections that Dr. Gibbs administered. She had also seen several orthopaedic surgeons including surgeons in Dublin.
The ongoing symptoms were those of pain aggravated by activity. She had a swelling in the posterior aspect of her knee in keeping with a Baker’s cyst which was intermittently severe and painful. It interfered with her ability to flex her knee which was stiff with crepitus. She had developed some problems with recurrent pain and instability in her left ankle and was wearing a support. She needed to employ home help with regard to cleaning and her sleep was broken. She felt that her knee had deteriorated in the past year with increasing severity of symptoms. On examination Mr. Karr said there was no obvious effusion in either knee but that there was synovitis particularly in the right. There was a loss of full extension, particularly on the right by about three to four degrees and flexion was approximately 90 degrees. There was a slightly better range of motion on the left. There was no instability but he referred to the Baker’s cyst. There was some tenderness on palpitating the joints, the joint line medially and laterally. Patello femoral compression was also painful. Radiographs showed the established degenerative changes in all three compartments suggesting some progression of the degenerative changes.
His impression was that Mrs. Behan had sustained a closed injury in her right knee which most likely aggravated the pre-existing osteoarthritic condition which resulted in the need for an interventional form of surgery. Her overall condition had slightly deteriorated.
The prognosis remained guarded. There was likelihood that Mrs. Behan would need to consider total knee arthroplasty in the future. She would have symptoms as pertained at present prior to any such surgery. If she had also had de-replacement surgery the quantum survivorship of that knee may mean that she may need to consider revision surgery in later years.
In evidence before the Court he said there was limited benefit from surgery. The symptoms had now become more chronic. There was a balance between pain and replacement. While it was difficult to say, he believed that the left knee could reasonably be affected by the right. She had difficulty with sitting at work and it was reasonable for her to feel she was unfit for work.
In cross-examination he said he had seen her some three months after the incident. She may have told him that she was out on sick leave because of laryngitis for four months before the accident.
He said that both knees would trouble her eventually. She had told him about two falls from a height but could not say if that contributed. She hit her left leg after her holiday.
He said that Dr. Gibbs had diagnosed fibromyalgia which was a catch-all syndrome with multiple joint aches and pains but with no specific pathology.
The osteoarthritis had nothing to do with the fall but could exacerbate any injuries. At this stage she had chronic arthritis.
He was asked whether she was able to work. Mr. Karr said the sole reason for her not going back to work related to her knee in the main. It related to symptoms especially chronic symptoms. He was not saying that she could never work unless the symptoms were related to work.
He explained that osteoarthritis develops very slowly. The right knee was more severe than the left. He had never treated her for anything else.
He said he relied on what patients tell him regarding symptoms. There were no letters from other consultants. He was aware of other complaints.
He said that if there was no replacement then there would be treatment for pain relief, anti-inflammatory exercise and physiotherapy.
6. Dr. Bennett’s evidence
The fifth witness, Dr. Derek Bennett, submitted a report on 25th July, 2008, two days after examining Mrs. Behan. This was over two years after the incident.
He noted that she was currently not at work, was 5ft, 6 ins., weighed 18 stone and was right hand dominant.
He gave brief details of the accident as recounted by Mrs. Behan in relation to the injury to her right knee, and also pain in her neck, back and both shoulders. She was able to continue with her duties at work. He found soft tissue injuries to her cervical lumbar spine, both shoulders and in particular, an injury to her right knee.
He also noted that she had been absent from work from 16th October, 2006 to the present. He also noted the arthroscopy carried out by Mr. Ken Karr and her treatment and medication.
Her present complaints were severe pain in her right knee, medial aspect. The pain in her left knee was to a lesser extent. There had been substantial recovery of her neck, back and shoulders pain within a few months of the date of the accident.
He found severe swelling of the right knee, moderate to the left knee and range of motion as zero to 90 degrees right knee. There was palpable swelling on the posterior aspect of her right knee, joint line tenderness, particularly in the medial aspect of her right knee. All ligaments felt intact.
Her degree of disablement was severe in terms of lifting, carrying, bending, kneeling and squatting. It was normal for sitting and moderate for standing, climbing stairs and walking.
His anticipated treatment in the future was that Mrs. Behan would undoubtedly require a knee replacement in the not too distant future.
He believed the injuries were consistent with the accident and that no further investigations were required. A full recovery was not expected. No late complications were expected and no further specialist reports were expected.
His general comments were that Mrs. Behan had an impact to her right knee which had undoubtedly unmasked symptoms of what were pre-existing asymptomatic mild arthritis. Since that injury, her pain and arthritis had progressed. She had almost complete loss of joint space in the medial aspect of her right knee.
By supplementary medical report on 11th February, 2009, Mr. Bennett said that the hip X-rays were normal but X-rays of her knees which were weight-bearing showed moderate loss of joint space in the medial compartments of both knees, particularly the right one. There was also spurring of her tibial spine on both sides, more pronounced on the right. These findings indicate that she was starting to develop arthritis within three months of the accident. It was most probable that the development of arthritis preceded her injury, although her symptoms had been unmasked by the injury.
His final report of 11th September, 2009, related that her knees were progressively getting more and more painful: worse in the right knee in the medial aspect but also quite severe in the left knee medial aspect. Both were progressively worsening. Walking range was approximately 200 metres, with pain. She had seen Dr. Adrian Gibbs, Rheumatologist and had bilateral steroid injections in both knees which had given some benefit. He described her medication for pain relief and anti-inflammatory treatment. Prolonged standing or sitting aggravated her low back pain which he rated at approximately six out of ten. There was bilateral knee swelling with a restricted range of motion in both knees: left knee flexes from 0 to 120 degrees, while right knee flexes from 5 to 110 degrees. There was palpable crepitus in both knees with a restricted range of motion in the lumbar spine with later flexion of only 15 degrees in both sides. Forward flexion brought her fingertips to her knees only. There was no neurological deficit in either lower limb. Her gait was normal.
He repeated his opinion and prognosis that she had sustained a soft tissue injury to her right knee superimposed on an earlier pre-existing degenerative change which had accelerated and made her now quite symptomatic with her knees. Viscosupplementation therapy had given her some temporary relief as had the steroid injections from her rheumatologist. She was advised to put off total knee replacement which she would need, for as long as possible. There was some discomfort in her back which was severe and constant and required painkillers.
In cross-examination he agreed that X-rays on 26th September, 2006 indicated pre-existing arthritis to both knees. He said he did not think there was a referral from the right to the left knee. In due course knee replacement would be necessary for both knees. She had not asked for knee replacement.
He said that medical insurance would cover knee replacement as she had pre-existing arthritis.
He said he had not told her not to go to work.
7. The defendant’s evidence
The sixth witness, Mrs. Kathleen Keane, had worked with the bank in Westport since 1979 and was with the Human Resources department of the bank from November, 2004.
She referred to the plaintiff’s contract which commenced on 15th March, 2004. Six months later in September she was made permanent. In that year she was 24 days on sick leave. Twenty three of those days were from September onwards.
On the following year she had 26 days sick leave up to the end of 2005. Her annual leave was 22 days.
She was absent for 90 days from 9th January, 2006 to 18th May, 2006. She worked from that date to 19th June, 2006 when she took holidays until 30th June, 2006.
She was sick on 25th August and on 19th and 20th of September. She was on holiday from 9th to 13th October and on sick leave from 16th October 2006 to date.
Mrs. Keane said that the plaintiff made no complaints other than a complaint regarding air conditioning. The bank had a specialist check the system when she made the complaint in addition to the routine annual check. Both showed that the system functioned correctly.
Mrs. Keane said that Mrs. Behan worked in an off-counter office dealing with large lodgements and with night safe lodgments. It was a secure room. Other staff could not walk in and out of it. Most of the time there was one person present and during the summer two persons. On a few occasions there were three people there.
Each one worked in an area organising their work. They had access to the manager or to herself. She referred to the 2004 Staff Survey Report which she had seen before. She did not give directions as to where the basket was put. She was not aware of the practice. Mrs. Behan was in charge and was responsible for the cabinet and the drawers.
She said she did remember the incident and filled in a safety and injury report on 12th June, 2006, the day of the incident. The cause of the incident was given as “fall”. The outline explanation of the incident was as follows:
“Turning around on chair to open safe, coin bag caught in castors, fell off chair just between the two safes. Hurt her knee and got a shock”
The nature of the injury/damage was indicated as shock and the affected part of the body was leg/knee.
The report form indicated that following the incident the injured person resumed work. The witnesses were indicated as Maria McMahon and Kathleen Flynn, both bank officials. Mrs. Keane indicated that she checked out the area, “a lot of stuff on floor, coin bags, etc. Looked at ways of clearing some of it. Mary is O.K. Knee a bit sore but luckily not bruised”. Mrs. Keane signed a report and the managers also signed it and dated it 12th June, 2006.
Mrs. Keane said that the place was untidy. Her recollection was that Mrs. Behan had dealt with the coin bag.
She said she would have asked Mrs. Behan how she was before she went on holidays and remembered her telling her about the Clew Bay Hotel incident where she was having lunch in the garden and fell off a bench. She also remembered an incident on 13th July, 2006 at 12.30pm where Mrs. Behan got a big gash, maybe two inches, on her leg. She worked the following day. That incident was also recorded in a safety and health incident report form as occurring in the open plan office with the filing cabinet and drawer.
“Mary caught her leg above ankle causing long cut and bruising.”
She said that Mrs. Behan left work on 16th October, 2006 and submitted sick certificates referring to her knee.
She gave an indication of the full income paid for six months and half pay and social welfare thereafter.
She said that if furniture needed to be moved one would ask the porter. If the basket would require to be moved then the porter would do so. There is a similar role today regarding the baskets.
Under cross-examination she said that there were 23 or 24 people working in the branch. There were three people who had been capable of working in the off-counter office. The system was already in operation and furniture and cabinets had been arranged by the bank.
She said that the tidiness of the office depended on who was in the office at the time. When the basket was used it was usually on the floor as it was still too empty.
She said that the loose coinage should be in the cabinet by the hatch. She had never seen the basket overflowing.
She said that after the incident nobody at the bank asked her to do anything. She said she did a tidy up. She picked up stuff which should not have been there. She was never told that the office was untidy. It was a closed room. Others were not allowed in. Mrs. Behan was responsible for keeping it tidy.
Mrs. Behan had complained of lack of staff but there was hardly ever three people in that office as there was on the busy Monday. There was an extra person there.
She said that it was reasonable to have a trolley.
She said that Mrs. Behan came back one year after the accident while she was on sick leave and brought a camera into the off-counter office which was in breach of security.
She agreed that different people worked in different ways. She would have asked the person in charge to tidy up.
8. Defendant’s engineer
he seventh witness Mr. John Mooney, Engineer, undertook an inspection on 23rd January, 2009 with Dr. Jordan and Bridget Meehan, the deputy manager. They agreed that Mrs. Behan had given a good description of the office.
His measurements were 155 x 149 square metres giving just short of 15 square metres net. The regulations did not require any deduction for counter. The top of the safe was also usable.
The room was comfortably laid out for two people. There was reasonable space for three. The surface of Mrs. Behan’s desk measured fourteen square feet.
There is an obligation on employees to take reasonable care for their own safety. He said that when he inspected the room the desk was cleared for security reasons.
The floor area around the desk was also the employees responsibility and the other areas the responsibility of the person in charge.
He had no problem with the chair.
He distinguished between the small coin plastic bag, the larger bags which were less likely to chock the chair and the basket which was not likely to cause any breaking effect.
He said he had not seen the drawer for coin bags.
He noted that Mrs. Behan had said she was unsure what caused the chair to overturn.
In cross-examination he said he was unaware of Kathleen Keane’s evidence. He agreed with Mrs. Behan and Mrs. Keane’s evidence of the canvas coin bags being caught in the castors.
The desk was full, it was a busy office. The basket did not cause the accident. He said there were three chairs in the room. He referred to the office regulations of 1958 and 1963 which indicated that the space allowed for every person was 50ft floor space. He had measured the usable floor space and found it reasonable. His evidence was that 3.7 metres squared was the minimum while 4.2 square metres was standard space per person.
He did not agree that the basket was a hazard. If the basket had overflowed the porter should have been asked to remove it.
9. Civil liability and Courts Act 2004
An application was made by the defendant to dismiss the plaintiffs claim pursuant to s. 26 of the Civil Liability and Courts Act 2004 which provides as follows:
“(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 s. 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.
(4) This section applies to personal injuries actions –
(a) brought on or after the commencement of this section, and
(b) pending on the date of such commencement.”
10. Case law
In Carmello v. Casey [2008] I.R. 524 the plaintiff suffered personal injuries as a result of a road traffic accident in October, 2002 and issued proceedings against the defendants. Liability was conceded and the case proceeded as an assessment of damages only. At the hearing, the defendants contended that facial numbness, which the plaintiff alleged was attributable to the accident, was actually caused by a subsequent accident in May, 2003. The defendants’ solicitors became aware of this incident as a result of other litigation involving the plaintiff in which they were also involved. The incident was not disclosed in the plaintiff’s replies to particulars. Under cross-examination the plaintiff stated that he could not recall any such subsequent incident and maintained that his facial numbness was caused by the road traffic accident.
No complaint of facial numbness was made in the particulars of injuries in the statement of claim, nor in a report of the plaintiff’s general practitioner nor in the notes of the treating doctor at the hospital which the plaintiff attended. The first complaint of facial numbness by the plaintiff was in a medical report prepared in September, 2003, after the subsequent accident. The particulars of injury further stated that the plaintiff suffered a broken nose, which was in contradiction to a medical report which was to hand prior to delivery of the statement of claim.
The plaintiff swore an affidavit of verification of the particulars in the statement of claim and in the replied to particulars. The defendants alleged that the plaintiff, in his evidence and in the manner in which he instructed his solicitors and by swearing an affidavit verifying the particulars of his injuries, had deliberately given false and misleading evidence to exaggerate his claim and asked the court to dismiss the plaintiff’s claim under s. 26 of the Act of 2004.
It was held by the High Court (Peart J.), in dismissing the plaintiff’s claim,
“1. That the question for the court, under s. 26 of the Civil Liability and Courts Act 2004, was whether on the balance of probability the court could be satisfied that in relation to his evidence and/or his verifying affidavit, the plaintiff had knowingly given false and or misleading evidence in a material respect. The section was mandatory in its terms once the court was satisfied on the balance of probability, unless to dismiss the action would result in injustice. The court first had to look to the plaintiff’s evidence and then at all the surrounding circumstances, including what was contained in the pleadings, the replies to particulars and the medical reports and arrive at a conclusion as to the truthfulness of the plaintiff on the balance of probability.
2. That, on the balance of probability, the plaintiff was deliberately untruthful in his pleadings, evidence and affidavit of verification in an effort to obtain an award of damages to which he was not entitled from the defendants. He knowingly gave false and misleading evidence contrary to s. 26(1) of the Act of 2004 in relation to questions about his injuries, which was a material respect within the meaning of s. 26 and also swore a verifying affidavit of the assertion of facts contained in the statement of claim and the replies to particulars, knowing that some of what was contained therein in relation to his injuries was false and misleading, contrary to s. 26 (2) of the Act of 2004.
3. That s. 26 of the Act of 2004 was introduced by the Oireachtas for the very clear purpose of avoiding injustice to, inter alia, defendants against whom false or exaggerated claims were mounted. Such actions were also an abuse of court and it had always been a very serious criminal offence to knowingly give false evidence under oath. Proof of such offence was beyond a reasonable doubt, but under s. 26 the court made its findings on the balance of probability.
Peart J. held at 538 that the contrary evidence between the pleadings and the medical reports in that case weighed heavily against the plaintiff’s overall credibility, quite apart from constituting another possible factor in the consideration of s. 26 of the Act of 2004. The plaintiff in that case had categorically stated that he was never at any time involved in any incident. He had set out to attribute a later injury to his face to the accident the subject of the proceedings (at 539).
11. Submissions of counsel
Counsel for the defendant referred in particular to the replies to particulars and, in particular to the reply to number 37 referred to above. He also referred to the claim for special damages on the basis of loss of earnings and to the plaintiff’s affidavit of verification of the 14th July, 2008. Counsel submitted that the claim was misleading in that the plaintiff answered effectively that she had no illness, sickness, disease, handicap, surgical operation or medical complaint, physical or otherwise relevant to these proceedings, either prior to or subsequent to the alleged incident. It was submitted that the evidence showed that there had been relevant injuries and relevant treatment, some of which were dealt with by the plaintiff herself in examination in chief, and others in reply to questions put to her in cross-examination.
Moreover, counsel submitted that the evidence of Mrs. Kathleen Keane regarding the extent of sick leave taken by the plaintiff related, in part, to illnesses and to treatments which were relevant to the incident the subject of these proceedings.
Counsel for the plaintiff, in reply, submitted that the burden of proof was on the defendant to show “an intention to mislead”. The plaintiff had referred in her evidence to pre-existing problems. She believed that her other knee had been affected. Mr. Karr supported her belief. She did not say that she could not work.
12. Decision of the Court
The plaintiff in the s. 3 personal injury pleaded that she was caused to suffer and sustain severe personal injury, loss and damage when she was caused or permitted to fall from a chair upon which she was seated owing to the congested and cluttered nature of the area where she was required to work.
In her evidence she said that the incident did not involve her falling off the chair. It was the chair which fell with her. The defendant in its defence alleged that she caused her chair to be overbalanced and failed to sit properly on the chair. They also plead that she allowed bags to be on the floor. When she took photographs of the off-counter office a year later she told the Court that the office was free from clutter.
She agreed that she was in charge of the office. This was the evidence of Mrs. Keane. Both engineers agreed that employees had a duty in this regard.
The plaintiff said that the pre-existing arthritis had not caused the problem. She said when cross-examined that she was not aware of earlier arthritis.
She explained in her direct evidence that she was “about to stand up to talk to the porter when one of the bags on the floor caught in the castor of the chair”.
Dr. Jordan, the engineer called on her behalf, in cross-examination agreed that Mrs. Behan had not said to him what stopped the chair.
Mr. Mooney, the engineer called on behalf of the bank said that while Mrs. Behan was unsure what caused the chair to overturn he agreed with her and Mrs. Keane’s evidence that it was a canvas coin bag.
It was clear to the Court that there were, indeed, a number of injuries and treatments which were relevant and which the plaintiff disclosed in examination and others under cross-examination but not in her reply to particulars.
The plaintiff did not disclose her pre-existing arthritis which she said she was unaware of but was noted by Mr. Karr. The Court finds that it was probable that she would have known of pre-existing arthritis.
She had not given evidence that she had supplementation therapy with a rheumatologist, Dr. Gibbs.
The reference by Dr. Marrinan to her left knee was explained by it having been healed. The reference in 2003 by Dr. Chris Pigeon to a trapped nerve in the neck may not have been relevant but Dr. Pigeon referred to a disc hernia a C5/6 at that time which came within particular number 37.
In June 2004, the plaintiff had been prescribed cortisoid for her left knee. She said it did not involve her right knee. Yet she claimed that her left knee was compromised after the injury to the right.
Subsequent to the incident she had fallen in the Clew Bay Hotel and, indeed, had told Mrs. Keane of that on the Monday after she returned to work from her holiday when she had fallen from a bench.
There was a reference later in 2007 to a fall in James’s Street.
Significantly on 13th July, 2006 she agreed that she had hit against a filing cabinet outside the corridor of the off-counter office and gashed her leg. This was the subject of a report of that date made by Mrs. Keane.
It would appear that she first visited her G.P. in relation to the incident on that day which was a month after the incident complained about. No evidence was given or reference made to notes of this visit.
Mr. Karr said that he relied on what patients told him. He had referred to his notes which stated that the plaintiff had presented with pain in the right hand side knee and to a lesser degree on the left hand side knee resulting from a fall from a sitting height from a chair at work. She had, according to his notes, referred to a similar event in July. In cross-examination he said there were two falls but could not say if the second contributed to the first. Mr. Karr found, in his report of 24th April, 2008, that the plaintiff had background pain in her knees which was much aggravated by the injury at work.
The similar event and the background pain were relevant and should have been referred to in her reply to particular 37.
The Court is also concerned regarding the direct evidence given by the plaintiff that the doctors had told her that she was not fit to go back to work. In cross-examination she said that the doctors had advised her that she could not work. She agreed she made no application for any other job as she was unfit to work because of her knee.
Mr. Karr did not say that she could never work. In his first report of 24th April, 2008 her progress was good. In the second, of 8th September, 2009 his prognosis was guarded. The sole reason for not going back to work related to the chronic symptoms to her knee in the main.
Mr. Bennett said that he had not told her not to go to work.
The Court is not satisfied with the evidence of the plaintiff that the doctors had advised her that she could not work.
The concern of the Court with regard to the failure to answer particular number 37 and the discrepancy in her evidence in relation to previous medical history leads the Court to examine the merits of the application made by counsel on behalf of the defendant.
The preliminary issue is whether s. 26 of the Civil Liability and Courts Act 2004 applies.
The Court is satisfied that Mrs. Behan did not give evidence that she knew to be false or misleading pursuant to subsection 1 of that section. In this regard it is clear that the reasoning in Carmello v. Casey [2008] I.R. 524 was determined on facts entirely different to the facts in this case.
There were no grounds for determining that she dishonestly caused to be given or adduced false or misleading evidence.
Subsection 2 of that section refers to false or misleading affidavits. While the Court does find the reply to a particular number 37 to be incomplete and, to that extent, to be misleading, the Court is not satisfied that Mrs. Behan knew that her reply was false or misleading when swearing the affidavit. The subsection does not provide that she ought to have known. As with all affidavits, an affidavit of verification under s. 14 must be full and frank. It is significant that, as stated by Peart J. in Carmello, that s. 26 requires proof on the balance of probability rather than of being beyond a reasonable doubt.
