Liability Issues
Cases
Baker v Quantum Clothing Group Ltd & Ors (Ver 2)
[2011] UKSC 17
UKSC LORD MANCE
“Introduction
This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss shown by employees to have been suffered during the years prior to 1 January 1990, the date when the Noise at Work Regulations 1989 (SI 1989/1790) came into force. The central issue is whether liability exists at common law and/or under section 29(1) of the Factories Act 1961, towards an employee who can establish noise-induced hearing loss resulting from exposure to noise levels between 85 and 90dB(A)lepd.
Analysis of common law position:
(a) Greater than average knowledge?
At the level of principle, the parties’ submissions take one back to Swanwick and Mustill JJ’s classic statements regarding the test of negligence at common law (paras 9 and 10 above). These statements identify two qualifications on the extent to which an employer can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take further steps: one where the practice is “clearly bad”, the other where, in the light of developing knowledge about the risks involved in some location or operation, a particular employer has acquired “greater than average knowledge of the risks”. The question is not whether the employer owes any duty of care; that he (or it) certainly does. It is what performance discharges that duty of care. For that reason, I find difficult to accept as appropriate in principle some of the reasoning in another, more recent Court of Appeal authority, Harris v BRB (Residuary) Ltd [2005] EWCA Civ 900; [2005] ICR 1680 (Neuberger and Rix LJJ).
In Harris, the issue was whether regular exposure of train locomotive drivers between 1974 and 2000 to noise levels between 85dB(A) and 90dB(A) gave rise to liability for any noise-induced hearing loss shown to have resulted. Neuberger LJ gave the sole reasoned judgment. He accepted on the evidence before the court that, “at least until the 1989 Regulations came into force, … an employer would not normally be expected to be liable to an employee who was exposed to a level of sound lower than 90dB(A)leq”, but said that “this evidence cannot go so far as to negative in all circumstances liability to employees whose health is impaired as a result of exposure to sound below that level” (para 39). After quoting Swanwick J, Neuberger LJ suggested that a good working approach might be to treat 90dB(A) as giving rise to a presumption, with the effect that, below 90dB(A), it was “for the employee to show why a duty should be imposed at all” (paras 40-41). The reference to a duty being imposed derives from the way in which the defendant’s case was presented: the submission was that “the mere fact that a particular level of sound is potentially injurious does not of itself give rise to a duty of care. … the existence of a duty of care ‘depends not merely on foreseeability of injury but whether it is just and equitable to impose the duty” (para 36).
On this basis, Neuberger LJ said that, while not intending “to call into question the applicability in the general run of cases of the 90dB(A)leq threshold” each case “must turn very much on its facts, not least because of the ‘just and equitable’ test accepted, indeed advanced on behalf of the defendant …” (para 38). In my opinion, however, the adoption of such a test would import an extraneous concept. The primary inquiry, when considering whether an employer has acted with due care to avoid injury from noise-induced hearing loss, is whether there is a recognised and established practice to that end; if there is, the next question is whether the employer knows or ought to know that the practice is “clearly bad”, or, alternatively, if the area is one where there is developing knowledge about the risks involved in some location or operation, whether the employer has acquired “greater than average knowledge of the risks”. Considerations of justice and equity no doubt underlie both Swanwick and Mustill JJ’s statements of principle. But to ignore the statements and to restate the inquiry in simple terms of “justice and equity” opens a wide and uncertain prospect, despite the court’s attempts in Harris to emphasise that it was not departing from a position whereby an employer would not “normally” be expected to be liable for a level of sound lower than 90dB(A).
That prospect has a present resonance, although HHJ Inglis did not base himself on the reasoning in Harris, but used language picking up the more conventional statements of principle. Nonetheless, I consider that he did not apply those statements in the sense in which they were meant. He did not consider the practice represented in the Code to be clearly bad during the 1970s or until the end of the 1980s; and it is common ground that the general state of knowledge about the risks involved in the knitting industry remained essentially static throughout this period (see also the first seven sentences of para 87 of the judge’s judgment). As Mr Hendy made clear in the Court of Appeal (Core II, pp.749-750), no question of special resources arises, since no amount of research would have led to further knowledge, or indeed to different conclusions about the level of risk than those indicated in the Code of Practice. Mr Hendy is in my opinion also correct in saying that the judge based his conclusions, including those relating to Courtaulds and Pretty Polly, on generally available published provisions and materials, rather than on any specific knowledge. That is particularly apparent from the final sentences of paras 56 and 66 of his judgment (cited in the appendix) as well as in paras 87 and 88. It might perhaps have been suggested, in relation to Courtaulds, that the rising incidence of claims which they experienced in the early 1980s gave rise to some degree of special knowledge, but that is not how the matter has been put.
It follows that, on the judge’s approach, the only real difference between employers lay in the degree of their consideration of and reaction to such risks. In these circumstances, the judge’s conclusions in relation to Meridian (Courtaulds) and Pretty Polly amount in substance to saying that, because these companies focused more closely on the potential risk below 90dB(A) and displayed greater than average social awareness (to use Mustill J’s words in Thompson at p 415H) by resolving that some action should probably be taken at times before ordinary, reasonable employers arrived at any such conclusion, they incurred greater liability than such employers. The judge himself recognised here a paradox (para 88). Those who have a safety department and medical officers and take noise more seriously than the ordinary reasonable employer are liable, while others are not. That is appropriate if extra resources or diligence lead to relevant fresh knowledge. But here they have led simply to the formation or inception of a different view to that generally accepted about what precautions to take. In such a case, the effect of the judge’s approach is not to blame employers “for not ploughing a lone furrow”; rather, it positively blames them for ploughing a lone furrow but not doing so deeply enough. When Mustill J spoke of “changes in social awareness” (p 415H), he was referring to changes leading to a general raising of the standard which average employers were expected to observe, not of individual employers spear-heading such changes by forming the view that the standard should be raised. In my view, therefore, no real basis was shown for treating Courtaulds and Pretty Polly differently. On this aspect of the appeal, I would only add two points: first, had I considered there to be a sound basis for treating Courtaulds and Pretty Polly as having relevantly different and greater knowledge than average employers, I would see no basis for the Court of Appeal’s addition of Quantum into the same special category; Lord Dyson and Lord Saville agree, I understand, that there was no such basis; secondly, since Lord Dyson does not share the view that the judge should not have treated even Courtaulds and Pretty Polly as falling into a special category (see para 104 below), it follows that there is no majority in favour of this view and that (in reflection of the common ground between Lord Dyson, Lord Saville and myself), the appeal should be allowed only to the extent of restoring the judge’s decision in this regard.
(b) Was the Code of Conduct an acceptable standard for average employers?
In my opinion, the respondent is correct in submitting that the real question is the sustainability of the judge’s conclusion that the Code of Practice constituted an acceptable standard for average employers to adhere to during the 1970s and 1980. If that conclusion is upheld, then no real basis is shown for treating Courtaulds and Pretty Polly differently. The Court of Appeal expressed agreement with the judge’s conclusion that the Code of Practice remained a generally acceptable standard. Smith LJ stated that this conclusion “cannot be faulted” and that “I would uphold his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as ‘acceptable’ to expose employees to noise in the 85-89dB(A)lepd range” (para 105). Endorsing, in effect, the judge’s approach of distinguishing between employers with average and greater than average knowledge, she concluded para 105 by saying:
“I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed.”
Turning to examine the different dates of common law liability which the judge had imposed, Smith LJ identified the issue as being when employers “should have realised that it was no longer to be regarded as acceptable to disregard” the risk to some of their employees from exposure to 85-89dB(A)lepd, of which they should, because of the Code of Practice, have been aware from 1972 (para 107). As regards Courtaulds, she regarded the judge’s conclusion as plainly justified, saying that “By 1983, they could no longer have thought that a responsible body of opinion took the view that it was acceptable to ignore the risks of harm below 90dB(A)lepd” (para 107). However, that appears to say that from 1983 there was no responsible body of opinion in favour of relying on the Code of Practice, and, if so, it should on its face have led automatically to a conclusion that no reasonable employer could do so. Nonetheless, Smith LJ went on to consider the state of Pretty Polly’s awareness about the need to take action and the 1982 draft directive and of Quantum’s awareness of the draft directive. After noting Quantum’s awareness of the draft directive, she accepted Mr Hendy’s submission that “it was irrational to say that, because the group was smaller than Pretty Polly or Courtaulds and operated as individual companies without the benefit of central advice on health and safety issues, they should be treated differently from the other two employers” (para 109). While Smith LJ ostensibly viewed the issue (as the judge did) as depending upon analysis of each individual employer’s position, in reality her approach seems to suggest a conclusion that the Code of Practice ceased to be an acceptable standard for any responsible employer in 1982. In effect, the Court of Appeal appears to have disagreed with HHJ Inglis’s conclusion that the period during which a reasonable employer could rely upon the Code of Practice continued until 1987. The basis for this, despite the passage concluding para 105 of Smith LJ’s judgment, quoted above, appears to have been the publication in 1982 of the first draft directive.
The judge’s conclusion in para 87 was the product of a lengthy trial, and was based on extensive expert evidence. The Code of Practice itself repeatedly refers to a “limit” defined in section 4.3.1 in relation to continuous noise exposure as 90dB(A)lepd: see e.g. sections 2.2.1, 3.1.2, 4.1.1, 4.2.1, 5.1.1, 6.1.3, 6.7.1 and 7.1.1. It also says that “Where it is reasonably practicable to do so it is desirable for the sound to be reduced to lower levels” (section 4.1.1), but this has to be read with section 6.1.3, which states: “Reduction of noise is always desirable, whether or not it is practicable to reduce the sound level to the limit set out in section 4, and whether or not it is also necessary for people to use ear protectors. Reduction below the limit in section 4 is desirable in order to reduce noise nuisance”.
When addressing section 29(1) of the Factories Act 1961, the Court of Appeal said (para 101) that, although the Code of Practice was not irrelevant, “it was, in itself, plainly inadequate as an assessment tool”, in that it “advised only that there was some risk to susceptible individuals from exposure below 90dB(A)lepd”; and it went on to conclude that the publication of BS 5330 in July 1976 could and should have enabled any average-sized employer in the knitting industry, with the assistance of anyone with a modest degree of mathematical skill or any consultant acoustic engineer, to make an informed assessment of the quantum of risk arising from noise below 90dB(A)lepd. These statements are not on their face easy to reconcile with the judge’s findings (in particular in paras 46-48 and 87). However, they were made in the course of considering the issue of reasonable practicability under section 29, and on the basis that it was irrelevant in that context whether a reasonable employer could reasonably rely upon the Code of Practice as setting an acceptable standard of conduct in relation to exposure of employees to noise: see paras 89 and 100 (quoted in para 75 below). Even if regarded as consistent with the judge’s findings, they do not therefore bear on the question whether the Code of Practice provided such a standard.
…..
“46. … There was evidence given by the expert witness engineers for Courtaulds (Mr Bramer and Mr Currie) about the approach to control of noise in the period from the 1970s in industry. The report of Mr Worthington for Pretty Polly and Guy Warwick is also in evidence. To Mr Bramer, the guidance in ‘Noise and the Worker’ and the 1972 Guidelines provided a ‘clear and consistent recommendation to employers as to how they ought to deal with noise in the workplace’. The result was that in his practice, his invariable advice until the late 1980s, was that ‘the relevant level was a daily personal noise exposure of 90dB(A)’. This approach, he said, was standard during the period up to 1989 among noise professionals, and taught at training courses. In the mid 1980s, when it appeared that EEC regulation would involve a first action level of 85dB(A) his advice changed to reflect that. He was not aware of the NPL tables before the 1980s when he found that they were being used by medical experts writing reports for the purpose of deafness claims. He has never come across them being used in any part of industry. In evidence Mr Bramer said that he gave advice to employers in terms of complying with the 1972 Code. He was speaking to the 90dB(A) level, as were all his colleagues. He agreed that the advice would be to answer the question ‘Tell us how to comply with legislation and the Code of Practice’, rather than ‘Tell me how to avoid reasonably foreseeable risk to my workforce’. He would have recommended 90dB(A) as the cut off point, but would also have said ‘that does not actually stop some more susceptible people from having some small noise induced hearing loss’. If asked about risk, he would have had some difficulty, and regarded the question as more one for medical people.
47. Mr Currie said that the Health and Safety Executive and factory inspectors after the Health and Safety at Work etc Act 1974 concentrated their advice and enforcement on the 90dB(A) level. He was not aware of any instance in which the NPL tables had been used by employers to predict the level of risk for their workforce. In evidence Mr Currie said that good practice won’t necessarily remove all risk. He agreed that there has been no very different understanding about noise induced hearing loss since the 1970s. The first thing to look at when deciding on practices, which is what employers have to do, is to look at the guidance available.
Mr Worthington’s report is to the effect that employers looked to the 90dB(A) limit in the Code of Practice as the maximum acceptable limit, and that the Factory Inspectorate and HSE did not refer employers to the risks below that limit as risks about which they should take action. That was the practice of the day, and employers taking advice, if they did, would be referred to the standard in the Code as being what had to be observed.
48. It is clear from some of the documents referred to above that by the beginning of the 1980s there were still many people employed in industry exposed over 90dB(A)lepd, and that the approach of enforcement agencies was to concentrate on those people. The evidence of the engineers referred to above suggests that that was a common approach until at least into the mid 1980s. That the 90dB(A)lepd level was regarded, as is the effect of the evidence of the engineers referred to above, in industry as the touchstone of reasonable standards that should be attained is evidenced by notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton in 1976.”
Mr Bramer and Mr Currie were independent engineers called as witnesses at trial. There is no suggestion that they were employed by or advisers to Courtaulds or any of the other employers involved in this case at any date relevant to liability in this litigation. The judge was clearly impressed by their evidence. Whatever critique might, with hindsight, be directed at the advice or approach they said was being given or taken in respect of employers does not alter the fact that this was the contemporaneous advice and approach, upon which the judge found that reasonable employers could generally rely, unless they fell into his category of employers with “greater than average knowledge”.
The Court of Appeal attached considerable relevance to employers’ awareness of the first draft directive prepared by the Commission in October 1982. As I have observed, the court did not accurately place the position of this directive in the development of legislation at the European level (para 15 above). More importantly, a Commission draft is only a proposal for legislation by the Council of Ministers, and no reliance was or is placed on any underlying material which may, or may not, have been produced in its preparation or support. The first draft directive was proposed by the Commission as a basis for legislation in 1982, proved controversial, and was withdrawn in 1984. It was superseded by a differently framed legislative proposal, agreed by the Council of Ministers in May 1986, which gave member states until 1 January 1990 to bring into force provisions complying with the directive.
In the light of the above, there is, in my opinion, no basis for the court to disturb the judge’s conclusion in para 87 that the Code of Practice was an official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s.
Before leaving this aspect, it is also worth noting one further small indication of the consistency of the judge’s conclusion with informed contemporary attitudes. The relevant level of noise exposure above which a reasonable employer should take protective steps was of direct relevance in the early case of noise-induced hearing loss, Kellett v British Rail Engineering Ltd (Popplewell J, 3 May 1984). The strength of the representation attests to the importance attached to the issues. On the facts and in the light of agreed expert evidence, Popplewell J recorded that there had been exposure for long periods initially in the period 1946 to 1955 below 90dB(A) and then in the period 1955 to 1979 above 90dB(A), and proceeded on the basis that “The level of 90 is generally recognised as being a figure above which it is necessary for precautions to be taken”. That was the basis on which it was accepted that the defendants, who had taken no precautions until 1979, were negligent.
(c) What period should be allowed for implementation of any different standard?
It follows, in relation to all the employers before the court, that the date when they should have been aware that it was no longer acceptable simply to comply with the Code of Practice was the date identified by the judge as applicable to Quantum and Guy Warwick, that is “the time when the terms of the 1986 directive became generally known in the consultative document of 1987” (para 87). Dealing with this point, Smith LJ said (para 105):
“I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion …”
Adding a further six to nine months for implementing protective measures (instead of the judge’s period of two years), she went on to conclude (para 106) that:
“In case it should ever become material, I would fix the date for breach of common law duty for the average employer at January 1988.”
Leaving aside for the moment the difference in the period allowed for protective measures, that approach does not reflect the nuances of the judge’s finding. The consultative document was issued in 1987, but seeking responses no later than 30 June 1988. Its terms would have become “generally known” during the period of consultation, which was to last to 30 June 1988. The judge was prepared to add a period of two years for “putting a conservation programme into action, accompanied by information and instruction” (para 88). This would bring the period before ear protection would have to be made available to those exposed to noise levels over 85dB(A)lepd to 1 January 1990, the date when the Directive and Regulations under it anyway required such protection to be made available to them. I therefore understand the judge as having held that Quantum and Guy Warwick had no potential common law liability in negligence before 1 January 1990.
The judge, in taking two years as the appropriate period for “putting a conservation programme into action, accompanied by information and instruction”, referred to a further passage in Thompson. Mustill J there said (pp 423-424):
“From what date would a reasonable employer, with proper but not extraordinary solicitude for the welfare of his workers, have identified the problem of excessive noise in his yard, recognised that it was capable of solution, found a possible solution, weighed up the potential advantages and disadvantages of that solution, decided to adopt it, acquired a supply of the protectors, set in train the programme of education necessary to persuade the men and their representatives that the system was useful and not potentially deleterious, experimented with the system, and finally put it into full effect? This question is not capable of an accurate answer: and indeed none is needed, as will appear when the scientific aspects of the case are considered.
Various years were selected as rough markers, for the purpose of argument. I reject without hesitation the notion that the date lay somewhere in the years immediately preceding and following the Second World War. It was not until 1951, with the inconspicuous entry of the V-51R into the United Kingdom market that even a really enlightened employer would have started to ask himself whether something could be done. Even then, I consider that it pitches the standard of care too high to say that an employer would have been negligent, from that date, in failing to find, decide upon, and put into effect a system of using the protectors then available. At the other extreme, I consider that the choice of a date as late as 1973 cannot be sustained. The problem, and the existence of different ways in which it might have been combated, had been well known for years; there had been devices which were both reasonably effective, and reasonably easy to wear; and if the employers did not know precisely what they were they would have had no difficulty in finding out.
All this being so, I conclude that the year 1963 marked the dividing line between a reasonable (if not consciously adopted) policy of following the same line of inaction as other employers in the trade, and a failure to be sufficiently alert and active to measure up to the standards laid down in the reported cases. After the publication of ‘Noise and the Worker’ there was no excuse for ignorance. Given the availability of Billesholm wool and reasonably effective ear muffs, there was no lack of a remedy. From that point, the defendants, by offering their employees nothing, were in breach of duty at common law.”
The Court of Appeal disagreed with HHJ Inglis’s period of two years on the basis that he was “allowing time not merely for the provision of ear protectors but also for the noise measurement and policy decisions which preceded the actual provision of protection” and that, by the time when employers should have appreciated the need for noise protection below 90dB(A), they must “be taken to have known already to which workshops that applied” (para 106). In paras 32 and 48 of her judgment, Smith LJ also noted that Courtaulds’ noise committee had over a period of a year (between March 1983 and March 1984: see para 52 of HHJ Inglis’s judgment) identified areas of over 90dB(A)lepd and areas of 85 to 90dB(A)lepd.
There is a paucity of evidence in this area of the case. It is common ground that some period should be allowed, and the period chosen by the judge fits with periods chosen by courts in other contexts – see e.g. Armstrong v British Coal Corporation [1998] CLY 975, para 2842, Smith v Wright & Beyer Ltd [2001] EWCA Civ 1069, para 6, and Brookes v South Yorkshire Passenger Transport Executive [2005] EWCA Civ 452, paras 22-23 (and, less clearly on this point, Doherty v Rugby Joinery (UK) Ltd [2004] EWCA Civ 147; [2004] ICR 1272, paras 21 and 33-35) – as well as with periods commonly allowed for the implementation of new health or safety measures, e.g. under Directive 86/188/EEC and the Noise at Work Regulations 1989 which gave effect to it domestically. I do not see how it can be said that all employers who exposed their employees to noise levels between 85 and 90dB(A)lepd up to the end of 1987 must, Smith LJ’s words (para 106) “by that time be taken to have known already to which workshops” the provisions of the Directive and Regulations would apply. An employer’s duty towards a particular employee depends upon the circumstances of that particular employee’s employment. Smith LJ appears to have derived the duty to have measured noise levels from the fact or likelihood that there were other employees exposed elsewhere by the relevant employers to noise levels exceeding 90dB(A)lepd (paras 92-93). But the relevant circumstance is that none of the employees to whom this case relates were employed in circumstances where they were exposed to noise levels exceeding 90dB(A)lepd. Accordingly, the relevant employers were not, on the judge’s findings, under any duty to take further steps. The Code of Practice only stipulated that “All places where it is considered the limit in section 4 may be exceeded should be surveyed” (section 5.1.1). The limit referred to in section 4 for continuous exposure was that “If exposure is continued for eight hours in any one day, and is to a reasonably steady sound, the sound level should not exceed 90dB(A)” (section 4.3.1). I do not therefore consider that the basis on which the Court of Appeal interfered with the judge’s conclusion on this point was justified.
……
The Factories Act 1961
In relation to the scope and application of section 29(1) (set out in para 11 above), the Court of Appeal disagreed substantially from the judge, holding that the section involves a significantly more stringent standard of liability than any arising at common law. Several important issues arise on which there is no prior authority at the highest level: whether section 29(1) applies at all, where the claim relates not simply to the workplace, but to activities carried on at it; whether it applies to risks of noise-induced hearing loss arising from such activities in relation to long-term employees working in the place; whether the safety of a place is an absolute and unchanging concept or a relative concept, the practical implications of which may change with time; and what is meant by “so far as is reasonably practicable” and how it relates to the concept of safety.
(i) Lack of safety arising from activities
The first issue concerns the extent to which a place can be rendered unsafe by activities carried on at it. The appellants rely on the background to section 29(1) to argue that it cannot. Section 29 re-enacts section 26 of the Factories Act 1937, as amended by section 5 of the Factories Act 1959. Section 26, as originally enacted, did not have wording corresponding with the second part of section 29(1). The words “and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there” were added by section 5 of the 1959 Act. The amendment adding them was proposed late in the passage of the bill. It was felt to be “a real fault and a gap in the existing legislation” that it covered only the means of access to, and not the safety of, the place of work. The Minister, Mr Macleod, accepted the idea, and, ultimately accepted in substance the whole amendment (House of Commons Standing Committee B, 12 March 1959, 17th Sitting, cols 747-752). There had been a series of prior cases in which courts had had to distinguish, less than happily, between the place of work and means of access to it, and to reject claims on, for example, the ground that the employee was injured at his workplace on his way to the lavatory, rather than on his way to his workplace: see Davies v de Havilland Aircraft Co Ltd [1951] 1 KB 50; Rose v Colville’s Ltd 1950 SLT (Notes) 72; Dorman Long & Co Ltd v Hillier [1951] 1 All ER 357 and Prince v Carrier Engineering Co Ltd [1955] 1 Lloyd’s Rep 401. Looking at the matter today, one might perhaps have expected responsibility for the safety of the workplace to be a subject for legislative attention even before responsibility for the means of access to it. But, for whatever reason, that was not the original statutory scheme.
The gap was filled by the 1959 amendment. In considering the scope of the words added, Mr Beloff QC, on behalf of the first appellant, submits that the means of access looks to physical dangers or obstructions, that section 29(2) is likewise clearly focused on the physical risks inherent in working at height, and that the whole section is part of a scheme of criminal liability, from which any civil liability only follows “by judicial interpretation” (Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315, 318, per Diplock LJ). This last point has some, though only limited, force, for two reasons. First, the criminal liability is under the Act imposed on the occupier or, in certain cases not presently relevant, on the owner of the factory. That to my mind suggests that responsibility under section 29 is likely to attach to matters over which an occupier (typically of course the employer him- or itself) would be expected to have control. But such matters would include not merely the physical state of the premises, but also, at least, the carrying on there of regular activities. Secondly, a person is “not to be put in peril upon an ambiguity, however much the purpose of the Act appeals to the predilection of the court” (London and North Eastern Railway Co v Berriman [1946] AC 278, 313-314, per Lord Simonds). However, it is only if the section is ambiguous, unclear or open to two reasonable interpretations that its penal effect may indicate the narrower construction (Franklin v Gramophone Co Ltd [1948] 1 KB 542, 557, per Somervell LJ), and courts should remember that the Factories Act is “a remedial measure passed for the protection of the workmen [which] must, therefore, be read so as to effect its object so far as the wording fairly and reasonably permits” (Harrison v National Coal Board [1951] AC 639, 650, per Lord Porter; McCarthy v Coldair Ltd [1951] 2 TLR 1226, per Denning LJ). Mr Beloff is however also right to remind the Court that it is always necessary to consider in what respects and to what extent the Act involves remedial measures.
Mr Beloff QC submits that there are three possible interpretations of section 29(1): a minimalist, a maximalist and a middle way. The minimalist would involve treating the section as confined to intrinsic aspects of the physical place, ignoring any activities carried on there. With the possible exception of the Delphic rejection of the claim under section 29 by Mustill J in Thompson at p 449C-D, there appears to be no reported case rejecting a claim under that section on this basis. Reference was made to the interpretation given to section 25(1) and by extension section 26(1) of the 1937 Act: in Latimer v AEC Ltd [1953] AC 643, the House held that section 25(1), which in its then form provided: “All floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained”, was not breached when a structurally sound factory floor became wet and oily after a flood due to an unusually heavy rainstorm; and that approach was then applied under section 26(1) in Levesley v Thomas Firth & John Brown Ltd [1953] 1 WLR 1206 (CA), where in the course of some loading operations a block of iron was left temporarily protruding three inches out into a gangway, used as a means of access. This restriction of the word “maintained” in relation to the means of access has been strongly criticised in successive editions of Munkman’s Employer’s Liability at Common Law, and there is no reason to extend it to the words “be made and kept safe” which govern the duty, first introduced in 1959, in relation to the safety of the workplace. Indeed, it is clear from the Parliamentary materials that the words “and kept” were introduced specifically with the Latimer case in mind, and to make clear that employers should so conduct their business as to see that a workplace did not become unsafe. The examples were given of overstocking or slippery substances left on the floor (Factories Bill, Standing Committee B, 12 March 1959, cols 749-750).
A workplace may therefore be unsafe because of some feature which is neither structural nor permanent. But this does not determine whether a workplace may be unsafe by reason of operations carried on in or at it. Mr Beloff submits that the law took a wrong turn in Evans v Sant [1975] QB 626, when the Divisional Court initiated what he described as a middle approach which was later followed by the Court of Appeal in Wilson v Wallpaper Manufacturers [1982] CLY para 1364 and Homer v Sandwell Castings Ltd [1995] PIQR P318. In Evans v Sant, the Divisional Court (Lord Widgery CJ, Bridge and Shaw JJ), on a case stated by magistrates after conviction, said that the guiding light in their approach was that
“in deciding whether the place of work was made safe, it is the place qua place that we look at, and not the place qua operation carried on upon the place” (p 635G-H).
But Lord Widgery CJ then went on (pp 635H-636B)
“That does not mean of course that in deciding whether the place is made safe one has total disregard for the activities which go on in the place itself. The safety of the place depends not simply on the construction of the floor or the solidity of the walls, but it also depends in some degree upon the nature of the operations carried on therein. In so far as there is permanent equipment in the place, then its safety can in my judgment reflect on the safety of the place. In so far as there are activities carried on in the place which are constant, regular and recurring, I can well see that they may have their impact on the question of whether the place has been made safe.”
In Evans v Sant, even this relaxed or “middle” approach did not enable the prosecution to succeed. The facts were that, in the course of laying a water-main, a test-head was attached between the pipe and a pump to test the water pressure, but it was insecurely fitted and, as pressure built up, it blew off, causing the death of a workman who ran into the path of a passing car. In allowing the defendant’s appeal against conviction, Widgery CJ said, at p 636, that:
“where, as in the present case, you start with a place safe in every degree, and the only thing which renders it unsafe is the fact that equipment brought upon it for a particular operation, and being used for a particular operation on a particular day, produces an element of danger, it seems to me that that is not enough to justify the allegation, certainly in criminal proceedings, that the place itself has not been made safe.”
In Homer v Sandwell Castings Ltd, a civil claim failed because the danger “did not arise from any static condition of the place of work, but arose from the operation upon which the plaintiff was engaged” (p 320, per Russell LJ). The employee had noticed a slight leak through sand paste, which he had himself introduced to seal a gap, but had carried on working, with the result that an eruption of molten metal through the seal fell onto his foot.
The appellants support their case on section 29(1) by reference to the layout as well as other specific sections of the 1961 Act. These, they submit, are only consistent with a limited interpretation, confining it to physical dangers inherent in the structure. They point out that section 55 addresses “any process or work carried on” or to be carried on in any premises used or intended to be used as a factory; it gives a magistrates’ court power, if satisfied that such process or work “cannot be so carried on with due regard to the safety, health and welfare of the persons employed”, to prohibit the use of the premises for that process or work. They also point to various other sections designed to address problems arising from operations carried on in premises. For example section 4 requires suitable and effective provision for circulation of fresh air, and “for rendering harmless, so far as practicable, all such fumes, dust and other impurities generated in the course of any process or work carried on in the factory as may be injurious to health”; section 14 requires (with immaterial exceptions) “Every dangerous part of any machinery … [to] be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced”; and section 27 requires all parts and working gear to “be of good construction, sound material, adequate strength and free from patent defect, and … properly maintained”.
However, the sections of the Act are not exclusive codes in relation to their particular subject matters (see e.g. Liptrot v British Railways Board [1969] 1 AC 136), and it is not axiomatic that there cannot be overlap between the application of two different sections. It seems to me good sense to describe a workplace as unsafe, if operations constantly and regularly carried on in it make it so. It is unnecessary to comment on the decisions on particular facts, but section 29(1) cannot in my opinion have a narrower meaning than that given it in Evans v Sant and the later cases following Evans v Sant. To take another example, a place may well, as it seems to me, be unsafe by reason of activities carried on in it, e.g. if a shop-floor were to be constantly crossed by fork-lift trucks passing from a store on one side to somewhere else on the other side of it. In the present case, the noise generated by knitting and other machines was a permanent feature of the operations which were intrinsic to the workplace. If the section is directed to noise at all, then such noise must, on the approach taken in Evans v Sant, make the place unsafe. It is unnecessary to say more on the facts of this case.
(ii) Lack of safety arising from noise
The second issue is whether section 29 is directed to noise. This is more open to question. There is much to suggest that noise was not in the legislature’s mind at all, when section 26(1) of the 1937 Act was expanded to cover the safety of the workplace in 1959 and later re-enacted as section 29(1) of the 1961 Act. Further, the relevant noise is not noise of a literally deafening nature, causing immediate injury. It is noise which would only injure some people and then only if they were exposed to it for continuous periods lasting many years. The appellants submit that a requirement that the workplace “be made and kept safe for any person working there” is inapt to cover a situation where many or all of the persons working there may never be at any risk, because they have not been there long enough and may never be, or because they may not be susceptible to suffering such noise-induced hearing loss.
The appellants further submit that the fact that the principal protective measure suggested consists in the provision of ear protectors, rather than any corrective measures affecting the workplace itself or any regular feature of it, indicates or suggests that section 29(1) is inapplicable. I am not impressed by this point. If a workplace can be unsafe for employees by reason of constant and regular activities carried on at it, I do not see why it should not be rendered safe by counter-acting measures of an equally constant and regular nature relating to the clothes or equipment worn by employees.
On the other hand, the scheme of the 1961 Act does indicate that, even though section 29(1) is to be read as indicated in Evans v Sant, it is essentially dealing with safety, rather than health. Safety typically covers accidents. Health covers longer-term and more insidious disease, infirmity or injury to well-being suffered by an employee. Hearing loss, at least of the nature presently in issue, falls most naturally into this latter category. The 1961 Act is divided into Parts, the first four being headed (I) Health (General Provisions), (II) Safety (General Provisions), (III) Welfare (General Provisions) and (IV) Health, Safety and Welfare (Special Provisions and Regulations). Part I comprising sections 1 to 11 deals with cleanliness, overcrowding, temperature, ventilation, lighting, drainage of floors, sanitary conveniences, and enforcement powers; while Part II contains, in addition to section 29, a wide variety of sections covering inter alia machinery, dangerous substances, hoists, lifts, openings and doorways, chains, ropes, lifting apparatus, floors, passages and stairs, fumes and lack of oxygen in confined spaces, explosive or inflammable dust, vapour or substance, boilers, means of escape and fire. The general distinction between health and safety provisions was also present in the 1937 Act, and significance was attached to it in Clifford v Charles H Challen & Son Ltd [1951] 1 KB 495, 498, per Denning LJ and Ebbs v James Whitson & Co Ltd [1952] 2 QB 877, 886, per Hodson LJ.
As to the legislative mind-set in 1959 and 1961, the government promoting the 1959 Act made no mention of noise. The only relevant reference to noise by any MP in debate concerned the possibility that the minister might take advice on and look more closely at noise, with a view to making regulations under section 60 of the 1937 Act as amended (later section 76 of the 1961 Act), enabling the minister to make regulations where satisfied that, inter alia, any process was “of such a nature as to cause risk of bodily injury”. Likewise, when the Offices, Shops and Railways Premises Bill came before Parliament in November 1962 and March 1963, comments were made on the absence of any provision dealing with noise. Initially, the minister directed attention to the general power to make regulations for securing health and safety, but ultimately section 21 was included, specifically permitting regulations to protect “from risks of bodily injury or injury to health arising from noise or vibrations”. The minister in the House of Lords commented on section 21: “This is a new subject, on which we still have much to learn” (House of Commons, 2nd reading, 15 November 1962, Hansard cols 615, 618-619 and House of Lords 2nd reading, 18 March 1963, Hansard, col 948).
It was not until April 1960 that Sir Alan Wilson’s committee was set up to report on noise, and only in March and July 1963 that it issued interim and final reports. The main focus was on ambient noise and, in discussing the general effects of noise in chapter II, the report said, in relation to noise in a working environment, merely that “it may disturb concentration, and perhaps affect the efficiency of someone working at a difficult or skilful task; it may affect personal safety”. In outlining the law relating to noise in chapter III, the report identified the common law of nuisance and the Noise Abatement Act 1960. However, chapter XIII addressed occupational exposure to high levels of noise. It noted that it had been established that “a permanent reduction of hearing sensitivity can occur in people who are exposed for long periods to noisy environments, such as are found in some industries” (para 513). But it made clear the understanding that there was no existing legislation applicable to such noise and no sufficient basis for introducing any without further research. It said (para 534):
“Although voluntary action is now possible and, indeed, essential, we do not consider that the present knowledge of this complex problem provides a sufficient basis for legislation. Although the levels of continuous, broadband noise which represent a hazard to the hearing of people who are exposed to them for long, unbroken periods have been established within certain margins of error, many uncertainties remain. There is no satisfactory means of predicting the susceptibility of individuals to hearing loss, nor is the distribution of susceptibility known; the comparative danger of noises in which energy is concentrated in narrow frequency bands is not determined; nor is the influence on hearing loss of impulsive noises, which are common in industry. Neither is there much information on the physical properties of industrial noise, the distribution of noise of any given type in industry and the practicability of minimising those properties which are found to be dangerous to hearing. If early legislation were introduced it could do no more than lay down general standards, the effect and cost of which cannot at present be estimated. If the standards adopted proved to be too severe in some respects the industries affected might be exposed to heavy unnecessary expenditure; on the other hand if minimum standards were adopted, these would tend to suggest that compliance with these standards was all that was needed even in parts of industry where there were important hazards at lower sound pressure levels or with shorter exposure. Legislative insistence on the wearing of ear protectors would be particularly difficult to introduce until there is a wider recognition of the need for them in noisy industries. Early legislation would, therefore, have to be very general in its terms and it would be impossible to enforce effectively. We think that, at present, it would not achieve as much as vigorous voluntary action. In our view, before practical legislation could be considered, it would be necessary to establish the extent of the risk to average people of exposure to industrial noise, and the cost and possibility of measures which would effectively reduce this risk to the point which, on balance, was regarded as acceptable.”
In paras 535-536, the report suggested a further research programme, to be followed by more detailed surveys of individual industries and processes, and then, when the results of such surveys were available, consideration by government “whether the time has not then come to lay down by legislation minimum standards to protect workers against damaging noise exposure in industry”.
The Annual Report of HM Chief Inspector of Factories on Industrial Health for 1965 (Cmnd. 3081) also stated at p 79 that
“At present there is no legislation requiring the control of noise in factories, nor is occupational deafness prescribed under the National Insurance (Industrial Injuries) Act 1965. The problem was examined in detail by the Wilson Committee, whose report was published in 1963. They concluded that the knowledge then existing was insufficient to enable legislation to be made. They advocated research and indicated some of the lines this should take. At present a very great deal of research is being conducted by various bodies.…”
The Report of a Committee chaired by Lord Robens in 1970-72 (Cmnd 5034) referred to the Wilson Committee’s words (para 341), but went on to record the research recorded in Prof Burns’s and Dr Robinson’s 1970 report, Hearing and Noise in Industry. The research had “established a system of predicting on a statistical basis the hearing deterioration to be expected for specified exposures within a wide range of industrial noise” and the report had “amongst other things … suggested that workers should not be consistently exposed over long periods to a noise emission level higher than 90dB(A)” (para 342). Robens then mentioned that industrial noise had now become a live issue in the field of compensation claims, referring to a case where “a court awarded damages for the first time” (para 344). This must have been Berry v Stone Manganese and Marine Ltd [1972] 1 Lloyd’s Rep 182, where a claim for common law negligence succeeded in respect of noise which “amounted to about 115 to 120 decibels, whereas the … tolerable noise is about 90” and no ear muffs had been provided (p 184). A claim under section 29(1) was in fact also introduced by amendment at trial. It was not argued on the basis of failure to provide ear muffs, but of alleged failure to reduce the actual noise level as far as reasonably practicable, and it failed on the facts. Robens continued that, since “the relationship between exposure to certain levels of noise and hearing loss [was] now recognised” the time was “ripe to include basic requirements on noise control in occupational safety and health legislation” (para 345).
Lord Robens’s recommendation stimulated the inclusion of regulation 44 in the Woodworking Machines Regulations 1974 (SI 1974/903) made under section 76 of the 1961 Act. In relation to factories using woodworking machines, regulation 44 requires that, “where on any day any person employed is likely to be exposed continuously for eight hours to a sound level of 90dB(A)” or equivalent or greater, then “(i) such measures as are reasonably practicable shall be taken to reduce noise to the greatest extent which is reasonably practicable; and (ii) suitable ear protectors shall be provided and made readily available for the use of every such person”. Later in 1974, there were also made, under agricultural health and safety legislation, the Agriculture (Tractor Cabs) Regulations 1974 (SI 1974/2034), regulation 3(3) of which provided that ministerial approval of safety cabs required ministers to be satisfied that the noise levels inside “would not be more than 90dB(A)”. The existence of specific regulations under section 76 is not necessarily inconsistent with a more general duty of safety existing in respect of noise under section 29(1), though the inter-relationship could give rise to problems and one might have expected or at least hoped that it would be clarified.
HM Chief Inspector of Factories’ report for 1974 (Cmnd 6322) referred to the Woodworking Machines Regulations 1974 as “the first British regulations to contain a legal requirement specifically intended to protect factory workers against the effects of noise” (p 73). Under the heading of Noise and Vibration, it also noted (p 71) that
“The Inspectorate has been mainly concerned with protection of workers against levels of noise exposure likely to cause permanent hearing damage. To this end continuing efforts have been made to encourage voluntary compliance with the Code of Practice …, which recommends that where people are likely to be exposed to sound levels over 90dB(A) for eight hours per day (or to suffer an equivalent exposure) action should be taken to reduce the noise exposure, and ensure that ear protection is provided and used”.
The position is therefore that section 29(1) is part of the statutory provisions dealing with safety, and it was enacted without any appreciation that it could cover noise or noise-induced hearing loss. Noise-induced hearing loss was not a newly discovered phenomenon, at least in heavy industry, where it was evidently regarded as an inescapable fact of life (see e.g. Thompson, p 409A, per Mustill J). An immediately injuring noise (like that which punctured the Duke of Wellington’s ear-drum when he stood too close to the firing of a battery in his honour) could probably only occur as a result of some one-off error or break-down in the workplace, which would not reflect on its safety, although it could give rise to common law liability in negligence. None of the contemporary reports or documents suggests that the possibility of noise was in anyone’s mind or would have been conceived of as an element of safety of the workplace in 1959 or 1961. It follows that there is considerable force in the appellants’ submission that section 29(1) does not refer to safety in a sense depending not upon the current condition of the workplace with its noisy machinery, but upon the periods for which employees have worked, or are likely to continue to work in that, or another, workplace with equivalent or greater noise levels and upon their particular susceptibility to noise. Ultimately, however, I have come to the conclusion that it is not possible to be so categorical, and that the answer to the present issue links up with the next issue, that is how far responsibility under section 29(1) is absolute or relative. If section 29(1) imposes absolute liability, irrespective in particular of current attitudes or standards from time to time, then noise-induced loss appears so far outside the thinking behind and aim of section 29(1) that I doubt whether it would be right to construe the section as covering it. But if liability under section 29(1) is relative, depending in particular on knowledge about and attitudes to safety from time to time, then, as thinking develops, the safety of a workplace may embrace matters which were previously disregarded, but have now become central or relevant to reasonable employers’ and employees’ view of safety.
(iii) The absolute or relative nature of safety
The third issue is whether the requirements regarding safety in section 29(1) are absolute or relative. In the respondent’s submission, they are absolute: what is safe is objective, unchanging and independent of any foresight of injury; the only qualification on an employer’s liability, where a workplace is unsafe because of employees’ exposure to noise, is if the employer can show that it was not reasonably practicable to reduce or avoid the exposure, e.g. by providing ear protectors. The House of Lords, by a majority, held in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 that the onus lies on the employer to plead and prove under section 29(1) that it was not reasonably practicable to make and keep a place safe.
Smith LJ accepted the submission that safety is an absolute. She said that “what is objectively unsafe cannot change with time” (para 78). She also associated lack of safety with the occurrence of injury to a single person, for she continued:
“If 85dB(A)lepd causes deafness to a particular claimant, that claimant’s place of work was not safe for him or her. It might have been safe for another person working alongside. But for the susceptible worker who has in fact been damaged, it can be demonstrated, without more, that his or her place of work was not safe. Looking at matters from the point of view of the work force generally, it is known that a minority of people will suffer appreciable harm as the result of prolonged exposure to 85dB(A)lepd. Therefore, it can be said that the place of work is not safe for the workforce because there is a risk of injury to all of them.”
I do not accept this approach. Whether a place is safe involves a judgment, one which is objectively assessed of course, but by reference to the knowledge and standards of the time. There is no such thing as an unchanging concept of safety. The Court of Appeal’s approach means in reality that any court determining an issue of safety would be applying (retrospectively) whatever happened to be the view of safety current at the time the matter came before it. Further, the fact that a single person has suffered injury due to some feature of the workplace is not, without more, proof that the workplace was unsafe. As Lord Upjohn (one of the majority) said in Nimmo (p 126C-D), “the section requires the occupier to make it [the workplace] 100 per cent safe (judged of course by a reasonable standard of care) if that is reasonably practicable and, if it is not, to make it as safe so far as is reasonably practicable to a lower percentage”.
