Bradley v. Coras Iompair Iareann
 I.R. 217
“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.
Doyle -v- E.S.B.
 IEHC 88
“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.
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  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”.
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.  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
 I.R. 244
“ 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
 2 I.L.R.M. 62
“….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.
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
 IEHC 131
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.
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  I.L.R.M. 722 and of the Supreme Court in Kelly v. Hennessy  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.
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  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.  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
 UKHL 2  AC 57  3 All ER 628
“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
 UKHL 3  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  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
 1 WLR 1776
‘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
 1 QB 405,  1 All ER 881
‘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  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
 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)  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  UKHL 2  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
 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  NSWCA 186,  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  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  Fam 26 and recently upheld by the House in the criminal field in R v Kennedy (No 2)  UKHL 38,  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  EWCA Civ 331,  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  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  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  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
 IESC 53
SC Fennelly J.
“In Bradley v CIE  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  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  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  AC 1004, considered recently in this Court, in Breslin v MIBI  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  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  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  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  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  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  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  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
 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.
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
 IEHC 25
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.