The Court may, however, have regard to the non-disclosure of relevant illnesses and treatments as affecting the plaintiff’s credibility.
Chapter 18 of McMahon and Binchy, Irish Law of Torts, 3rd Ed., outlines the duty of care of employers towards their employees. The employer is liable to provide competent staff, safe equipment and a safe place and system of work.
Where there is an injury at work the plaintiff must prove that such injuries were caused by the employer’s negligence. The negligence pleaded in the present case would appear to relate to place and system of work. It is common case that the chair from which Mrs. Behan fell was not in issue in the proceedings.
Mrs. Behan claimed, inter alia, that there was failure to comply with the provisions of the Occupiers’ Liability Act 1995 and that the premises were dangerous and that the bank did not warn her of such danger.
While there was some disagreement with regard to the requirements of space for three employees, the evidence was that only exceptionally were three employees present and, in any event, that the size of the premises, the off-counter secure room, was adequate. Even if there were differences it would not appear to this Court that the evidence sustained that the size of the room contributed to the incident.
The statement of claim referred to the area being free from obstructions and from danger.
It is common case that Mrs. Behan was the senior bank official in that room. She said that the system of placing bags in a basket in the centre of the floor pre-dated her being in that room. She had never complained of bags being on the floor notwithstanding her comprehensive memorandum of the system of work requiring more qualified persons to work in the area.
She had available to her the porter, Mr. Gavin, who gave evidence of his willingness to remove the baskets when full if required to do so.
I am satisfied from the evidence of Mrs. Kathleen Keane from the Human Resources department of the bank that everyone working in an area were required to organise their area. Mrs. Keane referred to the 2004 staff survey report and the contribution thereto by Mrs. Behan.
She said she did not give directions as to where the basket was to be put, nor was aware of the practice.
The Court is satisfied that it was the responsibility of Mrs. Behan to keep the area free from obstructions.
In Ahern v. Sharlocks (Cork) Ltd. reported in DPIJ: Hilary Easter Term [1992] at p. 73, the plaintiff fell over a palette that had been prematurely placed by a colleague in an area where he was working, in breach of the Employer’s Safety Regulations. Murphy J. reduced the plaintiff’s damage by 50% on account of his contributory negligence. It was the responsibility of the plaintiff and his colleagues to see that the area was properly maintained and every worker was “bound to have some regard for his own safety”.
In the present case, however, it was, on the balance of probabilities, the plaintiff’s canvas money bag which she was dealing with was on the floor. She was in charge of her own area of work where her chair was positioned.
The best evidence would appear to be that of the accident report filled in by Mrs. Kathleen Keane who had spoken to the plaintiff after the incident occurred. That report contained an outline explanation of the incident as follows:
“Turning around on chair to open safe, coin bag caught in castors, fell off chair just between the two safes. Hurt her knee and got a shock.”
Mrs. Keane indicated that she checked out the area and saw “a lot of stuff on the floor, coin bags, etc”.
The plaintiff was in charge. There was no evidence that that basket was full or overflowing or that it contributed in any way to bags being on the floor. Significantly the plaintiffs own evidence when she took the photographs a year later was that the floor was clear. Mrs. Keane said that the same system of work had continued.
In the circumstance the plaintiff must bear responsibility for the incident. The Court finds no evidence of negligence, breach of duty or breach of statutory duty on the part of the defendant.
It is significant that Mrs. Behan did not seek medical assistance until the 13th July, 2006 when she hit her left leg on an open filing cabinet door. According to the medical report of Mr. Derek Bennett of 25th July, 2008 she had seen a Dr. John Keane, G.P.. Dr. Keane did not give evidence.
The evidence shows that there had been other incidents where injury was caused which were not disclosed to Mr. Bennett or to Mr. Karr (other than the similar incident a month later).
This made it difficult for the medical specialist to isolate the injury caused by the fall on 12th June, 2006 to be isolated from the other incidents which were not disclosed in the pleadings.
For this reason I would dismiss the plaintiff’s claim.
Reilly v Devereux [2009] IESC 22,JUDGMENT of Mr. Justice Kearns delivered on the 24th day of March, 2009
This is an appeal brought on behalf of the plaintiff whose claim for damages for personal injuries was dismissed in the High Court (Johnson P.) on 30th July, 2007. In the proceedings the plaintiff, who had been employed as a member of the Defence Forces from November, 1985 until November, 1997, complained that he had been sexually assaulted on divers occasions during the course of his employment by the first named defendant who was a Sergeant Major in the Army and the plaintiff’s superior officer. The plaintiff was born on 14th April, 1966 and is a married man with a family. He was nineteen years of age when he joined the Army, a keen athlete and an accomplished boxer. The sexual abuse which occurred in the office of the first named defendant in McKee Barracks commenced in or around 1989 and continued until 1995. The abuse usually involved handling of the plaintiff’s genitals and the rubbing by the first named defendant of his private parts against the plaintiff’s body. On other occasions the plaintiff contended that the first named defendant grabbed the plaintiff’s hands and forced them down into the first named defendant’s private parts.
The plaintiff contends that as a result of these incidents he felt dirty, ashamed and guilty partly because he did not have the courage to go to his superiors and report the matter and partly because he felt they would take the denial of a senior non-commissioned officer over any claim from a mere gunner. Accordingly, when the plaintiff’s contract expired in November, 1997, he left the army. Thereafter he started drinking heavily, his marriage broke up and he developed post-traumatic stress disorder.
The whole story of the plaintiff’s experience emerged only in 1998 when the plaintiff met another soldier on the street who advised the plaintiff that he was aware of another similar incident involving the first named defendant and another soldier. Thereafter the gardai were notified and criminal proceedings were brought against the first named defendant. In so far as the plaintiff’s claim against the first named defendant is concerned, some compensation arrangement has been arrived at between the parties and it is not an issue in this appeal.
The plaintiff commenced his proceedings by plenary summons on 15th June, 2001. While the Statute of Limitations was raised by way of defence on behalf of the various defendants, Johnson P. determined that the psychological injury suffered by the plaintiff was such as to substantially impair his ability to make a reasoned decision to bring the action and thus determined that the plea under the Statute failed. No cross-appeal in respect of this finding has been raised by or on behalf of the defendants in this appeal.
Having determined that the said assaults did take place and that the plaintiff suffered post-traumatic stress disorder as a consequence of those assaults, the learned High Court judge had thus to determine:-
(a) Whether or not the second, third and fourth named defendants were vicariously liable for the assaults perpetrated by the first named defendant.
(b) Alternatively, were those defendants on notice that such assaults were taking place on the plaintiff having regard to the evidence of general chat, rumour and gossip about the first named
defendant’s activities, which it was suggested, were prevalent in the barrack room and the camp.
Having conducted a careful review of the relevant legal authorities, Johnson P. concluded as follows in relation to the issue of vicarious liability at p. 9 of his judgment:-
“All of the above cases were cases which related to young and vulnerable children, which is not the situation in this case. The plaintiff was a married soldier at the time of the first incident and I do not think that the same principles that were applied in the cases of wardens of boarding schools and/or orphanages can be applied to the Army. I have come to this conclusion after a good deal of consideration and some doubt. The doubt was created particularly by the fact of the control which the first named defendant had over the plaintiff, but overall I feel that the balance in this particular case lies against vicarious liability.”
In relation to the claim of negligence, the learned trial judge noted that the evidence tendered in relation to the ongoing rumours, chat and gossip within army circles had been denied by all of the defendants’ witnesses. Whilst noting the distinction in rank between the plaintiff’s witnesses and those called on behalf of the defendants, the learned trial judge nonetheless concluded that all of the witnesses appeared to him to be attempting to tell the truth. He thus concluded that while there may have been banter, possibly name calling and general slagging, none of it was or should have been taken seriously given that any of the men, the N.C.O.’s or indeed any other officers who may have heard it may well have considered it to be nothing more than banter of a humorous nature. It is of importance to note in the context of the findings made by the learned trial judge that the plaintiff himself brought forward no complaint whatsoever in relation to the matters complained of. The learned trial judge indicated that he was satisfied that had the Officer Corps any real apprehension as to the behaviour of the first named defendant, they would have given notice of such apprehension through one of the routes laid down in the Army Code. He thus concluded that the level and nature of any remarks which were described to have occurred either in the mess room, the bar or the canteen were not such as would have alerted a reasonable person to take steps to either enquire into or prevent the activities of the first named defendant.
Because it assumed a particular significance in the submissions made on behalf of the plaintiff during the course of the appeal, I am including a further citation from the judgment of the learned trial judge in which he stated at p.10 of his judgment:-
“It is necessary to look at the incidents and at the evidence in light of the times as they then were. These events took place in the 1980’s and early 1990’s, at a time when the antennae of the ordinary reasonable person were far less acute to the potentials for sexual abuse or sexual assault than they are today. We must remember that, for the last ten years, the country has been subject to continual reports of sexual exploitation, sexual abuse and sexual assaults, all of which have tended to make the population a great deal more sensitive to matters which twenty years ago would not have drawn any attention whatsoever.”
In the course of this appeal, counsel on behalf of the plaintiff has suggested that this characterisation of the period in question is so inaccurate as to render unsafe the primary findings of fact made by the learned trial judge and has further contended that his findings in relation to the primary facts as a whole are not reasonably based having regard to the evidence which was led at the trial. I propose to deal with the two issues raised at trial in reverse order because the preponderance of the evidence at trial was in relation to the issue of negligence.
THE CASE IN NEGLIGENCE
It is undeniable that there was a significant body of evidence supporting the plaintiff’s claim to the effect that the proclivities of the first named defendant were well known in Army circles. The plaintiff himself gave evidence that he was slagged on a regular basis as being the first named defendant’s “bum boy”. Sergeant Thomas Forrester gave evidence that he and other fellow soldiers heard about the first named defendant’s proclivities from soldiers in Kildare where the first named respondent had previously been based. There was evidence that the N.C.O. s knew about it. Corporal Colin Smart gave evidence that there were rumours rampant amongst the soldiers in Magee Barracks in Kildare in 1986 that the first named defendant had a relationship with a gunner there. Corporal Jason Buckley gave evidence that he was informed by senior gunners that the first named defendant was a ‘queer’ and not to be left alone with, that he tended to take advantage. He admitted that he had been one of those who joined in with the general slagging of the plaintiff as the “plaything” of the first named defendant. Gunner Colin Phillips, who joined the Defence Forces in March, 1997, gave evidence that there was information all over McKee Barracks that the first named defendant was taking advantage of a certain gunner. Evidence was also given that there was a rumour in circulation that while in the Lebanon, the first named defendant had sexually assaulted a Finnish private and that this matter was discussed in the canteen amongst privates and N.C.O. s.
Equally, a considerable body of evidence supported the plaintiff’s claim that there was no satisfactory method for bringing a complaint. He maintained he never received any guidance from the Army on how to deal with a situation of this nature. He did not make a complaint because he did not believe his word would be accepted over that of a superior officer. Other witnesses stated they were never made aware of structures for making complaints.
However, a large number of witnesses were called on behalf of the defendants to contest this evidence. Retired Regimental Sergeant Major Dominick Finn was based in another barracks where Patrick Devereux worked. He knew the first named defendant since 1959 and worked closely with him. They had performed duties and courses together and had been in the Glen of Imaal on exercises. He had never heard it suggested that Patrick Devereux was a homosexual or that he took advantage of other men or interfered with them. Retired Colonel William Gibson was Commanding Officer of the second artillery regiment in McKee Barracks from June, 1992 to June, 1994. He had been posted to another barracks where Patrick Devereux had also been posted at various stages during the 1970’s and 1980’s. Equally he had never heard any rumours either that Patrick Devereux was homosexual or had been interfering with men. He asserted he would have heard any stories of serious matters arising in the barracks. Furthermore, had he received information of this nature about an N.C.O. he would have addressed it to the Barracks Commander. He had served overseas with Sergeant Devereux in the Lebanon in 1987 and had heard no rumours involving the Finnish soldier during that posting. Sergeant Anthony Bridgeman was the sergeant in the vehicle section to which the plaintiff was attached and was the plaintiff’s superior officer. He stated in evidence that he did not recall that the plaintiff was slagged or that the first named defendant was rumoured to be gay. He only came to such knowledge after another soldier, Gunner Phillips, brought forward a complaint. Retired Regimental Sergeant Thomas Hughes was a Regimental Quartermaster at the relevant times. He had also never heard any stories in relation to Patrick Devereux, and while one would hear all sorts of stories doing the rounds within the regiment, this was not one of them. Retired Lt. Colonel James Murphy was Commanding Officer of the Second Artillery Regiment between September, 1991 and May, 1992 and he categorically rejected any suggestion that it was common knowledge that the first named defendant was homosexual or taking advantage of men. He further stated there was a lot of interaction between the officers, N.C.O.’s and men in the regiment and if anything like this had happened he would have become aware of it. Colonel John Hall was Commanding Officer of the Second Artillery Regiment between May, 1989 and December, 1989. He also rejected any allegations that it was common knowledge that Patrick Devereux was homosexual. Most of these witnesses stated clearly that had they received information that he was engaging in homosexual acts with soldiers they would have taken immediate action.
There was thus ample evidence to place in the balance against the evidence led by and on behalf of the plaintiff in this case.
The same may be said about the complaint procedures. Colonel William Gibson described those procedures. They included the complaint procedures under the A7 Regulations which were communicated to members of the regiment generally. It formed part of the training syllabus which all recruits were required to study and become familiar with. Apart from this route of complaint, a soldier could have gone to a section boss or non-commissioned officer if he had a problem. A third avenue of complaint lay in bringing forward any personal difficulty or complaint to the Army Chaplain. The Chaplain would be particularly suitable for a personal or matrimonial type complaint. Alternatively, there existed at the time an Army social worker, Sergeant Murray, who was a trained counsellor who had completed courses on bereavement counselling, drug abuse courses and various other courses. Finally, a complaint could be brought to the General Officer Commanding who would visit once a year. During the month preceding his arrival, routine orders would be published indicating that the G.O.C. was visiting, that people were entitled to a private interview with him and could avail of this opportunity to bring forward a complaint.
In so far as findings of fact by the High Court are concerned, this Court is bound by the principles outlined in Hay v. O’Grady [1992] 1 I.R. 210, where this Court emphasised that it is not the function of the Supreme Court to review the evidence and make its own decision on the facts. On the contrary, this Court is only concerned to ensure that primary findings of fact made by the trial judge and inferences drawn by him from those findings are supported by the evidence. This Court is mindful that the trial judge has the advantage of both hearing the witnesses and assessing their demeanour. This fact assumes particular significance in the context of a nine day hearing in which there were conflicts of evidence which the trial judge had to resolve.
This is not a case where there was any suggestion of a conspiracy on the part of the defendants to defeat the plaintiff’s claim. The trial judge expressed himself as being satisfied that the witnesses on both sides were doing their best to tell the truth. The learned trial judge had to prefer one version or the other, and in my view there was in this case ample evidence to support the findings made on the question of notice. The trial judge was entitled to take into regard as part of the overall factual matrix the fact that the plaintiff himself never brought forward a complaint of sexual harassment, notwithstanding the fact that his file disclosed an ability to complain. In this regard the evidence disclosed that the plaintiff had lodged a complaint arising from an incident where his pay cheque had become lost during training and invoked for that purpose the complaint procedures in which he had been trained.
In relation to the complaints procedures, Professor Mona O’Moore, Academic Director of the Anti-Bullying Research & Resource Centre, felt that the provisions of the A7 Regulations which were in force at the time of the plaintiff’s service were good and sufficient by the standards of that time. I have already alluded to the other avenues of complaint which were open to the plaintiff. Various witnesses called on behalf of the defence made it clear that there was no reluctance amongst soldiers in advancing complaints when appropriate to do so. The evidence does not support any view that the Army was unreceptive to complaints or would not process them. On the contrary, when Battery Sergeant Wall learned that the plaintiff had been assaulted by the first named defendant, Officer Wall, despite undertaking not to do so, promptly reported the matter to his superior officers. During his time in the Army, the plaintiff only sought assistance in relation to his marital activities and never notified any employee of the respondents of the sexual assaults perpetrated by the first named defendant.
During the course of the appeal, Mr. Declan Doyle, senior counsel on behalf of the plaintiff, argued eloquently for the imposition on the defendants of a special duty of care arising not merely from the plaintiff’s distinguished service as a soldier and as a boxer who had represented his country, but also because the learned trial judge had mischaracterised the state of public awareness of predatory sexual activities in the late 1980s and early 1990s in the passage cited at an earlier point in this judgment. He submitted that such awareness existed well before then and gave a number of examples to support his contention. However, to the extent that this consideration has any special relevance, I think the learned trial judge was correct. The television programme “States of Fear” was broadcast by RTE only in 1999. That programme provoked a storm of comment in the media at that time and continued to be debated and referred to for many years thereafter. It prompted many complainants who had been sexually abused to come forward. The McColgan abuse case was also the topic of huge media interest, but the much publicised civil hearing also post-dated the abuse in this case which ended in 1995.
It is a dangerous exercise in hindsight to apply knowledge and standards of today to events which occurred twenty-five years ago. Homosexual activities were strongly discouraged in the Army at the time and homosexual activities were criminalised until 1993. Accordingly, that orientation and preference was often hidden, notably in a predominantly male environment such as the Army. Further, there was no evidence before the Court that a homosexual person was or is more likely than a heterosexual person to commit a sexual assault. Indeed it can perhaps be best described as offensive to suggest that gay men are more likely to assault a victim than heterosexual men.
For all these reasons, I am satisfied that the plaintiff’s appeal on the issue of negligence can not succeed.
VICARIOUS LIABILITY
The learned trial judge conducted a thorough review of the relevant case law on this topic and it has not been suggested that he stated the legal position incorrectly but only that he applied the legal principles incorrectly to the facts of the case. The legal review may thus be brief. Among the cases cited by the learned trial judge were two Canadian cases, namely, Bazley v. Curry (1999) 174 D.L.R. (4th ) 45 and Jacobi v. Griffiths (1999) 174 D.L.R. (4th ) 71. Both of these cases set out principles for establishing whether or not acts complained of were within the course of and within the scope of the employment of the claimant. In both cases infant children of vulnerable age were involved and in both cases sexual assaults were involved.
In the Bazley case, a children’s foundation operated two residential care facilities for the treatment of emotionally troubled children. The foundation authorised its employees to act as parent figures for the children. The employees were to do everything a parent would do, from general supervision to intimate duties like bathing and putting the children to bed. The foundation hired a paedophile to work in one of its homes. The foundation did not know he was a paedophile. It had checked and been told he was a suitable employee. Over a period of time, the employee sexually abused one of the children in the home.
The matter was ultimately appealed to the Supreme Court of Canada which noted that the established common law test posits that employers are vicariously liable for (1) employee acts authorised by the employer, or (2) unauthorised acts so connected with authorised acts that they may be regarded as modes (albeit unauthorised modes) of doing an authorised act. In noting that vicarious liability was generally appropriate where there was a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employers desires, the court proceeded to set out principles to determine the sufficiency of the connection between the employers creation and enhancement of the risk and the wrong complained of which include, but are not limited to, the following:-
(a) The opportunity the enterprise afforded the employee to abuse his or her power.
(b) The extent to which the wrongful act may have furthered the employers aims (and hence be more likely to have been committed by the employee).
(c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employers’ enterprise.
(d) The extent of power conferred on the employee in relation to the victims.
(e) The vulnerability of potential victims to wrongful exercise of the employee’s power.
In the Jacobi case two further principles were issued to assist in determining the issue as follows:-
(a) A court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls.
(b) If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.
The learned trial judge also cited a passage from the speech of Lord Steyn in the leading English authority on the issue of vicarious liability, Lister v. Hesley Hall Ltd. [2002] 1 AC 215. This again was a case where the plaintiffs were residents in a school owned and managed by the defendants where they were sexually abused by the warden. Lord Steyn stated as follows at p.230:-
“Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.”
Plaintiff’s counsel in this appeal relies almost exclusively on the principles laid down in the Bazley case. While accepting that the plaintiff’s case is different from the situation of a young child being assaulted by an adult, it was submitted that the environment of the Defence Forces was such that the normal rules of adult interaction did not apply. The disparity in rank between the plaintiff, a gunner, and Sergeant Major Devereux, led to a situation where the first named defendant exercised great power over the plaintiff and could command unquestioning obedience from him. It was further submitted that another of the principles laid down in Bazley was met because an element of intimacy and camaraderie was encouraged in the Army in circumstances where employees worked in close quarters together. Finally, it was suggested that within a culture where complaining was discouraged and was largely fruitless, a person in the position of the plaintiff was particularly vulnerable to a wrongful exercise of power by a superior officer such as the first named defendant.
However, I can not accept that the nature of the employment relationship between the plaintiff and the defendants in this case was such as would support a finding of vicarious liability. While undoubtedly the first named defendant exercised a supervisory and disciplinary role where the plaintiff was concerned, he was not in the same position as a school teacher or boarding house warden in relation to a child. Nor was the nature of the employment one which would have encouraged close personal contact where some inherent risks might be said to exist as, for example, might arise if the first named defendant had been a swimming instructor in close physical contact with young recruits. There was no intimacy implicit in the relationship between the plaintiff and the first named defendant nor was there any quasi-parental role or responsibility for personal nurturing which was found to exist in the cases where vicarious liability was established. To hold otherwise would be to extend to the Defence Forces a virtual new species of liability where the defendants would be liable for virtually every act or omission of an employee.