Prior to the 1959 and 1961 Acts, the requirement, under regulation 5 of the Building (Safety, Health and Welfare) Regulations 1948 (SI 1948/1145), that “sufficient safe means of access shall so far as is reasonably practicable be provided”, had been considered in Sheppey v Matthew T Shaw & Co Ltd [1952] 1 TLR 1272 and Trott v WE Smith (Erectors) Ltd [1957] 1 WLR 1154 (CA). There it was said, by respectively Parker J at p 1274 and Jenkins LJ at p 1159, that safe cannot mean “absolutely safe”, although it must take account of circumstances likely to occur, including the fact that employees do not always behave with reasonable care for their own safety. I also note that in Trott, Jenkins LJ after suggesting that the statutory obligation was stricter than the general duty of reasonable care at common law and anticipating Nimmo by identifying the qualification “so far as is reasonably practicable” as involving a shift of the burden of proof (pp 1158-59), ended his judgment by saying that to regard the standard of care prescribed by regulation 5 and at common law as approximating to each other was “if not absolutely right …. at all events not very far wrong” (p 1162). Likewise, in relation to a similar requirement under the Shipbuilding and Ship-repairing Regulations 1960 (SI 1960/1932), it was argued in Paramor v Dover Harbour Board [1967] 2 Lloyd’s Rep 107 “that if the bare possibility of injury and accident could reasonably be foreseen, then the means of access is not ‘safe'”. In response, Salmon LJ said (p 109) that there “is, of course, a risk of injury and accident inherent in every human operation” but that whether a means of access was safe involved “assessing the risk in all the circumstances of the case” and “must be a question of fact and degree in each case”.
The successor legislation to the 1961 Act, the Health and Safety at Work Act etc 1974 was differently, and on its face more broadly, formulated. It required every employer by section 2(1) to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees, and by section 3(1) to conduct his undertaking in such a way that other persons were not thereby exposed to risks to their health or safety. The concept of safety was considered in this context in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73 [2009] 1 WLR 1. Lord Hope, with whose speech all other members of the House agreed, said that the legislation was “not contemplating risks that are trivial or fanciful”, that the statutory framework was “intended to be a constructive one, not excessively burdensome”, that the law “does not aim to create an environment that is entirely risk free” and that the word “risk” which the statute uses “is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against” (para 27).
It would be strange if the earlier, narrower formulation in section 29(1) had a more stringent effect. Similar comments to Lord Hope’s had also been made in the earlier case of R (Junttan Oy) v Bristol Magistrates’ Court [2003] UKHL 55; [2003] ICR 1475, in relation to regulations requiring machinery to be in fact safe, “safe” being defined to mean giving rise to “no risk (apart from one reduced to a minimum) of its endangering the health of or of its being the cause or occasion of death or injury to persons”. Lords Nicholls and Hobhouse (both dissenting on presently immaterial points) made clear in that context that “safe” is not an absolute standard. Lord Nicholls said (para 22): “There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable”. Lord Hobhouse said (para 103) that:
“to describe questions of safety as simple questions of fact, just as if one was asking whether a given bird is a sparrow or a sparrowhawk, is to make a fundamental and elementary mistake. Safety is a question of opinion. There is no such thing as absolute safety. All safety is relative. Two men can legitimately hold different opinions [as to] whether a machine is safe or unsafe. Different assessments can be and are made of the safety of a particular machine by the authorities in different countries”.
If safety is a relative concept, then foreseeability must play a part in determining whether a place is or was safe. Mr Hendy submits that foresight has no such role; it can come in, if at all, only at the second stage, when considering whether it was reasonably practicable to make and keep the place safe. He also notes that there was in any event, on the judge’s findings, foresight in the present case of some statistical risk of injury. On the role of foresight, there are differing strands of authority. Not long before the 1959 Act, the House had in John Summers & Sons Ltd v Frost [1955] AC 740 considered the requirement under section 14(1) of the 1937 Act that “Every dangerous part of any machinery … shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced”, and had applied to the concept of dangerousness an approach dating back to Hindle v Birtwhistle [1897] 1 QB 192, namely that a machine or part is dangerous “if in the ordinary course of human affairs danger may reasonably be anticipated from the use of them without protection”, and that it was “impossible to say that because an accident had happened once therefore the machine was dangerous”. Lords Reid and Keith at pp 765-766 and 774 expressly endorsed the relevance of determining whether the degree of danger was such that there was “a reasonably foreseeable cause of injury”.
The same approach, again based on Hindle v Birtwhistle, was followed under section 14 in Close v Steel Co of Wales Ltd [1962] AC 367. The claim there failed because “in the ordinary course of human affairs danger could not reasonably be anticipated from the use of the drill unfenced” (p 382, per Lord Denning, with whom Lord Morton agreed on this point at p 398); “the risk of injury, serious and regrettable as it proved to be, was not reasonably foreseeable” (p 389, per Lord Goddard); and “No reasonable employer could have been expected to anticipate any risk of significant injury” (p 412, per Lord Guest).
Close proved controversial on another, presently irrelevant, aspect (whether the duty to fence extended to preventing fragments flying out of a machine) on which it was criticised in paragraph 7 of Appendix 7 to the Robens Report. But the endorsement in Close of the concept of foreseeability taken from Hindle v Birtwhistle was noted without criticism in paragraph 5 of Appendix 7 to the Robens Report and was regarded as correct by contemporaneous commentators in The Solicitors’ Journal (The Duty to fence dangerous machinery: (1961) 105 Sol J 997) and The Modern Law Review (New Wave of Interpretation of the Factories Acts: (1962) 25 MLR 98, commending “the broad common-sense view of danger” taken in Hindle v Birtwhistle), though it was regretted by John Munkman, writing in The Law Journal (The Fencing of Machinery: (1962) LJ 761).
The concept of foreseeability continued to be adopted by courts, most notably, in Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315. In Allen v Avon Rubber Co Ltd [1986] ICR 695, the Court of Appeal also endorsed it under section 29(1) of the 1961 Act. In Taylor, Diplock LJ said, obiter (pp 319-320):
“‘Safe’ is the converse of ‘dangerous’. A working place is ‘safe’ if there is nothing there which might be a reasonably foreseeable cause of injury to anyone working there, acting in a way in which a human being may reasonably be expected to act, in circumstances which may reasonably be expected to occur: see John Summers & Sons Ltd v Frost [1955] AC 740, per Lord Reid at p 766. In determining, therefore, whether the occupier was under a duty to take any measures to prevent an accident which was caused by the presence at a working place of a particular object, it is necessary to ask, first, whether the possibility of an object of that kind being at that particular place was reasonably foreseeable, and, if so, secondly, whether it was reasonably foreseeable that it would be a cause of injury to a person working there. It is only if both those questions are answered affirmatively that it becomes necessary to consider whether it was ‘reasonably practicable’ to avert the danger.”
More recently, in Robb v Salamis (M & I) Ltd [2006] UKHL 56; [2007] ICR 175, Lord Hope confirmed the relevance of reasonable foreseeability to article 5(1) of the Framework Directive 89/391/EEC (imposing on employers the duty to ensure the safety and health of workers in every aspect related to the work) and article 3(1) of the Work Equipment Directive 89/655/EEC (requiring employers to take the measures necessary to ensure that the work equipment made available to workers is suitable for the work to be carried out), stating that “The obligation is to anticipate situations which may give rise to accidents” (para 24).
The respondent relies on a different stream of authority, consisting of Robertson v RB Cowe & Co 1970 SLT 122, Larner v British Steel plc [1993] ICR 551, Neill v Greater Glasgow Health Board [1994] SLR 673, [1996] SC 185 and Mains v Uniroyal Englebert Tyres Ltd [1995] SC 518. The Court of Appeal in the present case held that it was bound by Larner, as well as expressing agreement with it.
Robertson concerned a trestle erected on a marine slipway which moved causing a workman to fall. Lord Guthrie concluded “from the whole circumstances elicited … as to the position of the staging, the way in which the pursuer worked, the outward movement of the trestle, and where the pursuer fell” that “on a balance of probabilities … the erection was insecure and unsafe” (p 129). Lord Migdale treated the fact that the trestle fell over as proof that it was not safe, and both he and, with hesitation, Lord President Clyde concluded that the decision in Nimmo meant that breach of section 29(1) was established once it was proved that the trestle was not sufficiently stable to support a workman doing his job there normally. There was no plea that it was not reasonably practicable to make or keep the trestle safe, and Lord Guthrie noted the obvious difficulty that such a plea would have faced. Lords Guthrie and Migdale rejected a submission based on the line of authority including John Summers and Close, that the employee had to prove that the accident was reasonably foreseeable. The basic issue was whether the trestle was insecure as erected, or whether it fell because the pursuer over-reached (pp 128-129).
Larner concerned an undetected crack which caused a structure to fall on the plaintiff. The Court of Appeal preferred the reasoning in Robertson to Diplock LJ’s dicta in Taylor and rejected foreseeability as a test of safety. In Mains the injury arose when a piece of machinery made an involuntary and unexpected movement, the cause of which was never ascertained, and so trapped the workman’s hand; and it was common ground that the circumstances of the accident and its cause were not reasonably foreseeable. The Inner House took the same view as in, and followed, Larner.
In so far as Robertson, Larner and Mains stand for a proposition accepted by the Court of Appeal in the present case, that safety is an eternal absolute independent of any judgment based on current standards and attitudes, then I do not accept their correctness. One factor in the decisions in both Larner and Robertson was that the introduction of foreseeability would reduce the “utility of the section”, by frequently limiting success under it to circumstances in which a common law claim for negligence would succeed (Larner, p 560A, per Hirst LJ, and p 562C-D, per Peter Gibson J; Mains, p 531D-E, per Lord Sutherland and p 535G-H and 536H-537B, per Lord Johnston). This begs the question as to the intended scope and effect of the section. Not only does the section introduce criminal sanctions, but, as established in Nimmo, if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe. It was in this connection that in Nimmo Lord Guest said that he could “not think that the section was intended to place such a limited obligation on employers” as they would have at common law (where it would be for an injured employee to plead and prove failure to take reasonably practicable steps) (p 122F-G), and that Lord Upjohn (whose view that safety is “judged of course by a reasonable standard” I have already quoted in paragraph 64 above) added that “it is not in doubt that the whole object of the Factories Act is to reinforce the common law obligation of the employer to take care for the safety of his workmen” (p 125B).
Further, section 29(1) imposes a non-delegable duty, so that an employer is responsible for achieving or for the taking all reasonably practicable measures to achieve the requisite safety irrespective of whether he chooses to set about doing this through himself, his servants or independent contractors.
There is nothing to show that section 29(1) was intended to go further, and there is no assumption (or, in my opinion, likelihood) that it was intended to. The standard of reasonableness expressed in the qualification “so far as is reasonably practicable” (in respect of which the onus of proof is on the employer) makes it more, rather than less, likely in my view that the concept of safety is itself to be judged, as Lord Upjohn thought obvious in Nimmo, by reference to what would, according to the knowledge and standards of the relevant time, have been regarded as safe (see further paragraph 79 et seq. below).
Peter Gibson J (at p 562G-H) regarded it as surprising that the approach in John Summers, based on section 14(1) of the 1937 Act containing no qualification of reasonable practicability, should have been regarded as relevant under section 29(1) of the 1961 Act which does contain such a qualification. The same point was made in Mains (pp 527A-D and 531D-F, per Lord Sutherland and p 536A, per Lord Johnston). But there was authority pre-dating 1959 which took the same approach to safety where there was such a qualification: see Sheppey v Matthew T Shaw & Co Ltd and Trott v W E Smith (Erectors) Ltd (para 65 above). The force of the point depends in any event upon the effect of the qualification. In Mains it was contemplated that the qualification might enable a defender to “say it was not reasonably practicable to make this place safe, because this particular mishap was not reasonably foreseeable” (p 527C-D, per Lord Sutherland) and that “The unforeseeable accident occurring in an unforeseeable way may well give the defenders a defence under the qualification” (p 637E, per Lord Johnston). Likewise, in the present case the Court of Appeal considered “as a matter of common sense” that “if, the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all” (paras 83 and 91). On that basis, foresight can be very relevant under section 29(1). But, if this is so, then section 29(1) is to that extent merely shifting the onus of proof, which weakens the argument that it must be seen as departing substantially from conceptions of common law negligence.
In summary, safety must, in my view, be judged according to the general knowledge and standards of the times. The onus is on the employee to show that the workplace was unsafe in this basic sense.
(iv) Reasonably practicable
Since it took the view that safety is absolute and unchanging, the Court of Appeal had to consider whether the qualification “so far as is reasonably practicable” enabled the employers to exonerate themselves by showing that reasonable employers would not have considered that there was cause to reduce noise exposure in the workplace below 90dB(A). The Court of Appeal held that the qualification gave no scope for such a defence. It said (para 89):
“Under the statute, the employer must first consider whether the employee’s place of work is safe. If the place of work is not safe (even though the danger is not of grave injury or the risk very likely to occur) the employer’s duty is to do what is reasonably practicable to eliminate it. Thus, once any risk has been identified, the approach must be to ask whether it is practicable to eliminate it and then, if it is, to consider whether, in the light of the quantum of the risk and the cost and difficulty of the steps to be taken to eliminate it, the employer can show that the cost and difficulty of the steps substantially outweigh the quantum of risk involved. I cannot see how or where the concept of an acceptable risk comes into the equation or balancing exercise. I cannot see why the fact that a responsible or official body has suggested that a particular level of risk is ‘acceptable’ should be relevant to what is reasonably practicable. In that respect, it appears to me that there is a significant difference between common law liability where a risk might reasonably be regarded as acceptable and statutory liability where the duty is to avoid any risk within the limits of reasonable practicability.”
Smith LJ reiterated the point at the end of para 100, when rejecting the relevance of the Code of Practice to the question whether it was reasonably practicable to provide protection.
In the light of my conclusion that safety is a relative concept, the correctness of these passages does not strictly arise for consideration in this case. Had it arisen, I would have regarded the qualification as wide enough to allow current general knowledge and standards to be taken into account. Even the Court of Appeal in its formulation acknowledged the quantum of risk involved as material in the balancing exercise. But this can only mean that some degree of risk may be acceptable, and what degree can only depend on current standards. The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise: see Swanwick and Mustill JJ’s statements of principle, set out earlier in this judgment, and also Charlesworth on Negligence (12th ed) (2010), chapter 7, The Standard of Care, both generally and especially at para 7.38. It would be strange if the Court of Appeal was right in suggesting that, under the statutory formulation, this one factor is irrelevant, when the whole aim of the balancing exercise must, in reality, be to identify what is or is not acceptable at a particular time.
That the qualification “so far as may be reasonably practicable” may, if necessary, receive a broad interpretation is also indicated by the reasoning of the House in Marshall v Gotham Co Ltd [1954] AC 360. Under the Metalliferous Mines General Regulations 1938 (SR & O No 630) the roof and sides of every travelling road in a mine were required to be made secure. An employee was killed by a fall of roof, due to the presence of an unusual geological condition known as “slickenside”, which there was no known means of detecting prior to a fall. It was argued that the mine-owner could have propped all roofs, and that “reasonably practicable” meant no more than “practicable” (p 364). The argument was rejected. Lord Oaksey at p 370 agreed with Jenkins LJ’s statement, [1953] 1 WB 167, 179, that what “is ‘reasonably practicable’ in this context is no more nor less than what is capable of being done to make roofs and sides secure within the limits of what it is reasonable to do; and it cannot be reasonable to do for this purpose anything more than that which it appears necessary and sufficient to do according to the best assessment of what is necessary and sufficient that can be made at the relevant time, that is, in the present instance a point of time immediately prior to the accident”. Lord Reid at p 373 said that “if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable” and took into account that the danger was a very rare one, that the trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable, that the precautions would not have afforded anything like complete protection against the danger, and that their adoption would have had the disadvantage of giving a false sense of security. Lord Keith considered at p 378 that there was “no general rule or test that can safely be relied on for measuring the discharge of such a duty”, but that he “could not, as at present advised, accept … that the measure of an employer’s liability can satisfactorily be determined by having regard solely to the proportion which the risk to be apprehended bears to the sacrifice in money, time or trouble involved in meeting the risk”. Lord Tucker (with whom Lord Cohen agreed at p 377) said at pp 374-375 “that the word ‘secure’ does not involve security from the effects of earthquake or an atom bomb”, but added that “it must include security from all the known geological hazards inherent in mining operations”. At p 376 he echoed the list of factors which Lord Reid had identified in support of his conclusion that the precautions were not reasonably practicable.
A further aspect of para 84 in Smith LJ’s judgment is the suggestion that “there must be at least a substantial disproportion” before the desirability of taking precautions can be outweighed by other considerations. This theme was developed in paras 82 to 84 of her judgment, on the basis of dicta in two cases prior to Marshall v Gotham. But it represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable.
In deciding the appeal in favour of the respondent, the Court of Appeal relied upon HHJ Inglis’s estimation of the quantum of risk below 90dB(A). HHJ Inglis said that
“the description given to the risk to hearing of exposure below 85dB(A) … as ‘minimal’ is one that I accept and adopt. Above 85dB(A) the risk accelerates up to 90dB(A). In the high 80s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals.”
On that basis, Smith LJ said that, assuming (as she did) that the employers well knew that some of their workforce stayed in their employment over many years, they would, if they had asked a suitably qualified expert, have received advice conveying to them that a substantial minority of their workforce in the relevant departments were likely to suffer significant hearing loss, and could not then have hoped “to establish that the burden of providing ear protectors was substantially disproportionate to the quantum of risk to their employees” (para 98). Advice of this nature as to the quantum of the risk should have been received by late 1976 or early 1977 (para 101). To this, Smith LJ added six to nine months, for reasons already discussed, putting Quantum in breach of its statutory duty under section 29(1) from 1 January 1978.
Neither Quantum nor any other of the employers before the court exposed their workforce to noise levels in the “high 80s”. The exposure found was in the case of Mrs Baker to levels of 86dB(A). As I have already stated, every 3dB(A) represents a doubling of the sound pressure level of the energy involved in the noise, even though it will not be appreciated as such by the hearer. More importantly, the approach taken by the Court of Appeal requires employers to take expert advice and to identify the quantum of risk in circumstances in which current standards and thinking did not expect any such steps. And if risks which are not currently regarded by responsible employers as calling for any action are required to be addressed, then, despite Smith LJ’s references to the balancing of the quantum of risk against other factors, any employer who was or should have been aware of any risk at all greater than de minimis would be obliged to address it unless the trouble and cost involved were prohibitive.
This is highlighted by consideration of the arguments which can be made if one has regard simply to the statistical tables in BS 5330: 1976 upon which the respondent and the Court of Appeal have relied to show the risk attaching at levels of exposure between 85 and 90dB(A) lepd: see para 31 above. The respondent, as I understand, accepts that the logic of her case is that the risks below 85dB(A) cannot and should not have been regarded as immaterial. But this highlights how independent her case on section 29(1) is of contemporary standards of behaviour or thought. Only since 2005 have employers been obliged to require ear protectors to be worn by workers exposed to 85dB(A) and obliged to make them available on request to workers exposed to 80dB(A) (see para 14 of the Court of Appeal’s judgment, quoted in para 15, above).
There is nothing in the history of section 29(1) or the mischief to which it was addressed to suggest that the legislature in 1959 or 1961 intended in this way to detach the penal liability which it then introduced in respect of the workplace from the ordinary understanding of reasonable employers. Contrary to the Court of Appeal’s view, I consider that HHJ Inglis was correct in the approach he took to section 29(1), which followed that taken by Rose J in Fazakerley.
Conclusion
I would allow the appellants’ appeals both at common law and under section 29(1). At common law, Quantum, and other employers in a similar position such as Guy Warwick, were not in breach of their duty of care or of their duty under section 29(1) in not implementing measures to protect their employees in respect of noise exposure at levels below 90dB(A) prior to 1 January 1990. As regards Meridian and Pretty Polly, in reflection of the common ground between Lord Dyson, Lord Saville and myself (paragraphs 25 and 43 above), the appeal will be allowed by restoring the judge’s decision that they were in breach of duty in not having implemented such measures as from 1 January 1985.”
O’Keeffe -v- Hickey
[2008] IESC 72
SC Hardiman J.
“……
Vicarious liability.
We have seen, above, that the plaintiff’s case was presented under three headings, the second of which related to vicarious liability alleged to exist for the criminal and plainly unauthorised acts of the first-named defendant, but also for the alleged negligence of the curate Fr. O’Ceallaigh who was the de facto acting manager in respect of his alleged failure to take any step on foot of a complaint made to him of a similar nature, in relation to another child, in 1971. This is the only remaining claim.
The principles of vicarious liability are stated as follows in chapter 43 of the Law of Torts by McMahon and Binchy, 3rd Edition, (Dublin, 2000) at p. 1091:-
“The law is sometimes prepared to hold one person liable for the wrong committed by another person even though the person held liable is not at fault in the accepted sense of the word. Thus, the law may hold the employer liable for the wrongs of an employee, the principal liable for the wrongs of an agent or the firm liable for the wrongs of its partner in spite of the fact that the employer, the principal or the firm may not have been at fault in any way. When the law imposes liability in these circumstances we speak of an employer, principal or firm being ‘vicariously liable’.”
The generally accepted basis on which vicarious liability is imposed has come to be known as “the Salmond test” after the distinguished academic of that name. This may be expressed as follows:
“An employee’s wrongful conduct must, to render the employer liable, fall within the course and scope of his or her employment. It will do this where it consists of either
(i) Acts authorised by the employer or
(ii) Unauthorised acts that are so connected to the acts that the employer has authorised that they may rightly be regarded as modes – although improper modes – of doing what has been authorised.”
In the following paragraph of their text book, McMahon and Binchy go on to endorse what they see as a new and more acceptable theory of vicarious liability, by comparison with an older and (to them) less satisfactory one in the following words:-
“Historically speaking this example of strict liability can be traced to earliest times although its modern form in England dates from the end of the seventeenth century. It survived the ‘no liability without fault’ era, to some extent as an anomaly, but nowadays with the trend towards no-fault concepts it can be sustained by more modern justifications such as risk creation and enterprise liability. In other words, the concept of vicarious liability has dovetailed nicely with the more modern ideas that the person who creates the risk, or the enterprise which benefits from the activity causing the damage, should bear the loss. Such persons or enterprises are in a good position to absorb and distribute the loss by price controls and through proper liability insurance. Liability in these cases should, it is felt, follow ‘the deep pocket’.”
I do not feel the unqualified enthusiasm which the learned authors evince for what they believe to be the modern theory of vicarious liability. The fact that a person or entity may have some resources (if only a private dwelling-house) does not in and of itself, in my opinion, convert him, her or it into a “deep pocket”. More fundamentally, even if the pocket is genuinely deep, that fact cannot in ordinary justice support the imposition of liability on such a person where it would not be imposed on a poorer person. And it is, with every respect, fatally easy for a writer in his study to dismiss another person as a “deep pocket” when that other is not such and does not so regard himself.
I do not consider that companies, institutions or even the State itself are necessarily to be considered in a different light than an individual. A finding of liability for perhaps veryserious or gross injuries is not a light thing and has an effect quite separate from its consequences in damages. The fact or risk of such a finding may have a “chilling effect” even on State, private or charitable initiatives and will certainly have an effect on the cost of insurance. Nor can public funds, contributed originally by individual tax payers, be regarded as a separate type of fund, infinite in extent and invulnerable to an extension of the grounds of liability. Firstly, these funds are in fact finite, secondly justice surely demands that they, like private or charitably held funds, should be paid out only in response to a genuine claim and not have to meet a situation in which the very existence of the funds is a factor tending to expose them to a new species of liability. Finally, I do not consider that the second quotation from McMahon and Binchy, above, is at all apt to describe the factual circumstances of this case. That extract, on the contrary, deals exclusively with commercial ventures. I am not to be taken as agreeing with it, even in the commercial context. But in the circumstances of this case it is, in my opinion, nonsensical to speak of “risk creation”. I do not accept that the State, in performing its constitutional duty to provide for free primary education is creating a risk: this is further discussed below. Nor do I consider that the State is to be equated to an “enterprise” which “benefits from” the provision of free primary education. In other words I consider that, even if a new species of vicarious liability should be introduced in a commercial context based on a theory (surely not a legal one) of “risk creation”, of which I am utterly unconvinced at present, it would not apply in (what it has become fashionable to call) the factual matrix of the present case.
In any event, the learned authors of the work cited go on to quote with unqualified enthusiasm the majority judgment in this Court in Moynihan v. Moynihan [1975] 1 I.R. 192 in support of the proposition, at p.1092, that:
“Other instances of vicarious liability can arise, where the law will hold one person liable for the wrongs of another even though no formal legal relationship exists between the parties in question. Indeed, it seems that in Ireland a person may be vicariously liable whenever he or she has sufficient control over the activities of another.”
……
It appears to me that the following observations can be made about tortious liability for an injury suffered by another:
(1) Such liability has consequences beyond the obligation to pay a cash sum. It is salutary to remember that a tortfeasor – joint or single, is referred to in the Civil Liability Acts as a ‘wrongdoer’ and the stigmatisation of the paying party as such is, in my view, legally and morally a condition precedent to an order to compensate for one’s own act. (See Civil Liability Act 1961, s.2)
(2) Apart from financial or reputational loss, the very possibility of tortious liability, and especially such liability on a strict or no-fault basis, constrains the legitimate actions of individuals, professions and other groups and even public authorities by what the American jurisprudence describes as a ‘chilling effect’. This, for instance, is said to have given rise to ‘defensive’ medicine and its equivalent in other fields.
(3) Unpredictable liability in tort creates huge social and economic problems including that of correctly estimating one’s insurance needs and of sudden unpredicted liabilities occurring which may be very damaging to an individual group or corporation, whether State run or otherwise.
(4) Vicarious liability is a form of strict liability which can be immensely burdensome on the party upon whom it is imposed. It cannot in my view justly occur at all except in a situation where the paying party said to be vicariously liable has a real and actually exercisable power of control, in the relevant area of behaviour, over the person for whom it is said to be vicariously liable.
The foregoing are observations on vicarious liability as it is known in Irish law at present. Broader aspects of this concept, such as what the learned authors cited above describe as “enterprise liability” or “risk creation liability” will be discussed separately. But it is worth noting that the eternal quest for a “deep pocket” which can be made liable not merely proceeds apace, but at an ever increasing pace: one learns through the internet of Australian litigation directed at demonstrating that the manufacturer of a mobile phone has a vicarious liability for injury caused by a driver who loses control of his vehicle while speaking on a mobile phone. And on the 22nd October, 2008, it is reported in the Irish Times that a Circuit Court judge in Cork predicted that if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards.
Control.
By reason of the foregoing the first exercise which is to be carried out in deciding the present case is whether or not the Minister, the most directly involved of the State defendants, is in a relationship with the first-named defendant sufficient to make the Minister, and thereby the public purse, liable for his (Hickey’s) crimes and torts.
We have already seen, in the historical portion of this judgment, that the State involvement in the governance of national schools, for historical reasons, is indirect not to say oblique and general rather than particular. The role which the State might otherwise have occupied is, by their own urgent desire, occupied by the Churches and other voluntary bodies, in this case the Catholic Church.
For many years the common law world applied the test for vicarious liability taken from Salmond and Heuston’s work on torts in Salmond and Heuston on the Law of Torts (19th Edition., 1987) at pp. 521 to 522. This was applied in the Canadian case to be discussed below Bazley v. Curry [1999] 174 D.L.R. (4th) 45.
There, the rule is stated as follows:-
“An employee’s wrongful conduct is said to fall within the course and scope of his or her employment where it consists of either (1) acts authorized by the employer or (2) unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes – although improper modes – of doing what has been authorized: Canadian Specific Railway Company v. Lockhart, [1942] AC 591 at 599.”
Thus, in Ireland, in Williams v. Morrissey [1903] 37 I.L.T.R. 65 the defendant was held liable when his employee, who was driving his (the employer’s) cow threw a stone at the cow to divert the animal and hit the plaintiff. The classic limitation on this form of liability was when the employee went on what was somewhat quaintly described as ‘a frolic of his own’, though the cases on this topic were far from consistent.
It was, however, until recently almost universally considered that an employer would not be liable for a forbidden act, and in particular one amounting to a criminal offence. Thus, in the second, penultimate, edition of McMahon and Binchy’s work on torts, it is said at p.757:
“Although there is some authority for saying that the master’s prohibition forbidding the servant from acting as he did does not automatically exonerate the master from liability, the majority of Irish cases where the master’s prohibition was a factor have resulted in the Court holding that the servant acted outside the scope of his authority.”
Speaking generally on the topic of “conduct outside the scope of employment”, the same authors say at p.758:-
“If the servant acts outside the scope of his employment the master will not be liable. Sometimes it is said that, provided the servant is doing the kind of thing he is employed to do, then the master remains liable even if he does it improperly, but that the master is not liable if the servant is doing something different in kind from that which he is employed to do.”
It is scarcely necessary to say that sexually abusing a pupil is something quite different in kind from what a school teacher is employed to do.
On the same page the learned authors discussed the case of Lawlor v. O’Connor [1929] 63 I.L.T.R. 103. There a driver assaulted a third party by grabbing her and holding her on the running board of a moving truck, later dropping her without stopping. The authors comment:-
“The bizarre facts in this case may not make it very useful as a precedent, but it may indicate reluctance on the part of the Irish Courts to saddle the master with liability where the servant commits an intentional tort (or a crime) against the person of the plaintiff.” (Emphasis added)
…”
Fennelly J.
“….Vicarious liability
26. In order to fix the State with responsibility for the criminal assaults committed upon her by Mr Hickey, the appellant invokes the principle of vicarious liability as it has been developed in the common law. Assuming Mr Hickey, as the principal teacher of a national school, to have been acting in the capacity of a servant or employee of the State, it is claimed that vicarious liability is sufficiently capacious to bring the claim home against the State. It will be necessary to test the assumption mentioned in the preceding sentence.
27. Firstly, however, I will discuss the principles which apply to vicarious liability for acts of the sort at issue in this case.
28. The notion that a person should be made responsible to an injured party for the effects of acts he has expressly or impliedly authorised provides the original basis for vicarious liability. Over time, the master’s liability for his servant’s acts ceased to be based on any assumption that he had authorised the wrongdoing. It sufficed if the servant had been acting in the course of his employment. Courts have on occasion explained the principle in terms of the Latin maxims, respondeat superior and qui facit per alium facit per se. These have been criticised as unhelpful (see Salmond on Torts, Fourteenth Edition, R.F.V. Heuston, Sweet & Maxwell, London 1965, page 644 for a selection of comments). Nonetheless, they are, to my mind, useful brief statements. They enshrine the notions of responsibility—respondeat–of a principal for the acts of an agent and action carried out on behalf of another. A person in authority may be answerable for the acts of his servant.
……
41. I pause at this point before considering the more recent authorities, to take stock of the ordinary rule concerning vicarious liability for the illegal acts of an employee. The second leg of the Salmond test has served the law well. It asks whether the act complained of is an unauthorised mode, adopted by the servant, of performing the work of the employer. Strict logic might suggest that fraud on the client (as in Lloyd v Grace Smith) or theft of the customer’s goods (as in Morris v C.W. Martin & Sons Ltd) could not be so considered. The law adopts a solution which is not strictly logical in this sense. Clearly theft of the customer’s property is not, in the ordinary sense, a mode of performing a service for that customer. The law asks, however, whether the act of the servant is “closely connected” to the employer’s work. It says that, where two parties (the cheated customer and the employer of the dishonest servant) are innocent, it is just, when assessing whether the servant was acting within the scope of his employment, that the employer, who employed the dishonest servant, rather than the customer should bear the loss.
….
62. Ultimately, I am satisfied that it is appropriate to adopt a test based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made. That test, as the cases have shown, has enabled liability to be imposed on the solicitor’s clerk defrauding the client (Lloyd v Grace Smith & Co); the employee stealing the fur stole left in for cleaning (Morris v C.W. Martin & Sons Ltd) and the security officer facilitating thefts from the premises he was guarding (Johnson & Johnson v C.P. Security). In each of these cases, the action of the servant was the very antithesis of what he was supposed to be doing. But that action was closely connected with the employment. In Delahunty v South Eastern Health Board [2003] IEHC 132, O’Higgins, rightly in my view, held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.
63. The close-connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J provides an excellent example of practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley, the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.
64. In the present case, there is no claim against the manager or patron of the school. It is not, therefore, appropriate to decide whether vicarious liability should be imposed on the direct employer of the first-named defendant. In such a case, all the facts would have to be carefully considered or, to recall the words of Lord Steyn already quoted, there must be “an intense focus on the connection between the nature of the employment and the tort of the employee…” It may be relevant to consider whether it matters that the music lessons were not part of the ordinary school curriculum and were provided outside normal hours. Mr O’Driscoll Senior Counsel, on behalf of the second to fourth defendants referred to the residential setting of the abuse in both Bazley and Lister. Clearly, that may be a material factor. However, I express no concluded view.
65. The important question in the present appeal is whether liability can be imposed on the second to fourth-named defendants or on any of them, in other words, on the State. It is immediately necessary to note that, in each and every one of the cases on close connection, a direct employment relationship existed. The first-named defendant was not employed by the second-named defendant or by any of the other defendants. He was, in law, the employee of the manager, Canon Stritch. It is true that he was required to possess qualifications laid down by the second-named defendant and to observe the detailed and minute provisions of the Rules for National Schools. The State had disciplinary powers in relation to him pursuant to those Rules. However, the State did not have the power to dismiss him; nor was he originally engaged by the State. The scheme of the Rules and the consistent history of national schools is that the day-to-day running of the schools is in the hands of the manager. The inspection regime does not alter that. The department inspectors do not have power to direct teachers in the carrying out of their duties.
66. All of this is quite graphically confirmed by the facts of this case. It seems clear that no report was ever made to the second-named defendant or his Department of the complaints of sexual abuse against Mr Hickey, either the original single complaint made to Fr O’Ceallaigh in 1971 or the many complaints which surfaced in 1973. All that happened was that Fr O’Ceallaigh wrote a letter to the second-named defendant on behalf of Canon Stritch on 14th January 1974 informing him that the Mr Hickeyhad “given notice of his resignation…effective from Jan 31st 1974.” The same letter named the proposed replacemet teacher: Fr O’Ceallaigh said: “I plan to appoint…” All this further implies that the parents made their complaints, not to the second-named defendant, but to the manager, i.e., either Canon Stritch or, more likely, Fr O’Ceallaigh who was considered to be acting as de facto manager.
67. There was no employment relationship between Mr Hickey and the second-named defendant. Hardiman J discusses the principles concerning the degree of control over a person’s actions for the purposes of establishing vicarious liability. I prefer to express no opinion on the decision of this Court in Moynihan v. Moynihan [1975] IR 192, other than to observe that it is based on highly unusual facts. This Court was not asked, at the hearing of the appeal, to over-rule it. I cannot see that it establishes any precedent capable of being applied to the present case. On normal principles, the State has no vicarious liability for the acts of a teacher appointed by the manager of a national school under the system of management of national schools. I do not, of course, exclude the possibility of liability if it were to be established that, for example, an inspector was on notice of improper behaviour by a teacher and neglected to take action. That would not, however, be vicarious liability.
68. There is no legal basis in this case for the imposition of vicarious liability. For the same reason, insofar as it is necessary to say so, there can be no liability for the failure of Fr O’Ceallaigh to report the 1971 complaint. Fr O’Ceallaigh was not the employee of the second-named defendant.
69. For these reasons, I would dismiss the appeal. “
McMahon v. Irish Biscuits Ltd.
[2002] IEHC 15
O’Donovan J.
“4. Insofar as Irish Biscuits Limited are concerned, it is settled law that, as the Plaintiff’s employers, they owed him a duty, as was stated by the Supreme Court in the unreported case of Dalton v Frendo (judgment delivered on the 15th of December 1977) “to take reasonable care for the servants’ safety in all circumstances of the case”. This does not mean that Irish Biscuits Limited are the insurers of the safety of the Plaintiff in the course of his employment with them but, in my view, it does mean that they were required to take all reasonable steps to ensure that he was not exposed to avoidable risk of injury in the course of his employment.
5. To that end, it is my view that they had a duty to acquaint themselves of the facilities which were provided by their customers to enable their (Irish Biscuits Ltd) sales staff to carry out duties, which were for their mutual benefit, and to satisfy themselves that those facilities and the system operated by their customers whereby their sales staff carried out their duties did not pose a threat to their well being. In my view, Irish Biscuits Ltd. fell down badly with regard to that duty. In this regard, it was clear from the evidence of Ms. Derbhla O’Brien, the National Sales Manager for Irish Biscuits Ltd. at the material time, that she and, presumably, her employers did not consider it necessary to visit their various sales outlets to ensure that the facilities afforded to their sales staff were appropriate. Indeed, in the circumstance that Irish Biscuits Ltd. appear to have 1,000 outlets for their product, Ms. O’Brien maintained that it was not practicable for them to inspect all those outlets. I do not agree. However difficult it might be, it is my opinion that the duty of care which Irish Biscuits Ltd. owed to its employees obliged them to ensure that the facilities afforded to their employees by their customers to enable their employees to carry out duties for the mutual benefit of themselves and their customers did not threaten the safety of their employees. This, it appears, Irish Biscuits Ltd. did not do; at least, insofar as the Plaintiff was concerned. However, the Plaintiff’s immediate superior at the material time, Mr. Michael McHugh, was aware of the risks which the Plaintiff was taking and, indeed, he gave evidence that he passed on the Plaintiff’s complaints in that regard to his superior; a Mr. Freehill so that the fact of the matter appears to be that while Irish Biscuits Ltd. do not, as a matter of practice, inspect all of the facilities afforded by their customers for their sales staff; insofar as the Plaintiff was concerned, senior management in Irish Biscuits Ltd. were aware of the risks to which the Plaintiff was exposed while checking stock in the Quinnsworth warehouse and, yet, they did nothing about it. In my view, their failure to do so amounted to negligence which significantly contributed to the Plaintiff’s fall and the resultant injuries which he suffered. In this regard, I reject the submission by Counsel for Irish Biscuits Ltd that, in the absence of any relevant complaint, it is unreasonable to expect an employer to inspect premises of a third party in which members of the employers staff are expected to carry out duties on behalf of the employer, or to make enquiries with regard to the system of work maintained for members of their staff on the premises of the third party for the purpose of satisfying themselves that their staff are not exposed to avoidable risks. If that were so, it seems to me that an employer would be entitled to abrogate the duty of care he owes to his employee in favour of a third party which I do not perceive to be the law in this country and neither do I think that the judgment of the Court in the case of Mulcare v Southern Health Board (1988 ILRM at page 689), to which I was referred, is authority for that proposition. Accordingly, it is my view that, not only were Irish Biscuits Ltd negligent for their failure to act upon the complaint made by Mr McMahon but I think that they were also negligent for failing to appraise themselves of the system of work involving their employee which was tolerated in the Quinnsworth warehouse.
6. Insofar as Powers Supermarkets are concerned, there is no doubt but that they were in control of the situation at the time of the Plaintiff’s accident and I have no doubt but that members of their staff, including members at managerial level, were aware of the manner in which the Plaintiff was accustomed to checking stocks of biscuit and, being aware of that, they must also have been aware of the risk of injury to which the Plaintiff was exposed and, yet, they did nothing to avoid that risk. In my view, that also was a negligent omission which contributed to the Plaintiff’s accident, and indeed, was the main contributing factor. In my view, as between Irish Biscuits Ltd. and Powers Supermarkets, insofar as blame worthiness is concerned, in the circumstance that Powers Supermarkets were in control of the situation at the material time and had the immediate opportunity of doing something which might have avoided the accident which befell the Plaintiff, I think that they are the more to blame. In this regard, I am very much influenced by the fact that the Plaintiff’s visit to the Quinnsworth warehouse on a Monday morning was a scheduled visit of which Powers supermarket were well aware and a scheduled visit during which the Plaintiff would be under severe constraints with regard to the time within which he had to do whatever was necessary to ensure that they (Powers Supermarkets) got a fresh supply of biscuits on the following Wednesday, as the second-named Defendants were also well aware. Accordingly, they should have ensured that their premises were in a state of preparedness for the Plaintiff which they, obviously, were not.
7. In the light of the foregoing, I would apportion fault for the Plaintiff’s accident as to 60% against Powers Supermarkets, 30% against Irish Biscuits Ltd, and, notwithstanding that the negligence of the Defendants would, in my view, also amount to breach of their statutory obligations under the relevant provisions of the Factories Acts and Regulations made thereunder, I find that the blameworthiness of the Plaintiff to which I have already referred amounts to contributory negligence to the extent of 10%. ….“
Ian Barclay v. An Post and Martin Murray
[1998] 2 I.L.R.M. 385
McGuinness J
“Counsel for the plaintiff also referred the court to the possibility of An Post bringing in a scheme under s. 70 of the 1983 Act which would regulate the size and position of letter boxes. However, I would accept that, as submitted by Mr McGovern, schemes under this section deal with the charges to be imposed for postal services and similar matters. I do not consider that the section could be extended to cover specifications in regard to letter boxes.
As far as the case law is concerned, the classic case in this jurisdiction on the standard of care owed by an employer to an employee in regard to safety is Bradley v. CIE [1976] IR 217 . In that case the plaintiff, a railwayman, was injured when he fell from a ladder attached to a signal post. Engineering evidence suggested that a protective cage would have prevented such a fall but there was no evidence that such cages were provided by other railway companies. There had been no similar accidents within the previous 10 years. The Supreme Court, as is stated in the head note, held that the suggested precaution had not been shown either to have been one which had been commonly taken by other railway operators or to have been one which a reasonably prudent employer would think was obviously necessary in the prevailing circumstances for the protection of its employees. At p. 223 of the report Henchy J stated:
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.
Henchy J went onto say:
Even where a certain precaution is obviously wanted in the interest of the safety of the workmen, there may be countervailing factors which would justify the employer in not taking that precaution.
However, as was submitted by Mr Trainor, more recent cases have taken a somewhat less harsh line. In Kennedy v. Hughes Dairy Ltd [1989] ILRM 117 , where an employee suffered a cut from broken glass at a bottling plant, the Supreme Court held that there was sufficient evidence to enable a jury reasonably to conclude that there had been a foreseeable risk of injury to the plaintiff in the area in which he was injured, because of the nature of his work. The learned McCarthy J (at p. 123 of the report) stated:
the essential question in all actions of negligence is whether or not the party charged has failed to take reasonable care whether by act or omission.
In Dunne v. Honeywell Control Systems Ltd [1991] ILRM 595 , Barron J dealt with the situation where an employee is working on a third party’s premises. At p. 600 of the report he stated:
An employer has a duty to take reasonable care for the safety of his employees. Where an employee is working on premises other than that of his employer the duty of the employer to use reasonable care for his safety does not in any way diminish. Nevertheless what might be reasonable for an employer to do for the safety of his employee on his own premises may no longer be reasonable where the employee is working elsewhere.
Dr White, in his book, Civil Liability for Industrial Accidents (Vol. 1, p. 434) summarises the situation of the worker on a third party’s premises thus:
The employer owes the like duty of care with regard to the safety of the premises of third parties on which he requires his servants to work as he does in respect of his own premises, but what reasonable care requires in relation to the latter is not necessarily the same as what reasonable care requires in relation to the former.
Having referred to Dunne v. Honeywell , he then goes on (at p. 486) to deal with the situation where, as in the instant case, the employer is aware of the hazard. He refers to the English case of Smith v. Austin Lifts Ltd [1959] 1 All ER 81 , where the plaintiff employee had reported to the employer a faulty door mechanism on the third party’s premises. When the employee was injured as a result of the hazard, the House of Lords held that the employer had indeed been negligent. Lord Denning said:
Notwithstanding what was said in Taylor v. Sims & Sims [1942] 2 All ER 375 , it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an over-riding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance take reasonable care to devise a safe system of work (see General Cleaning Contractors v. Christmas [1952] 2 All ER 1110 ) and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends of course on the circumstances: see Wilson v. Tyneside Window Cleaning Co. [1958] 2 All ER 265 .
Applying this principle, I think that the judge was entitled in this case to find the employers liable. If the workmen had not reported any difficulty or defect on the premises, the employers would not have been responsible. They would have been entitled to assume that the means of access provided by the occupiers was reasonably safe. But when the workmen reported — as they did — that the machine house door was broken and needed re-fixing in position, the employers were, I think, put on enquiry whether the means of access provided by these doors was reasonably safe. They ought to have done something but they did nothing beyond report the defect to the occupiers. Report after report, four in all, produced no results. Thereupon the employers ought, I should have thought — and, indeed, as the judge thought — to have gone themselves to see if the means of access was reasonably safe. They had done so they would have found it unsafe and would have done something. They might have insisted on the door being mended, or they might have sent a long ladder to enable the men to get safely to the machinery. Having done nothing, they cannot escape liability.
Mr McGovern, for the first named defendant, referred to Charlesworth on Negligence (9th ed.) at paragraph 6–18, where the learned author refers to the necessity of balancing the risk against the measures necessary to eliminate it, as follows:
Very few activities can be done without some risk. Crossing the street in a town incurs a risk but the street must be crossed. Cleaning the windows of a high building is a risk and yet the windows must be cleaned. Going to sea is a risky occupation but shipping must be carried on, regardlessly …. There are some cases where the risk can be reduced or eliminated only at great cost. But the question then arises, at what point can the matter of costs be taken into account when considering the degree of care to be taken?
The learned author then considers a number of cases in which this question arose and concludes at paragraph 6–21:
In taking stock of the situation, including the difficulty or cost of remedial measures, it is necessary to take into account not only the risk but also the importance of the object to be attained by the activity which creates the risk. If the activity in question is of little or no national importance, it might be that costs should not be taken into account, but in other cases there must be, as in practice there is, a point beyond which further remedial measures are prohibitive by reason of cost.
At paragraph 6–23 he concludes:
It is a question of degree in each case to be considered, together with the importance of the object to be achieved.
An Post, counsel submitted, had taken all possible and reasonable measures and could not be held liable for its failure to eliminate the risk.
Conclusion
It is necessary to consider the evidence in the light of the case law set out above. It is accepted by the first named defendant that the positioning of letter boxes a few inches from the ground causes both extreme inconvenience and also a hazard to the health and safety of postmen; a moment’s thought would convince one that this form of door design is totally contrary to common sense. An Post had received numerous complaints from the employees’ trade union and from individual postmen; the matter had been raised in Dáil Éireann by Deputy James Tully as early as 1971. The hazard was therefore known to the first named defendant and the risk was a foreseeable one. The first named defendant from its own research and that of its consultants was aware that the practice in other jurisdictions was to regulate the size and position of letter boxes by statute or statutory regulation.
An Post and its predecessor the Department of Posts and Telegraphs did, however, make some response to the situation. By 1976 the department had succeeded in having proper height and other specifications included in the Irish Standard. Over many years efforts were made to deal with the problem through building regulations or the planning code. It is true that until the late 1980s or early 1990s these efforts were somewhat lethargic and some blame for this attaches to the first named defendant, but the main difficulty in my view lay with other bodies in whose hands the remedy lay — the Oireachtas and the Department of the Environment. Given the wide terms of s. 3 of the Building Control Act 1990 , I find it difficult to disagree with the contention of counsel for the plaintiff that the relevant regulations could have been made under that Act. However, the power to make such regulations lay outside the remit of the first named defendant. Finally, in more recent times the first named defendant has made sustained and genuine efforts to improve the situation in regard to letter boxes generally in both urban and rural areas. It has not succeeded in eliminating the hazard but that has not been due to any major negligence on its part. It has, in addition, provided a training course in manual handling to the plaintiff and his fellow workers. The course may not have been ideal but it warned of the hazards of bending and twisting and I was impressed by the level of commitment and enthusiasm shown by Mr Bolger in his evidence. It is true that he did not provide a satisfactory answer to the problem of delivering letters to low letter boxes, but if one thing emerges from the evidence in this case it is that there is in fact no practical satisfactory answer to this problem other than to eliminate low letter boxes.
On balance, therefore, up to the time of the plaintiff’s injury in June 1993 I conclude that the first named defendant had taken reasonable care in the circumstances to deal with the undoubted hazard. The first named defendant has, in general terms, continued to deal with the matter with reasonable care in so far as lies within its power. It can only be hoped that cases such as this may per suade the legislature to take the relevant action.
As far as this particular plaintiff is concerned, however, that is not the end of the matter. He had suffered a severe injury to his back in June 1993; he had reported this matter to his supervisor; he had attended the company doctor; he had been forced to take time off work. His injury and his consequent vulnerability were by late August/early September 1993 well known to his employers. Yet on 21 October 1993 he was sent out on overtime to deliver mail to the development at Mount Argus, where some 350 houses had low letter boxes. This overtime delivery to Mount Argus was not, on the evidence, a sudden emergency. It was a regular part of the system at the Fortfield Office because no arrangements had yet been made to set up a separate round for Mount Argus. The plaintiff accepts that he took on this overtime duty voluntarily; he could have refused it. But he had been out of work for some time and he needed the extra money.
The question of voluntary assumption of risk is dealt with in convenient summary by McMahon and Binchy in their work, The Irish Law of Torts (2nd ed.) at p. 336 as follows:
Formerly the defence of voluntary assumption of risk was fairly readily accepted in cases dealing with employer’s liability. In recent years however, the defence ‘has virtually disappeared in such cases which turn on common law negligence’ (O’Hanlon v. ESB [1969] IR 75 ). The courts, even before the statutory reform of 1961, had shown an increasing sympathy for the dilemma of an employee who was aware of a dangerous work practice for which his employer was responsible. If he said nothing, he might be held to have accepted the risk; if he protested, he might lose his livelihood. Today only a communicated waiver of a right of action will constitute a voluntary assumption of the risk; an uncommunicated determination will not suffice. The employee may, however, still be defeated by holding that, having regard to the risks inherent in a particular business, the employer was not in breach of his duty of care to the employee.
In the particular circumstances of the plaintiff in this case it seems to me that the first named defendant’s duty of care towards Mr Barclay included a duty to ensure that, at least in the short term after his illness, he did not take up duties which would put undue and extraordinary strain on his back. The delivery to 350 low letter boxes in Mount Argus was eminently such a duty. The original inspector, Mr Parnell, had left Fortfield Office in September 1993 and I did not hear evidence from the inspector in charge in October 1993. However, my impression from the evidence of Mr Parnell and Mr Bolger was that the attitude of An Post’s inspectors to the working postmen and their problems was distinctly uneven. Mr Bolger, when he was an inspector, clearly took a great interest in the welfare of his postmen; I did not get the same impression from Mr Parnell’s evidence. It should be part of the duty of care of higher management to ensure that line management executives such as inspectors bear in mind the welfare, health and safety of ordinary postmen.
In summary, I find that the first named defendant did not properly discharge the employer’s reasonable duty of care in the case of the plaintiff’s second injury and as such the first named defendant is liable for that injury.”
Walsh v. Securicor (Ireland) Ltd.
[1993] 2 I.R. 509
Egan J.
“This is an appeal from a finding of negligence on the part of the defendant made by Barrington J. In the course of his judgment he stated as follows:
“This case arises out of an ambush which took place on the 14th April, 1983, on a Securicor armoured vehicle. The ambush was carried out with ruthless military precision and involved an attack not only upon the Securicor van but also upon the garda escort which the robbers succeeded in neutralising so far as the protection of the van was concerned.”
On the date in question in the course of his employment with the defendant, the plaintiff, having collected a large amount of money from a bank in Cork City, was driving the van on the road from Cork to Cobh with the object that he would deliver money to clients or customers of the defendant including smaller banks and the post office in Cobh. He had another employee of the defendant with him in the van.
He suddenly found in the course of his journey that the road in front of him was blocked by a tractor and the road behind him was cut off and bullets were being fired at him through the windscreen which began to shatter. He was eventually forced to open the door of the van and was hit on the head with what he believed to be the butt-end of a rifle. He was knocked unconscious. The robbers then made off with most of the money in the van.
The learned judge went on to say:
“All the experts on security who have given evidence before me are satisfied that the ambush was one which could not have been carried out without planning and foreknowledge of the movements of the armed vehicle in question, which had been passing along this route towards Cobh with proper precision about the hour of 10 a.m. every Thursday morning for the previous seven years. The route was known to both the defendant and to the police to be what was referred to in the evidence as a high risk route.”
Damages were awarded to the plaintiff and there is no appeal against the amount thereof. The only appeal is against the finding that the defendant was negligent. In the course of the trial the defendant was criticised in many ways but in the final analysis the plaintiff was compelled to rely on one single allegation of negligence, i.e., that the journey in question should not have been scheduled to be undertaken at precisely the same time on every Thursday for the seven years prior to the incident in question. This practice had the result that on every Thursday at about 10 a.m. or certainly within minutes of that time the Securicor van would arrive at the exact location where the incident occurred. It was accepted that this fact would inevitably have become known to prospective wrongdoers. The learned trial judge held that the plaintiff had made out his case so far as the rigidity of the time factor was concerned. He was satisfied as a matter of probability that it made the ambush possible and resulted in the plaintiff sustaining the injuries which he did sustain.
The defendant argued that the provision of a garda escort minimised any risk but it could not, of course, argue that it eliminated the risk. It also argued that it had no flexibility to avail of in the matter of time, as in relation to at least some of its deliveries it was tied by contract to being consistent in regard to time. The learned trial judge, however, found that whereas decisions, including the time factor, were apparently made at high management level in the bank and in the security firm, there was no evidence at all of any discussions at the appropriate levels about the desirability of reviewing or changing the times of delivery from time to time. The evidence justified this finding.
In the context of the provision of the garda escort it was argued initially that this could only be arranged if the company agreed to tie itself to specific times but the learned trial judge found, particularly on the evidence of Sergeant O’Driscoll, that this was not the attitude of the gardaà and that they appeared to be quite flexible if given even very short notice of alteration in time. There was evidence to support this finding. In any event, this was a high risk operation and the defendant was bound to avail of every safety precaution, not just the provision of a garda escort.
In what I might class as a last stand, reliance was placed on the fact that to the knowledge of the defendant no attack had been made during the previous seven years upon a van accompanied by a garda escort. The learned trial judge did not deal specifically with this argument in his judgment. It was made on the basis of foreseeability but, as already stated, the provision of a garda escort minimises risk but does not eliminate it. Every device or precaution must be taken in a high risk operation such as this and there was expert evidence to the effect that it was unwise to retain a clockwork precision in relation to the time factor.
In the case of Ryan v. Ireland [1989] I.R. 177, Finlay C.J. was dealing with a case in regard to which he stated that considerations of standards of care drawn from the experience of the workplace might be of little assistance. He stated, however, as follows (at p. 183):
“There could, I think, be no objective in a master and servant relationship which would justify exposing the servant to a risk of serious injury or death other than the saving of life itself.”
It need hardly be emphasised that this is a very high duty indeed.
I am satisfied on the evidence which the learned trial judge was entitled to accept and on the inferences which he was justified in making that his decision was correct and that this appeal should be dismissed.”
Fairchild v Glenhaven Funeral Services Ltd & Ors
[2002] UKHL 22[2002] 3 WLR 89, [2003] 1 AC 32, [2003] AC 32
LORD BINGHAM OF CORNHILL
“Principle
In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for the breach he would not have suffered the damage.
The issue in these appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it. The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. Are these such cases? A and B owed C a duty to protect C against a risk of a particular and very serious kind. They failed to perform that duty. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. If the mechanical application of generally accepted rules leads to such a result, there must be room to question the appropriateness of such an approach in such a case.
In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 508, Mason CJ, sitting in the High Court of Australia, did not “accept that the ‘but for’ (causa sine qua non) test ever was or now should become the exclusive test of causation in negligence cases” and (at p 516) he added:
“The ‘but for’ test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff’s injury. The application of the test ‘gives the result, contrary to common sense, that neither is a cause’: Winfield and Jolowicz on Tort, 13th ed (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff’s injury: see, e.g., Chapman v Hearse, Baker v Willoughby [1970] AC 467; McGhee v National Coal Board; M’Kew (to which I shall shortly refer in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.”
In Snell v Farrell [1990] 2 SCR 311 at 320, Sopinka J, delivering the judgment of the Supreme Court of Canada, said:
“The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexities of proof, the probable victim of tortious conduct will be deprived of relief. This concern is strongest in circumstances in which, on the basis of some percentage of statistical probability, the plaintiff is the likely victim of the combined tortious conduct of a number of defendants, but cannot prove causation against a specific defendant or defendants on the basis of particularized evidence in accordance with traditional principles. The challenge to the traditional approach has manifested itself in cases dealing with non-traumatic injuries such as man-made diseases resulting from the widespread diffusion of chemical products, including product liability cases in which a product which can cause injury is widely manufactured and marketed by a large number of corporations.”
McLachlin J, extra-judicially (“Negligence Law – Proving the Connection”, in Torts Tomorrow, A Tribute to John Fleming, ed Mullany and Linden, LBC Information Services 1998, at p 16), has voiced a similar concern:
“Tort law is about compensating those who are wrongfully injured. But even more fundamentally, it is about recognising and righting wrongful conduct by one person or a group of persons that harms others. If tort law becomes incapable of recognising important wrongs, and hence incapable of righting them, victims will be left with a sense of grievance and the public will be left with a feeling that justice is not what it should be. Some perceive that this may be occurring due to our rules of causation.
…………………
In the course of the present appeals much argument was directed to the decision of the House in McGhee v National Coal Board [1973] 1 WLR 1. The earlier stages of that case are reported at 1973 SC(HL) 37 and are important in understanding what the House decided. Mr McGhee had been employed by the National Coal Board for about 15 years, almost always working in pipe kilns. For some 4½ days he then worked at a brick kiln, giving up because of a dermatitic condition which had by then developed. The work inside the kiln was very hot and very dusty. The heat made men sweat profusely and the operation of the fan caused them to be covered in dust and grit. The pursuer contended that his dermatitis had been caused by his period of working in the brick kiln, short though it had been. The employers contended that his work had not caused the dermatitis and that it was non-occupational in origin. There was at the trial a conflict of medical evidence but the Lord Ordinary (Lord Kissen) held that the pursuer had contracted the dermatitis in the course of his work at the brick kiln and as a result of his exposure to dust and ashes when working there (p 39). Counsel for the pursuer accepted at trial that he could not establish a breach of statutory duty nor a breach of common law duty based on a failure to ventilate, but relied on two alleged breaches by the employers: of a duty to take care that the kiln had cooled sufficiently before men went in to work in it and of a duty to take reasonable care to provide adequate showers to enable men to remove dust from their bodies. The Lord Ordinary rejected the first of these complaints on a number of grounds, including the lack of proof that the breach of duty, even if established, had caused or materially contributed to the dermatitis: it was not enough that a reduction of heat would have lessened the risk (p 41). The Lord Ordinary concluded that the employers were at fault in failing to provide showers (p 42) but found against the pursuer on the basis of evidence given by two expert dermatologists, Dr Hannay and Dr Ferguson, called by the pursuer and the employers respectively. He said (at pp 42-43):
“As I have maintained earlier, the pursuer, in order to succeed, must also establish, on a balance of probabilities, that this fault on the part of the defenders ’caused or materially contributed to his injury’, that is to his contracting dermatitis. Dr Hannay’s evidence was that he could not say that the provision of showers would probably have prevented the disease. He said that it would have reduced the risk materially but he would not go further than that. Dr Ferguson said that washing reduces the risk. Pursuer’s counsel maintained that a material increase in the risk of contracting a disease was the same as a material contribution to contracting the disease and that Dr Hannay established this by his evidence. I think that defenders’ counsel was correct when he said that the distinction drawn by Dr Hannay was correct and that an increase in risk did not necessarily mean a material contribution to the contracting of the disease. The two concepts are entirely different. A material increase in risk may refer only to possibilities and may not make a possibility into a probability. It may strengthen the possibility but that cannot mean that in all such cases the possibility has become a probability. What the pursuer has to show is that, as he avers, he would not have contracted the disease but for the defenders’ breach of duty. He has to show that this was probable and the degrees of risk have no relevance unless they make the contraction of the disease more probable than not contracting the disease. He cannot succeed if the only inference from the evidence is that lack of shower baths is a possibility as a cause of his having contracted the disease and the provision of shower baths would have increased the possibility but not made it a probability. That is the only inference which I can draw from Dr Hannay’s evidence and that was the best evidence for the pursuer. Causal connection between fault and the contraction of the disease has not been established.”
The pursuer appealed to the First Division against the dismissal of his claim. The medical evidence given at the trial was reviewed in detail, and in particular an exchange between cross-examining counsel and Dr Hannay ( pp 43-44, 47, 50):
“Q. Do I understand you to say you are not in a position to say that the provision of showers would probably have prevented his contracting this skin trouble?
A. No one could say that that would prevent that man developing the condition. It would be likely to reduce the chances.”
In answer to further questions the doctor repeated his opinion that he could only say that the provision of showers would have reduced the chances of the pursuer contracting dermatitis and that that was as far as he was able to go. In the course of his judgment the Lord President, Lord Clyde, considered the pneumoconiosis cases and expressed his conclusion (at p 44):
“But in contrast to the pneumoconiosis cases, the present case is essentially concerned with proof of the causal connection between the fault alleged (i.e. inadequate washing facilities) and the development of dermatitis. Even if the pursuer had established (as he did not) that the absence of washing facilities increased the risk of the pursuer getting dermatitis, that would clearly not prove that the absence of these facilities caused the disease, nor indeed would it go any distance towards proving it. For risk of dermatitis and causation of dermatitis are two quite separate matters.”
Lord Migdale was of the same opinion (at pp 47-48):
“Counsel for the pursuer contended that as it was now accepted that the failure to provide a shower was a breach of the duty which the defenders owed to the pursuer to take reasonable steps for his well-being, the doctors’ evidence that it would have materially reduced the risk of dermatitis is enough to link the failure with the injury. Counsel for the defenders, on the other hand, contended that the test of causal connection between the breach and the injury is whether the provision of a shower would, on a balance of probabilities, have prevented the dermatitis. The Lord Ordinary says an increase in risk does not mean a material contribution to the contracting of the disease. A material increase in risk may refer only to possibilities and it does not make a possibility into a probability. ‘What the pursuer has to show is that, as he avers, he would not have contracted the disease but for the breach of duty’. He has to show this on a balance of probabilities.
In my opinion this is correct. Unless the pursuer can point to evidence that shows that a shower would more probably have avoided the disease than not, he cannot succeed and I do not find that evidence in this case.”
Lord Johnston was more hesitant, but in view of the other opinions did not feel inclined to take the view that the evidence was sufficient to allow him to hold that the test of the balance of probability had been satisfied (p 50).
On appeal to the House counsel for the pursuer faced the problem, as he had at trial and in the First Division, that his own evidence precluded a finding that the absence of a shower had probably caused the pursuer’s dermatitis. Mr Davidson QC accordingly relied on the evidence that provision of a shower would have materially reduced the risk to contend that he had made out a prima facie case. The contrary argument for the employers was advanced by Mr James Mackay QC, as reported at p 51:
“It was accepted that [the provision of washing facilities] would have been a reasonable precaution, but it did not follow that this would have eliminated the risk. The employee might have developed dermatitis in any event. If the precaution would not have prevented the disease, the appellant was not entitled to damages. In the case of pneumoconiosis the inhalation of dangerous dust inevitably created a basis for the disease by accumulation, whereas in the case of dermatitis a particle of grit would cause the disease only if there were an abrasion which opened up the layer below the horny outer layer of the skin. In the case of pneumoconiosis all the particles could be blamed. It was not so in the case of dermatitis. The mere fact that shower baths would have reduced the chances of the contraction of the disease did not mean that what was probable would thereby have been rendered improbable.”
Thus the issue, as presented to the House, was whether the pursuer could succeed despite his inability to show that he would probably not have suffered dermatitis but for the defenders’ failure to provide the showers which they should have provided.
In the House, opinions were given by all five members of the Appellate Committee which heard the appeal and the appeal was allowed: [1973] 1 WLR 1. Lord Reid, giving the first opinion, described the pursuer’s complaint based on the failure to provide shower facilities as raising “a difficult question of law” (p 3). He pointed out that the breach of duty in relation to showers was admitted, and it was admitted that the disease was attributable to the work which the pursuer had performed in the brick kiln, but it was contended that the pursuer had not proved that the defenders’ failure to carry out the admitted duty had caused the onset of the disease (p 3). Lord Reid’s understanding of the evidence, and his view of the proper approach to it, appear from the following passage of his opinion (at pp 4-5):
“In the present case the evidence does not show – perhaps no one knows – just how dermatitis of this type begins. It suggests to me that there are two possible ways. It may be that an accumulation of minor abrasions of the horny layer of the skin is a necessary precondition for the onset of the disease. Or it may be that the disease starts at one particular abrasion and then spreads, so that multiplication of abrasions merely increases the number of places where the disease can start and in that way increases the risk of its occurrence.
I am inclined to think that the evidence points to the former view. But in a field where so little appears to be known with certainty I could not say that that is proved. If it were, then this case would be indistinguishable from Wardlaw’s case. But I think that in cases like this we must take a broader view of causation. The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk that this disease might develop. It does not and could not explain just why that is so. But experience shows that it is so. Plainly that must be because what happens while the man remains unwashed can have a causative effect, though just how the cause operates is uncertain. I cannot accept the view expressed in the Inner House that once the man left the brick kiln he left behind the causes which made him liable to develop dermatitis. That seems to me quite inconsistent with a proper interpretation of the medical evidence. Nor can I accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and making a material contribution to its occurrence.
There may be some logical ground for such a distinction where our knowledge of all the material factors is complete. But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.”
Lord Wilberforce acknowledged the need for the pursuer to establish both a breach of duty and a causal connection between the default and the disease complained of (p 5), and also the difficulties of proof which the pursuer faced (pp 5-6):
“[The pursuer’s medical expert] could not do more than say that the failure to provide showers materially increased the chance, or risk, that dermatitis might set in.”
Lord Wilberforce accepted that merely to show that a breach of duty led to an increase of risk was not enough to enable a pursuer to succeed, but continued (at page 6):
“But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail – a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases, of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences.”
Having referred to Wardlaw’s and Nicholson’s cases Lord Wilberforce concluded (at page 7):
“The present factual situation has its differences: the default here consisted not in adding a material quantity to the accumulation of injurious particles but by failure to take a step which materially increased the risk that the dust already present would cause injury. And I must say that, at least in the present case, to bridge the evidential gap by inference seems to me something of a fiction, since it was precisely this inference which the medical expert declined to make. But I find in the cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable addition had, in the result, no effect, the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.”
Lord Simon of Glaisdale considered that Wardlaw’s and Nicholson’s cases established a rule (at page 8)
“that where an injury is caused by two (or more) factors operating cumulatively, one (or more) of which factors is a breach of duty and one (or more) is not so, in such a way that it is impossible to ascertain the proportion in which the factors were effective in producing the injury or which factor was decisive, the law does not require a pursuer or plaintiff to prove the impossible, but holds that he is entitled to damages for the injury if he proves on a balance of probabilities that the breach or breaches of duty contributed substantially to causing the injury. If such factors so operate cumulatively, it is, in my judgment, immaterial whether they do so concurrently or successively.”
Lord Simon then continued (page 8):
“The question, then, is whether on the evidence the appellant brought himself within this rule. In my view, the failure to take steps which would bring about a material reduction of the risk involves, in this type of case, a substantial contribution to the injury. In this type of case a stark distinction between breach of duty and causation is unreal. If the provision of shower baths was (as the evidence showed) a precaution which any reasonable employer in the respondents’ position would take, it means that such employer should have foreseen that failure to take the precaution would, more probably than not, substantially contribute towards injury: this is sufficient prima facie evidence.”
Lord Simon regarded “material reduction of the risk” and “substantial contribution to the injury” as mirror concepts. Any other conclusion would mean that the defenders were under a legal duty which they could, on the present state of medical knowledge, ignore (page 9).
Lord Kilbrandon appears to have adopted a more orthodox approach to tortious liability. He said (at page 10):
“When you find it proved (a) that the defenders knew that to take the precaution reduces the risk, chance, possibility or probability of the contracting of a disease, (b) that the precaution has not been taken, and (c) that the disease has supervened, it is difficult to see how those defenders can demand more by way of proof of the probability that the failure caused or contributed to the physical breakdown … In the present case, the pursuer’s body was vulnerable, while he was bicycling home, to the dirt which had been deposited on it during his working hours. It would not have been if he had had a shower. If showers had been provided he would have used them. It is admittedly more probable that disease will be contracted if a shower is not taken. In these circumstances I cannot accept the argument that nevertheless it is not more probable than not that, if the duty to provide a shower had not been neglected, he would not have contracted the disease. The pursuer has after all, only to satisfy the court of a probability, not to demonstrate an irrefragable chain of causation, which in a case of dermatitis, in the present state of medical knowledge, he could probably never do.”
In Lord Salmon’s opinion the question before the House was whether the pursuer’s dermatitis was proved to have been caused or materially contributed to by the defenders’ negligence (page 11). He rejected the view, expressed by the Lord President (see paragraph 18 above) that to increase the risk of injury was not, in the circumstances of this case, to cause the injury. In such a case he regarded it as unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing it (pages 11-12). He observed (at page 12):
“I think that the approach by the courts below confuses the balance of probability test with the nature of causation. Moreover, it would mean that in the present state of medical knowledge and in circumstances such as these (which are by no means uncommon) an employer would be permitted by the law to disregard with impunity his duty to take reasonable care for the safety of his employees.”
Lord Salmon’s conclusion (pages 12-13) was expressed in these terms:
“In the circumstances of the present case, the possibility of a distinction existing between (a) having materially increased the risk of contracting the disease, and (b) having materially contributed to causing the disease may no doubt be a fruitful source of interesting academic discussions between students of philosophy. Such a distinction is, however, far too unreal to be recognised by the common law.”
This detailed review of McGhee permits certain conclusions to be drawn. First, the House was deciding a question of law. Lord Reid expressly said so (page 3). The other opinions, save perhaps that of Lord Kilbrandon, cannot be read as decisions of fact or as orthodox applications of settled law. Secondly, the question of law was whether, on the facts of the case as found, a pursuer who could not show that the defender’s breach had probably caused the damage of which he complained could nonetheless succeed. Thirdly, it was not open to the House to draw a factual inference that the breach probably had caused the damage: such an inference was expressly contradicted by the medical experts on both sides; and once that evidence had been given the crux of the argument before the Lord Ordinary and the First Division and the House was whether, since the pursuer could not prove that the breach had probably made a material contribution to his contracting dermatitis, it was enough to show that the breach had increased the risk of his contracting it. Fourthly, it was expressly held by three members of the House (Lord Reid at page 5, Lord Simon at page 8 and Lord Salmon at pages 12-13) that in the circumstances no distinction was to be drawn between making a material contribution to causing the disease and materially increasing the risk of the pursuer contracting it. Thus the proposition expressly rejected by the Lord Ordinary, the Lord President and Lord Migdale was expressly accepted by a majority of the House and must be taken to represent the ratio of the decision, closely tied though it was to the special facts on which it was based. Fifthly, recognising that the pursuer faced an insuperable problem of proof if the orthodox test of causation was applied, but regarding the case as one in which justice demanded a remedy for the pursuer, a majority of the House adapted the orthodox test to meet the particular case. The authority is of obvious importance in the present appeal since the medical evidence left open the possibility, as Lord Reid pointed out at page 4, that the pursuer’s dermatitis could have begun with a single abrasion, which might have been caused when he was cycling home, but might equally have been caused when he was working in the brick kiln; in the latter event, the failure to provide showers would have made no difference. In McGhee, however, unlike the present appeals, the case was not complicated by the existence of additional or alternative wrongdoers.
In Wilsher v Essex Area Health Authority a problem of causation arose in a different context. A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. The baby suffered a condition (abbreviated as RLF) of a kind which that breach of duty could have caused, and the breach of duty increased the risk of his suffering it. But there were a number of other factors which might have caused the injury. In the Court of Appeal ([1987] QB 730 at 771-772) Mustill LJ concluded a detailed review of McGhee by making this statement of principle:
“If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.”
Omitted from this statement is any reference to condition (5) in the composite question formulated in paragraph 2 at the outset of this opinion. It was on this omission that Sir Nicolas Browne-Wilkinson V-C founded his dissenting opinion (at page 779):
“To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.
In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (e.g. excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff’s RLF may have been caused by some completely different agent or agents, e.g. hypercarbia, intraventicular haemorrhage apnoea or patent ductus arteriosus. In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF. This baby suffered from each of those conditions at various times in the first two months of his life. There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind, the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case.
The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.”
On the defendants’ appeal to the House, this passage in the Vice-Chancellor’s judgment was expressly approved by Lord Bridge of Harwich, who gave the only opinion, with which Lord Fraser of Tullybelton, Lord Lowry, Lord Griffiths and Lord Ackner concurred, and the appeal was allowed: [1988] AC 1074,1090-1092. It is plain, in my respectful opinion, that the House was right to allow the defendants’ appeal in Wilsher, for the reasons which the Vice-Chancellor had given and which the House approved. It is one thing to treat an increase of risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage. The decision of the Court of Appeal did indeed involve an extension of the McGhee principle, as Mustill LJ recognised: [1987] QB 730, 771-772. Lord Bridge was also, as I respectfully think, right to describe the observations of Lord Wilberforce on reversal of the burden of proof (see paragraph 20 above) as expressing a “minority opinion” (p 1087), if Lord Wilberforce was suggesting more than that the proof of an increased risk can found a prima facie case which casts an evidential burden on the defendant. But much difficulty is caused by the following passage in Lord Bridge’s opinion in which, having cited the opinions of all members of the House in McGhee, he said (p 1090):
“The conclusion I draw from these passages is that McGhee v National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders’ negligence had materially contributed to the pursuer’s injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”
This is a passage to which the Court of Appeal very properly gave weight ([2002] 1 WLR 1052, 1080, para 103), and in argument on these appeals counsel for the respondents strongly relied on it as authority for their major contention that a claimant can only succeed if he proves on the balance of probabilities that the default of the particular defendant had caused the damage of which he complains. As is apparent from the conclusions expressed in paragraph 21 above, I cannot for my part accept this passage in Lord Bridge’s opinion as accurately reflecting the effect of what the House, or a majority of the House, decided in McGhee, which remains sound authority. I am bound to conclude that this passage should no longer be treated as authoritative.
………
Policy
The present appeals raise an obvious and inescapable clash of policy considerations. On the one hand are the considerations powerfully put by the Court of Appeal ([2002] 1 WLR 1052 at 1080, para 103) which considered the claimants’ argument to be not only illogical but
“also susceptible of unjust results. It may impose liability for the whole of an insidious disease on an employer with whom the claimant was employed for quite a short time in a long working life, when the claimant is wholly unable to prove on the balance of probabilities that that period of employment had any causative relationship with the inception of the disease. This is far too weighty an edifice to build on the slender foundations of McGhee v National Coal Board [1973] 1WLR 1, and Lord Bridge has told us in Wilsher v Essex Area Health Authority [1988] AC 1074 that McGhee established no new principle of law at all. If we were to accede to the claimants’ arguments, we would be distorting the law to accommodate the exigencies of a very hard case. We would be yielding to a contention that all those who have suffered injury after being exposed to a risk of that injury from which someone else should have protected them should be able to recover compensation even when they are quite unable to prove who was the culprit. In a quite different context Lord Steyn has recently said in Frost v Chief Constable of Yorkshire [1999] 2 AC 455, 491 that our tort system sometimes results in imperfect justice, but it is the best the common law can do.”
The Court of Appeal had in mind that in each of the cases discussed in paras 14-21 above (Wardlaw, Nicholson, Gardiner, McGhee) there was only one employer involved. Thus there was a risk that the defendant might be held liable for acts for which he should not be held legally liable but no risk that he would be held liable for damage which (whether legally liable or not) he had not caused. The crux of cases such as the present, if the appellants’ argument is upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period. It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law. It seems to me, as it did to Lord Wilberforce in McGhee [1973] 1 WLR 1 at 7, that
“the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.”
Conclusion
To the question posed in paragraph 2 of this opinion I would answer that where conditions (1)-(6) are satisfied C is entitled to recover against both A and B. That conclusion is in my opinion consistent with principle, and also with authority (properly understood). Where those conditions are satisfied, it seems to me just and in accordance with common sense to treat the conduct of A and B in exposing C to a risk to which he should not have been exposed as making a material contribution to the contracting by C of a condition against which it was the duty of A and B to protect him. I consider that this conclusion is fortified by the wider jurisprudence reviewed above. Policy considerations weigh in favour of such a conclusion. It is a conclusion which follows even if either A or B is not before the court. It was not suggested in argument that C’s entitlement against either A or B should be for any sum less than the full compensation to which C is entitled, although A and B could of course seek contribution against each other or any other employer liable in respect of the same damage in the ordinary way. No argument on apportionment was addressed to the House. I would in conclusion emphasise that my opinion is directed to cases in which each of the conditions specified in (1) – (6) of paragraph 2 above is satisfied and to no other case. It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise. For the present, I think it unwise to decide more than is necessary to resolve these three appeals which, for all the foregoing reasons, I concluded should be allowed.
For reasons given above, I cannot accept the view (considered in the opinion of my noble and learned friend Lord Hutton) that the decision in McGhee was based on the drawing of a factual inference. Nor, in my opinion, was the decision based on the drawing of a legal inference. Whether, in certain limited and specific circumstances, a legal inference is drawn or a different legal approach is taken to the proof of causation, may not make very much practical difference. But Lord Wilberforce, in one of the passages of his opinion in McGhee quoted in paragraph 20 above, wisely deprecated resort to fictions and it seems to me preferable, in the interests of transparency, that the courts’ response to the special problem presented by cases such as these should be stated explicitly. I prefer to recognise that the ordinary approach to proof of causation is varied than to resort to the drawing of legal inferences inconsistent with the proven facts.”
Ryan v. Ireland
[1989] I.R. 178
S.C. Finlay C.J.
“This is an appeal brought by the plaintiff against the order of the High Court made on the 5th November, 1986, by Keane J. which dismissed his claim for damages for negligence against the defendants. The plaintiff was a member of the Defence Forces serving as a volunteer with the United Nations Interim Force in Lebanon when, on the 18th April, 1979, he was seriously wounded by a mortar attack launched by hostile forces on a camp at Naquora in the Lebanon where the Irish soldiers, including the plaintiff, were on duty. He alleges that his wounds were due to the fact that he was negligently exposed to unnecessary risk by being placed in an unprotected billet close to a target area consisting of a machine gun, at a time when an attack was apprehended as being imminent. The case was withdrawn from the jury by the learned trial judge at the conclusion of the defendants’ evidence. The ground for that decision was that the plaintiff had failed to establish that the Irish Army rather than the United Nations was responsible on the occasion for his safety and welfare. It was against that decision that the plaintiff appeals.
……..
Having regard to these decisions and the submissions made, two questions of law, in my view, arise. 1. Does the common law applicable in Ireland appear to create an immunity for the State in the circumstances of the instant case? 2. If it appears so to do, could such immunity be consistent with the provisions of the Constitution? In my view, the answer to both these questions must be in the negative.
By virtue of the provisions of s. 4 of the Defence (Amendment) Act, 1960, a soldier serving with the United Nations Emergency Forces is deemed, for the purpose of the Defence Act, 1954, to be “on active service.” The consequence of this provision is largely related to discipline and the punishment for military offences. The provision does not, however, in any way, equate service with the United Nations with war, nor do considerations of the defence of the State arise in such service. No question of a dominant priority for the effectiveness of armed action against an enemy occurs.
Article 28 of the Constitution provides the most ample and unrestricted powers to the Oireachtas to legislate to secure public safety and the preservation of the State in time of war, as there defined, or in time of armed rebellion. Nothing in the Constitution shall be invoked to invalidate such legislation expressed to be for such purposes.
It is impossible, having regard to these provisions, to accept the application of a common law doctrine arising from the necessity to ensure the safety of the State during a period of war or armed rebellion, which has the effect of abrogating constitutional rights. In so far, therefore, as the principle apparently supporting some of the decisions to which we have been referred is the question of the dominant priority in regard to the defence of the State, such decisions would not appear to be applicable and cannot be applied to the question of service with the United Nations peacekeeping force.
Section 111 of the Defence Act, 1954, provides certain conditions applicable,inter alia, to actions or other proceedings in respect of any alleged neglect or default in the execution of the Act. No argument was presented to the Court with regard to any possible relevance of this section, and these proceedings clearly do not come within it. It would appear, however, to me to be inconsistent with the existence of any common law principle giving immunity from suit for the purpose of preserving the discipline and morale of the Defence Forces.
I, therefore, conclude that an immunity from suit by, or the negation of any duty of care to, a serving soldier in respect of operations consisting of armed conflict or hostilities has not been established as part of our common law. Even if it had, I conclude that in the blanket form which has been contended for it would be inconsistent with the guarantees by the State to respect, defend and vindicate the rights of the citizens contained in Article 40, s. 3, sub-ss. 1 and 2 of the Constitution. This ground of appeal must therefore fail.
Voluntary assumption of risk
Having regard to the decision of this Court in O’Hanlon v. Electricity Supply Board [1969] I.R. 75, for the defendants to succeed in this defence it would be necessary for them to establish that the plaintiff by enlisting and by volunteering for United Nations service, had entered into a contract waiving his right to sue if injured by the negligence of his superior officers. No express contract to that effect is suggested and, while it is correct to say that by enlisting and subsequently volunteering the plaintiff accepted the risks inherent in the possibility of being involved in armed conflict, it cannot be implied that he accepted the risk of being unnecessarily exposed to injury by negligence. This ground of appeal also fails.
Prima facie evidence of negligence
Having concluded that the plaintiffs superior officers (which must, of course, include all persons with authority over him) owed a duty of care to him, it is necessary before considering the detailed facts of this case to consider the general nature and, to an extent, the parameters of that duty. In broadest terms the duty can be stated to be to take such care for the safety of the plaintiff as is reasonable in all the circumstances of their relationship and the activity in which they were engaged. Quite clearly those circumstances in this case are unusual for they are the circumstances of military service in which the carrying out of the task allotted to the forces concerned could involve an unavoidable risk of death or serious injury. In such situations considerations of standards of care drawn from the experience of the workplace may be of little assistance. There could, I think, be no objective in a master and servant relationship which would justify exposing the servant to risk of serious injury or death other than the saving of life itself. In the execution of military service exposing a soldier to such risk may often be justified by the nature of the task committed to the forces concerned. Furthermore, there can, in relation to armed conflict, be many situations where those in authority must make swift decisions in effect in the agony of the moment. Mere proof of error in such decisions would not of itself establish negligence. Importance may be attached, I am satisfied, in regard to alleged negligence in a military situation, to the question as to whether the role of the soldier at the time of the alleged negligence is one of attack or defence, or, to put the matter in another way, whether he is engaged actively in armed operations or is only passively engaged in them. Where, as occurred in this case, the plaintiff was, whilst on guard duty, acting in a defensive role and was in effect standing by, I am satisfied that his commanding officer owed to him a duty to take such precautions as were reasonable and practical, having regard to the functions which as a member of the guard the plaintiff was obliged to perform, to try and reduce the risk of his being wounded or killed. If, it seems to me, the plaintiff has established as a prima facie matter, that one or more such precautions falling within that category were omitted at a time when the commanding officers concerned had time and opportunity to consider the proper protection of the plaintiff, he would have established negligence.
…..
The plaintiff asserts that there were places of safety in which he could have been put with as easy access to such duties of reinforcement of the guard or otherwise as might arise in the event of an attack. He asserts that further shelters could and should have been provided with ease by sandbagging or the creation of a bunker, and that the situation had been for a sufficient period sufficiently tense to warrant that as a reasonable precaution. He gave evidence that other forces in separate parts of the encampment belonging to the armies of other nations were better provided with shelter. He gave evidence that persons at the headquarters had shelters available, and evidence was given that a number of persons took shelter in shelters effectively protecting them against mortar fire at the time of the earlier attack. With that evidence which I have very shortly summarised, I am satisfied that there was a case to go to the jury of breach of the standard of care which I have outlined in this judgment and that, therefore, this ground of appeal must fail.
I would, therefore, allow the plaintiff’s appeal against the withdrawal of the case from the consideration of the jury. I would disallow the defendants’ cross-appeal and I would direct a new trial of all issues in this case.
Hamilton P.
I agree.
Walsh J.
I agree.
Griffin J.
I agree.
Hederman J.
I agree.
Fanning -v- Myerscough & Anor
Sabrina Douglas v Michael Guiney Limited and Rogerio Joao
2014 891 P
High Court
8 April 2019
unreported
[2019] IEHC 301
Mr Justice Bernard J. Barton
April 08, 2019
JUDGMENT
Introduction
1. The Plaintiff was born on the 27th July, 1980, and is a separated mother of two children aged eleven and nine. She resides at 20 Pike Avenue, Garryowen, County Limerick and lives in difficult social circumstances. At the material time giving rise to these proceedings the Plaintiff was employed by the 1st Defendant as a part time sales assistant. The incident in respect of which these proceedings are brought occurred in the course of the Plaintiff’s employment on the 21st September, 2011, at the 1st Defendant’s shop premises William Street, Limerick.
2. The Plaintiff alleges that she was first subjected to verbal abuse and was then assaulted by the 2nd Defendant with a bicycle locking chain; she was struck on the right hand and on the right-hand side of her head. The incident was captured by closed circuit television cameras (CCTV) located in the shop. The footage was retained and featured prominently in the course of the trial. The 2nd Defendant was arrested at the scene and was subsequently charged with assault contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997, (the 1997 Act). He was legally represented and having viewed the relevant portions of the CCTV footage pleaded guilty to the offence. The case against the 2nd Defendant in these proceedings was brought in trespass to the person, however, he did not appear and the Plaintiff did not proceed against him.
3. The case against the 1st Defendant is brought in negligence and for breach of statutory duty pursuant to the provisions of the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) and the Safety Health and Welfare at Work Act Regulations 2007. (the 2007 Regulations). A defence confined to traversing the pleas and particulars of negligence and breach of statutory and pleading no vicarious liability for the 2nd Defendant’s wrong was delivered on 17th December, 2015. This was followed much later by an amended Defence delivered the 15th February, 2019 which put the assault in issue and for the first time raised a plea that the Plaintiff was the author of her own misfortune and was guilty of contributory negligence.