Such an approach was firmly out ruled by this Court in O’Keeffe v. Hickey [2008] IESC 72
As Hardiman J. stated (at p.69 to 70 of his judgment):-
“In my view, both justice and the basic requirements of an ordered society require that the imposition of strict liability on a no fault basis be done (if at all) only on the clearest and most readily understandable basis. I do not regard the Canadian cases cited as providing such a basis: quite the opposite, as the two conflicting decisions cited demonstrate, in my view. I do not believe that the expanded basis of vicarious liability represents the law in this jurisdiction, or can be made to do so except by legislation. The consequences of doing this, social as well economic, would be immense”,
Hardiman J. went on to note the “chilling effect” of any extension of the doctrine of vicarious liability whereby the State would become liable for criminal activities of those in their employment in circumstances where there was no fault attaching to the State. To do so would be not only to make the taxpayer liable for the criminal acts of employees of State bodies, but it would also affect that body’s actions in ways which would require to be considered as a matter of policy before such an extension of the law could be allowed.
While the O’Keeffe case involved a vulnerable child who was sexually abused by a teacher at school, it need hardly be stressed that the facts of the relationship between the parties in the instant case could hardly be more different. The plaintiff in this case was at all material times an adult. He elected to accept the rigours, the discipline and the camaraderie associated with the life of a professional soldier. It must be accepted that the Defence Forces require an atmosphere of discipline in order to function. A wide extension of liability would undermine the whole operational basis of any army.
While the able submissions advanced on behalf of the plaintiff make reference to the Bazley principles, they do so in a necessarily limited way and counsel was obliged to frankly concede that not all of the criteria elaborated by the Canadian Supreme Court were met in the instant case.
I believe this case falls short by a considerable margin of establishing the prerequisites for a finding that the defendants should be held vicariously responsible for the criminal activities of the first named defendant in this case.
I would dismiss the appeal.
Monahan v Dunnes Stores and Dunnes Stores
(ILAC Centre) Ltd [2013] IEHC 79
JUDGMENT of Ms. Justice Irvine delivered on the 15th day of February 2013
1. The plaintiff was born in October 1958 and lives with her elderly and somewhat dependent mother in Glasnevin, Dublin. She commenced her employment with Dunnes Stores after she completed her Leaving Certificate and was appointed a department manager in 1985.
2. The within proceedings relate to an incident that took place on the defendant’s premises at the Ilac Centre on 1st September, 2006, sometime between 5pm and 6.30pm. It is agreed that Mr. Pat Tully, who was the manager of the defendant’s store, was assisting Ms. Elaine Hayes with a display of large and rather unstable Christmas gift bottles of olive oil which were on a tiered table when he destabilised the display causing anything between six and ten bottles to come crashing to the ground creating a hazard from broken glass and a spillage of oil that covered an area of approximately 6x10ft.
3. The plaintiff claims that the defendant was negligent in its management of the aforementioned spillage in that it failed to warn her of its presence or protect her from inadvertently walking into the area and that as a result she fell heavily as she approached Mr. Tully to speak to him prior to clocking out of work that evening. The defendant on the other hand maintains that it acted with reasonable care for the plaintiff’s safety. It asserts that it immediately set about cordoning off the area and erecting warning signs which it maintains were sufficient to protect both its staff and members of public from injury assuming that they were acting with due care for their own safety. In addition to its denial of negligence, the defendant maintains that the plaintiff was guilty of contributory negligence in failing to heed two oral warnings and a hand signal allegedly given to her by Mr. Tully before she entered the area which she ought, in any event, to have noted had been cordoned off.
4. This is a case which very much depends on the view I take, firstly, as to the extent and nature of any cordon or warning signs that may have been erected prior to the plaintiff’s fall and secondly as to what happened in the fifteen or so seconds prior thereto, matters about which there was significant dispute.
5. The plaintiff states that she came out from a storeroom, which is towards the rear of the premises, to speak to Mr. Tully who she then spotted in the distance. She maintains that she zigzagged or weaved her way through the display stands and garment rails moving at all times in his direction. As she approached Mr. Tully she stated that she saw that he was at a display table with his back to her. He appeared to be wrapping cling film around a display table. She did not notice the presence of any warning signs or barriers. Furthermore, there was nothing impeding her approach and she noticed nothing unusual about the area that might have alerted her to the fact that she was approaching an area of danger. She called out to Mr. Tully to get his attention as she approached but he did not hear her. Then, just as she reached him, she slipped and fell heavily to the ground.
6. Under cross examination, the plaintiff denied at any stage receiving one or more oral warnings from Mr. Tully telling her to stay away. She also denied that he put up his arm to indicate to her that she should not continue walking towards him.
7. Mr. Tully stated that the collapse of the display of the oil bottles caused a great commotion in the store and that Mr. Capper arrived on the scene almost immediately. He said that he asked a member of staff to get a bucket and mop and he told the court that Mr. Capper immediately went off to get tension barriers and warning signs. Mr. Tully maintained that before the plaintiff’s fall, the area of the spillage had virtually been cordoned off using a combination of four or five moveable clothing rails, four or so tension barriers and five yellow plastic warning signs which had been hinged together.
8. As to the plaintiff’s approach, Mr. Tully stated he noticed her when she was about 8ft from the area in which he had placed a number of tension barriers. He said that he told her to stop where she was. When she kept walking he said that he warned her a second time while simultaneously putting his hand out to demonstrate that she should stay exactly where she was. Mr. Tully maintained that regardless of these clear warnings, the plaintiff squeezed through the uprights of two tension barriers which had been placed side by side and slipped almost immediately. He said that he put out his hand to try to save her but was unsuccessful. He also maintained that by the time she fell she had told him that she intended leaving the floor to get a glass of water and had also mentioned something about stock relevant to the night shift.
9. Mr. Capper told the court that when he became aware of the spillage he immediately went to the small storeroom at the front of the store where warning signs and tension barriers are kept. He stated that he brought two yellow A-frame plastic warning signs to the locus and three tension poles. The three poles were placed in position and joined together using two straps making one continuous barrier. This barrier was placed immediately beside approximately four rails of clothes which he said had been positioned in a U-shape formation so as to try to create a cordon of sorts around the spillage. There was a gap in the cordon and he placed the two A-frame yellow warning signs side by side in this area. It was intended that this gap would be used by those involved in the clean up operation as they would need to be able to access the area of the spillage. Mr. Capper said he saw the plaintiff when she was about 12ft away and that he heard Mr. Tully warn her twice not to come into the area. He also said he saw him gesticulate with his hand that she was to stop where she was. Mr Capper said that the plaintiff ignored these warnings and made her way through the cordon entering the area of the spillage between the yellow warning signs and the tension barrier, at which stage she immediately slipped.
10. The onus of proof is on the plaintiff in this case to establish that the defendant was negligent in failing to protect her from the spillage which it had created on the floor of its premises on 1st December, 2006. The extent of the defendant’s duty of care, I believe, must be one which is proportionate to the risk generated by the spillage and as to the foreseeability of potential injury. In this regard, I think the following matters are material:-
(i) The spillage occurred in what is essentially a drapery store. No fluid or liquids are normally sold in the store. The decorative gift bottles of olive oil were only on the defendant’s premises as part of its Christmas wears. Accordingly, I think that the index of suspicion that a member of staff might have as to the possible presence of a spillage of oil on the floor would be very low indeed and that any warnings as to the presence of such a hazard would have to reflect this fact.
(ii) Olive oil or oil of any variety on a floor surface creates a slip hazard which is almost unique. It is never safe to walk on a floor on which such a substance has been spilled. As was heard in evidence, this was a spillage that had to be removed by chemical means in order to render the floor safe for use. The risk emanating from such a spillage cannot, to my mind, be equated with that generated from a spillage of a drink such as coffee, water or a soft drink. Spillages of that nature, once the immediate surplus is removed and the pedestrian warned that the floor remains wet, leaves the floor wet or damp but relatively safe for those who approach using reasonable care. The same cannot be said of a floor where there has been a spillage of oil. Likewise, a floor with an oil spillage is to be contrasted with a floor which remains wet because it has been recently washed and which will not be hazardous provided adequate warning of that fact is given.
11. Having regard to these factors and having considered the evidence given by the consulting engineers on behalf of the parties, I believe the duty of care of the defendant in this case was to cordon off the area of the spillage as soon as was reasonably possible and to do so in a manner such that nobody could unwittingly gain access to it or fail to recognize that the hazard present was such that they were required to stay out of the area. In terms of the defendant’s duty of care I am satisfied that if the defendant considered it necessary to leave a small area of the cordon open to allow access for cleaning staff, having regard to the fact that there had been a major oil spillage, I believe it was incumbent on the defendant to have somebody present to monitor that gap to ensure that only those who were essential to the clean up operation were in a position to access the area. To set the standard of care at this threshold is not, I believe a counsel of perfection because of the nature of the hazard created and the foreseeability of consequential injury therefrom.
12. I will now set out my findings of fact and the evidence which I have relied upon for such purpose.
13. I am satisfied from the plaintiff’s evidence and that of Mr. Capper and Ms. Hayes, that the spillage occurred at least six or seven minutes before her fall. Accordingly the defendant had plenty of time, staff and equipment available in close proximity to render the area safe by the erection of a suitable cordon and warning devices and to adequately monitor the area of the spillage in the course of the cleanup operation.
14. I am satisfied that when the plaintiff approached Mr. Tully that she did not receive any warning not to proceed into the area of the spillage and that neither did he gesture with his hand so as to make it clear to her that she should stop in her tracks. I reach this conclusion regardless of the fact that Mr. Tully’s account of these events was supported by Mr. Capper. In this regard, I find it difficult to accept that the plaintiff would twice disobey the directions of her store manager. As far as I am aware, the plaintiff holds a position of significant responsibility within the defendant’s organisation. I have heard no evidence to suggest that she has anything other than a flawless record in terms of her work practices. Furthermore, it appears that she was not the subject matter of any complaint by her manager in the aftermath of what, on his account of events, would have amounted to a significant breech of discipline and safety procedures. Also, if it was Mr. Tully’s belief that the plaintiff had deliberately ignored two if not three warnings in the moments prior to her fall, I think it highly unlikely that he would have failed to record those facts when he completed the incident report form three days after the events in question, particularly in light of the fact that he was the party who had generated the spillage in the first instance and that by the time he did so, he knew that the plaintiff had sustained a very serious injury.
15. I reject the evidence of Mr. Tully as to the number and nature of the warning signs in place at the time of the plaintiff’s fall. Indeed, having observed and listened carefully to Mr. Tully give evidence, I have to say that he was a remarkably poor witness and I found his evidence was inconsistent on a wide range of important issues. At best, I believe there may have been two yellow a framed warning signs in the vicinity of the spillage. Mr. Tully said in evidence that five large plastic yellow warning signs of the variety that are shaped like men with their arms extended had been interlinked to form a semi-circular barrier to provide part of a cordon which was completed using tension barriers and clothes rails. However, the incident report form which he completed after the event referred only to the creation of a cordon simpliciter and made no reference whatsoever to the presence or positioning of any warning signs. Furthermore, his evidence as to the presence of a group of linked signs was not supported by any other witness. Ms. Hayes, who at the time was employed by the defendant, said that she felt that there may have been one or two warning signs erected after the spillage. Even Mr. Capper, contradicted Mr Tully’s evidence in this regard. He told the court that after the spillage occurred he collected two of the standard A frame warning signs from the store room. He said that they deliberately left a gap in the makeshift cordon so as to allow the cleaning staff access the spillage and that he had placed these two yellow warning signs side by side in that gap.
16. I further reject the evidence of Mr. Tully and that of Mr. Capper as to the nature and extent of the cordon that each of them says had been erected by the time the plaintiff came on the scene. Firstly, I am not satisfied on the balance of probabilities that clothes rails were moved in a purposeful fashion so as to include them in what was intended to be a cordon. Ms. Hayes, who was the only independent witness to give evidence, said that she thought that two warning signs and a couple of tension barriers had been put in place after the spillage but she did not remember clothes rails having been used as part of any cordon. Further, there is no mention of clothes rails having been used for such purpose in the pleadings where the components of the cordon were stated at para. 3(d) of the defence to have been made up of “warning signs, ropes and mats”. Even if I am incorrect in relation to this issue and clothes rails were moved with this objective in mind, I am satisfied that these were not positioned such that, without warnings in front of them, it would have been obvious to somebody who managed to note their somewhat unusual position that they were part of a cordon intended to keep people out of a designated area which was hazardous to the point that it was unsafe for them to enter.
17. I am satisfied as a matter of fact that as the plaintiff approached Mr. Tully, he was, as she advised, shrink wrapping a display table and that it was reasonable for her to believe that he was doing this as a precursor to moving a display unit as was standard practice and that she had no reason to apprehend that she was entering a hazardous area. I am satisfied that whatever efforts may have been made by Mr Tully and Mr Capper to erect a make shift cordon failed and that it was not evident to someone approaching along the plaintiff’s path of travel that the area in which Mr Tully was positioned was out of bounds and dangerous. Thee may have been two A frame warning signs somewhere in and about the area of the spillage but I am satisfied that they were not within the plaintiff’s line of sight as she approached the area. Indeed, it is worth noting that Mr. Tully and Mr. Capper were not in agreement as to how the plaintiff managed to access the area of the spillage. Mr. Tully stated that she entered between two unconnected tension barriers and Mr. Capper said that she made her way between the two yellow warning signs and one of the uprights of the tension barriers allegedly used to create a partial blockade.
18. In preferring the creditability of the plaintiff’s evidence to that of Mr. Tully and Mr. Capper, I believe it is of some significance that for the purposes of these proceedings she sought discovery of all CCTV camera footage covering the period material to her fall, a step I think she would have been reluctant to pursue if she believed there had been an obvious cordon present which she had breached or that she had been given several warnings including a hand signal not to enter the area.
19. I am also marginally influenced in favour of the plaintiff’s account of events by the fact that, notwithstanding the defendant’s protocol relating to the manner in which an investigation into such an incident should be conducted, Mr. Tully as the party responsible for conducting that investigation, did not himself seek to ascertain if there was any relevant CCTV footage and neither did he request Mr. Capper to do so. Also, while it is not a matter to which I have attached any weight, I find it hard to accept Mr. Capper’s evidence that he checked all of the footage available from the three video cameras which might potentially have captured this incident and that all of cameras happened to be facing in directions such that they failed to record any evidence of relevance to this spillage, such as the movements of the plaintiff, Mr. Tully and himself, the movement of clothing rails or the retrieval and position of the various warnings signs and tension barriers.
20. In addition to the aforementioned matters I found Mr. Tully’s evidence as to what happened in the lead up to the plaintiff’s fall to be inconsistent with the case made to the court during the plaintiff’s cross examination. The plaintiff was cross examined by Mr. McCarthy, S.C., on the basis that Mr. Tully would say that he saw the plaintiff when she was 20 ft away and Mr. McCarthy confirmed that those were his instructions. However, when Mr. Tully came to give his evidence he said that only saw the plaintiff when she was 6-8 feet away. Regrettably, I have come to the conclusion that the change in his evidence on this issue in all probability was as a result of an observation that I had made in the course of the plaintiffs cross examination to the effect that I found it difficult to fathom how, if Mr. Tully saw the plaintiff approach from such a distance and she ignored his first warning he simply did not step forward to the tension barrier that he said was between himself and the Plaintiff and which was only two feet in front of him so as to make sure she didn’t enter upon the area of the spillage.
21. Claimant’s all too often, in what I will describe as “slip and fall” type cases, seek to make other parties liable for their failure to take reasonable care for their own safety. With ever increasing frequency those who are injured in such circumstances try to shift or transfer their own personal responsibility to an occupier or employer often relying on standards of care that are entirely artificial and amount to a demand that others act in a manner that amounts to a council of perfection when all that is required of them by law is that they take reasonable care. This however is not such a case. Here, because of the nature of the hazard and the foreseeable consequences for anyone who might mistakenly access an area upon which oil had been spilt, I am satisfied that the defendant failed to act with reasonable care for the plaintiff’s safety.
22. Having reached the aforementioned conclusions, it goes without saying that I am satisfied that the defendant is liable for the plaintiff’s injuries. Furthermore, on the facts found I do not believe that there is any basis for a finding of contributory negligence.
Injuries
23. As a result of her fall, the plaintiff was taken by her son to the Swiftcare Medical Clinical at Dublin City University where x-rays taken revealed a fracture to the greater tuberoscity of the left shoulder. She was treated with a sling for a period of six weeks and that was followed up with physiotherapy between January 2007 and March 2007.
24. As a result of ongoing symptoms which included discomfort and difficulty lying on her side, an MRI scan was performed which diagnosed the presence of rotator cuff syndrome. As a result the plaintiff was referred to Mr. Kevin Mulhall, Consultant Orthopaedic Surgeon. On examination, the range of movement of the shoulder was poor with abduction and rotation being significantly restricted.
25. On 18th May, 2007, the plaintiff’s shoulder was injected with limited benefit. In August 2007, her shoulder was manipulated under general anaesthetic and an arthroscopy was performed in the course of which a partial tear of the rotator cuff was identified. In January 2008, the plaintiff’s shoulder was again injected and her range of movement found to be improved but still substantially impaired. Accordingly in March 2008, the plaintiff underwent a further arthroscopy of her shoulder and arthroscopic release following which she had extensive physiotherapy.
26. As a result of the second procedure, the plaintiff’s range of shoulder movement has improved but some restriction remains. She enjoys one hundred degrees of elevation, abduction of ninety degrees and external rotation of sixty degrees. In particular, the plaintiff has difficulty raising her arm when it is out in front of her and has difficulty carrying out any heavy manual work which would include lifting or using the arm in an overhead position. This restriction is now permanent.
27. As a result of her injuries, the plaintiff was out of work until April 2011. The plaintiff had sought on many occasions following her accident permission from her employers to return to work but was unsuccessful. The defendant was reluctant to take her back without a certificate stating she was fit for all types of work. However, following an appointment with the defendant’s orthopaedic consultant, Mr. Martin Walsh, in early 2011, her employers appeared to take a different view of her capacity to work and took her back putting her in a job which is free of any heavy lifting or pulling. The plaintiff has stated that she is very well supported by her manager who makes sure that she does not have to become involved in any physically arduous tasks.
28. In terms of her day to day activities, the plaintiff is still somewhat restricted. She finds it less easy to manage her elderly mother who she helps with a wide range of personal activities. She is also much more nervous as a result of her fall and has substantially reduced the extent to which she will walk anywhere, given that she is fearful that is she were to fall she would be at significant risk of doing irreparable damage to her already vulnerable shoulder. The Plaintiff continues to experience ongoing pain in her shoulder for which she takes over the counter medication. The restriction of her shoulder movements, although not very significant, will be permanent and she has a number of very minor scars from her arthroscopic procedures. Taking all of these factors into account I will award a sum of €50,000 in respect of general damages to date and a sum of €20,000 into the future.
Special Damages
29. The plaintiff claims loss of earnings between the date of her accident and April 2011, when she returned to full time employment with the defendant. The sum claimed in respect of loss of earnings, less the agreed social welfare deductions, amounts to a sum of €135,187.97. It may be that there is some dispute between the parties in relation to this figure and if necessary I will hear submissions from the parties in relation to the same. In this regard, it is important to note that at all times, the plaintiff remained an employee of the defendant.
30. A legal issue arose in the proceedings as to whether or not certain payments made by Dunnes Stores to the plaintiff during the period when she was out of work are to be deducted from her loss of earnings claim. Those payments were made by the defendant to the plaintiff pursuant to the plaintiff’s membership of what is described as the “Dunnes Stores Management Pension and Life Assurance Scheme” (“the scheme”).
31. The following facts about the scheme are not disputed:
(i) Since very early on in her employment with Dunnes Stores, the plaintiff has been a contributor to and a member of the scheme. An employee who is not a member of the scheme, if they are disabled for an extended period, must fall back on social welfare payments in the event of their absence from work.
(ii) Every member is obliged to pay 4% of their salary into the scheme which provides them with certain benefits. Those contributions are invested in their Retirement Account. The employer contributes 6% of the employee’s salary and also meets the costs of the administration expenses in running the scheme.
(iii) The scheme, which provides for certain retirement and death benefits, also provides all its members with separate Income Continuance cover in the event of them becoming disabled. All members of the scheme qualify for the benefits provided by this Income Continuance Plan, subject to meeting any medical requirements imposed by the insurer and the scheme provides that those benefits are intended to compliment the pension and death benefits under the scheme.
(iv) The employer meets all of the expenses of the separate Income Continuance Plan and its benefits are provided separately by means of a contract between the employer and the relevant insurance company. The scheme provides that an employee’s entitlement to benefit from the Income Continuous Plan arises if they become disabled through sickness or accident and are unable to take up their normal occupation. Their entitlement to benefit under the plan commences after 26 weeks of continuous disablement and it is stated at clause 12.2 that “the sum will be paid by the company, at its discretion, to you as salary and will, therefore, qualify for the normal tax reliefs under the PAYE system”.
(v) It is also accepted that this is what may be described as an “all or nothing” scheme. The employee who opts to contribute to the scheme automatically gets a range of benefits in addition to their pension and death benefits and has no option to elect to avail of only one type of benefit or another.
32. The plaintiff maintains that the monies which were paid to her by her employer which it had earlier recovered from Friends First by reason of her disability is a payment which is not deductible from her loss of earnings claim by reason of the provisions of s. 2 of the Civil Liability (Amendment ) Act 1964. That section provides as follows:-
“In assessing damages in an action to recover damages in respect of a wrongful act (including a crime) resulting in personal injury not causing death, account shall not be taken of –
(a) any sum payable in respect of the injury under any contract of insurance,
(b) any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the injury.”
33. On the plaintiff’s behalf it was submitted that the payment which she received was payable by Friends First in respect of the injury which is the subject matter of wrongful act in the present proceedings and is a payment that was paid under a contract of insurance. Accordingly, this is a sum which is not deductible by virtue of the provisions of s. 2(a) of the Act.
34. The plaintiff submitted that it was irrelevant that she had not directly contributed to the premium paid in respect of the Income Continuance Plan. Neither did it matter that she was personally not a party to the contract of insurance pursuant to which the money was paid or that the money was first paid by the insurance company to her employer who then remitted it to her by virtue of her membership of the scheme. The plaintiff relied on the fact that the words of the section refer to “any contract of insurance” and do not specify that the beneficiary must be a party to that contract or a contributor to the premium. Furthermore, given the plain language of s. 2, Counsel submitted that it was irrelevant that if the monies concerned were not deducted from the loss of earnings claim that the plaintiff would end up receiving a net income in excess of that which she would have received had she not been out of work as a result of injury.
35. The plaintiff relied on the decision of Geoghegan J. in Greene v. Hughes Haulage [1998] 1 ILRM 34, a case in which he considered the wording of s. 2 of the Act. In that case the plaintiff’s employer, Elan Corporation, had an Employee Benefit Plan in place designed to provide its employees with certain pension, early retirement and death in service benefits. The Employee Benefit Plan also entitled its members to certain income benefits in the event of prolonged disability. The latter benefit, which was described as the “Disability Benefit Plan”, was operated by way of separate arrangement from the other benefits under an Employee Benefit Plan and was governed by a policy of insurance made between Elan and Irish Life. Geoghegan J. decided that the payments made under the Disability plan were not deductible against the plaintiff’s loss of earnings claim and that it was immaterial that she had not been a party to the contract. It was a contract that had been made for her benefit and was therefore to be considered as part of her overall remuneration such that she should be considered to have indirectly contributed to the premium.
36. On the defendant’s behalf it was submitted that the monies which it paid to the plaintiff and which it had received from Friends First on foot of the Income Continuance Plan should be deducted from the plaintiff’s loss of earnings claim. It had paid for that plan to be put in place and was the contracting party with Friend’s First. None of the 4% of the plaintiff’s salary paid as a term of her membership of the scheme had been used by the defendant to defray the costs of providing the benefits available under the Income Continuance Plan.
37. The defendant relied heavily upon the decision of Hamilton J. in Dennehy v. Nordic Cold Storage (ex tempore 8th May, 1991). The facts in that case were however quite different from the facts in Greene as was observed by Geoghegan J. in the course of his judgment in that case. Unfortunately, there was no written judgment in Dennehy and the ruling of Hamilton P. in relation to the deductibility of certain payments under the provisions of s. 2 of the Act seems to have been given on an ex tempore basis in the course of the trial. Geoghegan J. certainly appeared to be of the view that the contract of insurance in Dennehy was a contract which had been taken out by the employer for its own benefit and was one designed to indemnify it in respect of a liability which it had voluntarily assumed in respect of its employees. Accordingly, he considered that the contract of insurance concerned was not one which was covered by s. 2 of the Act.
38. The facts in Greene seem to me to be pretty much on all fours with those in the present case save that it is not entirely clear from the judgment of Geoghegan J. that the plaintiff in Greene had contributed a percentage of her salary as a term of becoming a member of the Employee Benefit Plan or whether her membership of that plan automatically entitled her to the benefit of monies paid on foot of the disability plan as is the situation in the present case. What is clear, however, is that the plaintiff in this case is certainly in no weaker a position than Ms. Greene when it comes to applying the facts of her case to the reasoning of Geoghan. J as to the proper interpretation of s. 2 of the Act. In both cases the employer entered into arrangements with an insurance company to provide certain payments to qualifying employees should they experience an extended period of disability. The only major difference between the case under consideration and Greene is that under the Elan Scheme, the plaintiff received her benefit directly from the insurance company under the policy to which, incidentally, she was not a party, whereas in the present case the payment was made to Dunnes Stores in the first instance and then paid out to the plaintiff. However, integral to both schemes is the fact that the policy was taken out for the benefit of the employee who might become disabled. Accordingly, I see no reason not to apply the principles outlined in Greene to the present case. In doing so, I should say that I agree with Geoghegan J’s interpretation of s. 2 of the Act by reference to the earlier statutory provisions contained in s. 50 of the Civil Liability Act 1961 which provided for equivalent non-deductions in fatal injury claims.
39. The only matter of real concern to me on this issue emanates from clause 12.2 of the scheme which provides that the disablement benefit “will be paid by the company, at its discretion, to you as salary and will, therefore, qualify for the normal tax reliefs under the PAYE system”. However, I am not convinced that the aforementioned provision which purports to give discretion to the company as to whether it will pay the monies received from the insurance company to it’s disabled employee and if it does so to designate it as salary, materially changes the nature of the underlying agreement such as to take the payment outside the provisions of S.2. Having regard to the Plaintiff’s membership of the scheme and her automatic entitlement as a result to benefit from the Income Continuance Plan, it would be hard to imagine the type of circumstances in which her employer, having received monies in reliance upon her disability could exercise its alleged discretion, and keep those funds for its own benefit. Further, even though the clause states that in such circumstances the monies will be paid as salary, the monies are not company monies but monies which have come into its possession solely as a result of their employee’s disability and the existence of a contract of insurance covering that eventuality.
40. Notwithstanding the provisions of clause 12.2 it seems to me that the contract under consideration is one which was taken out by the defendant for the benefit of an employee such as the plaintiff who, in return for contributing a substantial percentage of their salary to become a member of the company’s pension and life assurance scheme, was guaranteed certain income payments or benefits in the event of their becoming disabled for the required period. This being so, I believe the plaintiff’s right to the sums paid out to her employer in respect of her disability should in fact be considered to form part of her overall package of remuneration and that she should be deemed to have indirectly contributed to the costs associated with the provision of the income continuance cover. In these circumstances, the payment out by Dunnes Stores to the plaintiff of the money received on foot of the income continuance policy, I believe, cannot be considered to be a matter within its discretion and is a benefit to which she was entitled by reason of her membership of the scheme.
41. For all of the aforementioned reasons, but particularly because of the decision of Geoghan. J in Greene, I am satisfied that the sum which the defendant seeks to deduct from the loss of earnings claim is one which falls within the provisions of S. 2 of the Act. The sum was paid to the plaintiff in respect of the injury the subject matter of this claim and is one that was paid under a contract of insurance within the meaning of that provision. The sum paid can also be considered to amount to a benefit payable to the Plaintiff in consequence of the injury sustained.
42. I accordingly invite the parties to agree all items of special damage in light of my ruling in relation to s.2 of the Civil Liability (Amendment) Act 1964 and bearing in mind that the Disablement benefit received by the Plaintiff over the five year period immediately following her accident must be deducted from her claim for past loss of earnings. As already stated in the course of the proceedings, regardless of the hopes of the Plaintiff that following her formal retirement date and in the absence of injury, she might have enjoyed the prospect of a further period of employment with the defendant, I am not satisfied that there is any basis, in the absence of any contractual right to such employment, which could entitle her to any additional damages in that regard.
Ryan v Dunnes Stores
[2016] IEHC 337JUDGMENT of Mr. Justice Barr delivered on the 7th day of June, 2016
Introduction
1. The plaintiff is employed as a shelf packer with the defendant at its shop premises in the Parkway Shopping Centre, Limerick. He suffered injury on 15th July, 2013, when he fell on a flight of stairs leading from the staff locker room. It is alleged by the plaintiff that the stairs were in a defective and dangerous condition and that it was this which caused him to trip and fall. The plaintiff alleges that he has suffered soft tissue injury to his neck, right shoulder and lower back. Both liability and quantum are in issue in these proceedings.
Liability
2. When the plaintiff finished his shift, he went to the staff locker room to retrieve his personal belongings. He used the staff stairs. While descending the flight of stairs, which had sixteen steps on it, on the sixth step from the bottom, his heel caught in the nosing on the step, which had become loose and had risen above the level of the step. The plaintiff states that when his heel caught in the nosing, he lost balance and fell down the remaining six steps, landing on the half landing at the foot of the stairs.
3. A member of staff came on the scene of the accident and went to get the HR Manager, Ms. Elaine O’Hare. By the time she arrived at the locus, the plaintiff was standing and was anxious to go home. She asked him whether he had banged his head and whether he needed treatment. The plaintiff said he was fine and then left the premises. Ms. O’Hare did not look at the stairs on that occasion. She filled in an accident report form in relation to the accident.
4. On the following morning, the plaintiff phoned in sick and said that he had tripped when his heel caught on the nosing at the front of the step. He said that he had pulled muscles in his arm and in his back. Ms. O’Hare contacted the security manager, Mr. Mannix. She stated that she was aware that a repair was subsequently carried out to one of the steps on the flight of stairs.
5. In cross examination, she was asked how the plea came to be made in the defence, that the plaintiff had been reading text messages or composing text messages while descending the stairs. She said she did not know how this plea came to be made in the defence, as she had not seen the plaintiff fall on the stairs.
6. Evidence was given by Mr. John Mannix, the security manager at the shop. He was alerted to the accident on the following morning at approximately 11:30hrs. He went to the locus and found that on the sixth step, the nosing was raised some two inches above the surface of the step. He took the photograph which had been handed into court showing another male employee with his fingers under the raised portion of the nosing.
7. Mr. Mannix placed yellow safety tape on the edge of the nosing. He notified head office and he also notified the health and safety department of the defect. A repair of the nosing was subsequently carried out. An invoice from Floor Form Limited dated 2nd August, 2013, was handed into court. It was agreed that this referred to repairs which had been carried out to the flight of stairs.
8. Mr. Mannix stated that he had used the stairs a number of times that day, but did not notice any defect. In cross examination, he accepted that he was not inspecting the steps. He accepted that on the day after the accident there was a two inch gap between the nosing and the surface of the step and that this was a hazard. He accepted that the defendant did not have anyone in particular designated to inspect these steps. They did not check the steps individually.
9. Evidence was given by Mr. Paul Durbin, the grocery manager. He had descended the stairs where he saw the plaintiff, Ms. O’Hare and another employee standing on the half landing. Ms. O’Hare told him of the accident. He asked the plaintiff how he was. The plaintiff was anxious to go home. Mr. Durbin stated that the plaintiff worked in the grocery department and that he was a good employee. He only had a very brief conversation with the plaintiff, who said that he had tripped coming down the stairs. He did not mention the nosing on the stairs. He was anxious to go home. Mr. Durbin stated that he only learned about the defect in the nosing on the following day. He had not noticed any defect when he used the stairs.
10. Finally, evidence was given by Mr. Thomas Hayes, Consulting Engineer. He inspected the locus on 3rd September, 2014. He found that the sixth step had been screwed down with a brass screw. He thought that this was a replacement screw, as normally steel screws would be used with plastic caps on them. This suggested that the nosing had been repaired post-accident.
11. Mr. Hayes stated in relation to the photograph handed into court, which showed a man with his fingers under the nosing, that he should not be able to do that. The nosing should be securely affixed to the top of the step. Mr. Hayes stated that the nosing was a vital part of the step; if it becomes loose, this renders the step very unsafe, and a person could catch their foot in it. Thus, he was of opinion that the stairs were unsafe at the time of the accident.
12. He stated that management and cleaners should inspect the stairs regularly when cleaning them and if any nosing is found to have lifted, this would be in need of urgent repair. If the nosing was loose enough to catch a person’s heel, that should be observable by anyone inspecting the stairs.
13. Coincidentally, Mr. Hayes stated that on the day of his inspection, two steps further up from the sixth step, he found that the nosing had become loose and slightly raised. He had depicted this in his photographs No. 5 and No. 6.
14. In cross examination, Mr. Hayes accepted that there were approximately 140 employees in Parkway Shopping Centre. They would use the stairs to gain access to the staff locker room. The defect in the nosing would not be apparent to people ascending the stairs.
15. Mr. Hayes also accepted that his report was incorrect where it was stated that the plaintiff had caught his toe in the nosing, whereas it was actually his heel which had got caught. The plaintiff had just told him that he tripped on the step. Mr. Hayes stated that the plaintiff’s evidence that he caught his heel on the nosing was the more likely mechanism of injury. When the whole foot is placed on the step, as it moves forward the heel could catch on the raised nosing.
16. Mr. Hayes stated that it was his understanding that the plaintiff was not holding the banister at the time of his fall, because he had said that he made a grab for it. Even if he was holding the banister, a person could still fall. It was put to the witness that the locus was examined approximately once per month and that this can generate a request for urgent repair. Mr. Hayes thought that this was inadequate and the defendant needed to have a better inspection system.
Conclusions on Liability
17. I am satisfied that the plaintiff has given an honest account of what caused him to trip while descending the stairs on 15th July, 2013. The evidence of Mr. Mannix confirms that there was a two inch gap between the nosing and the step on the day after the accident. The repair invoice, while not evidence of negligence on the part of the defendant, is evidence that there was a defect in the nosing, which required repair.
18. In the circumstances, I am satisfied that there was a defect in the step, when the nosing had become loose and raised. This constituted a danger to persons using the staff stairs.
19. While there may have been monthly checks of the stairs, I accept the evidence of Mr. Hayes that this was inadequate having regard to the serious danger which exists once the nosing comes loose from the step. Furthermore, it would appear that whatever checking mechanism was in place at the store, it was inadequate having regard to the fact that at the time of the engineering inspection in September 2014, the nosing on the eighth step was loose and had become raised from the step.
20. I am satisfied that in these circumstances, the defendant failed in its duty to provide the plaintiff with a safe means of access to and egress from his place of work.
21. In the defence, it was pleaded that the plaintiff had been using his mobile phone at the time of the fall. No evidence was called from any witness who actually saw the plaintiff falling. The matter was canvassed with the plaintiff in a broad manner. He emphatically denied that he was using his mobile phone while descending the stairs. In these circumstances, the defendant has not established that the plaintiff was using the phone at the time of the accident.
22. The evidence is equivocal as to whether the plaintiff was holding the banister at the time of the accident. Even if he was not holding the banister, that does not constitute contributory negligence, as he was descending a short flight of stairs. Accordingly, the defendant is liable for the injury suffered by the plaintiff. I do not propose to find any finding of contributory negligence against him.
Quantum
23. The plaintiff has stated that as a result of the accident, he suffers constant, and at times, severe pain in his neck, right shoulder and lower back. He was out of work for approximately four months after the accident. Thereafter, he returned to his job as a shelf packer on a minimum fifteen hour contract. He stated that, on average, he would work approximately twenty hours a week. Although, in recent times he has had to decrease his hours to approximately fifteen per week due to his injuries.
24. He works in the grocery department, where he has responsibility for stacking bottles of minerals onto shelves. This is reasonably heavy work. In a case, there would be eight 1.5 litre bottles or six 3 litre bottles. There would be approximately eleven/twelve cases on a trolley. The cases would have to be loaded onto the trolley and then the individual bottles unloaded from the trolley onto the shelves.
25. The plaintiff states that he is required to take painkillers to enable him to complete his day’s work. Prior to the accident, the plaintiff used to walk to work, whereas now he is obliged to take a lift from his wife. He had also been very interested in local history and used to enjoy walking around Limerick looking at various sites of historical interest. He is not able to manage that level of walking at present. He also experiences pain at night and sometimes has to get up after approximately two hours.
26. The plaintiff has been referred to Prof. Harmon, the pain specialist for treatment. He has administered painkilling injections, the first of which was in February 2016, and a further injection was given last week, being the end of May 2016. The plaintiff found that he only obtained temporary relief from the injections, which would last three/six weeks.
27. The plaintiff came under the care of Dr. Dominic Cooke, who first saw him on 13th August, 2013, approximately one month post-accident. On examination, he found that there was painful restriction of right and left lateral rotation of the neck. Abduction of the right shoulder was painful, being suggestive of impingement tendonitis of the right shoulder. The plaintiff had pain and tenderness over the lumbar interspinous ligaments. Movement of the hips was restricted and painful.
28. Dr. Cooke was of the opinion that the plaintiff had suffered a musculoligamentous sprain of the neck and that it would be necessary to carry out an MRI scan to confirm this. He was also of opinion that the plaintiff had suffered a musculoligamentous sprain of the lumbar spine. Again, an MRI scan was required. He was further of opinion that the plaintiff had suffered an impact injury to the right shoulder with symptoms of rotator cuff tendonitis.
29. An MRI scan of the plaintiff’s neck revealed degenerative changes in the neck and a disc protrusion at C5/6 and a central disc bulge at C6/7. He was of opinion that the plaintiff had pre-existing degenerative changes in his spine, which had been asymptomatic prior to the time of the accident. He suspected that the accident caused the disc protrusion at C5/6.
30. The plaintiff was reviewed by Dr. Cooke on 19th August, 2014, approximately one year post accident. He still had pain and stiffness in his neck. His main problem was ongoing severe low back pain, which was causing him difficulty at work and required him to take painkillers on a daily basis and to miss days from work occasionally. On examination, the plaintiff had limitation of movement of the neck and lower back. He had full movement of his shoulder. The shoulder injury had improved a good deal. An MRI scan of the lumbar spine revealed degenerative disc disease in the discs and facet joints. Dr. Cooke was of opinion that the degenerative changes in the back had been aggravated by the accident. He was of opinion that the soft tissue injuries were causing the ongoing pain. He recommended physiotherapy treatment and the plaintiff has had twenty sessions of physiotherapy to date.
31. On Dr. Cooke’s retirement, the plaintiff came under the care of Dr. Aideen Henry, Consultant Physician in Orthopaedic and Sports Medicine. When seen in October 2015, the plaintiff had the following complaints. He complained of neck pain, which was sore on five out of every seven days. The pain was constant. It was aggravated by work. He still got pins and needles in his right hand and his head felt heavy on his neck. He complained of right shoulder pain, which was sore two or three times a week, particularly if he did any reaching and, when he went swimming, his right shoulder was extremely sore. He also complained of low back pain, which was particularly sore at night. It was sore six days a week. It improved when the plaintiff was off work and he felt a numbness in the back of his left knee.
32. Examination of the plaintiff’s neck revealed a full range of motion. He felt a tightness at the limit of movement. There was a pain at the limit of left rotation and both lateral flexions. On palpation he was tender from C5 – C7 spinous processes. Upper limb neurology was normal. Examination of the right shoulder showed a full range of motion. There was pain at the limit of medial rotation and positive impingement tests. Examination of the lumbar spine also showed a full range of motion. There was pain at all extremes of movement. There was a negative slump test. There was reduced straight leg raising on the left by twenty degrees, with left leg pain and tenderness at L5 – S1 and to the left of this level. Neurology was normal.
33. Dr. Henry was of the opinion that the plaintiff suffered from the following injuries: persistent chronic neck pain with right arms pins and needles secondary to the fall in July 2013. In relation to a prognosis, she stated as the MRI had confirmed pre-existing degenerative change and as the plaintiff had an intervertebral disc protrusion at C5/6, which may well be irritating the nerve roots to the right arm, she felt that the prognosis was guarded. It remained to be seen how he would respond to the interventional treatment with Prof. Harmon. She recommended a review once the plaintiff was finished with Prof. Harmon.
34. The plaintiff also had persistent right shoulder pain secondary to the fall. In terms of a prognosis, Dr. Henry was of the opinion that on clinical examination, he had signs of impingement. She recommended an MRI of the right shoulder to assess if there had been a structural injury caused by the accident. The prognosis would depend on the diagnosis.
35. Dr. Henry was of opinion that the plaintiff suffered from chronic low back pain secondary to the fall in a man with pre-existing asymptomatic degenerative change. In terms of a prognosis, he was likely to have some interventional treatment with Prof. Harmon for his low back also, so she recommended a review after that treatment. As his symptoms were significant and ongoing, she felt the prognosis was guarded.
36. An MRI scan of the right shoulder on 11th November, 2015, showed the existence of supraspinatus tendinosis, subdeltoid bursitis and severe degenerative change in the acromioclavicular joint.
37. In a letter dated 12th November, 2015, Dr. Henry noted that the plaintiff was to see Prof. Harmon in the coming months for injection of his right shoulder. She noted that an MRI scan confirmed that there was no structural injury to the shoulder in the accident and that he had pre-existing degenerative change in his AC joint. When Dr. Cooke saw him in August 2013, he had clinical signs of shoulder tendonitis and similarly when she saw him, she felt that he had signs of shoulder impingement. The likely source of this pain was his supraspinatus tendon and irritation within the subacromial space. She stated that hopefully this would respond well to injection treatment under the care of Prof. Harmon. She recommended a review once that treatment had finished.
38. In a further letter dated 18th December, 2015, Dr. Henry stated that she felt that it was likely that the accident in July 2013, caused an impact injury to his right shoulder causing his previously pain free shoulder to become symptomatic. Without any results of investigations pre-accident, it was not possible to say what effect it had on his pre-existing degenerative change.
39. In her evidence, Dr. Henry stated that she felt that the plaintiff’s complaints were genuine. He had significant ongoing pain, for which he had been referred to Prof. Harmon for injection treatment. From the GP’s notes, which had been discovered in the case, there was reference to previous pain in the cervical spine, but this was not of a persistent nature and he did not need injection treatment for these complaints. While he did have pre-existing degenerative changes in his spine, and had some pain prior to the accident, it was not at the level that it was at post-accident.
40. In cross examination, Dr. Henry stated that she asked the plaintiff did he have pain in his neck, shoulder or lower back in the year immediately prior to the accident and he said that he did not. She noted that in the GP notes there was reference to parasthesia and dorsal pain, but the plaintiff had not complained to her of dorsal pain; he had complained of neck and lower back pain. She stated that the existence of parasthesia in the medical records did not affect her diagnosis. The plaintiff had degenerative changes in his neck and had had an incident of pain in 2010, but that seemed to have settled. She accepted that complaints of parasthesia in the right hand were probably referable to something happening at the C5/6 level. She stated that people could have degenerative changes in their spine but could be asymptomatic. If he had not had the accident, the neck pain may have remained episodic.