4. The original defence had proceeded on the premise that the Plaintiff had been assaulted as she had alleged, consistent with the 2nd Defendant’s guilty plea to the s.3 offence. The reason for what are significant differences between the two defences was advanced on affidavit by the first Defendant’s solicitor, sworn the 2nd August 2018, to ground an application for liberty to deliver an amended defence. The essence of the explanation is that when the CCTV footage was analysed by a security consultant retained by the 1st Defendant, it became evident that the defence first delivered did not reflect what had actually occurred; the recorded footage disclosed no evidence of an assault.
5. The first defence had advanced the case that the 1st Defendant was not vicariously responsible in law for the assault by the 2nd Defendant; he had concealed the chain on his person and had produced it without warning momentarily before striking the Plaintiff, circumstances over which the 1st Defendant had no control or notice. On the face of it a perfectly good defence, however, for the reasons which follow I am satisfied there is no factual basis on which it could be sustained.
6. Apart from being put on proof of the assault by the amended defence the case made to found the allegation that the Plaintiff was the author of her own misfortune and was guilty of contributory negligence is that she took possession of the chain before the incident had occurred, that she escalated the situation when the second Defendant subsequently took hold of it and that she had grabbed the chain and had tried to pull it from him on two occasions, causing herself to be struck in the process. Furthermore, the Plaintiff had failed to comply with the training and safety instructions which had been given to her and had failed to comply with and observe the provisions of the Employee Handbook concerning guidance on how to behave towards customers.
Conclusion on Training and Instructions; Aggressive Customers
7. I accept the Plaintiff’s evidence that she had not been trained nor had she received instruction on how to deal with an aggressive customer and having read and considered the Employee Handbook proved in the course of the evidence I am also satisfied that this did not provide sufficient guidance or adequate information on how to behave towards a customer who became aggressive for whatever reason.
CCTV Footage
8. Given the issues raised by the amended defence it was hardly surprising that the relevant CCTV footage featured very prominently in the course of the trial; the content proved to be extremely controversial. It is common case that some of the images are difficult to decipher and are thus actually inconclusive. Moreover, the footage was recorded at three frames per second rather six to eight frames which would have been the minimum required to capture everything which had occurred in real time and in this regard, I accept the evidence of Mr. Sears that at least 50% or perhaps a little more of what occurred was not captured at all on the footage.
Conclusion;
9. I am satisfied and find that the recording frame rate provides the most likely explanation for the propositions canvassed and questions put on behalf of the 1st Defendant during cross examination by Mr. McCartan S.C. as to why the footage failed to disclose elements of the alleged assault about which the Plaintiff had given evidence, such as being struck on her right hand by the chain. It follows that in determining what had occurred leading up to, at and immediately after the incident the Court is largely dependent on oral evidence, on the recorded footage and the inferences which may properly be drawn from that.
Risk Assessment and Safety Statement
10. With regard to compliance with the statutory requirement to have undertaken a ‘Risk Assessment’ and to have prepared a ‘Safety Statement’ which took account of the assessment findings, it was quite correctly accepted by Mr. McCartan, as I think it had to be having regard to the evidence of the store manageress, Ms. Stubbins, that there was no safety statement or formal risk assessment within the meaning of those terms as set out in the 2005 Act.
11. However, it was submitted by Mr. McCartan that this deficiency was not causative of the incident and that whatever the outcome of the factual controversy the 1st Defendant was not vicariously liable in law for the acts or omissions of the 2nd Defendant. It was not accepted that the Plaintiff was assaulted but if the Court found that she was the only cause of action upon which any legal liability could attach to the 1st Defendant was in negligence and breach of statutory duty for its own acts or omissions rather than those of the 2nd Defendant; in fairness to the Plaintiff neither Mr Downing S.C. nor Mr Johnson S.C. suggested otherwise on her behalf.
The Incident
12. There are conflicting recollections as to what happened on the day. Apart from the Plaintiff the only other witness who was present at the scene and who gave evidence was a fellow employee, Mr. Pinto. The only other real evidence of the incident is the CCTV footage. The store detective, Mr. Kelly saw a situation developing on the CCTV monitor to which, on his evidence, he reacted but the incident had already occurred moments before he arrived on the scene. It was suggested that he had arrived there shortly before hand but for reasons which follow later I am satisfied that was not so.
13. Mr. Pinto, who was called on behalf of the Plaintiff, gave evidence that he had used a tannoy system to call Mr. Kelly whose evidence in that regard was that he could not recall one way or the other, rather he had responded to a situation he had seen developing on the monitor. Either way it is clear he reacted by leaving his station and proceeding to the scene. CCTV footage captured by other cameras shows that he did so in a hurried fashion and without stopping. When the CCTV footage is considered together with his evidence, which I accept, it is apparent and the Court finds that he arrived momentarily after the incident had taken place. Other members of staff, including the Manageress Ms. Stubbins and her assistant, Ms. Stelmasczuk were not in the store; they had left at around 11 AM to go to a café nearby on a mid morning break
14. The Plaintiff’s recollection was that shortly before the incident she had left the counter after speaking with the second Defendant who was looking for a refund of the purchase price of the bicycle locking chain he had bought the previous day from Mr Pinto. She went to speak to Ms. Stelmasczuk, referred to during the trial as Agnes, after the second Defendant refused to accept that he could not get a refund without a receipt. In this respect, I am satisfied she is mistaken in her recollection. Although she certainly left the counter as evidenced on the CCTV footage and may well have gone to look for Ms Stelmasczuk she could not have spoken to her because she had left the store with the Manageress to go on the mid-morning break. Ms Stubbins also gave evidence that she would not have told the Plaintiff about the break and the Plaintiff would not have been aware they were not in the store at the time.
15. The first Defendant had a policy on refunds and exchanges. To obtain a refund it was necessary for the customer to produce a sales receipt; no receipt no refund. As the second Defendant had no receipt if any flexibility was to be afforded to him it would have required sanction by Ms Stelmasczuk or Ms Stubbins Although the Plaintiff’s duties involved dealing with refunds, returns and exchanges she could not have given the second Defendant a refund without a receipt. Having failed to get authority the Plaintiff returned to the counter where, as is evident from the CCTV footage, she persisted in repeating the company policy which the second Defendant quite clearly refused to accept.
16. Detective Garda Nash gave evidence of having answered a call to attend at the first Defendant’s premises to investigate a report of a serious assault. His evidence was that when he and Garda Lynch arrived it was necessary for them to assist the store detective Mr. Kelly and a number of other people who were trying to restrain the second Defendant. He described the second Defendant’s demeanour as being extremely aggressive, an assertion about which there was no controversy. Mr. Kelly, who tackled the second Defendant momentarily after the incident, described him as a very strong man. Detective Garda Nash, also gave evidence that the second Defendant was inebriated and that when he was medically examined by a doctor at the police station where he had been taken after arrest he was certified unfit to be interviewed for at least four to five hours because of the level of intoxication.
17. The Plaintiff’s evidence was that she noticed there was something untoward or not quite right about the second Defendant’s demeanour but she did not realise this was due to intoxication. He would not accept that he could not get and that she could not give him a refund without a receipt; he became verbally abusive and he did so she told him not to speak to her in that manner; the situation immediately escalated. The second Defendant took the chain off the counter, where it had been put by the Plaintiff, and used it to strike her on the right hand. She tried to defend herself and pushed him away but he then struck out again with the chain which hit her on the right-hand side of her head and face causing a laceration to the scalp that started to bleed immediately. She said that she had also fallen back against a peg board and had hurt her back. This was one of the movements not recorded on the CCTV.
18. A quite different scenario was put to the Plaintiff by Mr. McCartan namely that she had not hit her back at all. If that had happened, as she had suggested, it would have been captured on the CCTV footage, moreover, the reason she had been hit by the bicycle locking chain was because she had grabbed it from the second Defendant striking herself in the process, a proposition with which the Plaintiff strenuously disagreed.
19. Mr. Pinto is a Portuguese national and fellow employee of the Plaintiff. He had worked for a number of years as a sales assistant in the first Defendants shop premises at Williams Street. He sold the bicycle locking chain and a foot pump to the second Defendant. His evidence was that the second Defendant approached the counter the next day and asked him for a refund of the money he had paid for the chain. He was aware that the Plaintiff’s duties included attending to customers seeking refunds or an exchange of goods; he asked her to look after the second Defendant. She complied with the request and he then went to the assistance of another customer. At all times, he remained in the vicinity of the counter and witnessed the incident. At trial the Plaintiff had no recollection it was he who had asked her to deal with the 2nd Defendant’s request or that he was present when the incident took place. However, I am satisfied that this explanation best explains how the Plaintiff and not Mr. Pinto, who had made the sale the previous day, became involved in dealing with the second Defendant’s request for a refund.
20. To summarise Mr. Pinto’s evidence leading up to the alleged assault, he heard the 2nd Defendant demanding a refund from the Plaintiff, raising his voice and banging the counter with the chain. The Plaintiff had repeatedly told him that she could not refund the money without a receipt; the situation escalated rapidly. He saw the Plaintiff’s right hand being struck with the chain. Almost immediately, he noticed blood on her face and reacted spontaneously by putting his hands up and out towards the 2nd Defendant. When questioned on why, if his account was correct, he had not intervened earlier his evidence was that it was not his job to do so. He had not been trained or instructed on how to deal with such a situation and as far as he was concerned any sort of aggressive behaviour was the responsibility of the security officer or the store detective.
In Store Security Arrangements; Whether Breach of Regulations
21. The security arrangements in the store varied depending on the day and on the circumstances. Generally, the CCTV monitoring station, located on the ground floor, was monitored by a security officer on Thursdays, Fridays and Saturdays. On those days the store detective, Mr. Kelly, would patrol the first floor. On the other weekdays, when a security officer was not on duty, he carried out the CCTV monitoring. The incident occurred on a Wednesday and so, in line with the usual security arrangements, the store detective, Mr. Kelly, was posted and present at the CCTV monitoring station.
22. There was a tannoy system in place over which staff could be called and as part of that system there was a microphone at the counter where the Plaintiff and Mr Pinto were stationed. The store detective was dressed in plain clothes. There was quite an issue about whether or not he should have been wearing a badge or should have been wearing some form of security identification and if so whether his failure to be so identified amounted to a breach of the security industry regulations.
Conclusion; Breach of Regulations
23. Given the function of the role I am quite satisfied and the Court finds that Mr Kelly was entitled to be dressed incognito; it would have been different had he been a security officer. Accordingly, the first Defendant was not in breach of any security regulation or for that matter any of the 2007 regulations arising from the non wearing of any form of identification by Mr. Kelly as a Store Detective. I find as a fact that Mr. Kelly’s principle function and duty was to detect possible theft rather than to provide security duties in the store.
Decision; Incident; Whether an Assault and Battery
24. I had the opportunity of viewing the CCTV footage running through at three frames per second as well as frame by frame on a number of occasions during the trial. In addition to the evidence of the Plaintiff and Mr Pinto I also had the benefit of the opinions of the security consultants Mr. Gallagher on behalf of the Plaintiff and Mr. Sears on behalf of the 1st Defendant. As mentioned earlier because the CCTV recording was made at three frames per second 50% or perhaps slightly more than 50% of what occurred was not captured on the footage.
25. In civil proceedings such as these the law does not require the Court to be satisfied beyond any reasonable doubt about what occurred at the counter, rather the burden of proof which the Plaintiff carries is to establish the case she has brought on the balance of probabilities. Two scenarios for what occurred were offered to the Court, the first that the Plaintiff was verbally abused by an aggressive customer who then struck her with a bicycle lock chain and the second that the Plaintiff was the author of her own misfortune. It was contended by the 1st Defendant that it was she who had escalated the situation by speaking loudly to the customer and by wagging her finger at him and that this behaviour was contrary to the customer care policy. I took the submission made by Mr. McCartan to be that it was the Plaintiff’s wholly inappropriate behaviour which resulted in the incident about which she now complains and that the 2nd Defendant did no more than respond in kind to the tone of speech and the demeanour adopted by the Plaintiff, indeed, frames from the footage show the 2nd Defendant putting out his hand and pointing his finger back at the Plaintiff immediately before the alleged assault.
26. He contended that the injury about which the Plaintiff complains was caused when she reached out and grabbed the chain from the second Defendant, pulling it towards her in the process. She had given evidence that the chain, which she had put back down on the counter, was the second Defendant’s property which she then tried to take from him by grabbing it. It was the process of pulling the chain rather than any action of the second Defendant which had caused her to be struck on the right side of her head and face. It was not accepted she had been hit on the hand.
27. The Court is tasked with resolving the conflict between these two very different and contrasting scenarios. I had the opportunity of observing the demeanour of all of the witnesses as they gave evidence and was left with the impression by all that they did the best they could to give truthful evidence. I was also conscious of the period of time which has elapsed since the occurrence of the events giving rise to these proceedings in 2011 and that with particular regard to the Plaintiff that she was very shocked by what had happened and that she went on to develop serious psychological injuries. I am satisfied that a combination of these factors impacted on her negatively and explain in large measure the inaccuracies and inconsistencies in certain aspects or her evidence as well as her inability to recall certain, mainly peripheral, facts.
28. Mr. Pinto was closely cross examined and accepted he had not seen the Plaintiff being struck on the head with the chain though he did see that she was bleeding from there. However, he had seen the Plaintiff being struck with the chain on her right hand. His impression was that the Plaintiff tried to grab the chain but failed in the attempt; the chain was banged on the counter and then hit her on the right hand. She reacted by reaching out as if to defend herself. Mr Pinto’s impression that she had tried to grab the chain is consistent to that extent with the proposition advanced by the 1st Defendant, however, the Plaintiff did not accept she had tried to grab the chain at all quite the contrary. She had simply put out her arm and hand to try and defend herself by pushing the Defendant away. This action was captured on the CCTV footage and corroborated by the evidence of Mr Pinto that she had reached out in what he took to be a defensive action.
Conclusion
29. Having carefully considered all of the evidence on the issue I accept the evidence of the Plaintiff and Mr. Pinto and find that the Plaintiff was subjected to an assault and battery by the 2nd Defendant with a bicycle lock chain. The CCTV footage frame taken at 11:22:15.92 captures the 2nd Defendant’s right arm reaching across the counter directly at the Plaintiff. The chain is also seen travelling in the same direction albeit the image is blurred. In this regard, I accept the evidence of Mr. Sears in response to a question of clarification raised by the Court concerning the image. He explained that the blurring was attributable to the speed at which the chain was moving. It had been suggested that the Plaintiff’s left hand, over which the chain can be seen to pass, had had hold of the chain. The proposition advanced on behalf of the first Defendant was that although the frame did not show the Plaintiff’s left hand closed around the chain the hand reaction seen was consistent with the chain being released. I do not accept that suggestion for the following reasons.
30. Firstly, the frame is a two-dimensional photograph and thus it is not possible to gauge the depth of field. Secondly, the raised left hand is more consistent with an instant defensive reflex and thirdly, even if the Plaintiff had tried to grab the chain Mr. Pinto’s evidence was that her attempt to do so was unsuccessful. Moreover, the Plaintiff’s attempt to push the Defendant away is consistent with a defensive reaction in response to her right hand having been struck with the chain.
31. Finally, I am fortified in the conclusion which has been reached on this question firstly, by the content of an e mail sent on behalf of the first Defendant at 13:43 on the day of the incident which appears to be a collation of all available information ascertained from those directly or indirectly involved and secondly, by the guilty plea to the Section 3 assault charge, a plea entered by the 2nd Defendant following and with the benefit of legal advice.
Consequences
32. However, it does not follow from the conclusion reached that the 1st Defendant is liable for the injuries and loss suffered by the Plaintiff as a result of the assault. Although she has a perfectly good cause of action in trespass to the person against the 2nd Defendant, I accept Mr. McCartan’s submission that it does not follow the 1st Defendant is vicariously liable for the 2nd Defendant’s wrongdoing, rather the Plaintiff’ must establish the case brought it in negligence and for breach of statutory duty if she is to succeed.
The Law
33. As was made crystal clear by the Court of Appeal in Martin v. Dunnes Stores [2016] IECA 85 Irvine J. reaffirmed what has long since been the settled law in a case such as this; the employer is not an insurer for the safety of the employee, rather the duty is to take reasonable care for his or her safety at work. The general duties of the employer under statute are comprised in s.8 (1) of the 2005 Act and require the employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees and extends in particular, without prejudice to the general duty, to the matters set out in sub. s (2)
34. For the purposes of the relevant statutory provisions the meaning of ‘Reasonably practicable is set out in s.2 (6) of the 2005 Act which provides:
“…that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.”
35. Section 13 of the 2005 Act also imposes on employees duties of care for their own safety which, amongst other obligations set out in sub. s (1), require compliance by every employee with the relevant provisions of the Act to take reasonable care to protect his or her safety, health and welfare as well as the safety, health and welfare of any other person who may be affected by the employees’ acts or omissions at work.
36. The statutory scheme for the safety of all those at a place of work established by the 2005 Act includes an obligation on the employer to carry out an identification of hazards in the work place and to be in possession of a written ‘Risk Assessment’ (s 19). In addition, the employer is required to arrange for the preparation and to be in possession of a ‘Safety Statement’ (s.20) based on the hazard identification and risk assessment carried out under s.19, which specifies the manner in which the safety, health and welfare at work of his or her employees is to be secured and managed. In evidence Mr. Sears expressed the view that it was not necessary to have a risk assessment in writing, a view which is clearly incorrect having regard to the provisions of s.19; the ‘Risk Assessment’ must be in writing as must the ‘Safety Statement’.
37. Although Mr. Sears did his best to identify the provisions of the employee handbook regarding security and customer relations in what I took to be an attempt to establish compliance with statutory requirements, in so far as these provisions are relevant to the issues under consideration here it is clear that the 1st Defendant had not carried out a hazard identification nor had it prepared a consequential ‘Risk Assessment’ or ‘Safety Statement’ within the meaning of the 2005 Act; the relevant provisions of the employee hand book do not suffice for this purpose. Subsequent to the events giving rise to these proceedings the relevant statutory requirements have been satisfied though the Court is not privy to the content of the resulting ‘Risk Assessment’ or ‘Safety Statement’.
Submissions; First Defendant
38. As already mentioned at the outset Mr. McCartan urged the Court to conclude that the absence of a ‘Safety Statement’ and ‘Risk Assessment’ at the material time, constituting as it does a breach of the 2005 Act, was not in any way causative of the assault and battery on the Plaintiff. On his submissions, the breach of statutory duty in this respect was irrelevant to the issue of liability. The essence of the submissions made otherwise was that there was nothing more the 1st Defendant could reasonably have done in the circumstances to comply with its obligations for the Plaintiff’s the safety, health and welfare at work.
39. The security system in place at the time was perfectly reasonable and adequate; it was standard in other businesses in the area. Mr. Kelly had kept his eye on the monitor as he was asked and responded appropriately in a timely and proper manner as soon as it became apparent something untoward and out of the ordinary was occurring. There was an intercom system in place to call Mr. Kelly about which the Plaintiff was aware but had failed to use. Furthermore, the Plaintiff’s response to the 2nd Defendant’s demands was contrary to the customer relations provisions of the employee handbook about which it was contended she was also aware. In this regard she, like Mr Pinto, had been taken through the handbook as part of her induction by the Manageress. Instead of behaving courteously and if necessary standing back and diffusing the situation or going to seek help and advice she had done the opposite; she had admonished and her demeanour had antagonised the customer.
Submissions; the Plaintiff
40. On behalf of the Plaintiff Mr. Downing drew the attention of the Court to the provisions of the 2005 Act referred to earlier as well as to the decision of the Court of Appeal in Martin v. Dunnes Stores (Supra). The precautions by way of training and instruction for the safety of the employees put in place by the defendant in that case were found by the court to have complied with the statutory requirements of the 2005 Act.
41. He submitted that unlike the situation in Martin, the training and instruction which should have been afforded to the Plaintiff was missing and that this was the nub of the case. The 1st Defendant could not rely on the Plaintiff’s behaviour, about which complaint was made, to relieve itself of liability for the consequences of its failure to comply with the relevant statutory provisions by attributing the cause of the assault to the Plaintiff.
Decision;
42. Ms. Stubbins gave evidence that she had taken the Plaintiff through the employee handbook. The Plaintiff disputed this and gave evidence that she had never been instructed or trained on how to deal with an aggressive customer. She was supported in this assertion by Mr. Pinto, who also gave evidence that he had not received any instruction or training on how to deal with an aggressive customer. I accept the evidence of the Plaintiff and Mr. Pinto in this regard.
43. On my view of the evidence and the submissions it is unnecessary to determine whether or not the Plaintiff or Ms Stubbins is mistaken in this regard since even if this had been done the Court has found that the provisions of the handbook on which the 1st Defendant relied did not satisfy the statutory requirements with regard to training and information. Furthermore, in my judgment they would not have been sufficient to equip the Plaintiff to deal with the situation in which she found herself.
44. Although the evidence of Ms. Stubbins was that there had never been an incident like this before or since, the risk of injury arising from an aggressive customer, particularly one who is intoxicated or under the influence of drugs, is far from removed from fancy; sadly, such is all too real in the world of the early 21st century. Anti social and unlawful behaviour is precisely why shops and all types of premises to which the public have access are required to be staffed by security personnel and fitted a myriad of security devises such stock alarms and CCTV monitoring systems.
45. Moreover, specialisation has developed apace with store detectives and security officers receiving special training and instruction on how to deal with potentially troublesome situations, including those which might give rise to aggressive behaviour such as where, for example, a person is detected shop lifting and placed under restraint or where an unruly argument breaks out between customers or between a customer and a member of staff. The risk of such and the necessity to make provision to deal with it is reflected to a certain extent in the evidence of Mr. Pinto that it was not his job but that of the security officer or store detective to deal with the problem. In the context of the case against the 1st Defendant the essential point is that risk of such behaviour was reasonably foreseeable.
46. The Plaintiff had the responsibility of dealing with refunds and returns. On my view of the evidence it was reasonably foreseeable that a customer, particularly a customer who was under the influence of alcohol or drugs such as the 2nd Defendant, might well react aggressively and behave in a threatening and abusive manner if refused a refund as happened in the circumstances of this case. Although clearly not relevant here, given what occurred it would certainly come as a surprise to me if the subsequent risk assessment and safety statement did not identify the risk arising and make provision for training and information on how to deal with an aggressive or intoxicated customer.
47. We shall never know what a properly and professionally executed risk assessment would have identified in terms of hazards and if undertaken what safety measures would have been put in place prior to September 2011. In my judgment, the risk of injury arising as a result of having to deal with aggressive behaviour in a customer for whatever reason was reasonably foreseeable without ever having recourse to the provisions of the 2005 Act. Accordingly, quite apart from its statutory obligations, there was a common law duty of care and the 1st Defendant’s staff, particularly those whose duties involved dealing with customers in circumstances with the potential to result in anti-social or aggressive behaviour, ought to have received training and instruction on how to deal with same. It follows that the failure to provide such was a breach by the 1st Defendant not only of its statutory duty but also its common law duty of care to the Plaintiff.
48. For completeness, I should add that Mr. Kelly most probably answered a call for assistance made by Mr. Pinto over the tannoy system, a conclusion consistent with Mr Pinto’s evidence that it was not his job but the job of the security officer or store detective to deal with an aggressive customer. To be fair to him Mr Kelly could not recall whether he had answered a call but accepted on occasion he had responded to such calls and that the tannoy was one ways he could have been called to assist.
49. Mr Pinto also gave evidence that Mr Kelly arrived and was present in the area before the assault took place. In this regard, I am satisfied he was mistaken and I accept the evidence of Mr. Sears this did not happen. CCTV footage recorded by another camera was commented upon by Mr Sears and was said to show that Mr Kelly hurried from the monitoring station without stopping until he arrived at the scene and that he arrived there momentarily after the assault had taken place.
50. The Plaintiff’s evidence was that prior to the assault she had gone down to Mr. Kelly and alerted him about her concerns. Mr. Kelly’s evidence was that she had just asked him to keep an eye on the 2nd Defendant and that he did so via the monitor, using the zoom facility on the security camera which was located high up on the wall in the vicinity of the shop counter. The CCTV footage recorded through that camera is corroborative of his account. However, what seems to me to be crucial in terms of causation is that neither the Plaintiff nor Mr Pinto had received any training or instruction on what to do if they found themselves in a verbally heated or other confrontational situation. It seems highly likely that had appropriate training, information and instruction been afforded to them the situation would not have escalated or would certainly not have escalated to the point where an assault took place.
Conclusion; Negligence and Breach of Statutory Duty.
51. For all these reasons, the Court finds that the Plaintiff has discharged the burden which the law places on her to establish, on the balance of probabilities, the case made against the 1st Defendant. It follows that the 1st Defendant is liable in negligence and for breach of statutory duty for what befell the Plaintiff and the consequences thereof.
Conclusion; Contributory Negligence
52. As far as the question of contributory negligence is concerned, the Court finds that it would be wrong in law to find the Plaintiff guilty of contributory negligence and breach of statutory duty in circumstances where she had received no training or instructions on how to deal with a confrontational situation such as that in which she found herself with the second Defendant.
Quantum
53. The Plaintiff’s credibility was called into question as a result of certain inconsistencies in some of the answers to questions she gave in the course of her evidence. I had the opportunity, as I had with the other witness who gave evidence, to observe her demeanour and made some general comments in this regard earlier in the judgment. I found her to be a credible witness and was satisfied that the nature of the injury she sustained explains in large measure her deficiencies in recollection which she very fairly accepted, on more than one occasion, when being cross examined. It would be remiss of me in this context if I failed to refer to the Plaintiff’s minimisation of her physical injuries, which speaks to her good character. Although hidden within the hair line, she has a permanent scar at the site of the chain laceration to the right side of her scalp about which she could have complained but chose not to do so and I was impressed by that.
Pre-Accident Medical History
54. The Plaintiff was involved in a previous accident on 15th May, 2010. She was knocked to the ground by a drunken patron while attending the Angel Lane Night Club at Robert’s Street, Limerick. As a result of that accident she suffered a head injury in the fall as a result of which she sustained a wound which bled at the time. She also suffered soft tissue injury to her neck and her back. She was shocked after the accident, a sequela that featured in cross examination, particularly of Dr. Corby, the Plaintiff’s GP. The head wound was attended to at the scene by a medic and she was subsequently taken to the Accident and Emergency Department of the Mid West Regional Hospital where she was prescribed pain killing medication.
55. I pause to note here, because it was an issue in the case that the Plaintiff subsequently discontinued the medication which had been prescribed for her physical injuries. As a result of the accident she developed headaches in addition to neck and back pain. She had soft tissue bruising at the base of her spine. The head wound left no scar. The headaches cleared up after a month and the neck pain cleared up after a week, however, she continued to experience some intermittent back pain, particularly when carrying out house work chores and lifting her children; sometimes the pain woke her night. Vocationally the Plaintiff was minimally affected by her injuries; in this regard, I note that she returned to work within two days. As it happens her employer at the time was the 1st Defendant.
Court Proceedings
56. The Plaintiff brought circuit court proceedings for loss and damage a result of the fall. Medical reports dated 14th February, 2012, and 14th October, 2013, were prepared for those proceedings by a GP, Dr. Mary Ryan and have been read by the Court; they featured during cross examination. The solicitors with carriage of the circuit court proceedings are also the solicitors for the Plaintiff in this case. The replies to particulars in those proceedings expressly refer to the assault and to the injuries the subject matter of these proceedings. Finally, a copy of the pleadings and the medical reports of Dr. Mary Ryan were furnished to the 1st Defendant in as long ago as August, 2015. The circuit court proceedings were compromised for a very modest sum.
The Assault Injuries
57. Medical reports for these proceedings were prepared on behalf of the Plaintiff by her GP, Dr. Kelly, and by a psychiatrist, Dr. Corby; both physicians gave evidence. Their reports were received by the Court as an aide-memoire. No medical evidence was led on behalf of the 1st Defendant. I pause to observe here that Dr. Kelly was aware of the 2010 accident and the resulting sequelae but did not report or give evidence in the circuit court proceedings. He was questioned about this when he gave evidence and was also asked why he had not mentioned that accident and the injuries arising in the medical reports prepared for these proceedings. His reply was that although he knew about the injuries he didn’t mention them because he considered they were entirely different and therefore not relevant to the injuries in these proceedings.
58. The Plaintiff suffered a laceration to her right fingers. In this regard, the report refers to bruising seen on both hands but the Plaintiff made no reference to her left hand in evidence. In fact, she only mentioned her right index finger notwithstanding that Dr. Kelly’s report is very clear that all of the fingers on her right and left hands were bruised. However, in so far as there was bruising to her fingers I am satisfied the principle injury in this area was to the right index finger.
59. The Plaintiff was also struck by the chain to her head and face. Her left cheek and scalp was lacerated. The cheek laceration left a red mark which gradually resolved completely, leaving no blemish. The scalp laceration also healed but left a permanent scar within the hairline located above and in line slightly to the right of the lateral end of the right eye brow. It starts inside the hair line and is completely covered by hair. At the time of the assault the laceration inside the hair line bled. The Plaintiff made no functional complaint about the scar, such as when brushing her hair.
60. She also gave evidence of having hurt her back as a result of the assault. She had recoiled backwards and had hit her back against a peg board in the process. She was closely cross-examined about this by Mr. McCartan; nothing such was captured on the CCTV footage. However, as already indicated the footage only captured about 50% of what actually happened. In any event the Plaintiff made little or nothing of this injury. Whatever injury was caused it was very minor, described by the Plaintiff as momentary hurt rather than an injury as such and the Court so finds.
61. The Plaintiff was taken to St. John’s hospital by ambulance. She did not remember how she got to hospital, but I am satisfied that she was taken there by ambulance and was attended to. She had received first aid in the shop canteen where staff members witnessed bleeding from her scalp. Although the scalp laceration left a permanent scar it did not require suturing. The principle injury sustained as a result of the assault was psychological rather than physical; the sequelae of which continue to this day.
Psychological Injury
62. The Plaintiff was very shocked by the assault and when she attended Dr. Kelly shortly afterwards he noted that her pulse was racing, that she was very tearful, stressed, anxious, complaining of fatigue and unable to sleep properly. I am satisfied the Plaintiff attended Dr. Kelly frequently over the next couple of months, that her symptoms continued and that Dr. Kelly was concerned they would deteriorate. He was concerned that the Plaintiff would develop depression, as indeed she did. In addition to the foregoing the Plaintiff also started to experience panic attacks. She developed a phobia about going to town or putting herself into any situation which involved mingling with crowds or socialising with strangers; she became socially withdrawn. She also experienced feelings of guilt about what seemed to her to be a diminution in her ability to look after her children and an inability to face a return to work.
63. Dr. Kelly diagnosed a post-traumatic stress disorder and a depressive disorder for which he prescribed anti depressant medication and referred the Plaintiff to St. Anne’s Day Psychiatric Hospital for assessment. Following assessment, she was referred to and attended counselling therapy under Mr. Michael Jennings. The Plaintiff’s GP prescribed Zeroxat and subsequently Lexipro; medications designed to help treat psychological symptoms.
64. Her evidence was that she did not like taking medication and disliked the feelings that she experienced as a result; she discontinued the medication prescribed by her GP; as she had following the accident in 2010. The Plaintiff also gave evidence that she became very emotional and described how she felt just not being herself in contrast to her pre-morbid personality; prior to the assault she described herself as a very outgoing, friendly kind of person who enjoyed social interaction but all this all changed. She became socially withdrawn and unable to face going out. She remained emotionally unstable and upset and reached a point where she hated herself. In this regard, I noted a reference in the medical report of Dr. Corby that at a relatively early stage following the assault she had contemplated suicide, not a term used by Plaintiff, though this coincided with the period where she described hating herself.
65. She benefited from the counselling sessions with Mr. Jennings and about eight months after the assault she attempted to go back to work with the 1st Defendant; this turned out to be a disaster. She could not cope at all and within one day she knew she had to give up. She could not cope with customers or with people asking her about herself. She never attempted to return to work with the 1st Defendant and ultimately resigned her employment in 2012. The Plaintiff previous relationship with the father of her children had ended and he had returned to central Europe prior to the assault. Whatever the terms of the couple’s separation, to which the Court is not privy, the situation in terms of the Plaintiff’s ability to cope were so bad that he was persuaded to come back to Ireland to help look after the children; He remained here for approximately eighteen months.
66. Apart altogether from the anxiety, distress, fatigue, emotional upset and depression, the Plaintiff also suffered from nightmares and day time flashbacks of the incident. These sequelae turned out to be a significant in the context of the Plaintiff’s previous medical history. Dr. Corby explained that from the clinician’s point of view the content of these flashbacks and nightmares are particularly important because they are indicative of cause. This evidence arose from questions put to Dr. Corby that the Plaintiff had previously included a psychological injury, one of shock, in her claim arising from the 2010 accident. Dr. Corby said that although she was unaware of that claim she explained to the Court that this had no bearing whatsoever on her opinion or her view of the Plaintiff. In carrying out her assessment she had placed particular reliance on the content of the nightmares and the flashbacks since the descriptions of those were indicative of cause and in her case, it was significant that they related in every instance to the assault. I accept Dr Corby’s evidence and find that the psychological sequelae suffered by the Plaintiff are attributable in their entirety to the assault.
67. I am fortified in reaching this conclusion by the medical evidence in the circuit court proceedings where it appears that apart from the mention some shock in the pleadings it essentially does not feature in Dr. Ryan’s reports as a sequela and when Dr. Corby was shown Dr. Ryan’s reports she said, “as far as I can see this is really more physical injuries. ” And so it appears.
68. Returning to the consequences of the assault, the Plaintiff developed what Dr Corby described as de personalisation and de realisation behaviours evidenced by social withdrawal and avoidance. When assessed by Dr. Corby in March, 2019 she noted that the Plaintiff was still exhibiting depressed mood and was tearful during interview. I pause here because I noticed over the course of her evidence that the Plaintiff became emotional at times, she did not cry but one could hear it in her voice, the quivering. Otherwise she understated the significant and negative impact which this assault has had and was clearly continuing to have on her.
69. I found the evidence and the responses of Dr. Corby, particularly under cross examination, most instructive especially with regard to the present and prognosis. In her opinion, the Plaintiff continues to meet the requirements of the DSM 5 criteria for the diagnoses of post-traumatic stress disorder. It seems to me that that is particularly significant given the period of time which has elapsed since the assault.
70. The Plaintiff developed a depressive disorder which Dr Corby categorised as one of moderate severity. In order to get her illness into proportion, the Plaintiff’s psychiatric illness was not something that required her to be hospitalised. It has certainly been prolonged but is not is approaching anything like the worst type of post-traumatic stress disorder resulting in periods of hospitalisation, some of which can be prolonged. This case does not fall into that category.
Vocational Implications
71. The symptoms of the post traumatic and depressive disorders from which she suffered impacted negatively on the Plaintiff’s ability to return to the workforce. To her credit I am satisfied that she genuinely wanted to return to gainful employment, at least at some level, and that she had good reasons to do so, not the least of which was to provide for herself and her young family. Apart from the failed attempt to return to work for the first Defendant she subsequently started to do some baby sitting and child minding until 2017 when she managed to secure a part time position in a delicatessen where she continues to be employed.
72. Dr. Corby was cross-examined at some length about the Plaintiff’s failure to comply with medical treatment and in particular her failure to remain on medication. Indeed, it was submitted by Mr. Collins S.C on behalf of the 1st Defendant that the claim for loss of earnings should be limited to date on which she ceased taking the medication. It was accepted by Dr. Corby that the Plaintiff’s failure or her inability to tolerate medication, as she preferred to describe it, had had a negative impact on recovery. However, she explained the severe limitations experienced by the Plaintiff and anyone seeking treatment in the public health system, operating as it was under immense strain and with limited resources. One of the many unfortunate consequences of this state of affairs is that patients aren’t followed up and provided with support services, information, encouragement and the necessity to adhere to any treatment regime.
73. Dr. Corby considered the Plaintiff’s social circumstances and educational background would also have militated against optimising her recovery and that when all these factors are taken into account it was is understandable why the Plaintiff would not have continued on medication, this apart altogether from any dislike she had for pill taking. She would not have had a full or proper understanding of the importance of continuing to take the medication which had been prescribed for her in order to assist and enhance her recovery.
74. Fortunately, she has now had the benefit of the necessary support and advice from Dr. Corby and has started taking Venlafaxine, a new generation drug which it is expected will prove particularly beneficial to her recovery. It is planned to increase the dose commensurate with tolerance levels in due course. The Plaintiff’s nightmares and flashbacks had already diminished over time consistent with gradual recovery to the point that she was able to function at a level sufficient to enable a return to the work force and hold down a job. Although she has experienced a diminution in her psychological symptoms, some of which have almost disappeared completely, the social conditions in which the Plaintiff is living are difficult.
75. She has a very cramped apartment in which to live with two small children and is on the housing list. She is desperate to improve her housing circumstances. Her mother is a deaf mute who was deserted by her father. The Plaintiff has always been close to her mother who is reaching retirement and will need more care as she ages. A larger apartment or small house would enable her mother to come and live with the family. This evidence is relevant to Dr. Corby’s opinion on prognosis. In her view, an improvement in the Plaintiff’s circumstances would be significant in the context of recovery and would have beneficial impact, as would the end of the litigation. This would have been a negative stressor which, once removed, would also contribute significantly towards enabling the Plaintiff to make a full recovery, an opinion also shared by Dr. Kelly.
Conclusion;
76. I accept the evidence of Dr. Corby and Dr. Kelly; Accordingly, I cannot accept the submission of Mr Collins that Plaintiff failed to mitigate her loss by discontinuing the medication and that her claim for loss of earnings should be terminated at that point in time. The Courts finds that the Plaintiff suffered relatively minor physical injuries as described earlier in this judgment and that these healed relatively quickly with only one ongoing sequela, a small scar inside the hairline about which the Plaintiff makes no complaint, functional or cosmetic.
77. As the Court has a statutory obligation to refer to the Book of Quantum, for the reasons set out in Bennett v. Cullen [2014] IEHC 574 counsel were invited to make submissions in relation to the level of quantum appropriate to the physical injuries but chose not to do so as the categorisation of these is not in question. With regard to the quantification of the psychiatric injuries I accept the submission that the book is of no assistance. While the physical injuries may properly be categorised as relatively minor, the psychiatric injuries are a horse of an altogether different colour. She suffered a post-traumatic stress and depressive disorders. Having regard to the findings made and the conclusions reached it seems to me that if there were a range for the psychological injuries in the Book of Quantum they would have to be categorised as moderately severe. Although the ongoing sequelae are at relatively low level compared to the first two to three years following the assault, when the Plaintiff was assessed as recently as March this year the symptoms were considered sufficient to satisfy the DSM V criteria for the diagnosis of a post-traumatic stress disorder. However, in my judgment, the new medical treatment regime, the Plaintiff’s attitude and the impact which the conclusion of the litigation is likely to have on her, it is probable she will progress steadily towards and will make a full recovery in due course.
Quantum; the Law
78. How is the Plaintiff to be compensated for her injuries? The law is well settled; she is entitled to compensatory damages the purpose and object of which is to restore the Plaintiff, so far as may be achieved by an award of money, to the position she was in at the time when the wrong was committed. The underlying principle behind every such award is encapsulated in the Latin restitutio in integrum. Of course, money is an inadequate vehicle for the achievement of the objective in respect of non-pecuniary loss, such as for physical or mental injury. No amount of money is going to put somebody back into the position they were in at the time when the wrong was committed. However, that is the remedy and the only remedy prescribed by the law in a case such as this; where liability has been established or conceded by a defendant the assessment of damages for pecuniary and non-pecuniary loss is an exercise which the Court is required to undertake.
79. In this regard, any award of compensation must be just and to be just must be fair to the Plaintiff and to the Defendant. Not only must it be fair to the Plaintiff and the Defendant it must also be commensurate with and proportionate to the injury and loss suffered; damages must be reasonable. The principles to be applied to the assessment of damages have been set out by Supreme Court and the Court of Appeal in a number of decisions which were recently reviewed by this Court in BD v. The Minister for Health [2019] IEHC 173.
Conclusion; Quantum
General Damages
80. Applying the principles to the facts found and conclusions reached the Court considers in the circumstances of the case that a fair and reasonable sum to compensate the Plaintiff for pain and suffering to date commensurate with and proportionate to her physical and psychological injuries is €40,000 and for pain and suffering into the future €10,000.
81. I pause to mention that it seems to me the use of the term ‘pain and suffering’ in this context is not always fully understood. It extends to cover much more than just the experience of neurological pain from a physical injury or the psychological consequences of that or psychiatric injuries. Those of us who appeared in these kinds of cases when decided by juries will remember that the explanation given to the jury for the meaning in law of ‘pain and suffering’ extended beyond these consequences to cover other sequelae caused by the wrongdoing such as inconvenience and the interference with the enjoyment of the amenities of life.
Pecuniary Loss
82. With regard to the claim for loss of earnings, it was accepted that at the time of the assault the Plaintiff was in receipt of €435.14, net income per week of which €207 was a social welfare single parent payment and that the Plaintiff received social welfare benefit until March, 2014 firstly, injury benefit and subsequently illness benefit. The Plaintiff’s claim for loss of earnings is limited to a total of two years and 20 weeks from the time of the accident. She has not been in receipt of social welfare benefits since that time.
83. It appears that once in receipt of these social welfare benefits one is not entitled to receive other social welfare benefits. I have considered the submissions which have been made on behalf of the parties. In essence, the Court is invited by the first Defendant to disregard the single parent payment in which event, having regard to the amount of social welfare paid, there would be no loss. I accept that all social welfare benefits paid in this instance must be taken into account. As to that an RBA certificate for €35,821.22 has been issued, However, I don’t accept that the single parent payment is to be disregarded.
84. The total value of the loss of earnings claimed which €53,957.38, leaving a net difference of €18,136.14 after taking the social welfare payments into account. Applying the principles of law to the assessment of damages for pecuniary loss, if the Plaintiff is to be restored to the position she was in when the wrong was committed her net weekly income at the time must be taken into account. The Court has no discretion in this regard, she has to have the pecuniary loss suffered restored to her and in my view, having taken account of the amount of the RBA certificate, her net loss of earning claim is €18,136.14 to which must be added a small sum in relation to travel, medical and miscellaneous expenses which has been agreed in the amount of €500 making in total €18,636.14.
Ruling
85. Adding the sum of €50,000 in respect of general damages together with the sum of €18,636.14 in respect of special damages; the total amount to be awarded by the Court is
Fennell v E Stone & Sons
[1967] IR 204
LEO FENNELL Plaintiff v. E. STONE AND SONS LIMITED, Defendants (1)
Supreme Court. 16,21 Nov. 1967
N
O’DALAIGH C.J. :
21 Nov.
I have read the judgment that Mr. Justice Budd is about to deliver and I agree with it.
HAUGH J. :
I also agree with the judgment of Mr. Justice Budd.