41. It was put to the witness that when the plaintiff was examined by Dr. Spillane on behalf of the defendant in June 2014, examination revealed that the plaintiff had a pain free range of movement of the neck, shoulder and lower back. Dr. Henry stated that she had found full movement in these areas, but there was pain at the limits of movement. In re-examination, she stated that a person can have pre-existing degenerative changes and an accident can render these changes symptomatic. She was unable to give a prognosis in the case, as this would depend on the success or otherwise of the treatment being given to the plaintiff by Prof. Harmon.
42. Evidence was given on behalf of the defendant by Dr. Brian Spillane, Sports and Orthopaedic Physician. He first examined the plaintiff on 16th June, 2014, approximately eleven months post-accident, at which time the plaintiff’s complaints were that his neck felt heavy at times and he complained of numbness and parasthesia in the right hand. According to Dr. Spillane, the plaintiff had no actual pain in the neck. He complained of discomfort in both shoulders when working overhead, packing high level shelves. He also complained of a niggling discomfort in the lower back which was present constantly. His pain could be aggravated by walking, bending or lifting and prolonged sitting and standing.
43. On examination of the plaintiff’s cervical spine, Dr. Spillane found that the plaintiff had a full range of pain free movement. Palpation revealed no localised tenderness. There was no neurological deficit present in either upper limb. Examination of the right shoulder showed that the plaintiff had a full range of pain free movement, resisted movements were strong and pain free. Examination of the lumbar spine showed that flexion was to his mid-shin and extension was full. These were uncomfortable at the extremes of motion. Palpation revealed subjective tenderness over his lower lumbar segments. Straight leg raising was to eighty degrees on both sides and there was no neurological deficit present in either lower limb.
44. Dr. Spillane was of opinion that the plaintiff had suffered a soft tissue injury to his neck, lower back and right shoulder. He had been out of work for a number of months, which the doctor put at two months, but had since returned to work without interruption. The plaintiff’s complaints were not very severe and he only required occasional painkilling medication. Dr. Spillane was of the view that the plaintiff had probably aggravated degenerative changes in his neck and lower back. He expected a full recovery within the next three – six months. He was of the view that any long-term problems which the plaintiff may have would be caused by the degenerative changes and the ongoing aging process.
45. The plaintiff was subsequently seen by Dr. Spillane on 22nd October, 2015, some two years and three months post-accident. At that examination, the plaintiff stated that he had not improved over the past sixteen months. He said that his discomfort was mainly at work. He did not need painkilling medications on his day off. He told Dr. Spillane that his head “feels heavy” at times. He gets pain at the back of his neck radiating to both shoulders. This “comes and goes”. It tended to be precipitated by a heavy day at work. The pain could wake him at night.
46. The plaintiff also complained of central and left sided lower back pain as well as upper back discomfort. This was aggravated by sitting for too long or walking some distance. Any physical work would aggravate his complaints. He was unable to take his dog for a walk now. He stated that he occasionally got pain down the back of both legs.
47. Clinical examination of the cervical spine revealed that all movements were limited by the last ten degrees to twenty degrees, but were pain free. Palpation revealed subjective tenderness bilaterally over his mid-trapezius musculature. There was no neurological deficit present in either upper limb. Examination of the thoracic spine revealed that rotation to either side was restricted and painful. Palpation revealed subjective tenderness over the spinous process of T4 to T8 and bilaterally over the paravertebral musculature at these levels. Examination of the lumbar spine revealed that flexion was to his mid-shin and extension was limited. These were uncomfortable at the extremes of motion. Palpation revealed subjective tenderness over his lower lumbar segments and bilaterally over his paralumbar musculature. Straight leg raising was to seventy degrees on both sides and there was no neurological deficit present in either lower limb.
48. Dr. Spillane was of opinion that the plaintiff had genuine complaints related to his neck, upper back and lower back regions. However, not all these problems were caused by the fall. It was likely that the plaintiff had pre-existing degenerative changes which were aggravated by the accident. It was noted that the plaintiff was receiving further treatment from Prof. Harmon.
49. Dr. Spillane expected good improvement and a good recovery from any accident related complaints within the following six to twelve months. He was of opinion that any long term problems would be due to the natural progression of his degenerative disc disease and the normal aging process.
50. In cross examination, the witness accepted that the fall constituted a significant insult to someone who had pre-existing degenerative changes in their spine. Dr. Spillane noted that the plaintiff had had some visits to his GP in 2009, 2010, 2011 and he may have had pain for some time before he went to see his doctor. In particular, in May 2010, it was noted that the plaintiff had complained of neck pain for the previous six months. He accepted that the plaintiff had not been referred for specialist opinion on these occasions. The plaintiff had been treated appropriately with physiotherapy and medication.
51. It was put to the witness that the plaintiff had had a significant number of visits to the physiotherapist and required painkilling medication on a daily basis. Dr. Spillane stated that the plaintiff seemed to have deteriorated since he first saw him. However, he felt that the effects of the accident had diminished and that the plaintiff just got worse because he was getting older. He was of the view that the plaintiff’s current problems were due to age related changes getting worse over time.
Conclusions on Quantum
52. The plaintiff is 57 years of age. It is clear from the medical records and the MRI scans, that the plaintiff had pre-existing degenerative disc disease in his spine prior to the accident. While the plaintiff’s neck had been symptomatic prior to the fall, it does not seem that it was particularly troublesome. The plaintiff had not been referred for specialist opinion for any such complaints prior to the accident.
53. There is a difference of opinion between Dr. Henry and Dr. Spillane as to the likely duration of the aggravation to the spine condition caused by the accident. Dr. Spillane is of the opinion that any such aggravation only lasted for a short period of a number of months such that the plaintiff’s present condition is due to the presence of degenerative disc disease in his spine and the normal aging process. However, this view seems to be at odds with the content of his second medical report dated 22nd October, 2015, where he stated:-
“I would expect gradual improvement with a full recovery from any remaining accident related complaints over the next six – twelve months.”
54. On the other hand, Dr. Henry is of the view that the accident did aggravate pre-existing degenerative changes in the plaintiff’s spine, which, with the exception of the cervical spine, had been asymptomatic prior to the fall. She was of opinion that the effects of the accident continued to contribute to the plaintiff’s current symptoms. She was of opinion that the accident caused an injury to the plaintiff’s right shoulder, causing his previously pain free shoulder to become symptomatic.
55. I prefer the evidence of Dr. Henry. I am satisfied that the injuries sustained to the plaintiff’s spine have caused an aggravation of pre-existing degenerative changes in his spine. The plaintiff’s neck condition was made considerably worse and the right shoulder and lower back, which had been asymptomatic, have been rendered symptomatic as a result of the injuries suffered in the accident.
56. I accept the evidence of the plaintiff that he has considerable difficulty in carrying out the demands of his work. He also experiences pain at the end of the working day and at night. I accept that he is restricted in the pursuit of his hobbies of local history tours and walking his dog, as he is unable to walk long distances. He is not able to walk to work as he had done prior to the accident. It was put to the plaintiff that he had been less than forthcoming in his pleadings and in his statements to the defendant’s doctor, as regards his previous neck complaints. I do not accept that the plaintiff deliberately held back any information concerning his pre-accident medical history. Given the nature of his complaints at that time, these were not of such a level that the plaintiff would have thought them relevant when giving an account of his post-accident symptoms. I have reviewed the plaintiff’s GP medical records. While they refer to some pre-accident complaints, mainly in his neck, they do not disclose serious or prolonged symptoms.
57. In assessing general damages in this case, I have had regard to the guidelines set down by the Court of Appeal in Payne v. Nugent [2015] IECA 265, Nolan v. Wirenski [2016] IECA 56, and Shannon v. O’Sullivan [2016] IECA 93.
58. I award the plaintiff €50,000 for pain and suffering to date. In relation to the future, Dr. Henry was not able to give a prognosis until the injection treatment being carried out by Prof. Harmon was completed. It is not known what exact treatment is being given in this regard, nor for how long the treatment will last. In the absence of any information in respect of future treatment, the court cannot speculate as to the duration, or likely success, of such treatment. All I can do is have regard to the plaintiff’s evidence that he has had two injections to date, but that they only gave him temporary relief from his symptoms. Whether this will remain the case, is not known. In the circumstances, I propose to allow a very modest sum for future pain and suffering. I award €10,000 for future pain and suffering.
59. To these figures must be added the agreed sum for special damages of €4,020.63, giving an overall award of €64,020.63.
Jamroziewicz v O’Neill Brennan Limited
[2016] IEHC 188
EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on 7th day of April, 2016
1. The plaintiff’s hand was injured when he was employed by the first named defendant to work on behalf of the second named defendant at a site under its control during the excavation of the Shannon Tunnel.
2. The accident occurred at approximately 4.30 p.m. on 23rd April, 2008, and it occurred when the plaintiff’s left hand, which is his non-dominant hand, came into contact with the electric saw which was operated by the plaintiff in the course of his work for the second named defendant.
3. It resulted in the plaintiff losing half of his first finger, a third of his ring finger and some lesser damage and scarring to his middle finger and his little finger. His doctor, Mr. Michael O’Shaughnessy a consultant plastic and hand surgeon, described the overall effect of the accident as a loss of function of approximately 30% in the plaintiff’s left hand.
4. There was no eye witness evidence given regarding the incident and the site of the accident was completely altered since the accident occurred, as it is now the Shannon tunnel.
5. The evidence of the plaintiff as regards the state of the ground at the time of the accident is that it was wavy, as it was concrete that had been laid on the bed of the River Shannon, before the river was drained. It was asserted on behalf of the plaintiff that concrete when it sets in the vicinity of water can be wavy or uneven as a result of the movement of the water, unlike concrete which is set in dry conditions.
6. There is not a lot of evidence to go on regarding the accident and in addition, the plaintiff’s memory of the accident, which occurred 8 years ago is not great since he stated that he ‘did not remember exactly the moment” of the accident.
7. Based on the plaintiff’s evidence, the Court concludes that that the ground was wavy or uneven as a result of the setting of the concrete on the bed of the Shannon.
8. Based on the cross-examination of the plaintiff regarding the accident, the Court concludes that he was standing beside the saw when the accident happened, as he needed to be in close proximity to the switch to turn it on, before commencing the cutting of the wood.
9. This eliminates, in the Court’s view, the possibility that the plaintiff fell on the way to the saw as a result of the wavy ground.
10. On the basis of the evidence that is available to the Court, the Court concludes that, on the balance of probabilities, the plaintiff was standing beside the saw, rather than walking towards it, when he lost his balance in some way because of the uneven ground.
11. However, for this loss of balance, when he was standing so close to the saw, to have led to the damage to the plaintiff’s fingers, the Court also concludes that, on the balance of probabilities, the plaintiff had his hand too close to the saw when he was doing this manoeuvre and/or he had not properly used the crown guard on the saw, which he had been operating from early that morning.
12. For this reason, while the Court finds that the defendants were negligent for failing to provide a safe place of work for the plaintiff, it finds that the plaintiff was guilty of 25% contributory negligence and so the following awards are subject to a 25% deduction.
13. As regards general damages to date, including the psychological pain and suffering of the plaintiff, this Court would award €75,000.
14. As regards future general damages, it would award €25,000 (both figures to be reduced by 25%).
15. As regards special damages, the Court is dealing with this in two tranches.
16. First, the period from the date of the accident in April 2008 until July 2010, when the Tunnel work was complete, since the plaintiff’s contract would have come to an end at this date, at the latest).
17. Based on the P60 produced in court which shows a net payment of €820 per week, this Court would award the plaintiff the sum of €95,940 for a period of 117 weeks from the date of accident until July 2010 (to be reduced by 25%).
18. These special damages are being awarded on the basis that if the plaintiff had not been injured, it is likely that he would have continued to work on the Shannon Tunnel project to its conclusion in July 2010.
19. The second aspect to the special damages is the period after the Tunnel was finished in July 2010 until the plaintiff resumed work in August 2011. As regards this period of time, this Court concludes that, on the balance of probabilities, the plaintiff would not have found work due to the economic recession in Ireland and he could have left the country, as he duly did in 2011, to find work in France and Germany, for which work he is currently remunerated at the rate of €1,300 per month.
20. Accordingly, for the period from the end of the Shannon Tunnel project in July 2010 to August 2011, when he returned to work, the Court would award the plaintiff the sum of €15,600 (to be reduced by 25%) being the annualised monthly payment at a rate of €1,300 per month.
21. As regards the period from August 2011 to date and into the future, the Court is making no order in relation to special damages, even though the plaintiff has worked only approximately 50% of the time due to his injury to date.
22. This is because his inability to work for longer than a month or two at a time is attributable to tennis elbow in his left elbow, according to his own consultant’s report.
23. However, his own consultant, Mr. O’Shaughnessy, felt that it was possible that this could have been resolved if the plaintiff had sought expert professional advice, which he has failed to do.
24. Furthermore, Mr. O’Shaughnessy also referred in his oral evidence to the fact that this tennis elbow may be aggravated by the modified grip which the plaintiff uses for his left hand when working. Thus, even if the tennis elbow would not have been cured by the specialist treatment, it was open to the plaintiff to seek work since August 2011 and into the future, which does not require him to use a modified grip and if he had done so, it is likely that his tennis elbow would not have prevented him from working full time.
25. While the Court accepts, based on the evidence of Mr. O’Shaughnessy, that there is a degree of uncertainty and speculation about whether the plaintiff’s tennis elbow would have been, or will be, eliminated and that there is a degree of speculation of how easily he will find a job which requires him to use a modified grip for lifting material. On the other hand it is to be noted that Mr. O’Shaughnessy felt that he was well enough to return to work in October 2008, yet the foregoing special damages award compensates him not up to October 2008 but up to August 2011, when he did return to work.
26. There is a certain degree of latitude being given to the plaintiff in this regard and also because these special damages grant him the full rate of pay plus overtime which was payable at the height of the economic boom (and which was the best rate of pay the plaintiff ever received). Similarly, no account is being taken of the fact that the plaintiff might have been left go prior to end of the project in July 2010 and been unemployed, or employed at the lesser rates which had come into force from 2008 to 2010, referred to by Mr. Cronin of O’Neill Brennan Limited, who himself was made redundant by that company in 2008. Mr. Cronin also referred to the fact that 90% of the workers were made redundant by O’Neill Brennan Limited at this time, but no account is being taken of this fact in this aspect of the award.
27. On the other hand, there is a certain degree of latitude being granted to the defendant as regards there being no special damages ordered post August 2011, since it is being assumed that the plaintiff would have had his tennis elbow resolved if he had it seen by a specialist, as recommended by his consultant or in the alternative that he could have or will find full time work which will not aggravate his tennis elbow.
28. To summarise, the plaintiff will be awarded a total sum in damages of €158,655 nett, made up of general damages of €75,000 (being the €100,000 reduced by 25%) and special damages of €83,655 (being €111,540 reduced by 25%)
29. Costs awarded to the plaintiff against both defendants, including costs of discovery and any reserved costs.
Marsella v. J & P Construction Ltd.
[2004] IEHC 369 (30 November 2004)
Judgment of Mr Justice Michael Peart delivered on the 30th day of November 2004:
On the 19th March 1993, the plaintiff fell off a scaffolding platform while he was plastering a ceiling in the corridor of a school.
He was unconscious for about 15 minutes and received an injury to his head, right shoulder, right wrist, lower back, chest and right cheek. I will deal with these injuries in more detail in due course.
The defendant was the main contractor for the renovations being carried out at the school. The third party is also a plasterer, who was working alongside the plaintiff on the platform at the time, and who was joined by the defendant as a Third Party, on the understanding that the plaintiff was employed by the Third Party at the time of this accident, and on an understanding that the Third Party had also assisted in the erection of the scaffolding platform in question.
For reasons which I shall set out, I am satisfied that neither of these understandings is borne out by the evidence, and in so far as there were averments made for the purposes of the application to join the Third party, or pleadings or particulars to like effect, same are incorrect. I am satisfied that the Third Party has no liability to indemnify the defendant in relation to any liability found against the defendant company.
The relationship between the plaintiff and the Third Party:
These two men have known each other since they were teenagers. In 1989 the plaintiff was working in England as a plasterer, and around that time, Mr O’Grady went over to England and began to work as a plasterer with the plaintiff. The plaintiff returned to Dublin around 1990, and Mr O’Grady came back the following year. It was around that time that they started working as a plastering team. That is the most convenient way of describing the working/business relationship between them. They were not partners in the strict legal meaning of that term. There was no partnership agreement, either verbal or written, as lawyers understand that term, but they certainly worked as a team on jobs, and they had an agreed basis upon which the price for any job done would be split between them after allowing for the overheads and deductions. While this relationship defies any strict legal categorization, it is a relationship which enjoys a form of acceptance or recognition by the Revenue Commissioners. The relationship for tax purposes is based on a Form C45 used by registered sub-contractors. It is a relationship which does not attract the liability for each other’s debts and obligations in the way normally understood in a partnership, and it also contains a certain informal fluidity. The arrangement between the two men appears to have allowed for a situation where, if a particular job was obtained through a contact of Mr O’Grady’s then a business name of his namely “OG Plastering” would be named on the C45 form as the subcontractor to whom the main contractor would make his payment for the job sub-contracted, and the profit after overheads and disbursements would be equally shared between what is known as “the group”, which would comprise the plaintiff and any other plasterers on that job. The plaintiff therefore would be named on the C45 as the recipient of a certain sum, and would himself thereafter make his own return to the Revenue in respect of his tax liability.
Conversely, if a particular job was obtained through a contact of the plaintiff’s, the payment would be made to him by the main contractor, and Mr O’Grady would be named on the C45 as part of the group, and would be shown on the C45 as having received a certain sum, and would make his own return to the Revenue Commissioners. It would appear that this type of working relationship is well known in the trade, and applies not only to plasterers but also perhaps to other trades working regularly as subcontractors.
Much effort was expended on the part of the defendants in this case to establish that Mr O’Grady was in fact the employer of the plaintiff in the normal sense of that word, or alternatively that the pair constituted a partnership in the more usual or understood meaning of that term, in order to establish that Mr O’Grady, in either capacity, owed a duty of care to the plaintiff in the manner of the erection of this scaffolding, from which the plaintiff fell and injured himself.
However, without setting out all the evidence that was given and submissions made, and which will no doubt appear fully set forth in the transcript, if required, I am satisfied that that the relationship between the two men is not one, as a result of which the Third Party owed any duty of care to the plaintiff which is relevant to the injuries received by the plaintiff in this accident.
As I have said it is virtually impossible to categorize the relationship by the use of any term normally used to describe the relationship between two men working together. But I am satisfied that although there is some loose form of profit-sharing within the relationship, both are in reality self-employed persons who come together from time to time and work as a team, but without either being subsumed into any relationship with the other as an employee or into a partnership as such. One could perhaps describe it as a sui generis relationship enjoyed between sub-contractors in the plastering trade. I am satisfied on the evidence that the plaintiff was never employed by Mr O’Grady in the normal sense of the term “employed”. I am also satisfied that when the contract for the job at this school was negotiated, it was through a contact of Mr O’Grady, who knew the main contractor’s Mr Fitzpatrick. I am also satisfied on the evidence that at the meeting organised to discuss the job and agree the price, the plaintiff was also present with Mr O’Grady.
That is all sufficient to dispose of the Third Party issue, and it has been convenient to do so at the commencement of this judgment rather than to leave it to the conclusion. That leaves the issue of liability to be decided solely as between the defendant and the plaintiff, including the question of any contributory negligence on the part of the plaintiff himself.
The issue of liability as between the plaintiff and the defendant:
The evidence of the plaintiff and of Mr O’Grady who also gave evidence, is that it was agreed with Mr Fitzpatrick that the main contractor would provide the plasterers with the scaffolding necessary to do the plastering in the school, which included plastering the ceiling of the corridor in question. In fact, in fairness to Mr Fitzpatrick, he accepted in cross-examination by James Nugent SC for the plaintiff, when it was put to him, that the responsibility for ensuring that the scaffolding was in place for the plasterers was with the main contractor. There is no room for doubt on the evidence about this. I am satisfied that the primary responsibility for ensuring that a safe scaffolding was in place for the plasterers to work on lay with the defendant company. That is not to say however that experienced plasterers such as the plaintiff do not have some responsibility towards themselves to make sure that their working area is one which it is safe to enter upon and work in or, as in this case, on. I will come to that.
The plaintiff’s evidence:
The plaintiff stated that on this job the main contractor was to supply the scaffolding for the plasterers, in addition to items such as water and power. In his experience the plasterers would never provide their own scaffolding. He stated that prior to the Friday on which this accident happened there had apparently been scaffolding there but that it belonged to painters or other crews. This scaffolding was not going to be available on the Friday of that week, and it was apparently agreed by Mr Paul Fitzpatrick of the defendant company that he would provide his own scaffolding. The plaintiff has stated also that when he arrived to start the work on this day, he commenced work on lower areas while the scaffolding was being erected. He said that neither he nor Paul O’Grady took any part in the erection of the scaffolding itself that morning. He stated that at about 2pm he mounted the platform which was by then in situ. The platform was sitting on a concrete floor which was possibly tiled, although he was unsure about that. The planking on the scaffolding would have been about eight feet off the ground. He says that he noticed nothing unusual about the scaffolding which had been erected before he got up on it. It was constructed of two eight foot sections which were joined together making a sixteen foot length of scaffolding altogether. It was mounted on wheels, so that it could be moved up the corridor as required.
He says that Paul O’Grady was up on the scaffolding with him and that they were each working on the scaffolding, but starting from opposite ends as they plastered the ceiling in question. In the centre of the scaffolding was a table from which they took their supply of plaster onto their hawks. They were working overhead – in other words their heads were facing upwards as they worked. He stated that he would have been able to see the end of the scaffolding while working, so that he knew how far he could walk along the length, but that he could not see that there was in fact a gap between the end of the planking and the frame of the scaffolded platform caused by the fact that the planks did not quite reach the end of the sixteen foot length. In any event he states that about two minutes after he started work on the ceiling his foot went into the gap in question causing him to overbalance and he toppled over and fell to the floor beneath him. He described himself as flipping over and hitting the ground.
He was unconscious, and was eventually removed to St. James’s Hospital where he was treated for his injuries. I will return to those injuries later.
He was cross-examined by Kieran Fleck SC on behalf of the defendant. In answer to questioning the plaintiff stated that before getting onto the platform he checked it by shaking it to make sure it was steady, and he said “it looked okay”. He agreed that he had not carried out a detailed inspection before mounting it, but that he simply inspected it. It was naturally put to him that if he had carried out any sort of reasonable inspection he would have seen quite clearly that the planks were short at one end and that there was a gap, but the plaintiff felt that this would not necessarily be the case, given that the length of the platform was in the order of seventeen feet, and unless he got up onto the platform at that end, which he did not. The evidence appears to be that he started his plastering at the other end and worked his way down to the end where there was a gap.
He was asked about the size of the gap itself, and he described it as being about four feet in depth and one foot wide. The Court was shown some photographs of this platform albeit one taken on the following day, and after it had been re-located in another room off the corridor so that work could be done in that room, and it certainly confirms these dimensions of the gap, on an assumption that it was reconstructed in the other room in the same way as it had been for the work in the corridor when the plaintiff fell.
It was put to the plaintiff that he could not have been keeping a proper look-out for his own safety if he did not see this gap in the platform. However he stated that while he could see the pole at the end of the scaffolding he could not see the gap in the floor.
It was also put to him that Mr Fitzgerald who came on the scene from a room just off this corridor immediately after the plaintiff fell will say that, when he saw the scaffolding at that point in time, a cross-bar which was supposed to be in place at the end in question of this platform at a level of about 1 foot above the level of the planks, and which would act so as to stop somebody falling off the end of the platform, had been removed, and was in fact lying lengthways along the planks at that end of the platform. The plaintiff knew nothing about that but said also that this particular cross-bar, at the level it was at, would not in fact prevent anybody falling off the end, because it was only to knee height.
Mr Fleck also put it to the plaintiff that in fact what had happened was that the plaintiff had simply come to the end of the platform without realising it and had simply fallen off the end in the absence of this cross-bar being in place. The plaintiff reiterated that what had happened was that his foot had gone down into the gap and that he had then fallen over and onto the ground below, and that it was not the case that he had simply gone too far down the platform and fallen out over the end. The plaintiff agreed that nobody had made any complaint about this scaffolding to Mr Fitzpatrick before getting up onto it in order to work.
The plaintiff was also cross-examined by Marcus Daly SC on behalf of the Third party, and it is not necessary to set this out in detail in view of the finding already made in relation to the Third Party.
Evidence of Paul O’Grady:
Mr O’Grady gave evidence in relation to some photographs which he took on the following day after the platform had been dismantled and re-assembled in the other room to which I have referred already. He also stated that on the day of this accident he had been working on the platform with the plaintiff and had been working from the opposite end to the plaintiff, but that when he had got up onto the platform from the ground he had not spotted the gap either. It was put to him that if he had walked around the scaffolding before getting up on it, he would have been able to see the gap on a reasonable inspection. He said that if he walked past the scaffolding on that morning before getting up on it he was net paying any heed to the scaffolding itself, and he said that as he was working on the platform his mind was on skimming the ceiling and he did not notice the gap. He went on to say that they were working under some pressure to get this job finished because they had other work to go to. He also was sure that the cross-member was present at the end of the scaffolding, and not, as was stated by Mr Fitzpatrick, lying on the planks lengthways.
Mr O’Grady accepted that he would have a duty to check out his place of work himself but said that he did not notice the gap, but he disagreed with the suggestion put to him that he had failed to carry out any reasonable inspection before using it himself.
There was other cross-examination about matters such as the nature of the business relationship between him and the plaintiff, as well as the negotiations with the defendant for the contract, but I have already dealt with these issues.
Evidence of Mr David Semple, Consulting Engineer:
Mr Semple was shown the photographs of the scaffolding showing the gap in question, and expressed the view that this scaffolding ought not to have been used as it was unsafe. He pointed out that there was no proper handrail, and was not properly decked out. In addition there was no proper access and no toe-boards. He explained that the purpose of toe-boards was that a scaffolding is supposed to be an area which is as safe to work on as a floor itself. He stated that from the photographs there was clearly a gap at one end. He stated that the plaintiff working on the skimming of the ceiling would have his concentration on the area over his head, and that in these circumstances this gap was a danger and should never have been provided for use in this way. He also pointed to the fact that the cross-bar/handrail was not the proper height since it was only eighteen inches over the level of the planks, and that it should have been three to four feet above them to be of use.
He stated that the Regulations provided that a scaffolding ought to be erected only by competent scaffolders, and that this scaffolding was erected by labourers, and that it had not bee checked out. He was of the view that it was not in compliance with the Regulations and was dangerous.
He was cross-examined by Mr Fleck, and he accepted that the plaintiff’s fall, would have been about two metres. He also agreed that if workmen had got up on this platform to inspect they would have been able to see the gap, but that it might not have been obvious if a man simply walked past the scaffolding. It was put to him that it would be reasonable to expect that an experienced plasterer would check out the work area before getting up on the scaffolding. But Mr Semple expressed the view that it was reasonable for such a person to assume that it was in order. He agreed that there should have been a cross-member in place at the end of the platform, because in the absence of one a person could walk off the end. He was then cross-examined about how the plaintiff might have fallen, and he was of the view that what happened was that the plaintiff’s foot went through the 12 inch gap which he described as a significant gap, and that he would have been moving at the same time while skimming the ceiling, and that this would have caused him to topple over the rail and fall to the ground.
It was put to him that the cross-rail had been removed in this vase, but Mr Semple stated that in his opinion that cross-rail even if it was in place would not have prevented the plaintiff from falling. He agreed that it served some purpose, but not much.
He also gave his opinion that there can be only one person on a site who is in charge of safety on the site, and that was the main contractor.
Evidence of Paul Fitzpatrick:
Mr Fitzpatrick is the Managing Director of the defendant company. He did not actually see this accident happen, but he was working on the wages that Friday in an office just off the corridor on which the scaffolding was erected. He heard a commotion outside and immediately went out to see what had happened.
He provided the scaffolding on wheels for the plasterers. It was erected by labourers of his that morning. He says that after it was erected there were two cross-members in place, one at each end, and that there was atop bar or handrail at the end where the plaintiff fell. This is the rail shown in one of the photographs identified as photograph A.
He described the planks as being 16 feet in length. The two 8foot pieces of scaffolding were joined together with couplings and the planks were laid across both portions. The planks were short at one end, although he stated that they should have been short by just one and a half inches at each end, rather than all the shortness being at one end, as happened.
He stated that when he came out of his room he saw the plaintiff lying on the floor with his feet facing towards the scaffolding and his head to one side. His trowel and hawk were on the ground in front of him. His concern was to get an ambulance and he called for one twice. He also saw PaulO’Grady down on the floor with the plaintiff, he could not remember whether he was at his side or in front of him.
He stated positively that the cross-member which has been referred to was not in place but was lying lengthways on the planks at the end from which the plaintiff fell.
Mr Fitzpatrick was cross-examined quite extensively in relation to the contents of a work diary which had only been found by him on the night before this hearing, and which had not been discovered when discovery was being made in this case. In fact as things have transpired nothing turns on the contents of that diary, and I will not detail all that evidence.
On cross-examination by James Nugent SC he accepted that it was a main contractor’s responsibility to ensure that scaffolding was in place for the plasterers, and that he did so on this occasion. There was also some cross-examination of Mr Fitzpatrick arising out of the fact that during the course of these proceedings there was correspondence from the defendant’s solicitors to the plaintiff’s solicitors in October 1998 suggesting that the defendant was maintaining at that time that the labourers employed by the defendant and who erected the scaffolding, in fact were working on that occasion under the control of the Third Party, Mr O’Grady. Mr Fitzpatrick appeared to be unaware of that case being made. At any rate it does not matter to the extent that I am completely satisfied that Mr O’Grady had no involvement whatsoever in the provision and erection of this scaffolding and that any liability to the plaintiff attaches to the defendant company.
Mr Fitzpatrick stated under cross-examination also that it was up to the plaintiff to inspect the scaffolding before using t, if he so wished. He said that the same would apply to workers of other trades, such as plumbers, tillers, glaziers, electricians, if these persons were required to work at a height. He also accepted that on this day he would have walked past this scaffolding on a number of occasions, and he did not notice the gap at the end thereof. He also stated that in his view the plasterers should have had their attention on both the ceiling and the floor of the platform as they were working.
Some legal submissions:
Kieran Fleck SC on behalf of the defendant made submissions to the effect that the Court should view the plaintiff and the Third Party as contractors, and not employees or servants of the defendant. He submitted that one scenario was that Mr O’Grady was a contractor who had employed the plaintiff. In that situation, it is submitted that a duty of acre was owed to the plaintiff by Mr O’Grady.
Another scenario was the both Mr O’Grady and the plaintiff together constituted a sub-contractor, each being self-employed in relation to each other. In such a situation the plaintiff would owe a duty of care to himself. In addition, however one viewed the situation, either or both was a contractor, and therefore came within the definition of “a contractor” for the purpose of the Regulations.
If the plaintiff was a subcontractor, Mr Fleck submitted that any liability was in contract only.
Yet another scenario was that neither Mr O’Grady nor the plaintiff were contractors but yet were in some form of partnership whereby each was jointly and severally liable for the torts of the other, and that thereby the plaintiff was liable himself for the torts of Mr O’Grady.
In response, Mr Nugent submitted that the interpretation of the Regulations relied upon by Mr Fleck was a strained one in the context of the plaintiff’s case, and that the Regulations were never intended to exempt the main contractor from liability for negligent acts.
Conclusions in relation to liability:
In my view, the question of liability for the plaintiff’s injuries can be decided by the ordinary principles regarding the duty of care owed in certain situations by one person to another. There is no need to decide whether the plaintiff was a contractor in any sense relevant to the Regulations to which Mr Fleck referred. I have already expressed my view on the nature of the relationship between the plaintiff and the Third Party.
In my view the defendant company which, through Mr Fitzpatrick, has accepted that it was obliged to and did erect the scaffolding in question, owed a duty of care in the manner in which that scaffolding was assembled or constructed, to any person who would, in the reasonable contemplation of the defendant, be likely to be upon it or to use it. In the circumstances of this case, there can be no doubt that it was foreseeable that someone such as the plaintiff, a plasterer, would be using it, and the element of proximity is clearly present since Mr Fitzpatrick had engaged what he believed to be a plastering subcontractor to do the work. It is of no relevance really whether he believed he was engaging just Mr O’Grady, rather than the “team”comprising Mr O’Grady and the plaintiff. What is beyond any doubt is that the duty of care was owed to whatever person was in fact plastering with the aid of this scaffolding.
Whatever the relationship between the plaintiff and Mr O’Grady, it was not one of employer/employee in the normal sense of that term such as would create obligations on Mr O’Grady as an employer. I am satisfied that Mr O’Grady did not owe a duty of care to the plaintiff in any respect relevant to how this accident happened. Obviously he would owe a duty of care to him not to do a negligent act during the course of working with him on that scaffolding, but that is another matter altogether and not relevant to the present case. It follows that the duty of care was owed by the defendant directly to the plaintiff.
As far as contributory negligence is concerned, I am also satisfied that the plaintiff had some responsibility as an experienced plasterer to take basic care and precautions in respect of his own safety, and this must be taken to include making sure as far as reasonable, by appropriate inspection, that the work place in which he was to work is safe and suitable. This duty does not in any way supplant the duty on the part of the main contractor in the manner in which the scaffolding is assembled.
I am satisfied that the plaintiff was at the time a very experienced plasterer. That experience will have told him that care is required to ensure that an item such as a scaffold is a potentially dangerous position to work from. That potential danger is reflected in the need for regulations in the manner in which scaffolding over a certain height is concerned. Even if the height of this platform was not over that limit, the plaintiff himself cannot work on an assumption that the platform is safe. However, clearly the main contractor bears a larger portion of the responsibility to ensure that the scaffolding is safely constructed.
I am prepared to accept that the plaintiff may not on a casual observance of this structure from the floor have noticed the fact that the planks were short at one end, thereby causing a gap to exist which was dangerous. I accept also that while working upon the platform in the act of putting plaster on the ceiling, he would be looking upwards and not to the planks in the direction in which he was working. But the latter fact in particular must imply or mandate that the plaintiff, before he commences his work, should check that where his feet will travel while he is looking upwards at the ceiling, is safe.
In the circumstances I believe that the plaintiff must bear 20% of the responsibility for this accident. If he was less experienced, that would be reflected in a lesser finding of contributory negligence perhaps, but it defies commonsense, if nothing else, to mount a structure such as this one and for the purpose in this case, not to adequately check its safety before commencing work upon it.
The plaintiff’s injuries:
In his first report dated 15th April 1993, Mr Maharaj, Consultant Orthopaedic Surgeon gives details of his findings following an examination which he carried out on the plaintiff some 5 days post-accident. He notes that the plaintiff was taken to St. James’s Hospital in Dublin where he had x-rays of his skull, shoulder, wrist and back, and that a plaster of paris was applied to his right wrist, and that he was detained there for twenty four hours and discharged home. He notes that he attended his GP a couple of days later complaining of headaches and pain on his left side. This report notes the injuries sustained as follows:
1. Head injury with a lump right side scalp and concussion.
2. Severe bruising of right shoulder.
3. Injury to right wrist with swelling.
4. Bruising lower back.
5. Bruising and pain left side chest.
An x-ray of the right wrist revealed a fracture. It was noted that the headaches would last up to half an hour, and that there was some numbness of the right cheek area. In addition his teeth were sore, as was his shoulder so that he could not lift up high. It was noted that he was sore across his lower back and on the left side of his chest.
Mr Maharaj advised him to sleep on a firm bed and to continue taking Voltarol tablets.
He was examined again on the 5th April 1993, and it is noted that the plaintiff complained of blood in his sputum, soreness to the left side of his chest. His chest was x-rayed and there was no sign of fracture and the lungs felt clear.
Mr Maharaj stated that the plaintiff had sustained a severe injury, and that his headaches were due to the concussion suffered, and that these could last for ” a good while”. He also noted that the fracture of a small bone in the right wrist could also take some time to heal. He stated that the blood in the sputum could be the result of contusion of his lung.
He was examined again on the 15th April 1993, and on that occasion, Mr Maharaj noted the injuries already set forth, but also stated that during his examination he noted the plaintiff “was tender right zygomatic arch region with prominence of right maxilla causing some deformity of face. Still has numbness over right maxilla”. An x-ray of the face disclosed an undisplaced fracture to the right zygomatic arch.
Mr Maharaj indicated that the plaintiff at that time would not be fit for work for three to four months depending on his progress.
By December 1993 some of the injuries were noted to have improved, but continuing headaches were noted as being expected to continue for a considerable time; there was continuing loss of sensation in the right maxilla region which would also last for some time, and it was noted that this could be permanent if there has been nerve damage. Mr Maharaj also stated that he would have “permanent deformity right maxilla giving rise to asymmetry of face.”
At that stage the plaintiff still had stiffness in the neck, and lower back areas, but had recently returned to work as a plasterer, although Mr Maharaj was of the view that the injury to his wrist and his back difficulties would cause him some long-term problems in that occupation.
In August 1995 the plaintiff was examined by Mr Michael O’Riordan, Consultant Orthopaedic Surgeon. This was almost two and a half years after the accident. He was of the view that the soft tissue injuries to the shoulder, lower back and left side would all clear up in time, but he noted that “on the right shoulder there are definitely signs of possible damage to the rotative cuff muscle”. He stated that as a general rule this would settle down with time, but that occasionally, from constant irritation, a tendonitis can occur. He felt that with avoidance of a lot of overhead activity this problem should settle in due course.
With regard to the face injury, he was of the view that the tingling complained of by the plaintiff would persist but would not be a major problem.
Six months later, Mr O’Riordan saw the plaintiff again and he complained that his main problem at that stage was his shoulder because it was giving him a lot of trouble when he was plastering ceilings, and he had deep pain in the shoulder itself on elevation of his arm. The wrist had settled down. Mr O’Riordan was still of the view that the shoulder difficulties would settle down with time, and that he would be able to continue with his normal working activities in the future. The onset of arthritis was not anticipated. Working overhead was still a problem for the plaintiff in November 1997 – over four years post accident. Sometimes he would get discomfort in his right wrist if he was doing a lot of plastering, and he had a small amount of low back pain at that point in time also.
By September 1999, Mr O’Riordan felt it advisable to have an MRI Scan of the right shoulder. He also did bone scans which revealed nothing abnormal. The MRI Scan revealed no significant pathology. Mr O’Riordan was thereafter able to state that the plaintiff’s prognosis was probably better that he had previously anticipated, although he would continue to have aches and pains for some time but that these should settle down eventually.
By June 2002, the plaintiff was still experiencing tingling in his right cheek intermittently, as well as some persistent stiffness and pain in his right wrist, as well as continuing difficulties in the shoulder area when working overhead.
The plaintiff was referred to Mr Frank Brady, Consultant Oral and Maxillofacial Surgeon in relation to the tingling and altered sensation in his face, which was stated to start over his right forehead and extends into the right cheek area. It was noted that there was increased sensitivity and occasional twitching of the right eyelid. He also noted that the plaintiff does not think that there has been any altered facial appearance.
Mr Brady opined that the plaintiff had permanent damage to the underlying sensory nerves and also that “there was no specific treatment for this irritating complaint”.
There are some further reports, but none which add to the sum of our knowledge about the continuing nature of the remaining symptoms described so far.
The plaintiff’s evidence concerning his injuries:
The plaintiff has stated that after he was brought to St. James’s Hospital in the immediate aftermath of this accident, he was nauseous, dizzy and drowsy, and in a state of shock. The injuries themselves were described as Mr Maharaj described them in his first report. He stated that he was released the following day with painkillers and anti-inflammatories. He said he was glad to be out and that pain and stiffness were his main complaints at that stage. This persisted for quite a while and he said it might have been about a year. The complaint about pain in his chest cleared up at between six and twelve months, but his wrist injury was more long-term. It would swell up after a day’s work, and the degree of soreness would depend on how much work he did using the wrist. It is a feature of plastering that the wrist is put to considerable use. The plaintiff stated that the pain in his cheek cleared up in about six months.
In relation to hi9s shoulder he had problems at work until about 1997, after which his business had developed to the point where he had men working for him, and he did not have to do much actual plastering. He was more managing the rest of the men and the business. Nevertheless the plain would come against him occasionally.
Nowadays he still gets some discomfort, particularly after a day’s fishing, although it would not stop him going fishing.
As far as the sensitivity and tingling in his face is concerned, this continues to be troublesome. He is aware of it, for example, when he combs his hair or touches it. He described it as being like a small electric shock. The area of the face affected is from just inside the hair line on the front right of his head, and it runs down to the bottom orbit of the right eye. As far as the future is concerned, he says that he will be happy enough about it if it stays the same as it is now. I take this to mean that it is not a major nuisance or inconvenience in his life and that he has learned to live with it.
His wrist is satisfactory now, except sometimes when he is out fishing. Sometimes in the evening after such a day, there is some swelling.
He was adversely affected in his work mainly between 1993 and 1997, with work on ceilings posing particular difficulty. He would be sore in the evenings around the shoulder area and also his wrist.
The plaintiff has been very honest in relation to his injuries. He has not sought to exaggerate his symptoms in any way either either historically or at present and into the future. He has got on with his life in a way for which he should be complemented. This accident could have left him in a far worse condition. To that extent he is lucky not to be further disabled. The advantage of a long delay between the time of the accident and the case coming to hearing is that the injuries and the recovery are more certain. In this case the prognosis is good in the sense that n further deterioration in any of the complaints is anticipated. The MRI Scan has cleared up what was a doubt in the specialist’ mind about the long-term, and the plaintiff was in a position to be reassured that no long-term sequelae were anticipated in relation to his shoulder.
Taking the totality of the injuries to the head, shoulders, back, chest and the wrist fracture, I assess general damages for past pain and suffering at €50,000. The future pain and suffering is not very significant, but nevertheless there will be residual sensitivity in the face area for the rest of his life most likely. On the other hand he does not seek to make too much of that. There is also occasional wrist pain of a small amount and a similar discomfort every now and then in the lower back, but again to a small degree. In the circumstances, I assess general damages into the future in the sum of €10,000, making a total sum for general damages in the sum of €60,000.
I am told that special damages are agreed at €18,736.86.
The total of these figures is €78,736.86, and accordingly, having made the deduction of 20% for the plaintiff’s contributory negligence, I give judgment to the plaintiff against the defendant in the sum of €62,989.49.
Treacy v. Robinson & Son and Others.
McGovern v. Same Defendants.
[1937] IR 255
Supreme Court.
KENNEDY C.J. :
29. July
These were actions for damages in respect of negligence in the driving of a motor car. The defendants were Thomas Robinson & Son, Limited, an English firm, the owners of the motor car in question; Messrs. McEntagart Brothers, Limited, the well-known Dublin firm of motor people, and one, John Beggan, the actual driver of the motor car on the occasion under consideration. In both actions damages were awarded against John Beggan, against whom negligence was found in each case, the learned trial Judge having directed the jury in favour of each of the other defendants in each of the actions. The appeals are brought by the two plaintiffs against the direction and order of the learned Judge and the judgment given in each case for each of the defendants, Thomas Robinson & Sons, Limited and McEntagart Brothers, Limited. The Judge directed in favour of the first-named defendant Company at the close of the plaintiff’s case and in favour of the second-named Company at the close of the defence, in each case with costs against the plaintiff. The circumstances are peculiar and raise for decision most difficult questions which have been raised and argued with great ability by Mr. Ryan.