[1967]
1 I.R. Fennell v. E. Stone & Sons Ltd.
Budd J. 205
Supreme Court
BUDD J. :
The defendants in these proceedings are building contractors and during the year 1963 they were engaged in certain renovation works in the premises of the Bank of Ireland in College Green. The plaintiff is a general labourer. He was employed as such by the defendants. During the course of his employment he was engaged in carrying out the renovation works aforesaid. He had been working on the job for some months prior to March, 1963. On the 11th March, 1963, the work which he was doing in the course of his employment consisted of dismantling some internal scaffolding from one room in the Bank of Ireland, carrying it to an adjacent room along a corridor and then re-erecting it there. These two rooms had originally been one large room but had been divided by a partition. The scaffolding was being erected close to the partition wall to enable plastering work to be carried out. The room in which the scaffolding was being erected was comparatively small in so far as floor space is concerned, being about 14 feet by 14 feet. The ceiling of the room was somewhat higher, being about 20 feet from the ground. There was suspended from the ceiling an electric lamp and shade which was about 16 inches in diameter and hung about 4 feet from the ceiling by means of a flex and chain, so that it would be some 16 feet from the floor of the room. The entrance to this room from the corridor was through a swing door which, after being opened, resumed its normal shut position by the operation of a spring device. In the corridor outside the room there were some filing cabinets and a counter.
On the 11th March, 1963, at about 9 o’clock in the morning, the plaintiff and a man described as his helper were engaged in carrying a tubular pole, of a kind apparently used diagonally on the scaffolding and somewhat larger than most of the other poles used, from the one room into the other. They had carried it as far as the corridor when the foreman came along and told the helper that he was wanted elsewhere. The plaintiff was told to carry on for the time being. Although different measurements were given for the length of the pole, it seemed to be accepted that it was somewhere between 14 and 16 feet in length. It was a somewhat heavy pole but one man could carry it and could manoeuvre it into a vertical position, though that operation required some considerable exercise of strength. The plaintiff continued with the work of moving the pole. He had to open the door. There was some difficulty in opening it fully because of the scaffolding against the partition wall but it could be opened some 90 degrees into the room, thus leaving the entire width of the doorway open for passage. The plaintiff met with some difficulty in manoeuvring the pole because of the presence of the filing cabinets and counter in the corridor but he finally succeeded in manoeuvring the pole into the room, holding the door open for the purpose by putting his foot against it. He was then in a position in the doorway, or just inside it, and facing the opposite wall which was some 14 feet away. The electric lamp was suspended from the middle of the ceiling so that it would be, in a horizontal line, some 7 feet from the wall in which the door was placed; but from where the plaintiff was standing the diagonal distance to the lamp would be somewhat longer.
The plaintiff, according to his own version of the occurrence, then proceeded to pass the pole into the room in a tilted position. In the course of the manoeuvring of the pole it struck the flex of the lamp causing the lamp to become dislodged from its moorings; the lamp crashed on the plaintiff and struck him on the head. Having regard to the length of the pole and the height of the lamp from the floor, the pole must have been in a vertical, or nearly vertical position, to enable part of it to strike the flex. The plaintiff says that he was still in the doorway at the time, but it is difficult to see how the pole could have struck the flex if that were so.
As a result of what occurred the plaintiff suffered certain injuries which it is unnecessary to detail at this stage. He says that in consequence he suffered later from loss of wages and the continuing results of the accident. In March, 1965, some two years after the accident, he commenced proceedings against the defendants claiming damages for the loss which he sustained, as alleged, by reason of the negligence of the defendants. The plaintiff alleged that the defendants had neglected to take reasonable care to provide and maintain a safe system of work, or to maintain proper plant and materials for carrying out the plaintiff’s work, or to provide and maintain for him a safe system of supervision in his work. These allegations were expanded later in the reply to a request for particulars and I shall return to them later. The action was heard on the 7th and 8th of December, 1966. The jury found both the plaintiff and the defendants guilty of negligence and assessed the damages at £1,176 10s. 0d.. They apportioned the degrees of fault between the defendants and the plaintiff at 80% against the defendants and 20% against the plaintiff. Judgment was accordingly given for £941 4s. 0d. Against this verdict the defendants have appealed to this Court. As regards the finding of negligence against the defendants, the grounds of appeal were that the learned trial judge erred in refusing to withdraw the case from the jury, that there was no evidence upon which the jury could find negligence on the part of the defendants, that the evidence did not in law amount to negligence on the part of the defendants and that the finding was contrary to the evidence and was perverse. The defendants also appeal on the ground that the finding of the jury attributing 80% of the fault to the defendants was perverse and there was also an appeal against damages on the grounds that they were excessive.
The gist of the particulars of the negligence alleged against the defendants was as follows. The system of work was alleged to be unsafe in that, in the first place, the plaintiff was not given a helper to assist him in carrying the pole; secondly, that the swing door was not removed or wedged open and, thirdly, that the lamp-shade was not removed while the pole was being moved in. The first complaint concerning failure to provide a helper can be regarded as being expanded somewhat under another allegation concerning a failure to provide proper plant and materials, where it is said that, if the pole had to be moved by one man, it was too long and unmanageable to be safely conveyed from one part of the premises to the other. There was then also the further allegation that there was no proper supervision in that no instructions were given to the plaintiff nor was he warned of the dangers inherent in the moving of the pole through the swing door and while the lamp-shade was in position.
The duty of an employer to his servants is to take reasonable care for their safety in all the circumstances of the case. He is not, however, an insurer and his duty is discharged if he takes such reasonable care as is called for in the circumstances.
Before dealing in more detail with the allegations of negligence, it will be helpful to make some observations on the surrounding circumstances. The pole which the plaintiff had to carry was certainly a heavy and awkward one to move about. Moreover, it had to be manoeuvred through the swing door and the plaintiff was apparently impeded in his task by the the position in which the filing cabinets and counter were placed. On the other hand he had been in this room on the previous day when he was erecting the scaffolding up to a lift of 6 feet and he had carried in a good many poles for this purpose, though they were admittedly shorter than the pole in question. He ought thus to have been fully apprised of the nature of his surroundings and of such awkwardness as existed, and that applies whether he had a helper or not. The plaintiff thus knew what he was about and he was, moreover, an experienced builder’s labourer and a man of 41 years of age. These are all circumstances which his employers had to contemplate and which have to be borne in mind in considering what the defendants’ servants and agents, as reasonable men, were called upon to do to make reasonable provision for the plaintiff’s safety. I have also this observation to make with regard to the lamp and the swing door. There seemed to be a suggestion that both were dangerous but there was nothing intrinsically dangerous about them apart from the intervention of some human agency and they could only become a source of danger in certain circumstances.
It will be convenient to deal first with the allegations regarding the door and the lamp-shade. It was alleged that the door ought to have been removed, or wedged open, so as to make the plaintiff’s work reasonably safe. The fact, however, that a door of this kind would impede the plaintiff’s task of getting this pole into the room would be quite obvious to anybody and an employer would, in all common sense, be entitled to think that it would be obvious to the workman. An employer might reasonably assume that any labourer in the plaintiff’s position, let alone an experienced man, would do what was obviously required and see that the door was secured in the open position either by wedging or by placing a weight against it, or in some other fashion. It was, to my mind, entirely unreasonable to suggest that the door could not have been wedged. That could obviously be done by the use of a nail or of a piece of paper. The absence of a helper to hold the door open seems quite irrelevant since the plaintiff could have secured the door himself.
It is also suggested that the lamp-shade should have been removed. Having regard to the nature of the work that was in progress, it is not unreasonable to suppose, in the absence of evidence to the contrary, that there would have been little or no furniture or other objects in this room. Moreover, the plaintiff and his mate were engaged in erecting a scaffolding which was to go to the ceiling and it is scarcely to be believed that they did not take reasonable stock of their surroundings, before commencing and during their work, which must inevitably have involved that they would look upwards. In any event any reasonable person would be entitled to assume that they would. The lamp was there plain to be seen and, if it had not been seen before, it was certainly to be expected that the plaintiff, in manoeuvring this pole into the room in a position tilted upwards, would look to see what was in front of him in the direction in which he was thrusting the pole and that he would be bound to see this lamp. It was not unreasonable for the defendants through their servants or agents to take the view that the plaintiff or, indeed, anybody entering a room with a pole like this, would take steps to see what he was doing so that he could manoeuvre it without harm to himself, so that I would think it quite unreal to suggest that the defendants’ servants or agents should be expected to remove this lamp.
It is then suggested that, as a matter of a proper supervision, warning should have been given to the plaintiff of the dangers inherent in moving the pole through the swing door and while the lamp-shade was in position. What an employer is expected to do is to take reasonable precautions for the safety of his workmen. Is an employer then to be expected to warn an employee about something that is obvious to him and, indeed, to any reasonably intelligent person? For my part I do not think that that duty extends to the length of telling him that a swing door will get in his way in a job such as this unless it is fixed in the open position, or telling him that he should be careful not to hit objects such as walls, furniture, or lamp-shades which may be in a room, or telling him that he should look to see what is in a room, especially something that would normally be expected to be found there such as an electric lamp. I do not think the defendants were acting in any way unreasonably as employers in not doing these things.
With regard to the absence of a helper, no doubt this work could have been more expeditiously done with the aid of a helper. That, however, was a matter for the employer and we are not concerned with it. The question is whether it was reasonable conduct on the part of employer, from the point of view of not subjecting the plaintiff to danger, to withdraw the helper at this particular time. The evidence indicates that, although it would be more difficult for one man to do the job, the job could nevertheless be done by one man. The plaintiff might have been expected perfectly reasonably by the employers to see to the securing of the door himself and to see the lamp for himself and to take steps to avoid it without warning from them.
Viewing the circumstances of this case as a whole, I am unable, for the reasons already stated, to see that the defendants failed to take any steps for the safety of the plaintiff such as a reasonable employer would be bound to take. In my view the case should have been withdrawn from the jury and the verdict of the jury was not one which a reasonable jury could have given. Accordingly, I would allow this appeal and order that the proceedings should be dismissed.
O’Dalaigh C.J.; Walsh J. 6
Supreme Court.
O’DALAIGH C.J. :
20 Feb.
I have read the judgment which is about to be delivered by Mr. Justice Walsh and I agree with it.
WALSH J. :
This appeal is brought by the plaintiff against the Order of Mr. Justice Haugh, sitting with a jury at Galway on the 18th October, 1965, withdrawing the plaintiff’s case from the jury. The plaintiff had sued the defendant, who was his employer, for damages for personal injuries suffered, as he claimed, by reason of the negligence of his employer.
The plaintiff was a builder’s labourer and, on the 30th August, 1963, he was employed by the defendant on a building site; his particular duty being to attend to a concrete mixer which was powered by a diesel engine. The machine in question was a very common type of medium-size mixer a type made by several different firms. It was mounted on a chassis which had four wheels and the ingredients of the concrete were fed into a rotating drum. This drum was mounted on a central bench and had a gear ring around its circumference at its widest part, and was driven by a small gear of about five inches diameter which was mounted on the side of the frame which held the drum. This gear meshed with the gear ring around the drum and caused the drum to rotate. The drive shaft to the small gear was lubricated by means of grease and the point of lubrication was within a few inches of where the small gear and the large gear meshed. Neither of the gears was guarded. The method of lubrication was to remove a metal cup from the lubricating point, to pack it with grease and to return it to the lubricating point and screw it down upon its threads until the pressure of the cup forced the grease down into the shaft. In the ordinary working of the machine the cup would require to be filled with grease about once every twelve days but, during the actual working, the cup required to be further screwed down every second day or so to maintain the pressure on the grease until the grease was exhausted. This was done by manipulation of the cup, and the person carrying out this operation, that is to say, either in the frequent adjustment of the cup or its replacement after filling with grease, has his hand within about 11/2 inches of the gear ring.
On the day in question the plaintiff, who was attending the machine, removed the cup for the purpose of replenishing it with grease, replaced it and screwed it down. Just as he had finished the operation and was removing his hand it became in some way entangled with the gear ring while the machine was in motion. As he was conducting the operation from the side of the machine from which the gear ring rotated in an anti-clockwise direction, the effect was to produce a nip between the driving gear and the large rotating gear so that his hand was drawn into the mesh of the gears.
The plaintiff had some years’ experience in the working of these machines on this and other jobs. He had been tending this particular machine for about two years. This was the first occasion on which he had greased the machine, that is to say, removed the cup for the purpose of replenishing the grease and replaced it while the machine was actually in motion. This job was normally carried out at the same time as other greasing points of the machine were attended to and, according to the plaintiff, he attended to all these points when the machine was not in use. The particular point which he was attending to on this occasion was the one which apparently required the most lubrication and, as stated already, it required almost daily adjustment.
On this particular day he was attending to this point only, and the reason he gave was that the machine had begun to become noisy. When the machine became noisy, as apparently it did from time to time, the usual procedure was to screw down the cup a little more and this procedure was repeated until the cup eventually required replenishing. The indication that the cup required a little further tightening every day or so was the appearance of some noise in the machine. If the machine was not making any noise, no adjustment was made to the cup. It is implicit in the evidence that this particular periodic adjustment was made when the machine was actually running.
The plaintiff stated that he was never warned at any stage of his employment that he should not adjust the cup or remove the cup while the machine was in motion. Until the date of this accident he appears to have carried out adjustments of, as distinct from removing, the cup while the machine was in motion without sustaining any injury.
The application to the trial judge to withdraw the case from the jury was based upon the submission that the defendant had not been guilty of any breach of duty to the plaintiff in that the machine which he provided was of a design common to many reputable manufacturers and was one commonly in use on all building sites and that, in providing such a machine, he had not been guilty of a failure to take reasonable steps to safeguard the plaintiff from unnecessary risk. It was also submitted that the defendant could scarcely be reasonably expected to anticipate that the plaintiff, as a man who was well acquainted with the working of this machine, would carry out such an operation while the machine was actually in motion. In support of the first submission, reliance was placed upon the decision in Daviev. New Merton Board Mills Ltd. (1). While the decision in Davie’s Case (1) was one of great importance, it is unnecessary to consider whether the Courts here would arrive at the same conclusion in the same case because, in my view, the matters raised in that case have no application to the present case. Davie’s Case (1), in short, decided that a workman, who sustained injury by reason of his employer supplying him with a negligently manufactured tool, cannot sue the employer for negligence if the tool had been purchased by the employer from a reputable firm of suppliers who had obtained it from reputable manufacturers. In that case it was held that the employers had done all that they reasonably could do. The decision of the House of Lords was one confirming a majority opinion of the Court of Appeal, and confirmed the view expressed some years earlier by Finnemore J. in Mason v.Williams & Williams Ltd. (2). On the other hand there is a number of Scottish decisions which support, or appear to support, the view that the employer would be liable in such cases.
In the present case there is no question of the machine being defective or having been negligently manufactured. It had (as apparently have most other machines of its type) this unfenced nip, but that occasions no danger to the person operating the machine for the purpose of mixing concrete, which is the purpose for which the machine is intended. The cleaning and servicing of a machine is something quite distinct.
The question which arises here is whether it was reasonably foreseeable that the unfenced nip would be a cause of injury to a person adjusting the grease cup while the machine was in motion. To use the words of Lord Cooper in Mitchellv. North British Rubber Co. (1) which were cited with approval in the House of Lords in John Summers & Sons Ltd. (2):”The question is not whether the occupiers of the factory knew that it was dangerous; nor whether a factory inspector had so reported; nor whether previous accidents had occurred; nor whether the victims of these accidents had, or had not, been contributorily negligent. The test is objective and impersonal. Is the part, such in its character, and so circumstanced in its position, exposure, method of operation and the like, that in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent upon his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part?”The speeches in the House of Lords in the Summers Case (2)also cited with approval the words of Du Parcq J. in Walkerv. Bletchley Flettons Ltd. (3):” . . . a part of machinery is dangerous if it is a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur.”
There was no evidence whatever in this case to suggest that the manufacturers ever supplied this machine as one designed to permit of cleaning or greasing while in motion or that any such user was ever contemplated by them. Even if they had, I do not think that the decision in Davie’s Case (4),even if it were to be followed, would avail the employer anything in a case where the dangerous quality of the machine was patent.
In my view there was ample evidence in this case to justify a jury arriving at the conclusion that the machine was a dangerous one for persons adjusting the grease cup while the machine was in motion. Any process which requires the hand of the operative to be put within an inch and a quarter of an unfenced gearing while in motion could scarcely be described as other than dangerous.
It seems to be quite clear that the machine did not require to be in motion when it was being so adjusted. This grease cup could be quite adequately adjusted when the machine was not in motion. A jury might very well hold that the worker, in this case the plaintiff, who carried out such an operation was guilty of negligence, but that is irrelevant to the consideration of the point before the Court, unless the evidence was such that a jury must hold that the plaintiff was solely responsible for the accident.
In my view a jury might well hold on the evidence that this was the careless act of an inattentive worker but that it was a carelessness which was due to inadvertence or indolence rather than the act of a worker who, with full knowledge of the danger and risk at the time he performed the action, wilfully undertook to accept that risk. It is well known that a worker, who may generally be aware of the risk, will not undergo that risk while he is immediately conscious of the danger, yet he may on other occasions, through inadvertence or inattention, thoughtlessly do the act. This was a matter which the jury could have held to have been reasonably foreseeable on the part of an employer and that he should have guarded against it by giving instructions or warnings against such activity and by seeing that his warnings were obeyed. In this case the evidence is that no such warning was ever given. The adjustment of this grease cup was a matter of such frequent occurrence, if not of almost daily occurrence, as to make the risk of such inadvertent execution of it while the machine was in motion an ever-present one. In my view it would be a matter for a jury to decide whether the danger was one which was so obvious that no employer could reasonably foresee that any such inadvertence might occur and that therefore no warning on his part was necessary. The evidence is not such that a jury must so hold. In those circumstances the case should not have been withdrawn from the jury. The appeal should be allowed and a new trial directed.
BUDD J. :
I also agree with the judgment which has been delivered by Mr. Justice Walsh.
Bowell -v- Dunnes Stores
[2015] IEHC 613 (09 October 2015)
JUDGEMENT of Mr. Justice Bernard J. Barton delivered the 9th day of October 2015
1. The plaintiff was born on the 26th June, 1987 and resides at 1 Triog Manor, Green Mill Lane, Portlaoise, Co. Laois. He brings these proceedings for damages for personal injuries and loss arising as a result of an accident which occurred in the course of his employment by the defendant in its supermarket premises located at Green Mill Lane, Portlaoise.
2. Save for an admission that the plaintiff was an employee and lawful visitor on the premises within the meaning of the Occupiers Liability Act 1995, a full defence has been delivered to the proceedings incorporating a plea of negligence and/or a contributory negligence on the part of the plaintiff.
3. It had initially been pleaded that the accident occurred on the 6th March, 2010, however, it was always the plaintiff’s belief and, indeed, it was his evidence, that the accident occurred on the first Friday in March, accordingly, at the commencement of the trial an amendment was sought and an order made enabling the plaintiff to plead the date of the accident as Friday the 5th of March, 2010.
4. This became significant because not only was there was a controversy between the parties as to the nature and date of the accident in respect of which the Plaintiff brings these proceedings but also because of the legal consequences which the defendant submitted flowed from any failure on the part of the plaintiff to prove the date as now pleaded.
5. The Plaintiff’s case was that the accident occurred on the evening of the 5th March when he tripped over a packet of bottles which had been left on the stock room floor whereas the Defendant’s case was that the plaintiff was mistaken about both the date and circumstances of the accident he being absent from work on the 5th and having made a report that he had hurt his back whilst lifting at work a week earlier on the 26th of February 2010.
6. At the close of the evidence it was submitted on behalf of the defendant that the plaintiff was required to establish that the accident occurred on the 5th March, 2010 and that this was one of the essential proofs which had to be satisfied by the Plaintiff if he was to succeed in the cause of action as pleaded. Even if all other proofs were satisfied it was submitted that the plaintiff could not succeed in law if an accident was proved to have occurred on some date other than the 5th of March.
7. The defendant contended that to prove that the accident had occurred on the 5th of March was a near impossible task; on the preponderance of the evidence it was submitted that the court was bound to find that an accident had occurred on a date other than the 5th and that any such finding was fatal to the plaintiff’s claim.
8. On behalf of the Plaintiff it was submitted that, in the circumstances of this case, proof that an accident occurred on the 5th of March 2010 was not material to the plaintiff’s cause of action against the defendant. On any view of the evidence the only question regarding the date on which the accident occurred was whether that was the last Friday in February or the first Friday in March; either way both dates were within the statutory period, accordingly, there could not be a limitation issue. It was further submitted that there was no substantive legal relevance attaching to the date in the sense of establishing a cause of action; it was not germane to the cause of action nor was it required to be known by the defendant in its defence of the proceedings. In the event that the court found that the plaintiff was mistaken as to the date and rejected the submissions made on his behalf, an amendment of the indorsement of claim to insert the date found to be correct was sought.
9. Given the potential consequences arising from these submissions I consider it appropriate that the court decide this matter by way of preliminary issue.
10. Turning firstly to the jurisdiction of the court to allow the amendment of pleadings Order 28, rule 1 of the Rules of the Superior Courts 1986, as amended, provides:
“The Court may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties.”
There is ample authority for the proposition that under this rule the Court has power to order the amendment of proceedings prior to, during, and even after trial in certain circumstances. See Wildgust v. Bank of Ireland and Norwich Union [2001] 1 ILRM 24; W(F) v. BBC High Court (Barr J.) 25th March 1999; FL v. CL [2007] 2 IR 630; Mooreview Developments Ltd v. First Active Plc [2011] 1 IR 117; and Flynn v. DPP [1986] ILRM 290.
11. Having regard to the admissions made in the defence it is not necessary for the plaintiff to prove his contract of employment with the defendant nor that he was a visitor on the premises within the meaning of the Occupier’s Liability Act 1995. Consequently, the common law and statutory duties arising and owed by the defendant to the plaintiff are not in question; however, the alleged breaches of those legal duties are very much in issue. In essence the plaintiff’s cause of action against the defendant is in respect of a wrong arising in the course of the employer-employee or what used to be referred to as the master-servant relationship.
12. The contents which are required to be set out in an indorsement of claim on a Personal Injuries Summons are provided for by Order 1A and appendix CC of the rules of the Superior Courts. These specify that full and detailed particulars comprising the claim be pleaded. In this regard Appendix CC provides a format in which the indorsement ought to be presented , namely,
(a) the description of the parties,
(b) the nature of the claim,
(c) the acts of the defendant alleged to constitute the wrong,
(d) the instances of negligence together with all other relevant circumstances in relation to the commission of the wrong and
(e) any other assertion or plea concerning the same together with particulars of the plaintiff’s injuries alleged to have been occasioned by the wrong of the defendant,
(f) the relief sought and, where appropriate, any particulars required by Order 4 Rule 3(a).
In my view it is notable in the context of the question under consideration here that the date of accident or occurrence alleged to have caused the injuries and loss is not a specified particular.
13. The core of the question which is at issue here is concerned with the material requirements necessary to constitute a cause of action in negligence and for breach of statutory duty. As to that “Cause of action” was described by Lord Esher M.R. in Read v. Brown (1888) 22 QBD 128 at 131 as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court”. See also the decisions of our Supreme Court in Hegarty v. O’Loughran [1990] 1 IR 148 and Fletcher v. Commissioners of Public Works [2003] 1 IR 465.
14. There are four accepted elements to the tort of negligence. These have been described by McMahon and Binchy 4th Ed, on The Law of Torts as
1. “A duty of care, that is, the existence of a legally recognised obligation requiring the defendant to conform to a certain standard of behaviour for the protection of others against unreasonable risks;
2. a failure to conform to the required standard
3. actual loss or damage to recognised interests of the plaintiff; and
4. a sufficiently close causal connection between the conduct and the resulting injury to the plaintiff.”
In a negligence action for damages for personal injuries the law requires that the plaintiff must plead and prove “… the facts upon which the supposed duty is founded and the duty to the plaintiff with the breach of which the defendant is charged” See Gautret v. Egerton (1867) L.R. 2 C.P. 371 and West Rand Central Mining Co. v R [1905] 2 KB 391 at pp. 406-8. In addition the consequences of the breach of duty must be pleaded and in this regard particulars of the breach of the duty on the part of the defendant as well as particulars of the injuries and loss caused thereby must also be given. See Order 1A of the rules and also Odgers on Civil Court Actions 24th ed.p.181.
15. Not all causes of action require the pleading and proof of a date but by their nature certain causes of action do such as, for example, those for the enforcement of breach of a contract, or on any negotiable instrument, or for goods sold and delivered, or for possession of demised premises based for non payment of rent, or for misrepresentation inducing a contract, or where the defence raises a limitation statute or a defence of waiver by laches. See Odgers on Civil Court Actions 24th ed. p 172 for an informative discussion on this topic.
16. However, whilst the principal reason for the practice of pleading a date or a series of dates in a negligence action is to show in the overwhelming majority of cases that the proceedings have been brought within the limitation period, the pleading of a date is not a material constituent of nor is it necessary in order to establish or disclose a cause of action in a negligence. Indeed, under the Workman’s Compensation Acts a mistake as to the correct date of the accident was a ground on which the court was entitled to relieve a claimant of the consequences of having failed to bring an application within the time limited by the Acts. See Nolan v. Duigan S.C. (1946) 80 ILTR 49.
17. Whilst a mistake in relation to a date may be relevant in the context of the credibility of a witness or where the reliability of a witness’s recollection is in question, absent any issue on a limitations statute or in deceit, a mistaken recollection in relation to the date of an accident would not of itself entitle or warrant the court in making an order dismissing a personal injury action brought in negligence and / or for breach of statutory duty where all other proofs required by the law have been satisfied.
Decision on the cause of action issue.
18. Whether or not the paucity of case authority on the point is attributable to the practice of pleading a date or dates of an accident or circumstances or other occurrences or, in the absence of doing so, because the date or dates were furnished by way of particulars or, if the date was incorrect or otherwise mistaken, was corrected by amendment, or because the law has long since been settled, it seems to me that if a mistake as to the date of an accident was fatal to a cause of action in negligence and /or for breach of statutory duty ,other than in cases involving deceit or an issue on a limitations statute, it is a controversy which would have regularly featured in litigation long before now . Whatever the explanation maybe, for the reasons already given I cannot accept the defendant’s submissions as being sound in law on this issue. Neither deceit as to the date of the accident nor a limitation issue arises in these proceedings. Absent such questions or issues, it is the opinion of the court that if all other proofs necessary to constitute a cause of action in negligence and or /for breach of statutory duty, and I dare say other torts such as nuisance, are satisfied, a genuine mistake as to the date or dates of the occurrence of the event or circumstances giving rise to such proceedings or failure to plead such in the indorsement of claim is not in law fatal to such causes of action.
Decision on the date of accident .
19. That the Plaintiff was not recorded as being on duty at work on the 5th of March 2010 is of significance with regard to the determination of the issue as to the correct date of the accident. The Plaintiff fairly accepted that he could not be sure as to the date. However, he was certain that it occurred on a Friday evening which he thought was the 5th of March. On the other hand the defendant’s Miss Farrell recalled that the accident had occurred on the evening of 26th of February, also a Friday, though in this regard she agreed under cross examination that she was relying on her memory rather than on any contemporaneous note or record.
20. The law requires that the determination of this question is to be made on the balance of probabilities. There was no evidence of an investigation in relation to the accident circumstances having been carried out by the defendant in accordance with its own procedures. Miss Farrell did make a statement on the day following but it was not sought to introduce that into evidence nor any statutory record of the accident nor was there any evidence that the defendant wrote in response at any time dealing with the allegations contained in the plaintiff’s intimating letter of the 22nd of March 2011 nor was the plaintiff asked to make a statement in respect of the accident as part of any investigation.
21. Although the plaintiff gave evidence of attending the emergency department of Portlaoise Hospital shortly after the accident there was no hospital note of that attendance introduced in evidence. However, notes in that regard are referred to in the report of Dr. Sinead Murphy, consultant neurologist, dated the 18th December 2013. These notes were reported as showing that the plaintiff was advised that he had pulled a muscle and that he had been discharged on non steroidal anti-inflammatory drugs “after some weeks”. Dr. Robert Lawlor’s notes, the plaintiff’s GP, confirmed that the plaintiff had also attended his surgery in respect of his injuries. The accident and emergency notes of the hospital for the 19th of March 2010 refer to the plaintiff as having sustained injuries on a Friday exactly three weeks to the day before his attendance there being a date which would coincide with the 26th of February, also a Friday and being the same date on which Miss Farrell said the plaintiff was on duty and had reported having hurt himself.
22. Although Miss Farrell accepted that she was relying on her recollection rather than on any written record as to the date of the accident, the hospital record corroborates her evidence as to the date. Whilst the physicians reporting in this case on both sides had variously understood the date of the accident to be the 5th or 6th of March 2010, the plaintiff freely acknowledges uncertainty as to whether the accident occurred on the 26th of February or the 5th of March and that he would likely have referred to the accident as having occurred on the first Friday in March.
23. It seems to me in deciding this question not unreasonable to rely on a medical record made by a triage nurse at the Midland Hospital, Portlaoise, on the 19th of March, which clearly records the accident as having occurred on a date which also happens to coincide with the evidence of Miss Farrell, accordingly, I find as a matter of probability that the accident occurred on the 26th of February and not on the 5th of March 2010
Conclusion
24. Having already accepted the submissions made by senior counsel for the plaintiff, Mr. Counihan, in relation to the pleading and proof of date of the accident and the relevance or otherwise of that to the plaintiff’s cause of action, and there being no suggestion of deceit or possible limitation issue, the court will vacate the order made at the commencement of the trial and will substitute therefore an order pursuant to Order 28 rule (1) of the rules amending the date of the accident on the indorsement of claim to read the 26th of February 2010.
Background to liability.
25. The plaintiff was born in England on the 29th of June 1987 and came to Ireland to work after leaving school. He enrolled in a computing and drafting course which he undertook for two years and then commenced an architectural technician’s course in 2007/2008 at honours level.
26. To supplement his income the plaintiff started working for the defendant in 2004. He was employed as a general operative. His duties included working on checkouts and stacking products for sale on the supermarket shelves. He was a part-time employee working for 15 and 25 hours per week outside college hours which meant that he worked evenings and weekends. He identified his supervisor on the day as Ann Marie Farrell.
27. His recollection was that the accident occurred on a Friday evening which the court has found was the 26th of February 2010. The accident occurred in the defendant’s stockroom. The plaintiff was working alone; the accident was not witnessed but the plaintiff reported on the evening to his supervisor that he had hurt himself.
28. Both parties retained engineers who carried out an on site inspection, took photographs and prepared reports for the assistance of the court.
29. On the evening of the accident there was a requirement for the stacking of shelves with products in the retail section of the supermarket. The plaintiff was tasked with identifying the stock required; locate that in the storeroom, and thereafter to stack the shelves. This necessitated the identification and stacking of stock onto a pallet which was located in an aisle of the stockroom which when loaded would be brought into the retail section of the supermarket by way of a hand operated pallet truck. The plaintiff received his instructions that evening from his supervisor, Miss Farrell.
30. The engineer’s photographs introduced into evidence show the shelving on which products are stacked. It was his evidence that the quantity of product in the stockroom was such that it could not all be accommodated on the shelving. The excess product had been stacked on pallets which had been lined up along the rear wall of the stockroom and other pallets which had been placed at the end of the shelving racks. The pallet on which the plaintiff was stacking goods was located in an aisle between two rows of shelving racks at a position immediately beside a stack of pink coloured boxes shown in the plaintiff’s engineer’s photograph number 4. Whilst all the engineer’s photographs showed the stockroom to be adequately lit, the plaintiff’s evidence was that on the evening of the accident the product had been packed on the pallets located along the rear wall of the stockroom and at the end of the shelving to such a height that this interfered with and reduced the level of lighting.
31. With regard to the circulation areas where the pallets at the back wall of the stock room and at the end of the racking had been placed, it was the plaintiff’s case that this resulted in the creation of a very restricted circulation corridor or aisle within which to walk.
32. At the time when an engineering inspection carried out by the defendant’s engineer, Mr Terry, a yellow demarcation line had been painted on the floor of the stockroom and which is clearly seen in his photographs 3, 4, 5 and 6. It was common case that these lines had been painted some time after the accident. These photographs show one pallet located at the end of the shelving in an area now intended and designated as a circulation area or aisle and another pallet placed adjacent to the rear wall inside the yellow line. There was a controversy between the parties as to the location, number and stacking of pallets at the time of the accident.
33. The plaintiff’s evidence was that there were two or possibly three pallets at the end of the shelving racks best seen in photographs 4 and 6 taken by the defendant’s engineer and photographs 5, 6 and 7 taken by the plaintiff’s engineer and that these pallets were stacked with stock nearly reaching up to the ceiling. The defendant’s Miss Farrell doubted that there would have been any pallets placed at the end of the racking or that they would have been stacked to such a height as suggested by the plaintiff..
34. The plaintiff made his own list of what product was required to resupply the instore retail shelving. As can be seen from the photographs most of the product is shrink-wrapped. A pack of two litre bottles of 7up contains nine bottles weighing approximately eighteen kilograms. When the plaintiff came to that item on his list he went looking for it and walked down the aisle towards the camera shown in photograph number 4 taken by his engineer. He checked along the shelving as he walked. When he got to end of the shelving he turned to his left and walked down the other side of the racking shown in the defendant’s photographs 1 and 2. On reaching the end of that aisle he found a pack of 7up bottles which had been placed on a pallet located at the end of the shelving seen in the defendant’s photograph 3. He took up the pack and, given the proximity of the pallet onto which he was stacking product in the adjoining aisle, rather than retracing his steps, he decided to walk down the narrow passageway created by the opposing pallets located at the end of the racking and the back wall.
35. Whilst walking down the narrow passageway, the plaintiff tripped over another pack of 7up bottles which had been left on the floor. This caused the plaintiff to trip and fall. As he did so he kept hold of the pack of 7up. He fell awkwardly and in evidence demonstrated a twisting motion. In the process himself he became wedged between the stock on the opposing pallets. He eventually managed to wriggle himself free, ultimately coming in contact with the floor.
36. Although the plaintiff had been working in the stockroom for about twenty minutes before the accident he denied, when it was put to him, that he had been responsible for putting the 7up pack over which he had tripped in the narrow passageway, moreover, his evidence was that he hadn’t been in the narrow passageway before the accident.
37. There was some controversy as to whether or not the plaintiff had actually struck the floor when he tripped. His recollection was that initially he had simply become wedged between the stock and that he had had to wriggle himself free. There was also some controversy as to the level of lighting, though that had not been pleaded. It was the defendant’s contention in any event that that had really nothing to do with the accident since the lighting was more than adequate for the plaintiff to see where he was going even if the pallets were stacked in the manner as suggested by the plaintiff. When he reported the accident to his supervisor, Miss Farrell, he had not mentioned anything about an inadequacy in the lighting, nor was the plaintiff’s account of tripping over a pack of 7up mentioned by him. Her recollection was that the applicant simply said that he had hurt his back whilst lifting , an account which is also consistent with the record made by the triage nurse of the Midland Regional Hospital when the plaintiff attended there on the 19th of March 2010.
38. The plaintiff insisted that he had sustained his injuries when he tripped whilst carrying a pack of 7up bottles and not otherwise. He acknowledged the account as recorded in the notes but insisted that the evidence of the circumstances of the accident which he gave was the truth. By way of explanation for the account which he had given to his supervisor and at the hospital, he said this was because he thought there would be a full investigation by his employers into the accident in accordance with its accident reporting procedures and that he thought he would get more immediate attention at the hospital which was his main concern because he was in so much pain. His concentration was on his injuries rather than on the accident circumstances.
39. Subsequently, the plaintiff wrote a letter to the defendant on the 22nd of March 2011 in which he specifically stated that he had tripped over stock that was left on the stockroom floor that he had fallen on his side and had become wedged in between the stock. This account also appears in the medical notes of the Adelaide and Meath Hospital dated the 13th of September 2011. The notes of his GP Dr. Lawlor, which were admitted, also referred to the plaintiff “tripping”.
40. The plaintiff’s recollection was that when he reported the accident on the evening of its occurrence to his supervisor she did not make any written record of what he had said nor was he subsequently asked to make a statement in accordance with the defendant’s accident reporting procedures.
41. With regard to health and safety, his evidence was that he had attended a training course on the 17th of August 2004 and that as part of that course he had completed a questionnaire in relation to manual handling. That questionnaire sought to assess the plaintiff’s understanding in relation to a number of health and safety issues including the assessment of the work environment. In response to that question the plaintiff answered “assess the area make sure that nothing is in the way to were (sic) you need to go”.
42. It was suggested to the plaintiff that had he gone back the way he had come that that would have been a safer route. He agreed with that suggestion. The plaintiff also agreed that he had not assessed the narrow passageway before walking into it. He had not seen the pack on the floor and he accepted that he had not made a complaint about that on the evening when informing his supervisor that he had hurt himself.
43. Engineering evidence was given on behalf of the plaintiff by Mr. Vincent O’Hara, consulting engineer. His report and photographs were introduced into evidence. That report recorded an account given by the plaintiff that he had fallen to the floor sustaining injuries in the process, however, Mr. O’Hara gave evidence that that account had been an error on his part and his recollection was that the plaintiff did not actually say that but rather he had made an assumption to that effect . He had carried out an inspection of the locus in quo and recorded measurements of the racking, of the distance between the end of the racking and the back wall as well as the dimensions of the pallets and the packet of bottles. It was his evidence that depending on the positioning of the pallets and whether these had been placed lengthways or widthways relative to one another the space through which the plaintiff walked was between 300 millimetres and 500 millimetres. In either case it was his opinion that the available space was simply too restrictive, especially if carrying a nine bottle pack of 7up. In his opinion a gap of 800 millimetres would have been necessary in order to allow for the safe passage by the plaintiff whilst carrying a load of such dimensions.
44. As to the location of stacked pallets along the back wall of the store and at the end of the racking, it was his opinion that whilst there could be no objection to the pallets being located and stacked along the back wall of the storeroom, however, pallets should not have been placed at the end of the racking in what was, in effect, an aisle for circulation by employees and equipment and that that should have been kept clear.
45. Whilst here would have been some restriction of lighting caused by the level of stock in the stock room as described by the plaintiff , Mr O’ Hara accepted if the plaintiff was able to read his stock list then the lighting would have been sufficient to enable the plaintiff see the pack of bottles on the floor, however, in the circumstances of this case the plaintiff was carrying a load through a narrow passageway and was doing so having just come around a corner, accordingly, there was an increased risk that the pack would not be noticed and that in the particular circumstances it was less likely that the plaintiff would have seen the bottles on the floor.
46. Mr. O’Hara had sight of the defendant’s relevant Safety Statement. Under the section dealing with safety in the product storage and racking section of the premises, the defendant had identified a health and safety risk in relation to the aisles and had directed that the aisles between the racking were to kept free of product at all times.
47. It was Mr. O’Hara’s evidence that the plaintiff’s lack of familiarity would have been an additional risk factor and that the plaintiff’s vision of the floor or an object on the floor in the restrictive passageway would itself be further restricted depending on the height at which the load in question was being carried by him. From the plaintiff’s perspective at the time of the accident the presence of an obstruction, in this instance a pack of bottles, in the passageway would have been unexpected.
48. With regard to the controversy over the number of pallets present at the time of the accident, Mr. O’Hara confirmed that at the joint engineering inspection the plaintiff had given an account of tripping and twisting and of being wedged between stock on a number of pallets. At no point did Mr O’Hara understand there to be only one pallet against the back wall and at the end of the racking at the time of the accident.
49. Whilst Mr. O’Hara accepted that the usual width of an ordinary doorway was 700 millimetres and that in the ordinary way that would ensure a safe passage for a pedestrian, in this case the plaintiff was carrying a large pack of bottles hence the need for an 800 millimetre passageway width. Either way, it was his opinion that had the defendant’s own Safety Statement been complied with the area would have been perfectly safe and that there would not have been a problem for the plaintiff.
50. Ann Marie Farrell’s evidence was that whilst there would have been nobody in charge of the storeroom at the time of the accident she doubted that it was as congested as described by the plaintiff and in this regard she said that deliveries would have been quiet in the month of February. According to the defendant’s records there were ten members of staff on duty on the Friday and as far as she was concerned that was a normal staff compliment. She confirmed that the accident was reported to her on the same evening by the plaintiff. The reason she was surprised by the plaintiff’s evidence that there would be pallets at the end of the racking was because the cold storeroom would have had to have been accessed and that that would not have been possible if the pallets were placed where the plaintiff says that they were. However, she accepted that she did not go into the stockroom that evening so she could not give any evidence of its actual state from her own knowledge.
51. In relation to the plaintiff’s report of the accident circumstances, it was her evidence that the plaintiff told her that he had hurt his back whilst lifting. Her recollection was that the plaintiff came to her at the checkout and told her that he had hurt himself. Her recollection was that the plaintiff seemed fine but that he did say that his back was sore. She ultimately sent him home. She didn’t remember a meeting on the following day but made a note the next morning instead of that evening because she was on her own and it was late.
52. With regard to completing an accident report form, she said that an official accident report form as such was not completed, however, she wrote out a statement. Other than that she confirmed that there had been no official investigation of the accident in accordance with the defendant’s accident reporting procedures. She did not check the details of the accident with the plaintiff before making her statement. Under the defendant’s accident reporting procedures the person who should have filled out an accident report did not do so but she did not know why such a report had not been completed. She agreed that under the defendant’s accident reporting procedures there ought to have been an investigation and a report made.
53. Engineering evidence was given on behalf of the defendant by Mr. Terry. It was his evidence that the yellow lines present at the time when he took his photographs were intended to be demarcation lines between stock and circulation areas.
54. In his opinion the probability, on the plaintiff’s evidence, was that the width of the narrow passageway was approximately 500 millimetres and that at that width it would have been possible for the plaintiff to have been jammed between the stock on the opposing pallets in the passageway as described. With regard to the question as to whether 500 millimetres was a sufficiently safe width for the plaintiff to pass whilst carrying a pack of 7up bottles, it was his view that the width of the passageway would have been dependant on the way in which the pallets had been located on the floor relative to one another. The width could have been more or less depending on orientation of the pallets, however, it was also his evidence that the proper access to the pallet which the plaintiff says he was stacking was along the aisles between the racking and not the area at the end of the racking because that was not a designated passageway for use by employees.
55. In Mr. Terry’s opinion the instructions and training given to the plaintiff were sufficient and appropriate. That much was accepted by the plaintiff as was the fact that he did not follow those instructions. If the plaintiff had accessed the area in accordance with his training he should, in Mr. Terry’s view, have seen the packet on the floor. The packet was large and plainly visible. On the stacking, placing and orientation of the pallets he didn’t think lighting was an issue and no complaint had been made about it either at the time or on the day of the inspection.
56. Under cross examination Mr. Terry accepted that the area between the yellow lines and the stock room wall now painted on the floor was designated for storage so that to the left of the lines the area was designated for the movement of employees and stock pallet trucks. If there were pallets of stock located as suggested by the plaintiff then that would have resulted in restriction of access and movement. Mr. Terry also accepted that the narrow passageway between the pallets would only have been visible when looking down the passageway especially if there were stacked pallets on both sides. He accepted that if pallets were placed with stock on them in the position where indicated by the plaintiff then that would have constituted an obstruction. A person turning a corner and going into a restrictive passageway would certainly need to keep a proper lookout and an object placed on the floor in the passageway could be problematical. Mr. Terry accepted that pedestrian aisles should be kept clear and that if there was packet of 7up on the floor in the passageway then that too constituted an obstruction. It was his view, however, that carrying a packet of 7up was unlikely to have obstructed the plaintiff’s vision otherwise than the view immediately around his feet.
Decision on liability and causation.
57. I have had an opportunity in the course of the trial to observe the demeanour of the plaintiff as he gave his evidence. His credibility was called into question on a number of fronts but also with particular regard to the circumstances and facts of the accident. The answers he gave to certain questions in the course of cross examination are, in my view, telling. He accepted that he may only have said when he reported the accident that he had injured his back when lifting and that a similar account had likely been given as noted in the emergency department record of the Midland Regional Hospital, Portlaoise, of the 19th of March 2010. He also accepted that he had received induction training on commencement of his employment and that on the occasion of his accident he had been non-complicit with that.
58. The initial injuries complained of by the plaintiff involved his back and chest. The chest x ray was reported as showing a hairline fracture of the left third rib. The plaintiff made complaints of and gave evidence in relation to his chest pain. Whilst there is a causation issue between the parties in relation to the plaintiff’s current injuries and sequelae, the fact that the plaintiff was medically assessed and objectively reported upon as having sustained a chest injury, which included a fracture of the left third rib is, in my view, significant with regard to a determination in relation to the circumstances of the accident as contended for and given in the evidence by and on behalf of the plaintiff.
59. Quite apart from the difference of opinion as to causation in relation to the plaintiff’s current medical presentation in terms of causation, both Professor Molloy, who gave evidence on behalf of the plaintiff, and Professor Phillips, who gave evidence on behalf of the defendant, accepted that the plaintiff was an entirely genuine individual. They had both examined the plaintiff and gave evidence that his reactions in the course of medical examination were neither medically inconsistent nor exaggerated. Professor Molloy gave evidence that the rib injury sustained by the plaintiff would have been particularly painful and would be consistent with a significant impact to the chest. Professor Phillips understood that the circumstances of the accident involved the plaintiff being wedged as part of a twisting motion. There was no suggestion by Professor Phillips or Professor Molloy that the plaintiff’s initial injuries were in any way inconsistent with the accident as described. In fact the contrary was the case.
60. It is not in dispute that no investigation was carried out by the defendant in accordance with its own accident reporting procedures. Insofar as there was some correspondence passing between the plaintiff and the defendant commencing with the plaintiff’s letter of 22nd March 2011, no issue appears to have been taken by the defendant with the plaintiff in relation to the accident circumstances themselves. No evidence was led by the defendant as to what investigation if any was undertaken other than the evidence given by Miss Farrell. She had not gone into the stock room on the evening and could give no direct evidence as to the layout, location, and stacking of pallets.
61. On the issue as to whether the plaintiff had simply hurt his back when lifting or had injured himself when he became wedged between the stock on opposing pallets, accepting ,as I do, the medical evidence in relation to the plaintiff’s initial injuries, I find as a fact that this evidence is consistent with an accident as described by the plaintiff rather than with an accident causing a simple back injury whilst lifting a pack of bottles since on that version the chest injuries which were medically noted and radiologically confirmed at the time are neither consistent nor medically explained.
62. Returning to the plaintiff’s demeanour as observed by me in the course of the trial and having regard to the foregoing findings, I am satisfied that the plaintiff gave truthful evidence in relation to the accident and I find as a fact that it occurred in the way , manner and circumstances described by the plaintiff .
63. It follows from his account and the evidence of the plaintiff’s engineer, which I accept, that the passageway through which he was walking was too narrow and was unsafe. There is no evidence that the pack of 7up bottles over which he tripped in the passageway was put there by him or that he had any responsibility for the state of affairs with which he was confronted. He was an employee going about his employer’s business. His employer owed him a duty of care both at Common Law and under Statute, particularly pursuant to the provisions of the Safety Health and Welfare at Work Act 2005, to provide him with a safe place and system of work.
64. The defendant’s Safety Statement Risk Assessment, which was operative at the time, assessed the risks in the area and contains a direction that the store room aisles should be kept clear. I am satisfied on the evidence that the stock room was congested in the way described by the plaintiff. It follows that on the evening of the accident the defendant had failed to comply with its own Health and Safety Statement. The placing and packing of any pallet at the end of the racking in close proximity to other stacked pallets lined against the back wall of the storeroom was an obstruction on what should otherwise have been a clear circulation area for use by the plaintiff and other employees of the defendant.
65. There was no supervisor or manager on duty in charge of the store room at the time when the plaintiff was assigned his duties. The plaintiff’s supervisor never entered the storeroom on the evening and could give no evidence as to its actual condition at the time she assigned the plaintiff. The manager for the area on the occasion had gone off duty before the plaintiff went into the storeroom. That person had a responsibility to see to it that the defendant’s Health and Safety Statement was complied with. It was reasonably foreseeable that a pack of 7up bottles left in a narrow passageway constituted a danger to an employee such as the plaintiff who might well be detailed, as the plaintiff was, to obtain product from the storeroom for stacking on the supermarket shelves.
66. The fact that the plaintiff owed both a common law and statutory duty of care to himself, in particular to comply with the training and instructions which he freely accepts that he received but failed to comply with, does not absolve the defendant from complying with the common law and statutory duty of care which was placed on it for the safety of its employees, including the plaintiff.
67. I am satisfied on the evidence and find that the defendant was in breach of both its common law and statutory duty of care to provide the plaintiff with a safe place and system of work and that its failure to do so was the principle cause of the accident for which it must be held responsible.
Decision on contributory negligence.
68. The essence of the defendant’s submissions in relation to negligence but in particular in relation to negligence on the part of the plaintiff, was that the accident could never have occurred had the plaintiff followed the training and instructions which had been given to him, which he had accepted that he had received but with which he had failed to comply. Moreover, it was no part of the plaintiff’s case that he ought to have been provided with a refresher course. He had not made the case that he had forgotten the instructions and training given to him at the time of his induction. On the contrary he knew what he ought to have done, namely to assess the work environment, but freely admitted that he had failed to do that, consequently, he was the author of his own misfortune.
69. On behalf of the plaintiff it was submitted that there was a clear breach of statutory duty on its part under the Act of 2005 with particular emphasis being laid on the fact that it had failed to comply with its own safety statement and risk assessment insofar as that applied to the locus in quo. Had it done so the likelihood was that there would have been no accident at all. At worse the plaintiff was guilty of inattention or inadvertence. He had in no way contributed to the state of affairs with which he was presented and in which he found himself.
70. The many decisions of the Superior Courts reaching back to Stewart v. Killeen Paper Mills Ltd (1959) IR 436 establish that in respect of a breach of statutory duty on the part of a workman an error of judgment, heedlessness or inadvertence does not amount to contributory negligence where the injury could not have occurred but for the breach of statutory duty on the part of the employer. However,a deliberate act on the part of an employee in the knowledge of the risk of injury attendant upon it will attract liability on the part of the employee. See McSweeney v. McCarthy unreported S.C. January 28th 2000 ( Murray J.) where on the facts of that case a 40% deduction was made in respect of the employees own negligence and breach of statutory duty.
71. In respect of common law negligence the position was that an act of inadvertence, even momentary inadvertence, was capable of attracting a finding of contributory negligence if it constituted an act which a reasonably careful workman would not do.
72. These and other authorities to like affect must be viewed with caution in light of the provisions of the Safety Health and Welfare at Work Act 2005 (the Act of 2005) and the subsequent decisions made concerning them.
Section 13 of the Act of 2005 provides, inter alia,
“(1) An employee shall, while at work—
(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work…”
This provision has potentially significant legal consequences for employees constituting as it does a statutory general duty of care which they owe in the course of their employment.
73. The legislative history leading up to the Act of 2005 is usefully reviewed in the decision of O’Neill J. in the case of Smith v. The Health Service Executive [2013] IEHC 360. Referring to the case authorities decided in respect of the statutory duty of care owed by an employee and culminating in the provisions of the Safety Health and Welfare at Work Act 2005 O’Neill J. observed at para. 58 of his judgment:-
“58. The above authorities reveal that the benign treatment of contributory negligence on the part of an employee in the face of a primary breach of statutory duty by the employer was to ensure that the policy underpinning the statutory provision would not be diluted by reliance upon the doctrine of contributory negligence. If, however, the duty of an employee to take reasonable care for their own safety is elevated to the status of a statutory duty, it would seem to me that the exculpation of inadvertence and inattention from the ambit of contributory negligence must be reconsidered given that both employer and employee are now bound by statutory duties to take reasonable care..”
Commenting on the effect S.13 of the Act of 2005 and having referred to the decisions of the Supreme Court in Coffee v. Kavanagh [2012] IESC 19 and Quinn v. Bradbury and Bradbury [2012] IEHC 106 O’Neill J. stated at para. 61 of his judgment:-
“In short, therefore, it must be said that in light of the statutory duty as imposed on employees, inattention, inadvertence, heedlessness or carelessness on the part of an employee can no longer be regarded as outside the ambit of contributory negligence, in circumstances where it is established that there was a primary breach of statutory duty on the part of the employer, assuming causative links between the breach of statutory duty by the employer, in the first instance, and contributory negligence of the employee, to the injuries actually suffered.
62. It is fair to say that the duty imposed on employers under s. 8(1) of the Act is undoubtedly of a more onerous order being expressed as being “shall ensure so far as is reasonable practicable the safety, health and welfare at work of his or her employees”, whereas the statutory duty imposed on employees under s. 13(1) of the Act is to “comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety and health and welfare . . .”
74. Adopting this statement of the law as it now stands, the plaintiff cannot, on my view of the evidence, have been but aware of the congestion in the stockroom and in particular the narrowness of the passageway into which he decided to proceed especially carrying as he was a large pack of 7up bottles weighing some eighteen kilos. He fairly accepts that he did not stop to assess the situation with which he was confronted and never saw the pack of bottles which were lying in the narrow passageway and over which he tripped. It is clear from the evidence that in order to get a proper view of the passageway and anything that might have been on the floor that the plaintiff would only have been able to see that whilst directly looking along the passageway and that that was so because of the height of the stock on the opposing pallets.
75. It was suggested that having picked up his pack of 7up bottles off the first of the pallets located at the end of the rack that he had simply gone around a corner and had only taken one or two feet when he came in contact with the pack on the floor, however, on his evidence there were 2 or 3 stacked pallets located one beside the other at the end of the shelving and that having tripped he had become wedged amongst the stock between the first and the second pallets. On that evidence it seems reasonable to infer that the packet of bottles on the floor was somewhat further down the passageway than suggested.
76. Whilst the carrying of such a large packet would have obscured the plaintiff’s vision to some extent I am satisfied ,on the evidence, that any restriction would have been confined to an area just in front of his feet, there being no evidence that the plaintiff was carrying the pack of bottles otherwise than normally. On these findings had the plaintiff been keeping a proper lookout and especially if, immediately before he started to walk into the passageway, he had assessed, in the words of his training, “the environment” which confronted him, he ought to have been able to see the pack of bottles on the floor. In my view his failure to do so constitutes both contributory negligence and a breach of the statutory duty of care which he owed to himself.
Decision on the apportionment of fault.
77. As to the apportionment of fault between the parties this is not to be assessed on the basis of the causative contribution of each to the accident but rather on the respective blameworthiness of both. Whilst the court has found that the principal cause of the accident was due to the negligence and breach of statutory duty on the part of the defendant, having due regard to the principals upon which fault is to be apportioned the court considers that, in the circumstances of this case, the appropriate apportionment of liability between the parties is 70% against the defendant and 30% against the plaintiff.
The injuries
78. As a result of the accident the plaintiff described how he had become wedged between the stock on the opposing pallets in the stock room and had had to wriggle himself free. He was aware of some soreness in his back and chest after the accident and reported to his supervisor that had hurt himself. On the next day he noticed that his symptoms were getting worse and went to the local hospital where his back was x-rayed. At this time his main symptomology related to his back. The plaintiff also attended his GP Dr. Robert Lawlor. It appears from his notes that the plaintiff was complaining of pain in the thoracic spine and in the intra scapular region mainly to the left. He was prescribed some anti-inflammatory medication. The plaintiff became aware of increasing chest pain. X-rays showed a fracture involving the third rib on the left hand side. The plaintiff was referred to Mr. David Cogney orthopaedic surgeon in Tullamore Hospital. He continued to be symptomatic both in respect of his chest and his back. Due to continuing symptomology the plaintiff was prescribed Difene and Lyrica by his G.P. He also underwent a course of physiotherapy.
79. The plaintiff went on to develop other symptomology including pain and restriction of neck movement and what was described as “shooting pain” throughout his body associated with some clumsiness. His G.P. referred him to the neurology department in Tallaght Hospital as his symptoms had now become quite widespread and which suggested a neurological involvement.
80. The plaintiff subsequently came under the care of consultant neurologists Dr. Sinead Murphy and Dr. Donal Costigan. An M.R.I. scan was arranged for him. In his past medical history it was also noted that the plaintiff had a post viral myositis in the year 2006/2007.
81. As a result of investigations which were carried out under the care of Dr. Murphy in 2012, the plaintiff was diagnosed as a type 1 diabetic and consistent with that condition the plaintiff had developed a peripheral neuropathy.
82. In the course of his evidence the plaintiff described how his neck became very stiff and he felt he was unable to turn his head to any significant degree. He described altered sensations in his hands and fingertips. However, once he commenced treatment for diabetes his diabetic symptoms improved to some extent. He continued to experience symptoms of pain and stiffness in his neck and back, however, these naturally improved to a point where, in the Spring of 2013, he felt able to return to work for the defendant. Initially he was assigned light duties. He remained in employment with the defendant for about five months until December of that year. He was able to manage his work duties up until December when he was assigned duties which required him to work in the cold store of the defendant’s premises. He felt physically unable to work in a cold environment and would not accept duties that required him to do so. The defendant was unable to accommodate him, accordingly he went on sick leave.
83. With regard to his architectural technician course which he was taking at honours level, it appears that he went back to that for a number of weeks shortly after the accident but was unable to continue because he was unable to bend over a manual drawing table due to his back symptomology and as a result of which he eventually dropped out of the course. Subsequently, in or about September 2014, he commenced a FETAC level 5 IT course which he was able to manage. Between 2011 and 2013 the plaintiff occupied himself with research on computers and since January 2015 has obtained some part time IT work in a small company. His present intention is to undertake a degree in computing.
84. The plaintiff gave evidence that he has continued to suffer from pain in his shoulders, upper back, and lower back as far as he is concerned his physical symptomology is such as would prevent him from returning to any form of heavy manual work such as that undertaken by him when employed by the defendant. His case was that he was now only fit for light work such as IT and computing.
85. Although the plaintiff gave evidence that he had no knowledge of his diabetic condition prior to the accident it appears from medical notes and records, which were admitted in evidence, that he had attended Dr. Lawlor in February 2008 with concerns in this regard. Unfortunately that was not followed up at the time and it was not until 2012 that he was actually diagnosed with type 1 diabetes.
86. It also appears that Dr. Murphy had concluded that the plaintiff was suffering from fibromyalgia. Under cross examination the plaintiff denied that he had suffered from this condition prior to the accident but medical notes from 2006 show that the plaintiff was investigated for that condition and myositis at that time. Having been reminded of this, the plaintiff recalled that he was out of work for a few weeks but gave evidence that symptoms in this regard had resolved without recurrence up until the time of the accident. I accept the plaintiff’s explanation that he had actually forgotten about this particular episode and that in the subsequent years he felt fit and well and was a regular attendee at his local gym.
87. Medical evidence on behalf of the plaintiff was given by Professor Molloy whose report, prepared for the assistance of the court, was admitted. Medical evidence on behalf of the defence was given by Professor Phillips. He too prepared a report for the assistance of the court which was also admitted.
88. Professor Molloy carried out one physical examination on the 7th of April 2015. He had access to certain notes and records including a report from Dr. Murphy. He noted that an MRI scan of the plaintiff’s cervical and lumbar spine had showed some bulging at the C3/4 level but without cord involvement. An EMG was carried out subsequently by Dr. Costigan on the 5th of March 2012 which showed some neurological abnormalities consistent with the neuropathy. The plaintiff complained to Professor Molloy of cramps in his lower back and legs and sometimes in the shoulder blades. These symptoms could be quite significant at times and could lead to a feeling of the plaintiff’s legs giving way.
89. A physical examination was carried out by Professor Molloy which showed that the plaintiff’s cervical spine movements were reduced by 30 to 40% in all directions with tenderness in the neck and shoulder muscles but no neurological deficit in the upper limbs.
90. With regard to the plaintiff’s back ,Professor Molloy noted that movements were good on forward and lateral flexion and that the plaintiff’s straight leg raising was 80 degrees bilaterally, moreover, the plaintiff could heal and toe walk without difficulty and reflexes were grade two, with down going planters. There was no sensory or motor loss.
91. Professor Molloy’ opinion was that the plaintiff was suffering from chronic pain syndrome with a neuropathy most likely diabetic in nature which was contributing to the plaintiff’s symptoms.
92. Vocationally Professor Molloy thought that the plaintiff would be well able to undertake his chosen career path in IT and computing. He was satisfied that the probable cause of the plaintiff’s neuropathy was his diabetic condition and was not related to the trauma arising from the accident. In his opinion the plaintiff suffered a significant soft tissue injury which was then complicated by the effects of his untreated diabetes. The diagnosis of diabetes was a shock for the plaintiff and there were also domestic problems which resulted in his partner leaving him and which required the plaintiff to look after their two year old daughter.
93. With regard to the myositis which was diagnosed in 2006, Professor Molloy’s evidence was that that condition caused muscle weakness; however, it appeared that in the plaintiff’s case it was relatively mild and settled very quickly. Professor Molloy examined the plaintiff in connection with fibromyalgia but formed the opinion that the plaintiff did not satisfy the criteria for a diagnosis of that condition. The plaintiff’s injuries referable to the accident were of a soft tissue nature. There was no underlying pathology. He didn’t think that the diabetes would have had any significant impact on the course of the plaintiff’s physical symptomology such as slowing expected course of recovery. It did not aggravate nor was it otherwise connected to the symptoms referable to the soft tissue injury.
94. The soft tissue injuries, whilst diffuse, were typical of trauma rather than diabetes though the symptoms of peripheral neuropathy complained of by the plaintiff were solely attributed to the diabetes and not to the trauma.
95. Professor Phillips examined the plaintiff on the 11th of July 2012. At that time the plaintiff was complaining of pains in his arms, his back and his legs and that he was unable to hold a two litre bottle of milk in his hand. He described pains “all over”. He noted that the plaintiff had been advised that he had had arthritis involving both of his feet.Clinical examination of the plaintiff’s neck was satisfactory; there was mild global weakness of the upper and lower limbs of undetermined aetiology.
96. He thought that most of the plaintiff’s current symptoms were referable to neurological conditions not connected to the trauma. His expectation,insofar as the physical injuries were concerned, was that these ought to have resolved over a relatively short period of time. He didn’t accept that the plaintiff has organic symptoms at this point caused by the original injury. He thought that the explanation for the persistence of physical symptomology referable to the trauma was a failure on the part of the plaintiff to rehabilitate. He didn’t think that that was referable to the plaintiff’s diabetes. He agreed that the plaintiff was not suffering from fibromylgia. He did not agree, however, that tender points noted by Professor Molloy on physical examinations signified an ongoing pathological process involving a fall occurring some five years previously. The plaintiff’s chronic pain syndrome was subjective in nature. There was no underlying organic or pathological explanation for its continuation at such a remove from the accident. The plaintiff’s presentation was either an entirely subjective neurotic condition or it was the result of a pathological process such as diabetes. Either way it was not caused by the accident.
97. Professor Molloy was recalled to give evidence arising out of the evidence of Professor Phillips which had not been directly put to him in the course of cross examination. He expressed the opinion that the symptom complex from which the plaintiff is now complaining ,insofar as is referable to the accident, was acceptable in what he described as soft tissue criteria. He agreed with Professor Phillips that in the ordinary way one would have expected the plaintiff to recover in a relatively short period of time but in the plaintiff’s case he did not do so. He felt that there was also a psychological component present in the plaintiff’s presentation.. He agreed that there was no underlying pathology referable to the accident, however, a small percentage of a patients who sustain soft tissue injuries which one might expect to recover relatively quick go on to develop chronic symptomology and that that was medically accepted.
Decision on the injuries .
98. As a result of the accident the plaintiff sustained soft tissue injuries to his chest and a rib fracture; he also suffered soft tissue injuries effecting his shoulders and thoracic spine. The plaintiff was extensively investigated in respect of symptoms including altered sensation in his extremities, muscle weakness, and deterioration in motor power. There is no doubt but that the medical notes and records establish quite clearly that in a period of some eighteen months subsequent to the accident the plaintiff continued to complain of these symptoms as well as of symptoms of back pain including pain radiating into his neck with restricted ranges of motion of his neck. He was prescribed medication and also underwent courses of physiotherapy which were of little benefit to him. In 2012 he was diagnosed with type 1 diabetes for which he was treated and which is now under control. Apart from symptoms referable to his neck, back, shoulders and chest I am satisfied that the neurological symptoms of which the plaintiff complained were, as a matter of probability, referable to his diabetes and are not causally related to the accident. Moreover, these symptoms would not delay or otherwise interfere with the ordinary process of rehabilitation. There is no doubt, however, that the process of rehabilitation in the plaintiff’s case was slow, however, it is also clear that to the extent that the plaintiff continued to be symptomatic in relation to his back and neck, that had reached a level where the plaintiff himself felt able to return to work for the defendant in May 2013 and, indeed, the plaintiff was able for the work duties assigned to him from the time of his return to work in May until December 2013 when his own assessment was that he would be unable to work in a cold store .
99. Although the plaintiff had some restriction of neck movement when examined by Professor Molloy his neck movement was normal when examined by Professor Phillips. His bilateral leg raising test was normal, as was the MRI scan of the plaintiff’s neck and back. I accept the evidence of Professor Molloy that a psychological component is generally involved with a patient suffering from chronic pain syndrome. The plaintiff may have believed that to attempt to work in a cold store would have had an adverse affect on him, however, it appears that on treatment for his diabetes and working for the defendant as a general operative undertaking the same tasks as he had prior to the accident, that the plaintiff had reached a level of recovery which enabled him to undertake such duties. He did not, however, seek out alternative employment of a similar type after he ceased work in December but has taken an altogether different career path which, on the evidence, is also desirable having regard to the plaintiff’s diabetic condition.
100. The plaintiff is more optimistic about the future now and has returned to exercise, walking as much as he can. No doubt his neuropathy still affects him to some extent. His symptoms, insofar as they are referable to the physical injuries, whilst not having any objectively assessable organic or pathological cause referable to the accident are now, it seems to me, at a relatively low level. I accept the evidence of Professor Molloy that in a small number of individuals who have sustained trauma of the type experienced by the plaintiff that some symptomology is seen and accepted in medical practice. The consequence of his untreated type 1 diabetes was a peripheral neuropathy but for which the defendant has no responsibility in law.
Given the period of time which has elapsed since the accident and that his condition insofar as it relates to the accident is medically said to be chronic, it seems reasonable to conclude that the plaintiff is likely to experience some ongoing albeit low level of physical symptoms for sometime to come.
100. Having due regard to foregoing and the complexity arising as a result of symptomology referable to different causes, principally though not exclusively the plaintiff’s diabetes, and applying the well settled principals of law as to the assessment of compensation for personal injuries caused by reason of negligence and /or breach of statutory duty, it is the view of the court that a fair and reasonable sum for general damages on full liability is €65,000.
Decision on Special Damages.
101. The plaintiff has made a claim for loss of earnings to date of trial in the amount of €48,937.77 less deductible social welfare benefits giving a net figure of €23,967.64. Other special damages have been agreed between the parties in the sum of €3,803.
102. Having regard to the findings of the court in relation to the plaintiff’s physical disabilities referable to the injuries sustained as a result of the accident and which had resolved to a point which enabled the plaintiff to return to work for the defendant in May 2013 and to continue thereafter until December 2013, when he himself decided that he would not work in a cold store, I am satisfied ,on the balance of probabilities, that the plaintiff possessed an ability to seek , carry out and engage in similar work duties of the type undertaken by him between May and December, had he chosen so to do . Accordingly, the court finds that his claim for loss of earnings should be limited to a period from the date when, after the accident he ceased to receive income from his employment with the defendant until the date of his return to work in May 2013. I will discuss with counsel the apportionment of the sum of €23,967.64 appropriate to that period; added to which will be the agreed sum in respect of other special damages.
103. There will then be judgment for the net amount of the general and special damages having regard to the apportionment of 70/30 in the plaintiff’s favour and the court will so order.
Warcaba v Industrial Temps (Ireland) Ltd
[2011] IEHC 489,Judgment of Mr Justice Charleton delivered on the 22nd of November 2011
1. The plaintiff Damian Warcaba was born in Poland on 9 May 1986. After finishing secondary school he studied information technology in his home town for a year, but he did not finish the course. On quitting college he came to Ireland. He worked first for DHL Couriers, as a general operative, and then did other part-time work. In 2007 he joined Ryanair, which is agreed to be the responsible defendant for what follows, as a ground handling agent. This work involved handling luggage inside the terminal. He then did training for aircraft luggage machines and passenger embarking and disembarking and began to work on Dublin Airport tarmac outside.
2. When an aircraft landed, Ryanair workers were expected to turn the plane around in 25 minutes. The last five minutes of this involved the aircraft waiting on the tarmac with its doors closed before being pushed back onto the taxiway. While this timing is quick, it is not complained of in the context of the accident which the plaintiff suffered on 18 July 2008. When an aircraft landed it taxied to its place on the stand. It was secured by locking or securing the wheels of the aircraft. The luggage doors were accessed and an automatic baggage handler was put in place. Aircraft stairs were brought by a mechanical float close to the disembarking doors for passengers. These were left some three metres back from the fuselage, so that a collision would not damage the aircraft skin. The stairs were unhitched and then manoeuvred manually so as to rest gently against the aircraft. During training, the plaintiff was told that at least two people had to effect this manoeuvre. During that training, however, there were comments made by other staff members, not as I understand it by the trainers, indicating that while this was the theory, the reality on the ground would be different. The tension between theory and practice is at the core of this case.
3. On the day of the accident two planes were being dealt with on adjacent stands. The plaintiff was on the inbound plane while an outbound plane was being made ready to leave. The plaintiff stopped the inbound aircraft; pinned the front wheel; put stop chocks under the wing wheels; connected the steps onto the float; stopped at the appropriate distance from the aircraft; and then moved to manoeuvre the steps manually into the correct position. He found he was alone. Other members of the team had gone to the outgoing aircraft and were taken up with it. He therefore did what he testified that he had done on many previous occasions; that which was expected of him, which was to pull the stairs on his own for two or three metres so as to connect it with the passenger door of the plane.
4. The engineers for the plaintiff and the defendant have both agreed that for one person to pull the stairs was a dangerous manoeuvre. The initial pull strength required was 47 kg, while to keep the stairs in motion required a pulling strength of 35 kg. With two people coordinating, as the training specified, these loads are considerably reduced well into safe levels. While the plaintiff was pulling the stairs, he felt something slide in his back. When the stairs were in place he returned to the float and drove it around the aircraft but while trying to reverse it into position for another task he turned his back approximately 180° and realised that he had suffered damage. On being unable to lift luggage, a supervisor was called. The plaintiff was brought to the canteen and from there he was brought in an ambulance to Beaumont Hospital. He lost two months from work but he was paid during that time.
5. Ryanair claims that what the plaintiff did was in breach of its standard operating procedures. The defendant claims that help was on hand, should the plaintiff have requested it, as he ought to have. The defendant has argued that the plaintiff voluntarily, and in breach of instructions, engaged in a dangerous manoeuvre and that in consequence he alone is responsible for the accident. Mr Con Dooney, Ryanair’s regional manager for Irish airports, testified that all trainees receive five days of instruction covering all aspects of the job. As to the use of aircraft stairs, he said that the Ryanair policy was three men or a minimum of two men on the manoeuvre. This was not just an empty aspiration, he claimed, because every day he was in Dublin he would be on the tarmac at 07:00 hours and then three to four times a day thereafter. To have one person manoeuvring stairs would be exceptional, he asserted, and if it occurred the supervisor would stop it and remonstrate with the employee. Thomas Leonard, the ramp training coordinator of Ryanair told the court that he has conducted training since 2006. That training emphasises a minimum of two staff to manoeuvre a stairs and a requirement for employees to ask for assistance when required. He told the court that he was on the ramp on occasion and if he ever saw an employee pulling a stairs on their own he would reprimand that person. A document was produced showing that the plaintiff had been trained on various occasions in these manoeuvres. In addition, a training manual was produced which indicated “steps should be manoeuvred in by hand (it takes at least two people or more depending on weather conditions) to pull steps”.
6. I am satisfied that what Mr Dooney and Mr Leonard told me about is the aspiration of Ryanair. As against that, I have the evidence of the plaintiff. His experience as an employee is likely, if truthful, to be far more representative of what happens on the ground than that of management staff. On being cross-examined he gave a clear account of being expected to manoeuvre the steps on his own on previous occasions. He was never pulled up or remonstrated with by supervision staff, he said. This was what was expected of him in order to effect a swift turnaround of aircraft. He was not taking a short cut; rather he was following the effective procedure that existed in reality. I observed the plaintiff closely in the witness box. While his English was halting and required translation from Polish on occasion, it was clear to me that he was making no attempt to evade questions or to play for time by pretending not to understand. He gave a clear account, with impressive detail, of the circumstances with which he was met in consequence of one crew being stretched into dealing with two adjacent aircraft. I am satisfied that nothing in the Ryanair rostering records indicates that there was an abundance of, or even sufficient, workers to effect this task. The plaintiff made no attempt to exaggerate his injuries or to float a situation of peril through deceit in order to strengthen his case. Watching the plaintiff, it was clear that he was actually recollecting that of which he was speaking. He referred to the equipment used on the ground by Ryanair as being old and sometimes being in need of repair. He was challenged on the basis that he had made a number of inconsistent statements to doctors as to how the accident had occurred. I am completely unimpressed, notwithstanding the skilled advocacy involved. The accident report form describes the accident which occurred in the manner which he alleged. Doctors tend to concentrate on injuries and use a history merely as a background for the exploration of a medical condition. The plaintiff also testified that while working for a different firm, Servisair, on a later date, he was not harried with several tasks nor was the ground handling crew split between different craft. Planes were turned around with dispatch, but not in a rush due to the arrival and dispatch of a number together which one crew was expected to deal with. The equipment was also better. In addition, there is the issue of discipline. Knowing, as Ryanair management must have known through the supervisor of his team, that the plaintiff had suffered an accident pulling a stairway on his own, it is striking that he was neither admonished face to face, nor written to, nor disciplined in any way. Furthermore, although I have received a lot of evidence about the deprecation of this practice, there has been nothing to indicate employees being put on report or otherwise dealt with in circumstances where they took risks of this kind in order to speed up the turnaround of an aircraft. Any such reference was impossibly vague. I prefer the plaintiff’s evidence. It is more probable and it is also inherently credible.
7. In these proceedings two other incidents are complained of as wrongfully exacerbating the plaintiff’s back condition. On 12 November 2008 the plaintiff had returned to his employment and had been working for a number of weeks. He went back, he said, because he enjoyed his work and although his back had been painful he felt it had progressed to a level where he might pursue his duties in full. A flight arrived from Poland carrying 150 to 190 bags. These were said to be heavy bags, many of them over the allowed limit. He unloaded some 70 bags. These bags went down the automatic conveyor belt but then had to be transferred manually over to a luggage trolley. The plaintiff’s back felt tired so he asked another man to help. The supervisor advised him to get painkillers and sent him home. The third incident occurred a few days later on 14 November 2008. The plaintiff was on an 11 month contract, as opposed to being a permanent employee, and was anxious to obtain a second contract of similar duration. In consequence, he was attempting to impress his employer with his diligence. He had therefore returned to work. Together with two other employees he was engaged in manoeuvring a manual luggage conveyor belt, referred to in evidence as a “Wampo”. In the course of that manoeuvre something happened with the wheels causing them to lock and the plaintiff, who was pulling the device, suffered a sudden recurrence of back pain. He thought it was just a short pain so he went to sit down. The plaintiff’s supervisor was contacted and in due course he was conveyed to Beaumont Hospital.
Liability
8. The general duty of an employer towards his employees is set out in section 8 of the Safety, Health and Welfare at Work Act 2005. This provides:-
(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk;
(c) as regards the place of work concerned, ensuring, so far as is reasonably practicable—
(i) the design, provision and maintenance of it in a condition that is safe and without risk to health,
(ii) the design, provision and maintenance of safe means of access to and egress from it, and
(iii) the design, provision and maintenance of plant and machinery or any other articles that are safe and without risk to health;
(d) ensuring, so far as it is reasonably practicable, the safety and the prevention of risk to health at work of his or her employees relating to the use of any article or substance or the exposure to noise, vibration or ionising or other radiations or any other physical agent;
(e) providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;
(f) providing and maintaining facilities and arrangements for the welfare of his or her employees at work;
(g) providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;
(h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3;
(i) having regard to the general principles of prevention in Schedule 3, where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
(j) preparing and revising, as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger;
(k) reporting accidents and dangerous occurrences, as may be prescribed, to the Authority or to a person prescribed under section 33 , as appropriate, and
(l) obtaining, where necessary, the services of a competent person (whether under a contract of employment or otherwise) for the purpose of ensuring, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(3) Any duty imposed on an employer under the relevant statutory provisions in respect of any of his or her employees shall also apply in respect of the use by him or her of the services of a fixed-term employee or a temporary employee.
(4) For the duration of the assignment of any fixed-term employee or temporary employee working in his or her undertaking, it shall be the duty of every employer to ensure that working conditions are such as will protect the safety, health and welfare at work of such an employee.
(5) Every employer shall ensure that any measures taken by him or her relating to safety, health and welfare at work do not involve financial cost to his or her employees.
9. This section expresses in a useful way what previously would have been the common law duty of care of an employer towards workers. The section requires little analysis. The duty of an employer is to take such measures as are reasonable and practicable in the circumstances of the work performed to ensure that no employee is injured while at the workplace. The more hazardous the work involved, the more stringent is the duty on the employer to ensure that an accident does not occur. Even apparently simple and straightforward work, however, may carry the risk of an accident occurring. This must be guarded against by reasonable measures which are practicable in the circumstances. The duty of care can be fulfilled by guarding against hazards; by issuing a warning (in the rare circumstances where a warning is sufficient); by the provision of proper plant and equipment; by training; by insisting on the implementation of safety measures with appropriate discipline; and by enforcing a sense of awareness as to what may occur should the procedures and precautions for avoiding accidents not be followed. Ryanair clearly set a standard in training, however it is to be regretted that that standard was not adhered to in practice. Had that standard been enforced, which I am satisfied it was not, sufficient care would have been taken. The defendant is therefore liable for the accident which occurred on 18 July 2008. As regards the second incident of baggage handling of 12 November 2008, the defendant is not liable. The plaintiff had himself certified as fit and returned to enthusiastic work on the basis of representing himself to be fully fit for the duty of arduous baggage handling. The bags in question, while heavy, were within what the plaintiff’s engineer testified to as being an acceptable lifting weight for an able-bodied male at the centre point of his body of 25 kg. As regards the third incident on 14 November 2008, I accept the plaintiff’s evidence that the luggage handling machine locked while it was being manoeuvred. There was therefore a deficit in proper plant and equipment. I am thus dealing with the main accident and one exacerbation of its effects.
Quantum
10. After the third incident, the plaintiff was not re-employed by Ryanair. He spent approximately two and a half months on illness benefit and this brought him up to early February 2009. He then was required by the Department of Social and Family Affairs to undergo an official examination. This certified him as fit for a non-heavy work. In September 2009 he took a similar job to that which he had held with Ryanair with Servisair. He was able to do this job for some months. From January 2010 the plaintiff decided to go back to what he had been partially trained to do in information technology. Together with another person he set up his own business. This work is sedentary but requires some driving and moving about.
11. After the accident on 18 July 2008, the plaintiff was in severe pain for a number of weeks. He took medication and looked after himself. At some stage he went on holiday to Poland where some of his relations were working in a spa resort. There he received some treatments, including laser treatment and water treatment, having earlier undergone physiotherapy in Ireland. He would have done more but for the fact that he had very little money. His explanation in that regard is completely genuine. Returning to work after two months, he coordinated with his fellow employees in Ryanair in an attempt to work himself back to fitness. In order to return he had himself medically certified by a doctor as fit. In that context it was not unreasonable for Ryanair to require him to handle baggage in the usual way. No liability arises, therefore, in respect of the second incident. I infer that the occurrence of the third incident may have convinced his employer that they would be better off not offering him a new contract. It is clear that over the course of 18 months after the accident the plaintiff was suffering from a significant ongoing back injury. The plaintiff had not been an enthusiastic sportsman prior to July 2008. He did even less in the way of sport after the accident. He has now returned to doing some sport on a very occasional basis. Pain in his back continues. Observing the plaintiff in court, it is clear that he takes care of his back and it is also clear that his truthful character has ensured that he has offered no exaggeration to the court. As of the date of the trial, November 2011, he has difficulties hoovering, moving house and carrying goods. Driving for a long period of time exacerbates his back problem. Riding a bicycle in a low position brings on back pain. During the winter his problem is more severe than during the summer. In all seasons, his condition is activated if he is seated in the one position, such as when at his desk or driving.
12. The plaintiff was examined by three doctors. I have read the medical reports. The court would have liked the benefit of oral evidence on the problems which arose in this case, however, only Doctor Thackore was available during the trial. Counsel for the defendant, however, agrees that there is sufficient evidence for the Court to make a proper decision as to quantum.
13. On scanning, the plaintiff was found to have moderate changes at the L4 S1 junction in his back. These had occurred prior to the accident. I am satisfied that he had no prior pain problems. An incident of pain some months previously lasting 24 hours, noted in one of the medical reports, does not constitute a prior back problem. No reasonable person would describe a transient condition over a day as a medical condition. It is probable that had the accident of 18 July 2008 not happened at some stage in the future the plaintiff would have begun to experience difficulties with his back because of the pre-existing issue. Doing the best I can with the evidence before me, the probability is established that years of pain and difficulty have been added to the plaintiff’s life when otherwise these would have been absent. Doctor Thackore describes the pre-accident changes to the plaintiff’s back in a reasonable way. He was of the view that there was a good prognosis for the plaintiff’s back into the future if the plaintiff looked after himself. As of 17 July last, the plaintiff had recovered to some 75% of his prior condition. Further improvements can be expected. The kind of changes seen on scanning can start in the teenage years. A person of the plaintiff’s age with a normal healthy back can go through life without incident but if there is an aggravation, such as a car accident, I accept that in ordinary course a period of difficulty of 18 months to two years can be expected before the back will settle down. Something similar can be expected for the plaintiff, but that is not the full picture. The base level is not going to be the same as it was before. Instead, according to Doctor Thackore whose evidence impressed me, the base level will be back to a new and worse level. As he put it, a back previously experienced as a normal back becomes further subnormal. This is not therefore a case of a healthy back which experiences pain as a result of an accident and which then returns to its former asymptotic level. None of the medical reports convince me that scenario is probable for this plaintiff. Instead, the plaintiff has had difficulty over two years and his back is now settled to the problematic level at which he can expect it to be for the rest of his life.
Turning to the Personal Injuries Assessment Board Book of Quantum, to which I am obliged to have regard, I note that a figure of €16,300 can be allowed where a back injury has substantially recovered within 12 months. That is not this case. Where recovery occurs within 24 months the appropriate figure is between €11,700 and €19,600. That is relevant but the plaintiff’s problems will continue. I would assess the period of two years since the accident as requiring damages of €15,000. A significant ongoing back problem as a result of an accident carries a guideline figure of €18,300-€69,700. I assess this injury as being towards the lower end of that scale. The correct figure for pain and suffering into the future is €25,000. The reality is that the plaintiff will have years of discomfort and be required to care for his back into the future. Absent the accident and the aggravation, allowing for normal stresses to his back that at some stage in the future would have made his back symptomatic, he has probably been made to suffer for several years.
14. On special damages, I notice a sum of €7,281 is claimed as a net sum. The plaintiff received some social welfare benefits. I would welcome discussion with counsel as to the appropriate figure. I am satisfied, however, that the plaintiff was unable to do heavy work as and from the accident in July 2008. A reasonable period of time for him to have realised this and to have sought alternative employment must be provided for. He has now returned to information technology and since January 2010 has been running a small business with a friend. That is a fair response to his duty to mitigate the damage he has suffered.
Order
15. On hearing submissions from counsel, I will make a decree in an appropriate amount reflecting the plaintiff’s entitlement damages for pain and suffering in the sum of €40,000, together with appropriate provision for special damages and costs.
Connaughton v Minister for Justice, Equality and Law Reform
[2012] IEHC 203JUDGMENT of Ms. Justice Irvine delivered on the 30th day of March, 2012
1. The plaintiff, at the time material to these proceedings, was a prison officer at Mountjoy Women’s Prison in Dublin. He was born in 1972, is married and resides at Lucan, Co. Dublin.
2. The plaintiffs claim arises from a slip and fall which he had on the floor of the prison premises on 15th October, 1996. He maintains that the injuries he sustained on that date were occasioned to him as a result of the negligence and breach of contract on the part of his employer, the first named defendant. In particular, he asserts that the system whereby prisoners were permitted to carry food and accompanying beverage, in this case a pot of tea, back to their cells was unsafe having regard to the physical features of the building.
The Relevant Physical Features of the Locus in Quo
3. Mr. Tennyson, Consulting Engineer, who gave evidence on behalf of the plaintiff, produced a number of photographs which show the relevant features of the prison. The prison has two floors. The ground floor is a rectangular area and is covered with a surface of a thermoplastic nature which provides satisfactory slip resistance when dry but is dangerous when wet. The ground floor area is called “D1”. Looking at the first of Mr. Tennyson’s photographs, seven cells can be seen on the right hand side of the D1 area. To the left hand side are a number of other rooms, one of which is a recreation room which is used if the prison is overcrowded but is otherwise locked at meal times. Furthest away from the camera is the main entrance in front of which there is a staircase to the upper level. There is a hatch in the wall on the right hand side at the far end of D1 near the metal staircase. It is from this hatch that meals on trays are handed to prisoners who then take them back to their cells to be consumed.
4. The upper level is known as D2 and this houses some 35 cells. There are eighteen cells on one side and seventeen on the other. Access to these is by a walkway or balcony which goes around the internal perimeter. This is 2ft 8 inches wide and has a metal railing at three different levels. The central upper floor area is a metal mesh like grill. This is a protective measure to prevent inmates throwing objects onto the floor below. This metal grill facilitates prison staff observing and hearing activities carried on at both levels of this unit at any one time and is an essential security feature which also provides a significant degree of protection to those walking below it.