The owners of the car in question were the first-named defendants, Messrs. Thomas Robinson & Son, Limited. They had bought it second-handa Morris Cowley two-seater carfrom the second-named defendants, Messrs. McEntagart Brothers, Limited, in the year 1931. Messrs. Robinson & Son, Limited, an English firm, as I have mentioned, have a representative, a Mr. James Tweedale, who travels in Ireland periodically, for the purposes of their business. It was for Mr. Tweedale’s business trips that the car was purchased from Messrs. McEntagart Brothers, Limited. The last-named firm do not ordinarily deal in second-hand motor cars nor do they garage cars, but they sold the car in question, which had been on their hands, for a sum of £120, and subject to Mr. Tweedale leaving it garaged in Messrs. McEntagart’s premises at Percy Place, Dublinwhere there was a considerable amount of spare roombetween the occasions of his trips, which occurred about once every three months. Messrs. McEntagart have an office in Duke Street, and in Percy Place they have their works, principally for repairing cars. The Works Manager of Messrs. McEntagart’s repair works in Percy Place was Mr. John Beggan. Beggan had an assistant named Trotter who usually attended to the requirements of Mr. Tweedale on the occasions when he came over to take out the car for the purpose of Messrs. Robinson’s business.
On a day in October, 1932, a letter was received from Mr. Tweedale addressed to McEntagart Brothers which is the initial point in the enquiry in this case and it is necessary to refer to the letter itself. It purported to come from the Victoria Hotel, the Pier, Hull, and it was addressed to “Messrs. McEntagart Bros., Dublin.” The body of the letter was headed “For the attention of Mr. Trotter.” The letter ran:
“DEAR SIR,
If you have not already done so, would you at your convenience please give my car, Z3206, a run to shake off the cobwebs. Under the present conditions it is not possible for me to say when I shall again be in Dublin. Perhaps things will be better after the proposed Meeting in London.
Kind regards, Yours sincerely, James Tweedale.”
This letter suffers from the common defect of a letter from one business man to anotherthat there is a difficulty in its precise interpretationand, unfortunately, the precise interpretation of that letter (which was a matter for the trial Judge) is the first question for determination in this case.
What occurred on the occasion was that the letter arrived at a time when both the principals of Messrs. McEntagart Bros., Ltd., were in London. Moreover, it arrived on the very day that Mr. Trotter was leaving the employment of the firm, a Thursday, and he never saw it. It was however put into the hands of Mr. Beggan, the Works Manager. It happened that, on the following Saturday, Mr. Beggan was minded to visit a motor racing event at Straffan. When the Works were closed down for the Saturday about 2 or half-past 2 p.m. o’clock, he bethought him of Mr. Tweedale’s letter. He had Messrs. Robinson’s car uncovered (it had been covered with a dust sheet), the tyres pumped, and filled with petrol for which he personally paid. He then left his work for the day. He drove off in Messrs. Robinson’s car to his own home in Donnybrook, where he had luncheon. Thence he drove to the Motor Races at Straffan, stayed for some considerable time looking at the races, and set out for home via Maynooth. Unfortunately he, as the jury found, negligently drove into the rear of a funeral processsion approaching Maynooth and dealt death and destruction into the ranks of the mourners. These are the causes of action and respective claims for damages in the present cases. The jury awarded, as I have said, damages in respect of his negligence against Mr. Beggan in both actions. The actions were, however, instituted, also, alternatively, against Messrs. Robinson, Ltd., the owners of the car, and Messrs. McEntagart, Bros., Limited, in whose employment Beggan was, on the ground that upon the occasion Beggan was driving as the servant of one or other of these parties.
Now, the first question is, what does the letter from Mr. Tweedale, which I have quoted, mean? It is addressed to the Firm of Messrs. McEntagart, Bros., but it has a note “for the attention of Mr. Trotter.” Is it a business letter to the Firm, or is it a personal letter to Mr. Trotter? It is a common practice, in writing to a large Firm, to save trouble by indicating the manager of the particular branch or the particular employee within whose scope the subject matter of the letter would fall. Such a letter is, nevertheless, a letter addressed to the Firm, and, in my opinion, notwithstanding the superscription of Mr. Trotter’s name, the letter continued to be one addressed to the Firm, and therefore it so continued notwithstanding that Mr. Trotter, whom the writer of the letter thought would attend to it, had left the employment of the Firm. Now, it happened that, when the letter came, the two principals of the Firm, the two brothers, Messrs. McEntagart, were in London attending a Motor Show, and the evidence of Beggan is that, in their absence, he was in charge of the Firm’s business. Accordingly it seems to me that there is evidence upon which the question can be determined by the jury, viz.:Was Beggan in charge of the affairs of the Firm at Percy Place in the absence of the two Messrs. McEntagart and, during such time, had he authority to execute or direct the execution of orders given to the Firm? In my opinion, once we arrive at the meaning of the letter, that becomes a question for the jury, and therefore, it seems to me, that the Judge should have submitted to the jury, first, whether Beggan then was in authority on behalf of the Firm of Messrs. McEntagart Brothers, Ltd.; and, second, whether he had authority in that capacity for the Firm to send the car out for “a run to shake off the cobwebs,” and had authority to select some member of the staff, himself for instance, to give the car a run. It seems to me, therefore, that the Judge should not have withdrawn from the jury the case against Messrs. McEntagart Bros., but should have left to the jury the question whether Beggan had authority on behalf of the Firm to give the car the run.
This avoids difficult questions as to scope of authority, because if Beggan was not acting in a special capacity for the Firm and with its authority in using his own services to give the car the run, it would be difficult to say that he was acting within the scope of his ordinary employment with the Firm of Messrs. McEntagart.
The position of Messrs. Robinson is, however, very different. If the meaning of the letter was to supply them with a driver to give the car a run, then there is no doubt that it would again be a question entirely for the jury whether, upon the occasion in question Beggan was acting within the scope of his employment as servant on behalf, not of Messrs. McEntagart Bros., Ltd., but of Messrs. Robinson, Ltd., but, after much doubt and hesitation, I have come to the conclusion that the meaning of the letter is a commission to Messrs. McEntagart, Bros., Ltd., to give the car a run, and that there is evidence that Beggan was acting as having full charge of the Company’s affairs at the time, and chose to give the car a run himself, pursuant to the client’s instructions, if his evidence is accepted by the jury. In my opinion, therefore, the Judge’s direction as regards Messrs. McEntagart Bros., should be set aside and a new trial directed upon the one question as to whether Beggan was on the occasion acting in charge of the Firm’s business and, so to speak, directed himself to take the car out for a run, in compliance with the client’s instructions. The finding as to damages for negligence against Beggan can, of course, stand as to amount, not having been challenged by McEntagart Brothers, and be entered, in my opinion, against Messrs. McEntagart Brothers if the jury’s finding is in the affirmative on the question I have raised.
I do not, however, think that there is any evidence, as the matters have worked out, bringing home liability to Messrs. Robinson & Son, Ltd., and, in my opinion, the direction of the learned Judge must stand as regards them, and the appeal therefore must be dismissed in so far as it deals with that direction of the Judge.
FITZGIBBON J. :
This appeal is concerned with two actions which were tried by Hanna J. with a jury on the 7th and 8th of November, 1935, and, so far as the plaintiffs are concerned, the only difference between the actions is as to the amount of damages, if any, to which they are respectively entitled. The alleged cause of action is the same in each case, and the evidence, except as to the amount of damages, given in one case is relied upon in support of the other.
The injuries for which damages were claimed and awarded were caused by the negligence of one, John Beggan, in the driving of a motor car belonging to the defendants, Robinson & Son, Ltd., at Maynooth on October 16th, 1932.
Claims were made against Thomas Robinson & Son, Limited, McEntagart Bros., Limited, and John Beggan, jointly, severally, and in the alternative, and at the trial verdicts were found and judgments were entered against John Beggan for £1,700 and £150, and the learned Judge directed that judgment should be entered for each of the defendants, Robinson & Co. and McEntagart Bros.
The defendant, Beggan, has not appealed against the verdicts, but each plaintiff has appealed against the judgment directed in favour of each of the other defendants.
It is conceded on all sides that Beggan is liable, it is also conceded by the plaintiffs that only one of the other defendants can be liable jointly with Beggan, but counsel for McGovern have concentrated their principal attack upon Robinson, while counsel for Treacy, though not abandoning Robinson, have indicated a predilection for McEntagart as a more likely candidate for execution. That attitude might be excusable when dealing with a jury or so long as there was a doubt as to the evidence which might be adduced against one defendant or the other, but when the case is brought here upon a question of law, after all the evidence on behalf of the plaintiffs and of one of the defendants has been actually given, and the issues have been clearly defined, I should have expected counsel to be able to state a case against one or other of the defendants, knowing, as they do, that they cannot succeed against both.
It is desirable that I should clear up one point which arises upon the judgment actually given and entered against John Beggan, who is alleged to be jointly liable with one or other, but not both, of his co-defendants. In Webster v. Paragon Bus Co., Ltd., and Another (1) I expressed the opinion, following the chain of authorities therein referred to, that a plaintiff, who had marked judgment against one of two joint tortfeasors, sued as such, thereby exonerated the other. In that case judgment had been marked by the plaintiff against one, McKeever, who was charged as being liable jointly, or in the alternative, with the Paragon Bus Co. The plaintiff expressly declined to release the judgment against McKeever, or to apply for any amendment of the pleadings, and I held that she had thereby elected to rely upon the judgment against McKeever, and could not ask for a further trial and a fresh judgment against another defendant whose liability was only alleged to exist jointly or in the alternative.
I think that principle, if it be good law, cannot apply in the present case. The plaintiffs pressed the learned Judge not to enter judgment against Beggan until the liability of the other two defendants had been decided, and they have asked this Court, if necessary, to set aside the judgment against Beggan which was entered against their application. As the Judge at the trial is now bound by our Rules to enter judgment in accordance with the findings of the jury, a plaintiff, for whom the jury have found against one of two defendants sued jointly, cannot be held to have exercised any election through the enforced action of the Judge in entering judgment, provided that he makes his intention clear and does not seek to enforce the judgment by execution or otherwise. I desire also to reserve the question whether in such circumstances as are alleged in the present cases, the liability of master and servant is really joint, and whether they can be correctly termed”joint tortfeasors.” I do not forget expressions of opinion by text writers, and dicta of eminent Judges, e.g., in The Koursk (1), to the effect that agents and servants, acting within their authority or the scope of their employment, are joint tortfeasors with their respective principals or masters, but I am inclined to think that this cannot be stated as a rule of universal application, and that each case must depend upon its own facts.
In the present case it is admitted upon the record as it stands that injury was caused to the plaintiffs by the negligence of the defendant, John Beggan, in the driving of a motor car which was at the time the property of the defendants Robinson & Co., and that Beggan was in the general employment of the defendants McEntagart Bros. as their works manager. The plaintiffs allege that Beggan was, at the time when his negligence caused the injury to them, the servant either of Robinson & Co. or of McEntagart Bros., and was acting within the scope of his employment as such servant. They concede that only one of his co-defendants can be made responsible for the negligence of Beggan.
Hanna J., at the close of the plaintiff’s case, directed a verdict for Robinson & Co. on the ground that there was no evidence which would justify a finding that Beggan was their servant, and at the close of the evidence given for the defendants McEntagart Bros., he directed that there was no evidence which would justify a finding that Beggan was acting within the scope of his employment as their servant. We have to consider whether either or both of these directions should be upheld.
There is really little controversy about the facts, the main question being whether it is possible to draw from them an inference that the relation of master and servant existed between Beggan and the defendants Robinson & Co., or that Beggan was acting within the scope of his employment as the servant of McEntagart Bros. There is also a question of law upon the construction of a document, which is one of some difficulty, and upon which different minds may, and indeed have, come to different conclusions.
To understand the case, it is necessary to summarise the evidence.
In June, 1931, the defendants, Robinson & Co., purchased from the defendants, McEntagart Bros., a secondhand Morris-Cowley two-seater car for the sum of £120. This car was bought for the use of one Tweedale, Robinson’s traveller in the Irish Free State, and the arrangement at the time of the sale was that the car would only be used for about a fortnight at a time every three months for the traveller to make his rounds in the Free State. It was a condition of the sale that McEntagarts were to garage the car free of charge because they had plenty of spare room and were anxious to get rid of the car. It was sworn by Mr. John G. McEntagart, Director and Secretary of the defendant Company, and no attempt was made to challenge the truth of his testimony, that garaging cars for their owners was no part of his Company’s business, that they had never garaged any car except Robinson’s free of charge, and that the only other car ever garaged by them was garaged on behalf of an archaeologist who used to leave it in store for long periods, about six months at a time, and who paid McEntagarts for keeping it. The practice of Tweedale from the time when the car was purchased for him is stated as follows by John G. McEntagart, who was called by the plaintiffs to prove their case for them:”He used to call and used the car for about ten days to a fortnight going around the country to endeavour to collect orders, I believe, and then he would bring the car back to us, and we would put it up in the top portion of our garage. We had plenty of room and it would lie there until he came over again.” “We received no money for garaging the car.” “The only money we received other than the purchase price of the car was when he came over Tweedale would probably get the car filled up with petrol, and have it washed, probably have it washed, greased and oiled and we would receive that money. He would pay in cash before he would take away the car from our premises. He had no connection with our Company.” In this state of affairs the following letter from Tweedale arrived at McEntagart’s place of business, some days before Saturday the 16th of October, 1932, the date of the accident. [Reads letter printed ante, p. 261.]
The letter bears no date: the envelope in which it came is not forthcoming, but it has been assumed that it bore the address “Messrs. McEntagart Bros.” on the outside. The position of Trotter, for whose attention the letter was written, in the business, is thus described by Mr. McEntagart, who was called for the plaintiffs: “Mr. Trotter was the Junior Assistant to Mr. Beggan. He used to mostly come in contact with Tweedale, because Tweedale generally used to have only minor things like petrol and oil, and prior to the time the letter was received I had given Trotter notice because we hadn’t anything further. Things were slack at the time and we had very little use for him, and he had left our employment actually a few days prior to the time the car was taken out for this accident.”
McEntagart himself was in London at the Olympia Motor Show when Tweedale’s letter arrived in Dublin, but Beggan, who was in charge of the repairing works at Percy Place, corroborates his testimony. He says that, to the best of his recollection, the letter arrived on Thursday, October 14th, two days before the accident; that he thinks Trotter was in the works when the letter came, but that he does not think the letter was brought to Trotter’s notice; he thinks “the letter arrived on Thursday, and Trotter finished up with us on Thursday night.”
At the close of the plaintiff’s case Mr. Dockrell, on behalf of Robinson & Co., asked for a direction upon the ground that this letter was a request to McEntagart Bros. “to give the car a run to shake off the cobwebs,” and that Beggan in taking out the car was acting as McEntagart’s servant in carrying out the work which the owner of the oar had requested his bailees to do. Mr. Fitzgerald, for the plaintiff McGovern, objected to the direction, contending that the letter was a personal request from Tweedale to Trotter, and through Trotter to Beggan, and that Beggan was fulfilling Tweedale’s request, and was not acting as the servant of McEntagart Bros. when he took out the car. Mr. Fitzgerald contended that the interpretation of the letter was for the jury, and should be left to them. Mr. Justice Hanna ruled in accordance with Mr. Dockrell’s requisition. “No business man would think that when you put inside your letter ‘For the attention of so and so’ that it was a special direction to that person and not to the firm. Everyone sees letters endorsed ‘For the attention of the Head of the Department.'” With all respect, and I have a great respect, for Mr. Justice Hanna’s experience in business matters, while I agree that his direction in favour of Robinson was right, I find myself compelled to differ from the conclusion at which he has arrived, so far as it threw the liability upon McEntagarts. We must remember that Trotter was not a prominent official in the Company, he was emphatically not “the Head of the Department,” “he was the junior Assistant to Mr. Beggan,” who “was the Works Manager at Percy Place.”The Percy Place works were the repairing shops, where Tweedale’s car was stored for him, the head office and sales department were in Duke Street, where also the books of the Company were kept and where the two McEntagarts, the Directors, and Earl, the general manager, were to be found. In my opinion Tweedale’s letter is not a direction or request to McEntagart Bros. but a personal communication to Trotter, with whom he was acquainted. The underlined superscription, “For the attention of Mr. Trotter,” the phraseology used, the singular person, the familiar subscription, all savour of a personal letter to an acquaintance rather than of a business instruction to the Head of the repair Department of a motor works: especially when the particular addressee was in fact only a junior assistant. The opening sentence is remarkable:”If you have not already done so, would you at your convenience, please give my car a run to shake off the cobwebs.” No instructions had ever been given to the Company, at this or any other time “to give the car a run,” and it is admitted that the conditions upon which the car was garaged by McEntagarts did not impose any duty on them to look after the car in any way or to give it a run from time to time. Tweedale was permitted to leave it lying up in an unused and unuseful corner of their garage without payment, during such periods as he did not need it, and that was the end of McEntagart’s liability. I infer from the terms of Tweedale’s letter that there was some arrangement or understanding between him and Trotter, by which the latter might give the car an occasional “run to shake the cobwebs off” whatever that may mean, but that this was to be done at Trotter’s own convenience, and not as a service for reward to be performed by McEntagart Bros. If Tweedale intended work to be done upon his car by the Company for reward, or that his car should “have the cobwebs shaken off” by some competent driver in the employment of McEntagart, I cannot understand why he should have expressly superscribed his letter to be attended to by a junior assistant whose convenience was to be served in the performance of an alleged order to the Company. If this be the true interpretation of the letter, then, apart altogether from any question of the scope of Beggan’s employment, the direction in favour of McEntagart Bros. must stand, as Beggan could not have been acting as their servant in taking out the car, for the request to take it out was made to Trotter and not to McEntagart Bros. I shall endeavour to show later, that this was the interpretation upon which Beggan acted when he took out the car.
But it follows also that if the letter of Tweedale conveyed a personal request to Trotter, Beggan cannot have been acting as the servant of Robinson & Son. Trotter had no express authority from either Tweedale or Robinson, and the principles stated in Gwillian v. Twist (1) in the Court of Appeal and in Beard v. London General Omnibus Co. (2)appear to me to negative any implied authority in him to appoint a substitute driver for himself, and even if he had any such authority he did not profess to exercise it. The evidence is that he never saw Tweedale’s letter, and it is not even suggested that its contents were communicated by him to Beggan or to the firm of McEntagart Bros. Mr. Fitzgerald’s contention is that “it is purely a question of fact for the jury whether Beggan was not the direct agent, by request of Tweedale, on behalf of Robinson, to do this work.” Tweedale certainly did not nominate Beggan as his “direct agent,” I do no think that there is any evidence that he and Beggan had ever even exchanged a word, and Tweedale’s letter calls for the attention of the”Junior Assistant” Trotter, by name, and not for that of the “Head of the Department,” or of any other servant. Trotter did not hand on the letter to Beggan, and Beggan could not, by misinterpreting Tweedale’s letter, confer upon himself an authority which the letter was not intended to convey, and this is not a case of the class in which a party incurs liability as principal because he has”held out” some one to a third party as being his authorised agent though not so in fact. Neither Tweedale nor Robinson ever represented Beggan as being their agent or servant. If Trotter had taken out the car and had caused the injuries to the plaintiff, I think there would have been a strong case against Robinson & Co. subject to a question of fact, to be decided by a jury, whether Trotter was really the servant or agent of Robinson’s at all, or merely a friend of Tweedale’s, to whom the latter had lent his car. As Lord Atkinson said in Samson v.Aitchison (3), “No doubt if the actual possession of the equipage has been given by the owner to a third person that is to say, if there has been a bailment by the owner to a third personthe owner has given up his right to control.” If Trotter had asked Beggan to take the car out for him I think there would have been an arguable question upon his authority to do so, which would have to be decided upon evidence, but when it is admitted that Beggan had no communication at all with either Trotter or Tweedale, in my opinion he could not constitute himself the servant or agent of Robinson.
If I be wrong in my interpretation of the letter, and it ought to be regarded as an order to McEntagart Bros. to give the car a run, then the direction in favour of Robinson & Co. should stand, and it becomes necessary to consider whether there was any evidence that Beggan was acting either as the servant of McEntagart Bros. or within the scope of his employment when he caused the injuries to the plaintiff.
McEntagart, the plaintiff’s witness, is positive that Beggan had no authority as Works Manager to take out any customer’s car without express leave from one of the directors; that he and his brother were in London at the time this car was taken out, and that there was no one in Dublin who could authorise a car to be taken out for any purpose other than testing after repairs; that this car had not been repaired and therefore did not require testing.
An attempt has been made to apply the principles stated in Goff v. Great Northern Railway Co. (1) and similar cases to the facts of the present case, and to invest Beggan as”Works Manager,” with a general authority to bind McEntagarts, Limited, in the absence of his directors. In the first place, the principle, if it applies at all, would make McEntagarts and not Robinsons liable for the acts of Beggan, and would be applicable only on the assumption that Tweedale’s letter to Trotter was an order to McEntagarts. In the second place, the authority to act without consulting the superior is implied only where “an exigency” or “emergency,” which requires “prompt measures” or “a prompt decision,” is shown to exist, in respect of ordinary business of a Company (2). No such emergency existed here. From the very terms of Tweedale’s letter it was manifest that he did not expect to require the use of his car until after a considerable period had elapsed, and one at least of Beggan’s directors had returned by the Monday following the accident. Neither Beggan nor any other witness has even suggested that there was any urgency about the matter, and there is therefore nothing upon which the inference of authority implied from the necessity for immediate action can be founded. On this point the decisions in Gwillian v.Twist (1) and Beard v. London General Omnibus Co. (2),to which I have already referred, support the direction given by Hanna J.