The Facts
5. The plaintiff was on duty on the floor of D1 at teatime on 15th October, 1996. Teatime starts about 4.15pm. Prisoners had come from various parts of the prison to queue up for their tea. The plaintiff states that prisoners normally form a line to the right hand side of photograph No. 1. They are served from a hatch which is to the right of the stairway down near the entrance. The plaintiff said this was a busy time with prisoners moving around on D1 which was quite a hub of activity at that time of day. There was a laundry, post and medical facility at the end of D1 which is opposite the staircase and main door. Prisoners regularly gathered at that end of D1 to avail of those facilities prior to queuing for their tea. Prisoners collect their food on what is a fairly standard type of canteen tray of the type shown in photograph No.5. Their meal may include a pot of tea which is dispensed in a standard small stainless steel teapot with a flip top lid as is shown in the same photograph. This is an exercise that is repeated for 35-40 prisoners in this unit three times a day.
The Plaintiff’s Evidence
6. The plaintiff states that he was walking across the floor of D1 towards where the cameraman taking photograph No. 1 would have been placed. He was not walking close to the wall where he would have been below the walkway of the upper level. He was walking under the area protected from above by the metal mesh. He heard a bang and a smash and hot liquid fell down from above. Simultaneously, liquid which he now knows to have been tea fell on him from above. He instantaneously moved to avoid further liquid spilling on him and as he did so, he slipped on some of the tea which had already made its way onto the floor surface.
7. The plaintiff was not in a position to give any other evidence regarding the event save to say that he knows that it was tea that he slipped on and that this had come from above him, presumably spilt by a prisoner on their way back to their cell.
8. Under cross examination, the plaintiff accepted that he could do no more than theorise as to what had caused the spillage. He could not say whether two prisoners were passing each other by at the time of the incident. Neither could he say if the prisoner who spilt the tea was engaged with or distracted by another prisoner at the relevant time. Further, he did not know whether the prisoner who spilt the tea had themselves slipped or tripped on something that may have been dropped by another prisoner on the upper walkway. He did not any call to give direct evidence as to the circumstances which had led to the spillage of the tea and he accepted that the potential causes for the spillage were manifold.
9. In relation to the system in operation for feeding prisoners in the Mountjoy Women’s Prison in 1996, the plaintiff told the court that he believed small kettles should have been available to prisoners in their cells as was the case in Castleree Prison. He also stated that it was his view that there should have been a one-way system in operation which would have eliminated the risk of any spillage being caused by prisoners passing each other by at a time when one or both of them had a pot of tea on their tray.
10. Under cross examination, the plaintiff accepted that from a common sense and personal safety perspective, prison staff were best protected if they moved around the unit under the overhead walkways when at all possible. However, he said that teatime was a very busy time of day in D1. People were milling around. He told the court that he could not have walked under the walkway to the left hand side of photograph No. 1 because people regularly emerged from the recreation room on that side of the unit which often housed seven to ten additional prisoners when the prison was overcrowded. He had to walk down the centre to avoid anyone potentially emerging from that room. He agreed that if the prison was not overcrowded that the recreation room would have been locked at mealtimes. He also denied receiving any training advising him to walk under walkways for protection. He said that in the course of any given day he would cross D1 approximately one hundred times.
11. Prison Officer, Lorraine Pimlott, was working as a kitchen officer in the female prison on D1 landing at the time of the plaintiffs fall. She described teatime as being quite busy with prisoners taking stuff down from their cells to get their tea prior to going back up with their food. Because they were locked up they had to make sure that they had everything they needed. They would regularly collect medication and collect letters at the D1 level at this time of the day.
12. Officer Pimlott told the court that she remembered a number of incidents when food and drink for some reason was spilt from the D2 level down to the D1 level. At times prisoners would have rested their trays on the railings around the balcony of D1. Further, prisoners regularly passed each other on this balcony at mealtime. She also told the court that she is now working in St. Patrick’s Institution for juveniles where they are not given teapots but can take boiling water in a jug with no lid from a central area back to their cells.
13. Under cross examination, Ms. Pimlott agreed that prisoners were closely supervised at the level of D2 with two or possibly three officers on the balcony at any given time. Prisoner officers were able to direct the movement of traffic which she accepted was relatively systematic given the delivery of food at approximately thirty seconds to one minute intervals. She also stated that any prisoner seen to place a tray on the rail of the balcony would be immediately spotted and told to remove it. She also accepted that a prisoner going down for their food meeting a prisoner coming up with their food should have no difficulty passing them given that they would not be carrying their tray out in front of them.
14. Mr. Tennyson stated that there should have been a one-way system in operation on the upper level to avoid two prisoners colliding with each other when trying to pass by with their trays. He said that prisoners should not have been allowed bring teapots on trays back to their cells having regard to the confined width of the walkways on the upper level and should have been given small kettles in their cells. Alternatively, prisoners should have had the use of a cafeteria. This would also have avoided risks associated with transporting liquids back to the cells. He told the court that the tray concerned was inherently slippy and that some type of mat should have been provided which would have secured the teapot on the tray. He also stated that a kickboard around the base of the walkway would have stopped any liquids which spilled on the walkway dripping down and providing a slipping hazard to those on the lower floor.
15. Mr. Tennyson criticised the defendants for failing to have carried out a risk assessment which would have thrown up the potential difficulties and dangers associated with bringing liquids back to the cells within this prison and would likely have led to the implementation of a safer system insofar as the risk of injury to prisoner officers and other prisoners was concerned. It was noteworthy that Mr. Tennyson who gave his evidence before Officer Pimlott did so in circumstances where he clearly had not been advised by the plaintiff that there had ever been any other incident in which a substance was spilt from the upper balcony area of D2 down into the D1 area.
The Defendants’ Evidence
16. The defendants called three witnesses to give evidence. The first of these was Mr. O’Shea, a retired prison officer, who had worked for some fourteen years in the prison service and had worked in a number of the country’s prisons. He told the court that it was his experience of working as a prison officer that most prison officers walked under walkways to avoid deliberate or accidental injury from above and that from the outset of a recruit’s training, personal security and safety was instilled by those in authority. However, Mr. O’Shea agreed that he had never received any formal safety training advising him not to cross an atrium such as that in D1 and that he was required to walk under balcony walkways for his own protection.
17. The court also heard from Mr. Daly, a retired prison officer, who worked in the Mountjoy Women’s Prison for ten years up until its closure in 1999. While he could not remember any other spillages of liquid from D2 down onto the floor of D1, he accepted that such spillages might have occurred and if they did that they would have been cleaned up immediately. He could not remember any like incident to that which happened to the plaintiff occurring after 1996. He confirmed that the relationship between the prisoners and the prison staff was generally quite good and that the unit operated in quite an orderly fashion at mealtime. Mr. Daly told the court that he did not believe that the recreation rooms referred to by the plaintiff were in use on the day of the plaintiff’s accident. He further told the court that there was always a class officer and an assistant on the D2 landing at mealtimes and that the prison staff would have known all of the prisoners.
18. Under cross examination, Mr. Daly agreed that he had never been told that he should walk under the walkways to avoid the risk of being injured from above. Further, it never occurred to him to walk under the walkways. He did not know how the spillage had occurred on the day of the plaintiffs fall but he thought it probably carne from a prisoner’s tray on the D2 landing. After the incident, he wrote to the governor filling out what he described as a “half sheet”. He confirmed that all accidents were reported to the governor and investigated. However, he was not aware of any risk assessment having been carried out.
19. The final witness on behalf of the defendants was Kathleen McMahon. She told the court that she worked in the prison service for over 33 years starting in 1976. She moved up the ranks and when she retired had reached the rank of Governor Class 2. She worked in the women’s prison in Mountjoy for approximately eight to ten years prior to her retirement in 2009. She was the chief officer of the women’s prison at the time of the plaintiffs fall.
20. Ms. McMahon told the court that there were 40 cells in the women’s prison. Judging from the records produced to the court, she was satisfied that the recreation room referred to by the plaintiff in evidence was not in operation or open at the time of the plaintiffs fall. That room was only used if there were in excess of 50 prisoners in the prison on any given night. The records showed that there were 40 prisoners in the prison the day before the accident and 41 on the day following the plaintiffs fall. No total appeared in the records for the day of the incident itself.
21. Ms. McMahon told the court that the women’s prison was entirely different from a men’s prison. She never walked under a walkway because she never thought she would be at risk from any assault from a prisoner on the balcony of D2. Ms. McMahon told the court that mealtimes were busy. Prisoners would be coming and going on the D1 level and also on D2. Medication was administered to prisoners on both levels at mealtime. The women were generally agreeable and there was at least two members of staff on the D2 level during mealtimes. If anything untoward was noticed, the prison officers would intervene immediately. All incidents and accidents were reported. In her eight to ten years in the women’s prison she could not remember any spillage of food from the D2 balcony down to the D1 floor level and she knew of no other injury that it occurred in this way.
22. Under cross examination, Ms. McMahon accepted that medication was dispensed at mealtimes on the D2 level thus making it likely that prisoners would have to pass each other by at a time when one of them might have a tray but in her experience this had occurred without incident. The inmates would go to collect their medication in an orderly fashion and would yield to each other where this was required. She never saw a prisoner balance a tray on the upper rail surrounding the balcony area and if this occurred she was satisfied that the situation would immediately have been noticed by prison staff and been remedied. She further denied that the system at mealtimes was chaotic or congested. If there was any congestion, the prison officer would intervene immediately as the staff themselves would be anxious to put the prisoners into their cells to allow them to take their own lunch.
Submissions
23. The plaintiff submitted that the accident was caused by tea that fell from the walkway on D2 onto the plaintiff and the floor of D1. The plaintiff then slipped on the tea, fell and injured himself. The plaintiff argued that he had established facts from which an inference as to how the accident occurred can reasonably inferred.
24. The plaintiff relied on Cosgrove v. Ryan and the Electricity Supply Board [2008] 4 IR 537 in the assertion that it was not necessary for a plaintiff to disprove every possible situation whereby damage could have been caused to him other than through the negligence of the defendants, so long as he can adduce reasonable proof.
25. The plaintiff also relied on an extract from Salmond & Heuston Law of Torts (21st Ed., Sweet & Maxwell), wherein it was stated that it is not necessary for a plaintiff to eliminate every possibility by which the accident may have been caused without negligence on the defendants’ part.
26. The plaintiff cited an extract from McMahon and Binchy Casebook on the Irish Law of Torts (3rd Ed., Tottel) which included references to a number of decisions including Mahon v. Dublin and Lucan Electric Railway Company and O’Rourke v. McGuinness [1942] I.R. 554. In particular he relied upon an extract from the decision in Jones v. GW Railway Company [1930] 47 TLR 39 at 41 in support of his contention that he did not have to establish how the accident occurred, namely:-
“All that is required for a plaintiff to succeed is to establish facts from which an inference of negligence on the part of the defendants may reasonably be inferred… it is a mistake to think that because an event is unseen its cause cannot reasonably be inferred.”
27. Mr. O’Donovan, S.C., submitted that he had established that the plaintiff fell on tea which had fallen from the upper walkway. He had produced evidence that was critical of the movement of prisoners with their trays and hot drinks on the D2 level at a time when medicines were being given out, prisoners were likely to be passing each other and circumstances where there had been previous spillages. All of this, he submitted, pointed to the likelihood of the plaintiffs injuries arising from a systems failure which was negligent.
28. Mr. O’Scannall on behalf of the defendants relied upon Rothwell v. Motor Insurers Bureau of Ireland [2003] 1 I.R. 286, Hanrahan v. Merck Sharp Dohme [1988] ILRM 629 and Rogers v MIBI (Unreported, Supreme Court, 31st March, 2009. [2009] IESC 30), in support of his submission that the person who alleges a particular tort must in order to succeed prove all the necessary ingredients of that tort. The onus of proof does not shift unless the act or default complained of is peculiarly within the defendants’ knowledge, which it was not in this case. He submitted that the doctrine of res ipsa loquitar did not apply as clearly the circumstances surrounding the spillage could have occurred without negligence on the part of the defendants. It was argued that, taking the case at its highest, the plaintiff had simply put forward one plausible explanation for the accident and that this was not sufficient to ground liability in circumstances where there were equally plausible explanations for the event in which no negligence on behalf of the defendants was required.
Law
29. The onus of proof in civil cases rests ordinarily on the person who alleges a matter. In negligence actions, this means that the burden of proving the negligence is on the plaintiff. However, this burden is not unlimited. In Cosgrove v. Ryan and the Electricity Supply Board [2008] 4 IR 537, Geoghegan J. stated:-
“Although the onus of proof is always on a plaintiff to prove negligence the requirements of that proof may vary. It would seem that those requirements would not be high where a dangerous substance such as electricity or gas is involved. Indeed, quite apart from any special principles relating to dangerous things, a plaintiff in a negligence action does not have to negative every possibility of absence of negligence. This does not mean that, in answer to the plaintiffs claim, the defendant may not demonstrate that he was in no way to blame. In Salmond and Heuston on the Law of Torts (21st ed.), the learned editors under the heading ‘The proof of negligence’ at p. 240 say the following:-
‘It is not necessary for the plaintiff to show that the defendant must be found guilty of negligence, or to eliminate every conceivable possibility by which the accident may have been caused without negligence on the defendant’s part.”‘ (at para 28, p. 568)
30. Salmond and Heuston Law of Torts (21st Ed., Sweet & Maxwell) state:-
“The burden of proving negligence is on the plaintiff who alleges it – or as practitioners often put it, the plaintiff must prove causation. It is not for the doer to excuse himself by proving that the accident was inevitable and due to no negligence on his part; it is for the person who suffers the harm to prove affirmatively that it was due to the negligence of the defendant. Unless the plaintiff produces reasonable evidence that the accident was caused by the defendant’s negligence, there is no case to answer, and it is the duty of the judge to enter judgment for the defendant. It is not necessary for the plaintiff to show that the defendant must be found guilty of negligence, or to eliminate every conceivable possibility by which the accident may have been caused without negligence on the defendant’s part. This rule is particularly important when the injured person has either been killed in the accident or has no recollection of it. But the plaintiff’s evidence must pass beyond the region of pure conjecture and into that of legal inference. The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. It follows that there can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. It is to be noticed that this question is to be decided not by weighing the evidence of the plaintiff against the defendant but by disregarding altogether the evidence of the defendant, and by asking whether that of the plaintiff is per se and apart from any contradiction, sufficient or insufficient or bring conviction to a reasonable mind.” (at p. 244)
31. MacMahon & Binchy state the law as follows:-
“As a general rule a plaintiff in an action for negligence must plead and prove negligence on the part of the defendant in order to succeed. The plaintiff must convince the judge, on the balance of probabilities, that the defendant was negligent. Anything less will not be sufficient.” (at para. 9.01)
The same text subsequently states:-
“The facts in [Mahon v Dublin & Lucan Electric Railway Co. (1905) 39 ILTR 126 (KB)] are similar to those in the English decision of Wakelin v London & SW Ry Co (1886) 12 AC 41, where the House of Lords adopted the same approach as the Irish King’s Bench Division.
This does not mean, however, that the plaintiff “has got to have a story” which explains how the accident occurred:
‘All that is required for a plaintiff to succeed is to establish facts from which an inference of negligence on the part of the defendant may reasonably be inferred… ‘It is a mistake to think that because an event is unseen its cause cannot be inferred.'” (Gahan v Engineering Products Ltd [1971] IR 30 at 32-33.” (at paras. 9.05-9.06)
32. It is important that I also consider the implications of the doctrine of res ipsa loquitar in this regard. In Hanrahan v Merck Sharp & Dohme [1998] I.L.R.M. 629 at 634, Henchy J. stated:-
“The ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove… all the necessary ingredients of that tort and it is not for the defendant to disprove anything. Such exceptions as have been allowed to that general rule seem to be confined to cases where a particular element of the tort lies or is deemed to lie pre-eminently within the defendant’s knowledge, in which case, the onus of proof as to that matter passes to the defendant. Thus in the tort of negligence, where damage has been caused to the plaintiff in circumstances in which such damage would not usually be caused without negligence on the part of the defendant, the rule of res ipsa loquitar will allow the act relied on to be evidence of negligence in the absence of proof by the defendant that it has occurred without want of due care on his part. The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to rely on the fact that it would be palpably unfair to require the plaintiff to prove something that is beyond his reach and which is peculiarly within range of the defendant’s capacity of proof.”
Henchy later stated at p. 635:-
“There are of course difficulties facing the plaintiff in regard to proof of matters particularly as to the question of causation, but mere difficulty of proof does not call for a shifting of the onus of proof… the onus of disproof rests on the defendant only when the act or default complained of is such that it would be fundamentally unjust to require the plaintiff to prove a positive averment when the particular circumstances show that fairness and justice call for disproof by the defendant.”
33. In Rothwell v MIBI [2003] 1 IR 268 there was an oil spillage on road which caused the plaintiff’s car to skid and crash. The plaintiff was unable establish who had been responsible for the oil spillage. The High Court held that the plaintiff was entitled to succeed but that res ipsa loquitar did not apply as there were circumstances in which the spill could have occurred without negligence. The Supreme Court held inter alia that mere difficulty of proof did not call for a shifting of the onus of proof to the defendant and that the onus of proof would not shift unless the act or default complained of was peculiarly within the range of the defendant’s capacity of proof. Hardiman J. stated:-
“It appears to me that the judgment in Hanrahan v Merck Sharp & Dohme requires not merely that a matter in respect of which the onus is to shift is within the exclusive knowledge of the defendant, but also that it is ‘peculiarly within the range of the defendant’s capacity of proof’. That is not the position here. As the trial judge clearly and succinctly held, neither party could go further, the matter was not within the knowledge, exclusive or otherwise, of either of them.” (at p.273)
34. In Rogers v MIBI (Unreported, Supreme Court, 31st March, 2009. [2009] IESC 30), Finnegan J. stated at p. 23:-
“The legal burden of proof in all civil cases lies upon the person who asserts the affirmative on each issue in the case. If at the completion of the evidence the burden has not been discharged the decision must go against the party on whom the burden lay. To find for the plaintiff in an action such as the present the judge must be satisfied that a particular fact or state of affairs is more likely to have occurred than not. If he is not so satisfied then he must find that the burden has not been discharged.”
Finnegan J. later stated:-
“The standard of proof in civil proceedings is on the balance of probabilities. If at the conclusion of the evidence the probabilities are equal then the required standard of proof has not been achieved. There is no burden on the defendant to prove a negative: an exception is where res ipsa loquitar applies and the proper inference to draw from the proven facts is that the defendant (in this case the unidentified or untraced owner of user) was negligent.”
35. A plaintiff in a negligence case bears the onus of proving causation on the balance of probabilities. However, the plaintiff does not have to rule out through their evidence every possible factual scenario whereby the damage was caused other than by negligence on the part of the defendant. The plaintiff merely has to adduce evidence that gives rise to a reasonable inference that the damage was caused by the defendant’s negligence. However, the burden of proof can shift to the defendant where a particular fact is peculiarly within the defendant’s knowledge or capacity of proof, under he doctrine of res ipsa loquitar. The facts of the case at hand must now be viewed through this legal prism.
Findings of Fact
36. Having heard the evidence of both parties, I am satisfied that the area in which the plaintiffs fall took place was well supervised at the time. I accept that D1 can be busy around mealtimes but I heard no evidence to suggest that there was any significant history of difficulties with the system of feeding prisoners which included prisoners carrying trays of food including a teapot of hot tea back to their cells on a daily basis. In this regard, the plaintiff gave no evidence of any similar incidents having occurred in the eleven months that he was in the relevant unit prior to the date of his accident. While Officer Pimlott and Mr. Daly gave evidence that there may have been one or two incidents where there had been a spillage of food from the level of D2 down to the level of D1, there was no evidence that any prison officer or indeed prisoner had ever been injured as a result. Further, this system of feeding prisoners was operational for well over a decade and had been carried out three times a day without adverse consequences until the injury that occurred to the plaintiff. In this regard I attach significant weight to the evidence of Kathleen McMahon to the effect that she knew of no other incident of the type that had occurred to Mr. Connaughton during her eight to ten years in the women’s prison and that she had never received any complaint from any prisoner or prison officer regarding any such risk. Further she told the Court that at all times, including meal times, that prisoners, prison officers and indeed the prison Governor circulated on the D1 floor beneath the metal mesh. It can be inferred from this evidence that none of them perceived themselves as being at risk of being injured from anything that might spill or fall on them from above.
37. Notwithstanding the evidence of Ms. Pimlott I am satisfied that the activities at the D2 level during teatime were as a matter of fact quite orderly and extremely well supervised. If the plaintiff is correct that there were significant numbers of people milling around downstairs in D1, then very few prisoners could have been on the upper level. I am further satisfied on the evidence that most of the prisoners would have been out of their cells and downstairs in advance of the commencement of the distribution of food. Hence, it should have been relatively infrequent that a prisoner leaving a cell with their empty tray and teapot would have to pass by another prisoner on the way to their cell. Likewise, whilst medication may have been distributed on the upper floor, I see no reason why a prisoner coming back from receiving their medication could not safely pass a prisoner carrying a tray without creating a hazard to those below on the D1 level. In this regard, I attach significant weight to the evidence of Ms. McMahon who stated that this system was in operation for many years without adverse consequences.
38. I am also satisfied that the system whereby food was dispatched and then brought back by prisoners to their cells was one which was well policed and orderly. By and large, prisoners queued up on the right hand side of D1. They would be served their food and go back to their cells at approximately thirty second to one minute intervals. Again this, to my mind, suggests that there would have been little by way of congestion on the D2 level as prison staff were anxious to lock up each prisoner in their cell as they arrived with their food. I am also satisfied from the evidence that as a matter of fact any congestion could be safely dealt with through the intervention of prison officers.
39. It is also important to remember that tea was being dispensed in a pot with a lid. Any minor unsteadiness by a prisoner when taking the tray of food and tea back to their room could not foreseeably cause a risk to anybody on the lower level. Perhaps some small amount of tea might spill out onto the tray or perhaps even onto the walkway floor. Having regard to the system in operation, I do not accept that two people would ever be trying to pass each other with trays of food. Effectively, a one way system is in operation for those carrying full trays of food and going back to their cells. While those prisoners may meet with prisoners coming the other way either from the area where they collected their medication or to go downstairs with their empty tray and teapot, there should have been no difficulty in the prisoners passing by.
40. What happened in the present case is that the plaintiff moved suddenly and slipped on tea that had been spilled seconds earlier from above him. Every day of the week in cafeterias, patrons face much the same risk as that experienced by the plaintiff in the present case. People using similar types of trays carry food and beverages in close proximity to each other. Many of those beverages are carried in cups, mugs or containers which are not covered. Customers circulate in a random fashion brushing shoulders with each other, passing between tables, peopled with customers and often in circumstances where diners will have bags or parcels on the floor causing further hazards. At any time, a customer’s tray may become destabilised and somebody beside them, trying to avoid liquids spilling on them or trying to move away may slip on liquid that managed to reach the floor. If this happens, it is through no fault of the restaurant proprietor. These patrons are not subject to any one-way system and unlike in the prison system are not kept under observation and supervision as they move around with their trays.
41. I reject Mr. Tennyson’s evidence that I should consider the defendants as negligent in failing to provide, as an alternative and safer system, a kettle in the room of each cell. The fact that small kettles may be given to inmates in other prisons does not mean that it was negligent on the part of the defendants not to have implemented a similar system in Mountjoy Women’s Prison. Clearly, the provision of kettles in cells provides an alternative range of risks which has to be balanced having regard to the specific characteristics of an individual prison and its inmates. I can well imagine a scenario in which a prison officer could be assaulted with boiling water by a prisoner and I might find Mr. Tennyson advising the court that it was foreseeable that providing access to boiling water in this way increased the risk of prison officers being subjected to such an assault. Further, a whole range of alternative risks are generated in a canteen situation. Even if it were established that this system would have been safer for prison officers, the obligation is not on an employer to provide a system which rules out any possibility of injury. Given that it is not known as to how or why the teapot was caused to fall and its contents spilled down to the lower level, a consideration as to whether or not providing a paper mat for each tray or a kickboard for the walkway is pointless and Mr. Tennyson’s evidence in this regard seems somewhat lacklustre in the absence of any mention of these alleged deficiencies in his report or in the plaintiffs pleadings.
42. It is accepted that the plaintiff is not required to discount every possibility whereby the accident could have been caused other than by negligence on the part of the defendants but the law requires that the plaintiff adduce evidence that gives rise to a reasonable inference that the defendants’ negligence was the cause. Taking the plaintiffs case at its highest here, the plaintiff has not pointed to any objective facts from which it could be inferred that negligence on the part of the defendants was to blame for the spillage. The plaintiff has merely put an inference of a plausible explanation before the court, which is insufficient where there are myriad equally plausible explanations which do not turn on negligence on the part of the defendants. Further, the factual nexus does not give rise to the doctrine of res ipsa loquitar. Indeed this is a case where the plaintiff knew each of the prisoners by name and his injuries occurred in circumstances where the court would expect him to have been in a position to adduce actual evidence of causation. It is accepted that, in the circumstances, it would be extremely difficult for the plaintiff to be able to prove negligence, but, as Henchy J. stated in Hanrahan, “mere difficulty of proof does not call for a shifting of the onus of proof’. In order for res ipsa loquitar to apply, the matter must be singularly within the power of the defendant to prove. However, in the instant case, either party potentially had the capacity to prove or disprove what happened on D2 to cause the tea to spill and so the burden cannot shift.
43. I am satisfied that the plaintiff has failed to discharge the burden of proof in respect of factual or legal causation and I cannot infer from the evidence that his injuries were caused by the negligence of the defendants. Even if l had been, for example, satisfied that his injuries were caused by two prisoners passing each other, one with a tray or one without or as a result of someone coming back from getting medication barging into a prisoner destabilising their tray causing the tea to spill, I still would not have concluded that the plaintiffs injury had been caused by the defendant’s negligence. I am satisfied on the evidence that the defendants provided the plaintiff with a system of work that took reasonable care for his safety.
44. It is the duty of the defendants to provide a reasonably safe place and system of work for its employees. The defendants are not an insurer of the safety and welfare of its employees. As Henchy J. stated in Bradley v CIE [1976] IR 217:-
“The law does not require an employee 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.” (at p. 223)
45. As has been stated in many judgments, the operation of a prison provides a particular challenge to those who are responsible for the safety and welfare both of the inmates and its staff. It is a struggle to balance the dignity of a prisoner who should be provided with a human environment and yet afford appropriate protections to those who of necessity must engage closely with prisoners on a day-to-day basis.
46. As to that portion of the evidence which dealt with the plaintiff’s failure to walk under the overhead walkways, I have to say I believe that any findings of fact on that issue are entirely irrelevant on the facts of the present case. The plaintiff was not trained to walk under the overhead balconies. Further, Kathleen McMahon and Mr. Daly and apparently the prison governor all moved around the prison without any regard to risks of deliberate or accidental assault from above.
47. For all of the aforementioned reasons, I do not accept there was any negligence or breach of duty on the part of the defendants. The plaintiff’s injuries, although clearly regrettable are as a result of accidental injury for which his employer is not responsible.
Thompson v Cleary
[2012] IEHC 133
Judgment of Mr Justice Michael Peart delivered on the 15th day of March 2012:
1. The plaintiff is a very experienced heavy goods vehicle driver, held in high regard by the first named defendant who was his employer for about 10 months prior to the 20th July 2007, which is the date on which the plaintiff sustained a significant back injury when he fell from the top of a ladder which was fixed to the back of a large articulated cement container vehicle which he was operating on that date, and which allows access to the top of the vehicle.
2. Prior to his employment with the first named defendant which commenced around September 2006 the plaintiff had extensive experience as a truck driver both here and in South Africa. He is a South African national who came to this country in 2005 having obtained a work permit for continental truck driving. The first named defendant gave him a job in September 2006, and obtained the necessary visa to enable the plaintiff to take up his employment here. There has been some controversy around the fact that the plaintiff was never given employment as a continental truck driver, though the first named defendant had thought that might materialise. But that controversy is not relevant to liability for the plaintiff’s accident and injuries, which is the first issue for decision.
3. The vehicle in question was a large articulated vehicle attached to which was tri-axle bulk cement container with an access ladder at the rere. The plaintiff was tasked with calling to Irish Cement at Ringsend in Dublin in order to fill the container with dry cement and then deliver it to customers of Irish Cement. By the date of this accident he had been in the employment of the first named defendant for about ten months. During the course of any particular day he would call to Irish Cement anything from three to five occasions, meaning that by the date of this accident he had drawn cement from the depot at Ringsend on perhaps 800 occasions during the 10 months or so since his employment commenced.
4. In order to fill the container with dry cement the plaintiff was required to position the container below a silo on the premises of Irish Cement at Ringsend having previously opened two lids or flaps at the top of the container, hence the necessity for the access ladder. Having filled the container the plaintiff would then need to drive the vehicle forward from the silo, park it up and ascend the ladder again in order to close the flaps, and also remove any excess cement which may be present at the top of the container. The removal of any excess cement from the top of the container was a necessary and strict requirement as, if it was not done, this excess would inevitably fall to the ground and cause a hazard either in the depot itself or on the road outside. Irish Cement would not permit a container to leave the depot unless all excess cement had been removed.
5. Irish Cement has available on site a shallow trough with some inches of water therein beside which there is a gantry. The normal procedure is for the container once filled with cement to be driven forward from the silos and down a short slope into the trough of water, where it would remain while the driver gets out in order to clean the container from a high gantry alongside the trough. This would be normally done by the use of either a high pressure hose or low pressure hose, both being available at the side of the gantry. But in dry weather conditions and where the excess cement is only slight, the driver may choose to ascend the access ladder at the back of the container and use a brush to simply sweep off any excess cement from the top of the contained, and without the need to hose the container down from the top of the gantry provided. Where hosing down the wheels or side of the container the driver can use either the low pressure hose or the high pressure hose while on the ground and without ascending the gantry at all.
6. In damp or wet weather, brushing excess cement from the top of the container with the brush is not effective as the excess cement is damp and cannot therefore be simply brushed off easily, as it can when dry. In such conditions either hose may be used. The evidence has been that on the morning of this accident it was raining, but not heavily. The plaintiff stated that there was a drizzle of rain.
7. An important fact in the present case is that the plaintiffs employer had instructed him that on no account should the container be driven into the water trough since it was known that the design of the access slope into the trough meant that there was a likelihood that the diesel tank attached to the vehicle would come into contact with the ground as it descended into the trough, and there was a risk that the diesel tank could be damaged. Therefore, the plaintiff was required to adopt a different methodology in order to clean off excess cement from the container as he would be unable to use the high gantry in order to hose down the top of the container. It was necessary instead to park the container alongside the trough, and some yards away therefore from the high gantry at the trough, and carry out the cleaning process without the assistance of the gantry as it was not close enough to the container when parked on the far side of the trough.
8. Another possible option, and one which Irish Cement and Mr Cleary, the plaintiffs employer, say was perfectly feasible for the plaintiff, was to have reversed the container into the trough instead of driving it forward into it, as this would avoid the diesel container coming into contact with the ground at the entrance slope of the trough. However, that is not something which the plaintiff ever did, as there was risk that when reversing the tyres might rub off the sides of the slope and become damaged.
9. Yet another possible option, according to both defendants, would have been for the plaintiff to park the container along the other side of the gantry, which would have enabled the plaintiff to avail of the gantry even though the container was not in the trough. The evidence is that there is enough space along that other side of the gantry for this to have been done, unless of course there were other vehicles parked on that side, making it impossible to locate the container there too. In fact the plaintiff has suggested that on this date there were such vehicles, but I do not think that his recollection is sufficiently clear to establish that fact to the point of probability.
10. Another important fact in the present case is that as far as both the first and second named defendants are concerned, it was made absolutely clear to the plaintiff that under no circumstances could the power hose be used for cleaning the container other than by using it from the top of the gantry or while standing on the ground. In other words, for the purpose of this case, it was absolutely forbidden for the plaintiff to ascend the ladder at the back of the container while carrying the power hose in order to use it while standing on or walking along the gangway which runs the length of the container. The best that the plaintiff can say is that he does not recall ever being told not to use the high pressure hose from the top of the container. He is quite adamant about that he was never told, either by Irish Cement or by Mr Cleary. Mr Cleary has stated that the importance of this cleaning operation and the strict compliance with the rule that the power hose may not be used on the top of the container is such that if any of his drivers was to breach the rules in this regard, or did not clean their containers prior to leaving the depot, Irish Cement would not permit them onto the site at all in the future. It was for this reason that, according to Mr Cleary, there is no doubt whatsoever that he fully informed the plaintiff of the rules in this regard.
11. Con Power, the very experienced and strict site supervisor at the Ringsend depot, has stated that without exception all drivers using this depot are instructed in very clear terms that under no circumstances may the power hose be used while standing on top of a container, and that the plaintiff would have been so informed when he first started to collect cement from that depot. Not unreasonably or unexpectedly he cannot specifically recall so informing the plaintiff, but he is adamant, and I accept it having heard him, that he would have done so. The reason for this rule is that because the pressure of water in the power hose is considerable (3 bar) it is dangerous to do so as the user could be thrown off balance and fall. This is a matter of absolute importance to Irish Cement from a health and safety viewpoint, and there are no exceptions permitted. Mr Power has made that very clear in his evidence. It is also the case that beside the gantry where the power hose is stored awaiting use, there is a red water pump housing with hoses attached, and on this red housing there is a warning on a large white panel with large black lettering which states: “WARNING: PRESSURE HOSE CAN NOT BE USED WHILE STANDING ON TOP OF TANKS – USE FROM GROUND OR GANTRY ONLY.
12. In my view the location, size and nature of this warning is entirely consistent with what Mr Power has stated as to the importance attached to the rule that under no circumstances should the power hose be brought by the driver up the ladder at the rere of a container and used while standing on top of the container.
13. In addition, and this is important from the point of view of the plaintiffs employer, the ascending of the ladder at the rere of the vehicle while holding this power hose in one hand, presents the obvious danger that it prevents the person carrying it up and down the ladder from maintaining at all times a three point contact on the ladder, thereby increasing the risk that the person may fall. This hose is two metres in length from the trigger to the end of point where the water emerges, and is attached to the water pump at the gantry by hosing that is heavier, stronger and less flexible than a normal low pressure garden hose such as the low pressure hose available on the site below the gantry. It poses an obvious risk to any person ascending or descending this ladder holding it in one hand.
14. I am also satisfied from the evidence given that during the first week in which the plaintiff was employed by the first named defendant, during which the plaintiff was accompanied to the depot by Mr Cleary senior on three days, and Mr Emmet Cleary on two days in order to show him the ropes, so to speak, the plaintiff was informed of this rule by both Mr Patrick Cleary and Emmet Cleary, his son, and of the danger of using it other than while standing on the ground or while on the gantry provided.
15. Bearing in mind that by the date of this accident the plaintiff had been working for Mr Cleary for about 10 months and had been visiting the depot to collect cement between three and five times per day, it is relevant to note that the day of this accident was the first occasion on which the plaintiff, according to his evidence, had ascended this ladder with power hose in hand, and it is noteworthy that no sooner had he reached the top that he was immediately spotted by the ever-watchful Mr Power and told in no uncertain terms to immediately descend. There is no evidence that upon being so told the plaintiff engaged Mr Power in any conversation to inquire why he was being told to get down. He appears to have understood precisely why this instruction was being given. It does not appear to have come as any surprise whatsoever to him, since he immediately began to comply. I am left in no doubt that the plaintiff was aware that what he was doing was not permitted.
16. On the date of this accident the plaintiff had filled the container with cement. But when he climbed up to the top of the container when the filling operation was completed in order to close the flaps through which the cement is poured into the container, he noticed, according to his evidence, that there was more than the usual small quantity of excess cement to be cleaned from the top of the container, and he considered that it was not possible to clean off the container by means of a brush. Since it was drizzling rain at the time, brushing would not in any event have been effective, according to the evidence which has been given.
17. After he had parked up on the far side of the trough, not being permitted to drive forwards into the trough, he went to where the low pressure hose and the high pressure hose were located at the foot of the gantry. He says that the driver of the previous container which had been filled had told him that the low pressure hose was not working. He did not check that this was so, and instead, immediately picked up the high pressure hose from the ground where it was lying. In any event the plaintiff says that the low pressure hose would not be adequate for the purpose of cleaning off the large excess of cement which was left on the container after he had filled up. Neither does he consider that using the high pressure hose while standing on the ground beside the container would have enabled the top of the container to be cleaned of the excess cement given the height of the container off the ground. He considers that in the circumstances presented to him on this morning he had no alternative but to ascend the ladder at the rere of the container with the power hose in order to clean the top of the container, as otherwise he would not be permitted by Mr Power, the site supervisor, to leave the depot. He says that on all other occasions he had been able to brush off any excess cement without using any hose, and that it was only the unusual amount of excess cement left on the container on this one occasion that forced him to use a hose, and for the first time since he started working for the first named defendant.
18. The fact that this hose was simply lying on the ground and not located at the pump where the warning sign is fixed in position meant, according to the plaintiff, that he did not see that warning sign. Neither did he have to go to the pump housing itself and on which the warning sign is affixed, in order to press the green button to turn on the pump as it was already turned on, presumably because a previous user of the power hose had not on completion of his hosing pressed the red stop button. This is said to account for the fact that the plaintiff did not see the warning sign on this particular occasion.
19. There has been no evidence given by the plaintiff as to how he knew that the power hose was turned on, but presumably the plaintiff must have pulled the trigger and discovered that the pump was turned on. However, it does not in my view get over the difficulty presented to the plaintiff by the fact that this was not the first time that he had been on these premises. In fact, as I have indicated, it appears that he had collected cement from this depot on about 800 occasions during the ten months since starting his employment. It seems highly improbable that on none of that great number of occasions on which he had collected cement at this depot he did not see, or was not aware of, this very prominent warning, even if it is accepted, and it is not, that he was never informed verbally either by Mr Power of Irish Cement or by his employer or Emmet Cleary during his first week’s induction training, that under no circumstances can he use the power hose from the top of the container. He must have seen the sign and, therefore, been aware of this absolute rule.
20. It goes without saying that in order to succeed in these proceedings at all, and before the question of any contributory negligence arises for consideration, the plaintiff must establish facts on the basis of the balance of probabilities, from which this Court can be satisfied that either or both of the defendants have been guilty of negligence.
21. In that task, the plaintiff is assisted by a Consultant engineer, Mr Flahavan. He has prepared two reports. He describes his investigations and reaches certain conclusions. Firstly, he concludes that this accident happened because the plaintiff fell “due to the awkwardness of the lance and hose he was carrying”. Secondly he concludes that the wash bath or trough and gantry is unsatisfactory in so far as it prevents certain vehicles from entering it due to the sharp lip on the entry. Thirdly, he concludes that the use of the low pressure hose to wash the vehicles is less than satisfactory. Fourthly he concludes that Mr Power, the site foreman, should have taken the hose from the plaintiff before he descended the ladder, as this would have allowed the plaintiff to descend unencumbered by the hose. Fifthly, he concludes that as Mr Cleary, the plaintiff’s employer, was aware of the risk of damaging the truck while entering the trough he should have advised the plaintiff not to use the power hose and lance when the gantry was not available to him. Accordingly, Mr Flahavan is of the opinion that both the first and second named defendants have a liability in this case.
22. There is little doubt that Mr Flahavan is correct in concluding that the plaintiff’s fall was caused or at least contributed significantly by the fact that at the time he started to descend the ladder having been told to do so immediately by Mr Power he was carrying the power hose. It is reasonable to conclude on the balance of probabilities that the carrying of the hose impaired his ability to descend safely.
23. There is also no doubt that if the vehicle had been able to enter the trough the plaintiff would have been able to hose it down from the safety of the gantry as intended, and this accident would not have happened.
24. It is also possible that the use of the low pressure hose may not have been effective, if the amount of cement to be washed away was as great as the plaintiff states. Nevertheless he did not even attempt that method which would not have presented the same obvious danger to him if he ascended the ladder with that hose. He could have simply dropped that hose safely to the ground when descending rather than carrying it down the ladder. It is accepted that descending the ladder is a more hazardous manoeuvre that ascending.
25. In so far as Mr Flahavan has concluded that Mr Power should have assisted the plaintiff having told him to get down, by taking the power hose from him, the evidence is clear that in fact Mr Power was in his office at the time he first saw the end of the power hose appearing above the container, and that when he got to the front of the truck he shouted to the plaintiff to get down, and that by the time he had got around to the back of the vehicle the plaintiff had already fallen to the ground. There was no opportunity in my view for Mr Power to offer the plaintiff the sort of assistance which Mr Flahavan suggests would have been appropriate.
26. In so far as Mr Flahavan concludes that Mr Cleary was aware of the risk and should have advised the plaintiff that he should not use the power hose and lance when the gantry was not available, I am satisfied that he did in fact give that advice and instruction to the plaintiff. I am in no doubt about that having heard that evidence, even though the plaintiff denies that this instruction was given to him, either by Mr Cleary or by Mr Power.
27. If one accepts that this was the first occasion on which the plaintiff was faced with a situation where a greater excess of cement than normal needed to be washed away before departing from the depot, and if one accepts that the plaintiff was aware, having been so instructed, that under no circumstances was he permitted to mount the ladder at the back of the container carrying the power hose so as to wash the container down with the power hose, one must ask what alternatives were open to the plaintiff to address the situation short of disobeying his clear instructions. One must ask whether in those circumstances the plaintiff was left with no alternative but to disobey the instruction and expose himself to a risk, which if things went wrong and the plaintiff became injured as a result, the defendants or either of them are guilty of negligence and liable for the plaintiffs injuries.
28. The critical fact in this case, and one which Mr Flahavan had not been aware of when preparing his report, is that the plaintiff had been clearly and unequivocally instructed that under no circumstances was he to ascend the ladder to the top of the container with the power hose. In so far as he did so, contrary to that clear instruction, he undertook a risk to himself. He could for example have attempted to clean the container with the low pressure hose. If it is a fact that this hose was not operational for some unknown reason, and he had discovered that upon trying to use it, he could very easily have gone to the site foreman and explained that he was unable to use that hose, and sought advice from the foreman as to what alternatives he had. Mr Power may well have suggested parking up the container on the other side of the gantry so that it could be hosed down from the safety of the gantry. If there were vehicles in the way for that to be a viable option, Mr Power could easily have arranged for them to be moved so that the plaintiff could park alongside the gantry and use the power hose from the gantry. Alternatively, the plaintiff could have contacted his employer and explained that there was so much excess cement to be cleaned that he could not do so by using the low pressure hose, or that the low pressure hose was not working, and he could have sought advice as to what course he should adopt in order to address the situation. Mr Cleary was very familiar with this depot himself having carried cement from it on many occasions. He knew Mr Power also and could have contacted him and discussed the problem and arrived at an agreed solution.
29. It seems to me that the one thing which the plaintiff could not do, without assuming liability himself for the consequences, was to take the law into his own hands and do the very thing which he knew he was forbidden to do, namely carry the power hose up the ladder so as to use it in a way which was absolutely forbidden on safety grounds. Yet that is what he did, and he seeks to claim that it is the fault of his employer and/or Irish Cement that he injured himself by having done so. That makes no sense either as a matter of law or otherwise.