Even if Tweedale’s letter amounted to a request for a test of an unrepaired car, there was from the “works manager’s” point of view, no urgency about the matter which made it essential for someone to take action without waiting for the return of a director. Tweedale’s letter arrived on a Thursday, and contained no suggestion that any immediate actis required on the part of the addressee. The car was actually taken out on a Saturday afternoon, and one of the directors had returned to the office by the following Monday. McEntagart deposed that apart from taking out a car for a test after a repair, no employé was authorised to take out a customer’s car without his or his brother’s express leave; that no employé had ever done so except on one occasion, and that as a result the offender was peremptorily dismissed. Beggan’s evidence is that he got “no authority from any person in the firm to take out this car;” that he had never taken it out before; that he knew it was Tweedale’s and looked upon it as Tweedale’s car, and that he took Tweedale’s letter as a direction from the owner, and on account of that letter he took out the car, and that “it had nothing to do with the McEntagart’s business.”
It seems to me that the whole of Beggan’s evidence about his action in taking out the car, and especially his answers from Q. 950 to Q. 958 clearly show that he did not regard the letter as a direction to his Company but as a request to Trotter from Tweedale, and that he assumed, without authority, to substitute himself for Trotter. If there be weight in the suggestion that he was entitled, as the man on the spot, to act for McEntagart, the form his action took was to refuse to treat Tweedale’s letter as an instruction to McEntagarts, and to interpret it, rightly or wrongly, as a request to Trotter. “I took it as a direction from the owner. It had nothing to do with the McEntagart’s business.”
In referring to Beggan’s evidence, I agree that the jury were not bound to accept it, but it must be remembered that the absence of affirmative evidence in support of the plaintiff’s case is not made good merely by discrediting or disbelieving the testimony of the witness for the defendant,
Beggan’s actions before the accident corroborate his evidence at the trial that he did not act as McEntagart’s employé in taking out the car. He took it out after the works had closed down on Saturday. He did not make any claim for overtime, to which he would have been entitled if he was working on his employer’s business. He filled up the car with four gallons of petrol which he charged to his own private account, and subsequently paid for out of his own pocket when making his usual monthly settlement. All these things are inconsistent with the view that he was acting or purporting to act as the servant of McEntagart Bros., and if it is to be suggested that, in the absence of the directors in London, he wasMcEntagart Bros., then he corroborates the evidence of Mr. McEntagart that he had “no authority from anyone connected with McEntagarts to bring out this car.” He does not pretend that he gave himself authority in the absence of his employers to act as the responsible representative of the Company in sending himself out as driver of the car. I have already given my reasons for holding that he was not employed or authorised by Robinson & Co. His belief to the contrary, if he had any, could not supply the absence of authority. But in my opinion his own evidence makes it clear that he took out Tweedale’s car on a joy ride of his own, thinking that he could justify his action because Tweedale had given permission to Trotter who had left the garage, and that he was entitled to substitute himself for Trotter. An attempt was made on cross-examination to force him to admit that he took out the car “to build the battery up on the road.” He did say that the run would have the effect of building up the battery. I leave it to experts to say whether a thirty mile run on a dark, heavy, misty night, on a wet road, with both headlights and both sidelights on, and the screenwiper operating, would do much in the way of building up a battery, but there is not a scintilla of evidence that the battery did in fact require any building up at all. Beggan’s own evidence is:
Q. “And I take it that the car required some tuning up?” A. “Before taking it out?” Q. “Yes.” A.”Nothing beyond pumping the tyres.” Q. “And what about the battery?” A. “The battery was all right.”
To the Judge:Q. “When you took it out to do this forty miles run, had you in your mind that you would build up the battery or not, or did you take it out for your own purpose?” A. “Well, I took it out principally for my own purpose, my Lord.” Q. “Of course it would have the effect of building up the battery?” A. “It would,”and then counsel returns to the attack:
Mr. Ryan:Q. “I put it to you that you intended to kill two birds with one shot, isn’t that so?” A. “Yes.”Q. “Isn’t that so?” A. “It amounts to that.” Q. “That is, to knock the cobwebs off the car and incidentally then to help yourself to get to the race meeting ?” A. “Yes.”
What Beggan actually did was, after the works in which he was employed had closed down for the week-end, he took out Tweedale’s car, filled up the tank with petrol for which he paid out of his own pocket, he drove home to Donnybrook, where he had his lunch, and then, being very keen on motor cycles, vehicles with which McEntagart Bros. had nothing to do, and which they never sold, drove off to the Motor Cycle Races which were being held that afternoon at Straffan, some twenty miles from Dublin. He reached Ardcross, a point upon the course, between half past three and four, and when the races had finished about a quarter past five, he followed one leg of the course to Straffan, where he remained for about an hour and a quarter. As he was going away he picked up a friend who had been lubricating himself and building up his batteries so successfully that the friends who had brought him to Straffan had gone away without him. With this passenger on board he started to go homevia Maynooth, a slightly longer route, which included four or five miles of secondary road, and as he came into Maynooth he crashed into a funeral procession, killing a child, injuring the plaintiffs and injuring or knocking down several other people.
In the absence of any evidence that a car such as Tweedale’s would normally require “building up” of the batteries in circumstances such as existed in this case, and in the absence of any evidence that the batteries of this particular car did require “building up” on the day on which it was taken out, and in the absence of any evidence that such a run as that taken by Beggan was the kind of run which was necessary or desirable in order to build up the batteries or “to shake the cobwebs off the car,” and having regard to his own statements upon oath:”I am afraid I used the car just as a convenience to get to Straffan,” “I took it out principally for my own purpose,” and to the fact that he took the car out in his own time, for which he made no charge, either to McEntagarts or to Robinson, and at his own cost as regards petrol, I am of opinion that there was no evidence upon which a jury could find that Beggan was acting in
the course of his employment as servant of either McEntagart Bros. or of Robinson & Son, and that the directions given by Hanna J. were right and should be sustained.
As I have said, Tweedale’s letter is in my opinion susceptible of only two possible interpretations, viz., as a private communication to his acquaintance Trotter, the junior assistant in McEntagart’s repair shopwhich I hold to be the true oneor, if we are to ignore the underlined superscription “For the attention of Mr. Trotter,”and the general tone of the document, as a request by Tweedale to McEntagart Bros. through the medium of their junior assistant, to give his car a run to shake off the cobwebs. A third interpretation has been suggested but I do not possess the four-dimensional mind which is capable of regarding Tweedale’s letter as, at one and the same time, a private communication to Trotter, which, if he had received it and acted upon it, would constitute him Robinson’s servant, and a business instruction to McEntagart Bros., requesting them to engage a driver, other than Trotter, for the car, who should not be their servant, who should not be under any obligation to obey their orders or to take any instructions from them, but should be bound to exercise his own judgment as to the tests to be applied to the car, and should be employed by Robinsons alone to do whatever was necessary, without reward, in his own time and at his own expense. Of course, nothing of this sort is expressed in the letter from which this interpretation is deduced, but it is said to be implicit therein. Any implied matter must be capable of expression, and I have therefore endeavoured to re-write Tweedale’s letter, putting in all that is necessary, and I hope nothing more than is necessary, to make explicit what is said to be implied, and what must be implied if, upon the uncontradicted facts of this case, Beggan is to be treated as the servant of Robinsons, engaged as such by Tweedale, and not as the servant of McEntagart Bros.:
Samuel Allsop & Sons, Ltd., Proprietors. Victoria Hotel, The Pier,Messrs. McEntagart Bros., Hull. Dublin.
For the attention of Mr. Trotter, or, in his absence, for that of the Managing Director, or of any other person who may happen to pick this letter up.
DEAR SIR,
If you have not already done so, and of course ifTrotter has he does not happen to be available, you won’t be able to find out whether he has already done so or not, would you at your convenience, please procure some one who will, at his convenience,give my car Z. 3206 a run to shake off the cobwebs.
You must clearly understand that if one of your employés undertakes the job, he must do it in his own time and at his own expense, as I do not intend to pay you for his time, or him for his trouble.
He, and not you, must ascertain what, if anything, the car requires, and if the batteries have to be built up by running on the road, he must pay out of his own pocket for any petrol required.
I do not rely upon your skill and judgment in selecting the operator, who is not to take any orders from you, but is to be my servant and under my sole direction.
Owing to present conditions, it is not possible for me to say when I shall be again in Dublin. Perhaps things will be better after the proposed meeting in London.
Kind regards, Yours sincerely, Jas. Tweedale.
In my opinion, Tweedale’s letter is incapable of any such interpretation, and the uncontradicted facts preclude us from treating Beggan as a general servant of McEntagart Bros., temporarily transferred to the service of Robinsons. If it is assumed or admitted that Tweedale’s letter was written for Trotter and intended for him, we have no right to insert by implication or interpretation terms which we think the writer would or might have put in if he had known that it would never come to the hands of the person for whom it was intended.
It has been settled law since Laugher v. Pointer (1) and Reedie v. London and North Western Railway Co. (2) “that the law does not recognise a several liability in two principals who are unconnected; if they are jointly liable, you may sue either, but you cannot have two separately liable. This doctrine is one of general application, irrespective of the nature of the employment.” In the application of this principle to the case of jobmasters, hired carriages, hired horses, and drivers hired out or lent, the liability for damage caused by negligence has always been held to rest upon the master who let out the carriage, horse or driver, except where the negligent act was done while the borrower or hirer was in actual personal control at the moment, or the act was done in obedience to his express order. “It is undoubtedly true,” said Parke B. in Quarman v. Burnett (1) “that there may be special circumstances which may render the hirer of job horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses, or by ordering the servant to drive in a particular manner, which occasions the damage complained of, or to absent himself at one particular moment, and the like.” It was upon such grounds that the defendant was held liable in M’Laughlin v. Pryor (2), Wheatley v. Patrick (3), Chandler v. Broughton (4) and similar cases.
Where the particular master has himself selected the employé whose negligence has caused the damage he may, in certain cases, be liable upon the ground stated by Collins M.R. in Hamlyn v. Houston & Co. (5), “that the principal is the person who has selected the agent, and must therefore be taken to have had better means of knowing what sort of a person he was than those with whom the agent deals on behalf of his principal; and that, the principal having delegated the performance of a certain class of acts to the agent, it is not unjust that he, being the person who has appointed the agent, and who will have the benefit of his efforts if successful, should bear the risk of his exceeding his authority in matters incidental to the doing of the acts the performance of which has been delegated to him.”
If my view and that of Hanna J. be wrong, and there was any evidence proper to be submitted to a jury that Beggan took out Tweedale’s car as the servant of McEntagart Bros., and any evidence that his actual operations prior to and at the moment of the negligent act which caused the damage to the plaintiffs were within the scope of his employment as such servant, those issues must be submitted to and found by a jury in favour of the plaintiffs before any judgment can be entered for them.
MURNAGHAN J. :
The plaintiffs in these actions were injured owing to the negligence of one, John Beggan, in driving a motor car, and damages were awarded at the trial amounting to £1,700 in favour of Catherine Treacy and £150 in favour of Martha McGovern.
Beggan was driving a motor car near Maynooth towards evening on Saturday, 15th October, 1932, when, at a turn in the road, he ran into a group of people who were part of a funeral procession. John Beggan has not sought to question this verdict, but these appeals have been brought by the plaintiffs against two directions given by Mr. Justice Hanna during the trial. The motor car driven by Beggan was the property of Thomas Robinson & Son, Ltd., Rochdale, Lancashire, timber merchants, whilst John Beggan was in the employment of McEntagart Bros., Ltd., a company which sells and repairs motor cars.
The plaintiffs were in ignorance of the true state of facts relating to Beggan’s possession of the car, and they alleged that he was the servant of either of these companies at the time of the occurrence; and, as they were entitled to do, they sued these defendants together, with John Beggan in the alternative. This procedure does not, of course, relieve the plaintiffs from the obligation of proving their case fully against each defendant sought to be made liable.
Thomas Robinson & Son, Ltd., by their defence made the case that John Beggan was not their servant at all, whilst the substantial defence of McEntaggart Bros., Ltd., was that Beggan was not at the time of the occurrence complained of acting within the scope of his employment. Mr. Justice Hanna at the close of the plaintiffs’ case gave a direction in favour of Thomas Robinson & Son, Ltd., and at the close of the case made by McEntagart Bros., Ltd., the learned Judge directed the jury that there was no evidence upon which they could properly find that Beggan was acting in the scope of his employment under McEntaggart Bros., Ltd.
These separate actions were tried togethereach plaintiff being represented by separate counsel. It is clear that if responsibility is to be placed upon Thomas Robinson & Son, Ltd., or upon McEntagart Bros., Ltd., it must be on the basis that Beggan was the servant of one or other, and that he cannot be held to be the servant of both.
The difficulties arising in the consideration of the case may be gauged by the fact that counsel for Catherine Treacy at the hearing of the appeals sought in the main to fix responsibility upon McEntagart Bros., Ltd., without altogether abandoning his claim in the alternative, whilst counsel for Martha McGovern sought to fix responsibility upon Thomas Robinson & Son, Ltd. On this branch of the case most of the argument turns upon the construction of a letter sent to McEntagart Bros., Ltd. It was upon the construction which he placed upon this letter that Mr. Justice Hanna gave the direction in favour of Thomas Robinson, Ltd.and it is necessary to refer to certain facts, none of them in dispute, apart from which the various arguments cannot be fully appreciated.
Thomas Robinson & Son, Ltd., are timber merchants, and they employ a travellerone, Mr. Tweedaleto travel in the Irish Free State. Mr. Tweedale makes visits extending over a period of two or three weeks at a time and again returns after several months absence. In June, 1931, Mr. Tweedale purchased from McEntagart Bros., Ltd., a second-hand Morris-Cowley car, and it was made part of the arrangement that McEntagart Bros., Ltd., should garage the car free of charge for Mr. Tweedale during his absence in England. This was an exceptional arrangement as it is not in the ordinary course of business of McEntagart Bros., Ltd., to garage motor cars. The car was garaged at the premises in Percy Place, Dublin, where the business of repairs is carried on, and, when left in these premises by Mr. Tweedale, it was covered with dust sheets awaiting his return. Mr. Tweedale had no account with McEntagart Bros., Ltd., and when he required petrol or oil he paid in cash. Mr. Beggan is the manager of the works at Percy Place subject to the control of the directors of the Company but in their absence he is in full charge. There had also been for some time in the employment of the Company a mechanic named Trotter, and when Mr. Tweedale required his car this mechanic usually made it ready, filling in petrol and oil and generally preparing the car for the road.
The motor car had been lying for several months at the far end of the garage when on Thursday, 13th October, 1932, a letter from Mr. Tweedale arrived at the works, Percy Place, Dublin. It was written from Hull, and is as follows:
[Reads letter, set out ante, p. 261.]
Just about the time when this letter arrived Mr. Trotter had left, or was leaving, the employment of McEntagart Bros., Ltd., owing to slackness of business. The directors were absent in London at the motor show and the letter was opened by Mr. Beggan and was not given to Trotter. On the Saturday following the car was taken out by Mr. Beggan after business hours, and during a run made by him the unfortunate occurrence took place.
The language of this letter is not difficult to construe but to some extent the usage of business must be a guide in determining what sense should be placed upon it in the circumstances. Mr. Justice Hanna regarded, as a dominating circumstance, the fact that the letter was addressed to the Company, and in his view the words”for the attention of Mr. Trotter” meant no more than that Trotter was the person to whom McEntagart Bros., Ltd., usually entrusted this class of work. He held, accordingly, that anything to be done in pursuance of this letter was to be done by McEntagart Bros., Ltd., on their own account, and was not to be done by a servant of Thomas Robinson, Ltd.
The use of motor cars has become so general that the parties assumed it to be a matter of common knowledge what the condition of a car laid up for three or four months might be. It would, however, have been helpful if more precise evidence had been directed to this point. The letter does not suggest that repairs in the usual meaning were required. John Beggan, who gave evidence, suggested that the batteries might be run down and that they would be re-charged by giving the car a run for a considerable distance. When he took out the car the lights were working but this fact does not prove that the batteries were fully charged. The batteries, it is suggested, could have been more cheaply re-charged at the works, but the letter desired a run of the car for some purpose. Mr. John C. McEntagart gave evidence that a very short run would be sufficient for the purpose of testing. The running tests usually employed by his Company were twoone, a short run along the canal, and another, for top gear, up-hill as far as Mount Annville, and Mr. McEntagart stated that these runs were the only runs which the employees of the company were permitted to make. This evidence, however, deals purely with a run for the purpose of testing and does not deal with a run made with the object of re-charging the batteries. “Shaking off the cobwebs” is not a technical term but is a colloquial metaphor, and is to be construed like any metaphor with reference to the subject-matter. When Mr. Tweedale asked that his car should be given a run, he was, in my opinion, asking, not for any test or trial in the sense of mechanical efficiency, but he was asking that the car should be driven with the object of re-charging the batteries and of making the mechanical power which he believed to be in good repair more efficient by use after long disuse.
I do not think that it is a decisive factor that the letter was addressed to McEntagart Bros., Ltd. This may have been done because Mr. Tweedale had not Trotter’s private address, or for some other reason. The letter ends with”kind regards,” and is signed “Yours sincerely.” As I interpret the letter, what was asked to be done is something altogether out of the course of business of McEntagart Bros., Ltd. As addressed to this Company no explanation can be offered of the words “If you have not already done so.” Naturally these words seem to me to refer to some previous arrangement with Trotter. Finally, there is no just ground for selecting Trottera subordinate employeeif what was to be done was to be done by the Company. For these reasons, in my opinion, Beggan was not acting as the servant of McEntagart Bros., Ltd., in making the run during which the injuries occurred.
Trotter did not in fact get the letter sent by Mr. Tweedale, and did not take out the car. The question then arises whether Beggan had any justification in selecting himself or any one else to give the car the run desired by Mr. Tweedale. It seems to be agreed that the letter was not sent to Trotter c/o McEntagart Bros., Ltd., but was sent to the firm. The employees in such a Company are of necessity experienced drivers, and it does not seem to me far fetched to suppose that if Mr. Tweedale wanted some one to give his car a run on his behalf he might address himself to the Company. If Mr. Tweedale had written to McEntagart Bros., Ltd., asking them if they could put him in touch with a driver, such a driver would have been a servant of Mr. Tweedale’s Company and would have been remunerated by Mr. Tweedale. The letter, I believe, shows that he had some such arrangement with Trotter. But Mr. Tweedale was a business man and wanted his car in order when he arrived, and he had to guard against the possibility that Trotter might not be available. If Mr. Tweedale arrived and was told “We have done nothing, Trotter is not here,” he could, in my opinion, reasonably have answered “I sent the letter to you. Could you not have got some one else to do the run for me ?”The letter, in my opinion, was designedly sent to the Company in order that they might procure another driver if Trotter was not available. When Beggan came to give evidence a direction had already been given for Thomas Robinson & Son, Ltd., but he gave certain answers which I think important. In cross-examination by Mr. Denning for McEntagart Bros., Ltd., he said:
thought it was a direction from the owner?” “I took it as such.”
(Q. 957):”Was it on account of that letter that you took out the car?”
“Definitely, yes.”
(Q. 958):”Had it anything to do with the McEntagart business?”
“No. I am afraid I used it just as a convenience to get to Straffan.”
When Mr. Ryan, counsel for Catherine Treacy, asked him (Q. 1006-8):
“I put it to you that you intended to knock the cobwebs off the car and incidentally then to help yourself to get to the race meeting,” he answered “Yes.”
A very laconic letter written in substance to one person and addressed to some one else must give rise to difficulty of interpretation. I think, however, the circumstances in which it was written justify me in holding that this letter was an authority to McEntagart Bros., Ltd., to supply a driver who, while acting within the terms of the letter, must in law be held to be a servant of Thomas Robinson & Son., Ltd.
In these circumstances it is unnecessary to deal with the grounds upon which the direction in favour of McEntagart Bros., Ltd., was given, viz., that there was no evidence that Beggan was acting within the scope of his employment. It was, indeed, argued at great length that the question whether the servant acted within the scope of his employment was entirely a matter for the jury. At one time many Judges left this question to the jury, but as long ago as the case of Wilson v. Owens (1)it was pointed out that it was the function of the Court to say whether there was any evidence from which a jury could properly infer that the servant was acting in the course of his employment. In conformity with this rule the Court of Appeal in Dowling v. Robinson (2) set aside the finding of the jury, holding on the facts that there was no evidence upon which a jury could properly find that the driver of a motor car was acting as the servant of the owner within the scope of his employment.
Paragraph 5 of the defence of Thomas Robinson & Son, Ltd., denies that the car was driven by their servant or agent, and does not specifically raise any question as to scope of employment. If, however, this matter was intended to be raised the actions must, in my opinion, be sent to a new trial upon this issue.
A point of a technical character was raised during the hearing of the appeals, although it was not much stressed in argument. It was objected that John Beggan was, in the view of the case which I have taken, a joint tortfeasor with Thomas Robinson & Son, Ltd., if they should be under liability at all, and that, as judgment had been entered against one tortfeasor, the liability of all was discharged. Counsel for the plaintiffs anticipated this point and did everything which they could do to preserve their rights. In my opinion the Court has full power to do complete justice on this appeal. Without disturbing the findings as to negligence and as to damages a new trial should be directed as against Thomas Robinson & Son, Ltd., with power to the Judge at the trial to enter judgment against Beggan and Thomas Robinson & Son, Ltd., if the latter should be found liable, or against Beggan alone if they should not.