30. In my view, and I very much regret having to make this finding from the plaintiff’s point of view, the plaintiff brought this unfortunate incident upon himself by disobeying a very clear instruction given to him by both his employer and by Irish Cement. That was the immediate cause of the accident. Behind that immediate cause of the plaintiff’s injury is the undoubted fact that the truck in question could not enter the trough unless in reverse, and that the safety of the gantry was unavailable unless accessed from the other side of the gantry. But those factors are not the direct cause of the plaintiff’s injuries. He could have explored other options besides doing the very thing which he knew was not permitted because there was danger involved, dangers which both his employer and Irish Cement were aware of and for that reason warned the plaintiff about. The plaintiff’s Personal Injury Summons makes the usual series of pleas of negligence in cases of this kind, and without dealing with each individual plea individually and in detail, I can say, based on the evidence I have heard and the conclusions which I have reached that I am not satisfied that the plaintiff has discharged the onus of proof upon him to establish negligence against either defendant. In layman’s language I cannot identify anything which either defendant ought to have done which they did not do. On the other hand it is easy to identify what the defendant did that he ought not to have done.
31. For these reasons, I must dismiss the plaintiff’s claim, and I will so order.
Meehan v BKMS Curtain Walling System Ltd
[2012] IEHC 441, Ryan J.JUDGMENT of Mr Justice Ryan delivered the 26th October 2012
Two major questions arise in this case. The first concerns liability for the work accident that gives rise to the proceedings. The second is the defendants’ application under s. 26 of the Civil Liability and Courts Act 2004, for the dismissal of the action, notwithstanding that the plaintiff might otherwise succeed in some part of his claim, on the grounds (a) that he gave false or misleading evidence in a material respect which he knew to be false or misleading; (b) that he swore an affidavit under s. 14 of the 2004 Act containing knowingly false or misleading information in a material respect. These alleged material mis-statements relate to the circumstances of the accident and to the very substantial claim made by the plaintiff for past and future loss of earnings.
The plaintiff is 48 years of age and single. He was working as a glazier for the first defendant, BKNS, on the 29th September, 2008 when the accident happened. He fell from scaffolding at first floor level at a building site at Abercorn Road, near Sheriff Street. Dublin 1. The plaintiff sustained a comminuted fracture of the left calcaneus, his heel bone. He also damaged his subtalar joint quite severely. He has had considerable trouble with the injury and is likely to do so in the future. Prof. Michael Stephens, his orthopaedic consultant, said that there was a 50/50 chance that the plaintiff would have to have the ankle fused in the course of the next ten years or thereafter. In the meantime he has a degree of pain, discomfort and limitation of movement. Prof. Stephens said that it was his opinion that the plaintiff would be unable for a return to his work as a glazier and indeed for any heavy manual work or work that involved walking on rough or uneven surfaces.
One of the unusual features is that the case as pleaded was abandoned and replaced by a quite different one. This case was originally listed for hearing in November 2011 but did not go on. It emerged at that stage that the second defendant was in possession of CCTV footage showing the accident happening, and that is indeed the case. The video was – perhaps after some delay – furnished to the plaintiff and it was also made available to the first defendant. The film revealed that the account given by the plaintiff in his pleadings and particulars was wrong in important matters.
Mr. Meehans’s case as pleaded was that he tumbled out through the scaffolding. In particulars, it was alleged that the scaffolding was defective because there was no intermediate bar on the scaffolding and neither was there was a toe board where he was located. He was crouched on the scaffolding as he received aluminium bars being handed up from ground level and passing them on to a colleague inside the building. Because of the two particular defects he was caused and/or permitted to fall through the gap between the top bar and the bottom of the scaffolding. The CCTV footage contradicted this.
The CCTV had a decisive impact on the case but it was not actually shown in court. Mr. Fitzgerald SC, for the plaintiff, made adverse comment about this and implied that the defendants were seeking to keep it from me. In fact, the plaintiff’s engineer Mr. Watson had viewed the video and taken stills from it that he used in his evidence. Mr. Nolan SC pointed out that Mr. Fitzgerald could have had the video played at any time since he was in possession of it and that seems to me to be a reasonable point. Therefore, I do not place any importance on the fact that defendants did not show me the video, any more than I do on the fact that the plaintiff did not do so.
The video shows that the scaffolding did indeed have an intermediate bar. It also appears, but it may not be possible to be entirely certain about this from the stills, to demonstrate that there was a toe board or toe boards in position. It is clear at any rate that the plaintiff is quite unable to demonstrate that there was any absence of toe boards. In fact, in his evidence, the plaintiff actually said that he stood up on the toe board so it is beyond dispute that the plaintiff cannot make a case of absence of a toe board. Therefore, the plaintiff’s two specific complaints about the scaffolding were invalidated.
In circumstances where the CCTV proved definitively what had happened and that the version contained in the pleadings and particulars was fundamentally wrong, that meant that the plaintiffs engineer’s report which was based on his account of the accident was irrelevant to what had actually happened. So the engineer Mr. Watson gave evidence, not on the basis of his report which had been exchanged under SI 391, but on the basis of the stills from the CCTV. The plaintiff’s evidence as to how the accident happened was also based on the CCTV and the photographs. He said that he put his foot on the toe board and reached for one of the bars and the toe board collapsed and he went over the scaffolding. He said that when he was thinking back to how he fell, he knew he had been taking in the bars and in a split second he was on the ground. He did not know whether he had gone through or over the scaffold. It was now clear that he had gone over the top rail.
The defendants dismissed as an unlikely explanation the suggestion that the plaintiff got the facts wrong because of confusion. He did not suffer a head injury of any kind and there was no reason proposed as to why his recollection might have been so faulty.
The plaintiffs engineer. Mr. Watson, said that in his opinion the plaintiff stood up on the toe board to get extra height to enable him to grab the end of a pole and toppled out over the top bar of the protective rail. His hypothesis was that the toe board had shifted inwards causing Mr. Meehan to topple over. He condemned the scaffolding because he said the toe board was capable of being moved. The point was made to him that it is designed to stop things from falling from the floor of the platform or indeed people from toppling over and it was never designed to resist inward pressure. It was also suggested that it was fixed in a mode that was approved and was effectively standard or one of standards modes of doing so. Mr. Watson maintained that there was some breach of statutory duty under the scaffolding regulations, but I am extremely sceptical about that. I think that if, as Mr. Watson conceded, this mode of fixing was an approved way, and there is no evidence that the mode of fixing and operation was not this, approved way, then this criticism falls. The case based on defective scaffolding must fail. There was no breach of statutory duty. Neither was there negligence.
There does remain, however, one basis of claim based on the defendants’ obligation to provide a safe system of work. It is as follows. A delivery of rods to be used in the work being done on the windows by BKNS was made to the site. These units were steel rods some 6m in length and they were thin enough to permit considerable flexion along the length. When the lorry arrived on site, the crane was busy which would normally be used to take the delivery up to the proper level, in this case the first floor level. The BKNS men on site included Brian, the son of the owner of the company, and they thought of bringing them through the front door of the building, but the foreman told them not to do that because they would be in the way. Brian and another BKNS man were on the ground, the plaintiff was on the scaffolding platform on first floor level and another colleague Simon was inside a window at first floor level. The two at ground level took the rods from the lorry and handed them up to the plaintiff, who in turn passed them in through the window to Simon. Mr. Watson was initially critical of this system because it was not the safest way of doing it; that was to use the crane. But in my view there was nothing wrong with this method of handing up poles- they were not too heavy or awkward and did not present any particular difficulty and the system worked for a time. The accident happened when one of the poles was not fully handed up to the plaintiff at first floor level, but instead was rested against the outside hoarding that was protecting the site from the public and giving the public access along the footpath during the course of the building work. There was a gap of a number of feet between the plaintiff’s platform and where the end of the pole was now resting. It needed somebody to lift up the pole and push it up to the requisite height where it would be closer to the plaintiff and close enough for him simply to take it in his hands draw it up the rest of the way and pass it to Simon.
The plaintiff had a number of choices at this point, when he could not reach the pole. But he did not take any safe option. He stood on the toe board- as it appears from the photographs – and leaned out over the top rail of the protective barrier. He toppled out and would have fallen head first but he was able to save himself to some extent by catching a rail. He still fell heavily on his left foot and suffered the fracture of the heel and damage to the sub-talar joint. This was a heavy fall in every sense – Mr. Meehan fell some 8 feet or so to the ground and he was at the time around 16 stone in weight. His weight has now gone up to 20 stone.
Mr. Culleton, consulting engineer for BKNS, testified that what the plaintiff did was totally unwarranted and dangerous and he exposed himself to the very thing that the protective rail was intended to prevent. Obviously by standing up on the toe board he reduced the safety element of the rail. And in any case, there was no emergency and there was no need for him to do what he did. Mr. Culleton produced documents showing standard modes of fixing toe boards on scaffolding which would or could allow the toe board to be flexed and indeed shifted inwards if pressure were applied in a particular way. In this case, if the plaintiff was leaning out away from the scaffolding and his weight was thus coming on the top of the toe board, but vectoring inwards so the force would or could be sufficient to displace the board from its fixing. And given that the fixing was never intended to prevent inward pressure, that was not a failure of the toe board fixing mechanism. Since there is no evidence to suggest that the mechanism that was in operation was in any way defective, for reasons mentioned above, I do not think that any complaint can arise out of the toe board fixing. And in any case, I am far from convinced that the toe board actually moved.
Another point that should be mentioned is that the plaintiff was an experienced glazier and used to working on building sites. Not only that- a document was produced entitled Appendix 3 -Induction and produced by the main contractor Michael McNamara and Co. and this appears to have been signed by Mr. Meehan. It is a site safety document and it says that if there is doubt, a worker should always ask and it specifically says that he should never climb scaffolding.
It is obvious therefore that if the plaintiff succeeds in establishing negligence on the part of the defendants, there will be very substantial contributory negligence because what he did defies all logic and sense and safe practice. Was there any negligence? My view is that the plaintiff cannot complain that the system was dangerous because I do not think there was anything dangerous about handing up the rods in the way that happened. Neither can he say that there was no system, because having two men on the ground and one on the scaffolding platform and one inside was indeed a system.
But I think he can say that the system did not work, in that it was operated for the previous rods that were handed up to him and what was required was for this particular one to be put in position just like the previous items where he was able to grasp it and haul it upwards but that did not happen. So the real case is that the system was not actually operated. He was then left with a situation where the metal rod was too far away from him. He apparently made a mistake in thinking that he could reach it, even if that required him to lean out across the rail. Perhaps he was lazy and did so instead of going down one storey to the ground. He was certainly very foolish but he did so in the course of his work and in response to a failure of the operation of the system.
The obligation is on the plaintiff’s employer to have a safe system of work in operation. That applies to the work generally and to each part of the work. The main contractor has overall responsibility on site for ensuring that there is in force a safe system of work for each employee under its overall or general command and working on the building site. That is not just the common law, but also the statutory duty in the building regulations. In the circumstances, even though the plaintiff was more than foolhardy in what he did, there was a breakdown in the operation of the system that should have worked safely and that failed in this respect.
There was very heavy contributory negligence. It would be very unusual to have an apportionment of fault in excess of 50% but this case calls for that. A simple problem arose for an experienced employee engaged in work while he was on scaffolding. Safety measures were in place. He found a way to endanger himself by standing on the toe board and thus rising to a position where the safety rail would not restrain him. I hold that fault is to be apportioned as to two-thirds on the plaintiff and one-third on the defendants.
The plaintiff claimed that he could not go back to his pre-accident work and he is permanently disabled from doing so. As a result, his employment options and earning capacity are severely limited. He claimed loss of earnings to date and also for that loss calculated actuarially into the future. Mr. Roger Leonard, Vocational Assessor, and Mr. Nigel Tennent, Consulting Actuary, gave evidence of this part of the claim. The claim is for €95,000 past loss of earnings and €385,470 into the future.
The matter of major significance about the earnings claim is that the plaintiff testified repeatedly and insistently that he had not worked in any way since the accident and that social welfare payments were his only source of income. However, in cross-examination he was eventually forced to concede that he was and had been engaged in a substantial business of ticket selling as a professional ticket tout. He attends between 100 and 120 events a year, meaning concerts and other such. He also goes to all the big sports events for which tickets are needed and where there is a market for them, including Croke Park, Aviva and other venues. If there is a big occasion, the plaintiff will be touting tickets at it. He is a busy man and has a significant income from his work. It is impossible to believe that somebody in as big a way of business as the plaintiff would only make €20 or €30 a time.
One inference from this evidence is that his physical incapacity is a lot less than he described in court or to Mr. Leonard or to Prof. Stephens. Secondly, he has been able to reduce his post accident income loss by ticket sales. There can be no doubt that the plaintiff has engaged in this business in a big way because of the number of events and sporting occasions that he attends for the purpose of buying and selling tickets. It is impossible to know how much the plaintiff earns or has earned since the accident. He was not forthcoming about it, quite the contrary. He was also engaged in this work before the accident, when he was employed by the first defendant. He has had more time to engage in the ticket business since the accident but it is impossible to know how much the business has increased as a result. The actuary Mr Tennent struggled with this question in cross-examination but he was unable to help with calculation of losses without having basic information and figures.
The defendants have applied for the dismissal of the plaintiff’s claim under s.26 of the Civil Liability and Courts Act, 2004.
The first defendant argues in written submissions that:–
(1) The account of the accident as given in the personal injury summons and particulars, including amended particulars, was untrue and accepted as such by the plaintiff.
(2) The suggestion that he might have been confused is groundless; and there is no evidence as to why or whether he was confused any relevant time. There is therefore no explanation for the changing versions of the story.
(3) His evidence on the claim for loss of earnings past and future was untrue as to his disability, this history of work since the accident and his income since the accident.
(4) These matters are material to the case.
(5) No basis exists for applying the injustice exemption.
The second defendant cites the different accounts of the accident given by the plaintiff, conceding that “this may possibly be excusable” but arguing that in the circumstances of the case they are significant in undermining the plaintiffs overall credibility. This defendant highlights the plaintiffs answer is in cross-examination as to his work history and income since the accident, relying on this as being false or misleading material evidence that was knowingly given by the plaintiff.
Each of the defendants alleges that the plaintiff knowingly gave false or misleading evidence in a material respect in his answer is in cross-examination about his work and income following the accident. The second defendant includes in its written submissions a passage from the transcript in which the plaintiff testified repeatedly that he had not worked in any way since the accident and that social welfare payments were his only source of income.
The plaintiff’s submissions in response may be summarised as follows:-
(1) The plaintiff did not mislead knowingly.
(2) The defendants were not actually misled as to the facts of the accident because they had the CCTV.
(3) The plaintiff’s evidence as to his condition was not false or misleading.
(4) The plaintiff did not exaggerate his loss of earnings.
(5) The plaintiffs answer is were not false or misleading because he did not class selling tickets as work: “I just went to try and get a few tickets for the price of a drink”.
(6) The plaintiff accounted for the changes in his description of the accident.
The plaintiff does have a serious injury in the form of a left calcaneus fracture and damage to the sub-talar joint. He has ongoing significant pain discomfort and disability. It follows therefore that if the case is dismissed, Mr. Meehan will suffer very significantly.
The relevant parts of s.26 are as follows.
(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that-(a) is false or misleading, in any material respect, and
(b) he or she knows to be false or misleading, the court shall dismiss the plaintiffs action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that-
(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the affidavit, dismiss the plaintiffs action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
The section has been considered in recent cases. It is clear that the burden of proof rests on the defendant seeking dismissal: Ahern v Bus Eireann [2011] IESC 44.
In Dunleavy v Swan Park Ltd 2011 IEHC 232, O’Neill J said that section 26″ is there to deter and disallow fraudulent claims. It is not and should not be seen as an opportunity to seize upon anomalies, inconsistencies and unexplained circumstances to avoid a just liability.”
In Carmello v Casey [2008] 3 IR 524, Peart J said that s.26 “, but it is deliberately so in the public interest, and is mandatory in its terms, once the court is so satisfied on the balance of probability, unless to dismiss the action would result in iJ1iustice being done.”
In Farrell v Dublin Bus [201o] IEHC 327 Quirke J dismissed the plaintiff’s claim because of misleading evidence in respect of future loss of earnings. The court was satisfied that the plaintiff had knowingly given or caused to be given misleading evidence in a material respect in support of her claim and the judge said: –“That finding, on its own, requires that the court must dismiss the plaintiffs claim unless the dismissal of her action would result in an injustice being done.” The same judge considered the question of injustice in a subsequent case, Higgins v Caldark Ltd [2010] IEHC 527 when he said that “the court’s discretion is limited. It may not be exercised simply because the statutory sanction required will have very severe consequences for a hard-working and likeable man who has suffered a serious injury.”
The judge went on to deal with the situation that arose in relation to the part of the claim that was not affected by the false or misleading evidence:
“The imposition of the sanction has the effect of depriving the claimant of damages to which he or she would otherwise be entitled. The court must disallow both that part of the claim which has been based upon materially false and misleading averments handle so that part of the claim which would otherwise have been valid and would have resulted in an award of damages.”
The same point arose in Nolan v. Mitchell [2012] IEHC 151, when the court again dismissed the claim because of false or misleading evidence. Although the plaintiff had been successful in proving part of his claim, that did not survive the application of this section by reason of the court’s findings as to the plaintiffs falsehoods.
Section 26 is mandatory. If it applies to the case, the legitimate parts of the claim cannot survive with only the false or misleading elements dismissed. It is possible in this case to decide liability without relying on the plaintiff’s evidence. The CCTV evidence is sufficient to do that. One can also endeavour to assess general damages by reference to the evidence of Prof Stephens, relying on his objective findings. On that basis, my assessment of general damages is €75,000 for the past and €60,000 in the future, subject of course to reduction for contributory negligence.
It is, however, clear on the authorities that is not open to this court to separate out the good from the bad. That is what the court might have done before section 26 but the situation is different now and the cases make it clear that the sanction is to be applied, unless there are quite specific features that would lead to injustice.
The defendants’ case is that the plaintiff has so materially misled the court in the pleadings and particulars and information given prior to the hearing and in the evidence at the hearing itself that he is shown to be endeavouring to mislead at every opportunity. There is considerable weight in this proposition. Mr. Meehan was unreliable from the first moment of his cross-examination, when he was asked about his address. It was somewhat frustrating to listen to him fencing with counsel rather than giving any straight answer if he could avoid it. In fact, it was quite impossible to believe that the plaintiff was actually trying to answer the questions he was being asked.
The information about the plaintiffs earnings since the accident and his present income are within his knowledge and exclusively so. He did not give that information to the court. I found the plaintiff to be an unreliable and evasive witness on this part of the case. With regard to loss of earnings in the past and in the future, it seems clear to me that Mr. Meehan was caught in a dilemma in that he could not disclose his earnings from ticket touting, especially if they were substantial as I believe they were, because that would expose him to liability to pay tax and possibly other even more serious sanctions. So he found himself then with this difficulty and made no attempt to deal with it except by endeavouring to conceal or minimise it.
The plaintiff’s evidence in relation to his claim for loss of earnings in the past and the future was knowingly false and misleading in a material respect. This applies particularly to his evidence as to his income and as to his work history after the accident. In doing so, he knowingly gave false or misleading evidence in a material respect.
The fact that in relation to liability the defendants were in possession of the CCTV film and therefore knew the correct position is not material to whether the plaintiff gave false or misleading evidence. It is the plaintiffs conduct of the litigation that is in issue, not whether he actually succeeded in misleading or deceiving another party or the court.
The plaintiff’s abandonment of his original account of the accident is unexplained in the sense that his purported explanation that he was confused has no basis in fact and is improbable. It was obviously material and the inference is that it was knowingly false and misleading.
On these findings, the action must be dismissed in accordance with section 26 unless that would result in injustice. The court is required to state in its decision the reasons for deciding that the dismissal of the action would result in injustice being done. What constitutes injustice in this context? One of the examples given in the cases is if a plaintiff who told a relatively trivial lie had catastrophic injuries then it would be wholly disproportionate in that situation and accordingly unjust to dismiss the whole action because of a relatively unimportant or peripheral or trivial untruth. It cannot be said that the matters that arose in this case were in any way trivial or insignificant.
Having regard to the terms of the section and to the decided cases, there is no basis on which the exemption to dismissal might be applied in this case.
Fanning v Myerscough
[2012] IEHC 128JUDGMENT of Mr. Justice Sean Ryan delivered on the 27th March, 2012
1. The plaintiff was born on the 24th August, 1949 and is now 62 years old. This case is about an accident that befell him in the course of his work with the defendants on the 4th March, 2008. The accident happened at Baroda Stud, which the defendants owned and operated at the time. They have since moved to a different location.
2. Mr. Fanning was getting down from a tractor and had one foot on the ground and one on the last step when, as he claims, the door swung suddenly against him and caused him to lose his balance and fall down to the ground, resulting in a serious injury to his left foot.
3. He sustained a fracture of the calcaneus bone of the left foot which was treated by immobilisation in a plaster cast and the fracture went on to heal after two months. However, the plaintiff continued to complain about leg pain which became chronic. He was assessed by orthopaedic and pain specialists and was ultimately referred to Prof Tierney, a consultant vascular surgeon. He had pain relieving injections and medication. He underwent physiotherapy and he uses orthotics and a walking stick. He had underlying vascular disease and required inpatient hospital treatment by angiogram and then angioplasty to treat a thrombosis behind his left knee. There is a risk of recurrence of this problem which if it happened would be more difficult to deal with and there are statistically small risks of serious further complications.
4. The plaintiff is unable to return to his previous work and this employment and earning options are very limited. He had hope and intended to continue working until age 70 years.
5. The case was fully defended and the issues that arise are as follows:
(i) Liability: the question in this respect is whether the door- restraining strut, which operates hydraulically, was defective at the time of Mr. Fanning’s accident.
(ii) Was Mr. Fanning guilty of contributory negligence in alighting from the tractor by walking forwards out of the cab and down the steps rather than by turning towards the cab and coming down backwards?
(iii) Can the serious vascular condition that affected the plaintiff’s lower left leg be attributed to the accident?
(iv) The impact of the injury on Mr. Fanning’s working and earning capacity for the period when he would have been expected to continue working.
Liability
6. It was not disputed by the defendants that a slamming door on the tractor could have caused the plaintiff to lose balance and fall to the ground. The debate focused almost entirely on the condition of the restraining strut on the left-hand door of the tractor cab. This operates hydraulically to hold the door in position and to prevent it from swinging unrestrained. If it was working properly, the accident could not have happened in the manner described by Mr. Fanning. His evidence was that the strut had not been operating properly for a period of months prior to the accident and that he had complained about it to his superior, Mr. Tim Woodlock. Mr. Woodlock denied that the plaintiff had ever reported the defective strut to him. He said that if he had done so, it would have been a very simple matter for him to mention it to the mechanic, Mr. Doyle, and get it fixed. Mr. Doyle came around regularly to fix machinery, including the tractor, and he also carried out servicing on a regular basis. Mr. Doyle confirmed this in evidence and produced invoices showing the work that he did on the tractor between September 2007 and March 2009.
7. On 23rd March, 2009, Mr. Doyle submitted an invoice for work that he did on this tractor after the door had been damaged. The work included straightening the door, replacing broken glass and fitting new struts to each of the doors. As to why both struts were replaced, Mr. Doyle explained that they came in pairs and there was no call to withhold one of them until such time as it might be needed and that it was his practice to fit a new pair of struts if he got them. Mr. Woodlock’s evidence was that the door had been damaged shortly before this work was done in March 2009. However, he did not have any direct knowledge as to whether the strut had been interfered with at the time of the damage to the door.
8. It is possible, of course, that the strut was working properly up until it was damaged in the incident that gave rise to Mr. Doyle’s visit to fix the door and replace the glass. That is the inference that the defendants put forward. Another possibility is that the strut was already damaged and that when Mr. Doyle was fixing the door in March 2009 he also replaced the defective strut as well as the non-defective one on the other side.
9. I have direct evidence from the plaintiff that the strut was not working for some time before the accident. That would date the malfunctioning of the door apparatus to some time in 2007. Mr. Fanning says that he mentioned that to Mr. Woodlock and Mr. Woodlock denies that he did so. Leaving this reporting question aside for a moment, it is clear that the strut needed to be replaced in 2009 and for that purpose a pair had to be ordered but there is no direct evidence other than that of the plaintiff as to the timing of damage to the strut. Specifically, there is no evidence to say that the strut was damaged in the incident that affected the door in 2009.
10. If the strut was, in fact, defective, then the door could slam, as Mr. Fanning testified. The defective door would constitute a breach of statutory duty in the provision of safe equipment and that would be sufficient for the plaintiff to succeed in the circumstances of the case.
11. As between the versions and the proper inferences to be drawn, I am slow to conclude that Mr. Fanning has manufactured this story of the defective strut for the purpose of fabricating a case. There is no direct evidence to establish that the strut was damaged in the 2009 incident when the door glass was smashed. Mr. Woodlock in his evidence first said that he thought the strut was bent or damaged in the later incident that gave rise to the repair work carried out by Mr. Doyle, but he retreated from that to the position that the stmt, he believed, must have been damaged, otherwise it would not have needed to be replaced.
12. With regard to reporting, I think, on balance, that Mr. Fanning probably did tell Mr Woodlock. But I very much doubt that Mr. Fanning’s mentioning the matter to Mr. Woodlock was sufficiently important to give rise to a visit from Mr. Doyle to repair it. It did not come over as a serious complaint that needed to be addressed immediately or promptly.
13. As to Mr. Doyle’s visits and why he did not repair the strut on occasions when he serviced the tractor, it may be, I think, that his focus would have been on the particular task or service rather than on a general appraisal of the vehicle and all its parts.
14. My conclusions on the allegedly damaged door strut are:
(i) The strut was defective at the time of the accident;
(ii) The plaintiff mentioned it to Mr Woodlock;
(iii) It remained in a damaged state until the door was fixed by Mister Doyle in 2009;
(iv) Neither Mr Woodlock nor Mr Fanning thought it was a serious danger;
(v) The defendants were in breach of their statutory duty to provide safe equipment and appliances and to ensure that they were maintained in that condition.
15. In light of these conclusions, having regard to the issues raised between the parties, the plaintiff must succeed.
16. The onus on an employer seeking to establish contributory negligence is higher when the employee has proven breach of statutory duty as compared with common law negligence. There is of course a duty on every employee to take care of his own safety.
17. The plaintiffs consulting engineer Mr Romeril acknowledged that Mr Fanning alighted from the tractor the wrong way. Instead of turning to face the cab of the vehicle and retreating down the steps while holding the safety handle provided for that purpose, Mr Fanning walked forward out of the cab. This meant that it was difficult if not impossible for him to keep hold of the handle and most unlikely that he did so.
18. The offending door was to his side at first and then behind the plaintiff so that he was unable to see it. Mr Fanning’s heel was on the step of the vehicle. It is obvious, and confirmed by Mr Romeril, that the impact force of the tractor door would have been light. This means that Mr Fanning was in a precarious, unbalanced position such that a slight blow was enough to knock him to the ground.
19. The plaintiff was aware of the two relevant circumstances, being the loose door and the correct way to go down steps. The latter point is so obvious that I believe an experienced man like Mr Fanning might well have considered it to be insultingly patronising if he had been told how to get down out of a tractor.
20. I assess contributory negligence in this case at 50%.
21. The continuing medical problems that the plaintiff is experiencing appear to be attributable to the sequelae, in the form of nerve damage, of the thrombosis that formed in his lower leg. The connection of this condition to the accident is somewhat tenuous and there is no clear evidenceon it. Prof Tierney was careful and scientific in his approach and concluded as a matter of probability that the connection was established. Trauma could produce a thrombosis in a person with Mr Fanning’s vascular condition and the temporal coincidence of the leg symptoms tipped the balance. I accept Prof Tierney’s evidence.
22. The defendants left Baroda Stud a short time after the accident and moved to a new location in Co Wicklow. Mr Fanning’s employment with them ceased in September, 2008 in circumstances that gave rise to a claim for unfair dismissal which it is unnecessary to explore. If he had not been injured and disabled, I do not think he would have continued in their employ in the new stud.
23. Having regard to the evidence of Ms Paula Smith, vocational assessor, and that of the plaintiff and the medical evidence, my view of the plaintiff’s employment and earning capacity is as follows.
(i) There was no reality in thinking that Mr Fanning, who does not drive, would have commuted to work in the new stud;
(ii) He hoped to continue working until age 69 or 70;
(iii) He would have got work on and off as a farm or stud worker on a seasonal basis;
(iv) At his age he was not going to get a permanent position;
(v) As he got older, he would encounter more difficulty in doing work, in getting work and in staying in good health- one indicator of this last point is Fanning’s vascular condition.
24. In accordance with these findings I assess damages as follows:
(i) loss of earnings past and future: €90,000- (this is one half of the actuaries calculation that made on the assumption of full employment up to Mr Fanning’s intended retirement);
(ii) general damages in the past €50,000;
(iii) general damages in future €30,000
(iv) other expenses (orthotics etc) €2500.
25. This comes to €172,500 and the plaintiff is entitled to 50% of that because of my finding as to contributory negligence, so there will be judgement in the sum of €86,250.
Quinn v Bradbury
[2012] IEHC 106Judgment of Mr Justice Charleton delivered on the 18th day of April 2012
1. Before the accident in issue in this case, the plaintiff Robin Quinn was a professional horseman. A tall young man, and well built, he had no hope of pursuing a racing career as a jockey simply because of his natural body shape. Born in November 1978 and brought up within a family that kept horses in a small way, Mr Quinn had ridden since being a boy and had represented Ireland in youth tetratholon competitions. On leaving Wesley College he had studied for a time at an equine college in England but found the course did not suit him, “too high falutin” as he said, and returned to Ireland. Because of his reputation, he found a job with the defendants.
2. James Bradbury, the second named defendant, owns horses in the context of a stables and Jane Bradbury, his daughter, the first named defendant, also buys and breeds horses. Jane Bradbury breaks in horses from about the age of three; the aim being to produce a well schooled half blood sport horse or a responsive thoroughbred racehorse. References were made in evidence to breaking a horse requiring only 6 to 8 weeks of intensive work. That is correct as far as it goes, but after that process a horse still requires further schooling. The temperament of a horse develops further from that time with appropriate training. The work of the defendants is a successful and well-managed business. Mr Quinn was a key part of it in riding out thoroughbreds, assisting in breaking them in and, to a lesser degree, performing the same duties with the half blood horses. Irish sport horses have a high reputation for temperament and are generally easier to ride than race horses. Mr Quinn was a key member of the staff of the defendants and was rightly admired as a horseman. Before the accident described later in this judgment, he justifiably hoped to continue making his living in riding or in producing horses.
3. All of that came to an end when he fell from a horse while working for the defendants on Monday the 21st of November 2005. The horse jumped a metal gate. The horse fell on top of him and badly smashed his right arm. He claims that Ms Bradbury is responsible for the accident because she directed him to ride the horse by an obstacle which had previously spooked it in circumstances where she had to gain control over the horse by very serious measures and where the temperament of the horse made that direction extremely unwise, in the sense of being inappropriate in an employment context. Ms Bradbury claims that she depended upon Mr Quinn as an experienced horseman to use his discretion appropriately and that his failure to exercise proper control or to take manoeuvres, such as dismounting the horse or leading it through the area in question, means that he was the author of the misfortune or was guilty of a high degree of contributory negligence.
Principles of liability
4. Horse riding is a sport. It is easy to confuse the nature of tort liability for horse riding accidents in a recreational setting with the liability of an employer in the context of an equestrian business. People who play sports take the ordinary risks associated with their sport and face difficulty establishing any liability in tort if injuries occur which are inherent and in the expected course of play in accordance with the rules and perhaps accidental and tolerable breaches of same. (See, in particular, Cox & Schuster, Sport and the Law (2004 First Law) at chapter 5). An employment relationship is different. An employer owes to an employee a duty to take reasonable care for his or her safety. This is set out in statutory form in s. 8 of the Safety, Health and Welfare at Work Act 2005. This provides:-
(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk;
(c) as regards the place of work concerned, ensuring, so far as is reasonably practicable—
(i) the design, provision and maintenance of it in a condition that is safe and without risk to health,
(ii) the design, provision and maintenance of safe means of access to and egress from it, and
(iii) the design, provision and maintenance of plant and machinery or any other articles that are safe and without risk to health;
(d) ensuring, so far as it is reasonably practicable, the safety and the prevention of risk to health at work of his or her employees relating to the use of any article or substance or the exposure to noise, vibration or ionising or other radiations or any other physical agent;
(e) providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;
(f) providing and maintaining facilities and arrangements for the welfare of his or her employees at work;
(g) providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;
(h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3;
(i) having regard to the general principles of prevention in Schedule 3, where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
(j) preparing and revising, as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger;
(k) reporting accidents and dangerous occurrences, as may be prescribed, to the Authority or to a person prescribed under section 33 , as appropriate, and
(l) obtaining, where necessary, the services of a competent person (whether under a contract of employment or otherwise) for the purpose of ensuring, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(3) Any duty imposed on an employer under the relevant statutory provisions in respect of any of his or her employees shall also apply in respect of the use by him or her of the services of a fixed-term employee or a temporary employee.
(4) For the duration of the assignment of any fixed-term employee or temporary employee working in his or her undertaking, it shall be the duty of every employer to ensure that working conditions are such as will protect the safety, health and welfare at work of such an employee.
(5) Every employer shall ensure that any measures taken by him or her relating to safety, health and welfare at work do not involve financial cost to his or her employees.
5. The stable area of the defendants and its curtilage was a place of work within the meaning of the Act of 2005, which at s. 2 defines that concept as including any place or any part of a place (whether or not within or forming part of a building or structure), land or other location at, in, upon or near which work is carried out whether occasionally or otherwise. Section 8 of the Act of 2005 reiterates the duty to take reasonable care. What matters here is not the static condition of any workplace but the direction as to how work was to be carried out. The issue is what instruction was given and what precautions were reasonably to be regarded as appropriate.
6. In s. 2(6) this definition appears as referable to the duty of care of an employer to take such precautions as are reasonably practicable for the safety, health and welfare of employees as set out in s. 8 of the Act of 2005:
For the purposes of the relevant statutory provisions, “reasonably practicable”, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.
This section, in the judgment of the Court, expresses what previously would have been the common law duty of care of an employer towards workers and requires little analysis. The duty of an employer is to take such measures as are reasonable and practicable in the circumstances of the work performed in order to ensure that no employee is injured while at the workplace. The more hazardous the work involved, the more stringent is the duty on the employer to take precautions. Even apparently simple and straightforward work, however, may carry the risk of an accident occurring and this must be guarded against by reasonable measures which are practicable in the circumstances. The ordinary duty of care can be fulfilled by guarding against hazards; by the issuing of a warning (in the rare circumstances where a warning is sufficient); by the provision of proper plant and equipment; by appropriate training; by requiring the implementation of appropriate safety measures with commensurate discipline; and by establishing and enforcing a sense of awareness as to what may occur should the procedures and precautions for avoiding accidents not be followed. The Court accepts that as a matter of common law and in accordance with s. 8(2)(i) of the Act of 2005 that some hazards can never be totally eliminated. The aim must be to make a hazardous task as safe as it can reasonably and practicably be made. The general principles of prevention are set out in the Third Schedule to the Act as:
1. The avoidance of risks.
2. The evaluation of unavoidable risks.
3. The combating of risks at source.
4. The adaptation of work to the individual, especially as regards the design of places of work, the choice of work equipment and the choice of systems of work, with a view, in particular, to alleviating monotonous work and work at a predetermined work rate and to reducing the effect of this work on health.
5. The adaptation of the place of work to technical progress.
6. The replacement of dangerous articles, substances or systems of work by safe or less dangerous articles, substances or systems of work.
7. The giving of priority to collective protective measures over individual protective measures.
8. The development of an adequate prevention policy in relation to safety, health and welfare at work, which takes account of technology, organisation of work, working conditions, social factors and the influence of factors related to the working environment.
9. The giving of appropriate training and instructions to employees.
7. Some doubt may be possible as to the applicability of the Act to the circumstances of horse training and schooling. Prior legislation, such as the Factories Act 1955 as amended, tended to focus protection on particular industries by reference to the definition of the applicable scope of employers’ duties to those running factories or other facilities such as abattoirs or food plants. There is a general duty under s. 8(1) of the Act of 2005, by reasonably practicable measures, to ensure the safety, health and welfare at work of employees. That requirement is not limited to a definite space or to a particular industry. Such definitional limitations are absent from the Act of 2005. This must be deliberate. There is nothing in the wording of the Act to exclude such activity from the definition of work to which the legislation applies. The Court is obliged to give the ordinary and natural meaning to the words of the enactment in accordance with the fundamental tenets of statutory construction; JC Savage Supermarket Ltd & Anor v An Bord Pleanála [2011] IEHC 488. This case is not concerned with the physical condition of the premises within which work is carried on or the work-tools of employees and their appropriateness. Rather, the core focus of the case is the nature of precautions that were required to be taken to avoid an accident and, in particular, the appropriateness of the instruction in question given by the defendants as employers to the plaintiff as employee. That must be judged in the context in which the instruction was given and that is in dispute. Even were the Act of 2005 not to be applicable, I have also analysed what follows from the point of view of the ordinary common law duties of care which an employer owes to employees. The result is the same.
This accident
8. Horses are inherently dangerous. A rider is mounted on a saddle 1.50m to 2.00m from the ground on an immensely powerful animal with a will of its own, individual as to temperament and which is prone to responses of flight from what it perceives to be areas of hazard. Although a very good rider can be expected to control a horse in almost all circumstances, it remains the fact that the animal is markedly stronger and swifter than a person. A horse cannot always be dominated or directed. Where a horse panics, it will not always respond to assurance, much less to reason, but only to the confidence which its training has imbued in following the signals of the rider over the deeply imprinted instinct of fleeing from danger that developed over millions of years of evolution. In some situations the phyologentic development of the animal will overpower any education. For the purposes of this case, the expert on each side agreed that panic in a horse can reasonably be marked on a scale of 1 to 10; where 1 involves simply shying momentarily at a bag on the ground or a bird in a bush and where 10 describes the state of complete captivation of the animal by the instinct to flee, or sometimes to fight against, a perceived danger. About this the rider can be expected to do nothing, except perhaps to dismount and hope to lead a horse until the memory of its training returns or its panic dissolves. In addition, there are other relevant instincts. A horse will feel comfortable in a stable where it has been well treated, thus it is likely to want to return there, and a horse will also have a tendency to respond to a herd instinct to follow its fellows.
9. There were two expert witnesses in the case, one for the defendants and one for the plaintiff. Both of these were strongly criticised during their testimony. John Watson, the expert for the defendants, is a distinguished international Irish three-day event rider with gold, silver and bronze medals in European and World championships. He was challenged for being intent on pursuing a case against the plaintiff. I completely reject any criticism of Mr Watson. He showed himself a thoughtful witness who was capable of giving objective and very valuable thought to the serious issues in the case. Throughout his evidence, he demonstrated an intention to assist the court. Sandra Blake Power, the expert for the plaintiff, was testifying as an expert witness for the first time. She was challenged as to whether she was expert at all. The Court is fully satisfied that she is. She has over 20 years of experience in riding horses and in assisting in breaking horses. She has a specialist interest in dressage. She is competent at grand prix level and she represented Ireland at Hickstead in 2011, obtaining a very creditable fourth place in that extraordinarily demanding and exacting discipline. Her views on the appropriate treatment of horses are not outside the mainstream but represent a respected and tenable view within the horse industry. Moreover, under cross-examination she demonstrated that she was listening carefully to each question and answering it both on its merits and by reference to wide experience. The court has gained much from listening to both of these experts.
10. Where a horse has a frightening experience, whether real or perceived, it can predictably associate a place with the recurrence of the danger which spooked it. Where any rider is faced with a situation of a horse going out of control, appropriate aids need to be applied, and perhaps sometimes more, if the safety of the rider is to be secured. In that respect, the Court has no difficulty with the proposition that securing the rider from serious injury may require aids of a serious kind. It is reasonably foreseeable that if a horse has gone out of control in a particular location, because something in that area has frightened the animal, but to where the horse is expected to return, then serious precautions need to be taken against the reawakening of panic. Where a rider had once needed to control a horse through the application of force in a particular location, a probability is established that in addition to the original cause of the instinct to flee a new factor is added which is the remembrance of what the rider has had to do. An exacerbation of panic, on returning to the same location may thereby be established, depending on the evidence. Serious precautions may include leading the horse habitually past the place where it has been spooked; removing the apparent cause of fright; accompanying the horse with another person on foot; and accompanying the horse with another mounted horse.
11. There has been much criticism of the credibility of the plaintiff. This was based on the pleadings and apparent inconsistency with later replies to particulars of the initial letter and the personal injury summons. These issues have been carefully considered in the context of the demeanour of the plaintiff and of the entirety of the evidence. The assessment of the Court is that the plaintiff Robin Quinn was at all times doing his best to tell the truth. An issue was also raised as to the appropriateness of an expert report being discussed with counsel. It is clear, however, that nothing untoward happened and that no expert witness in this case was influenced by anything other than a desire to assist the court. Much of the cross examination on each side focused on an incident a few days prior to the accident. Of central importance to the resolution of that issue is the reaction of the horse to being in the same area where it had previously been spooked.
12. What is crucial to this case is how the accident occurred; that, in turn, is to be related to what the horse might have been expected reasonably to have remembered and how a rider would be expected to respond. I am satisfied, relying in particular on the evidence of Mr Watson, that should such a serious danger present itself by requiring a horse to return to where it has previously seriously panicked, a rider should stack the cards carefully in favour of the rider. A similar duty to ensure that measure of safety arises as a precaution which an employer must take in fulfilment of the duty of care, both at common law and under the Act of 2005, towards any employee where an employer requires a rider to return to the scene where a horse will have such a memory and is therefore likely to panic in a serious way. I must therefore describe the accident in the context of the memory which the horse was likely to have of the circumstances associated.
13. The horse in question is called Gary. It was bought by Jane Bradbury as a three year old gelding a year previous to the accident. She described it as being a good horse which was not difficult. She began breaking in the horse immediately. She remembers asking for very little help from Mr Quinn. The horse had been hunted on two occasions, she said, indicating a very high level of training, so that it was almost ready to be regarded as a fully finished sport horse. Continuing the training through hacking and other appropriate exercise remains appropriate, however. Mr Quinn has a different recollection of this horse. His main job was in schooling thoroughbreds. Problems had arisen during training with the horse and he had been asked to help out. A strong rider, he is also physically a very strong person. This was one of the main issues with the horse, which tended at that stage, he said, to have a hard mouth and a very strong flight instinct. On occasions, this particularly strong animal would take an idea and rush off, only capable of being controlled by putting its head into vegetation to curb its flight. Its two hunting trips were described by Mr Quinn as not successful. On occasion the horse would run while in an open field and Mr Quinn would have to steer the horse into the hindquarters of Jane Bradbury’s horse to hold it back. Jane Bradbury has a different recollection but it seems to the Court, on the entirety of the evidence, that she has dealt with very many horses and that her recollection of this horse is not as clear as that of Robin Quinn.
14. On the Friday before the accident, Jane Bradbury and Robin Quinn left the stables of the defendants. The normal route was to pass through an open 5 foot high spiked gate by leading the horses, past the residence of the defendants, and onto a driveway leading to the road, or to a separate path to the public road, where there was a mounting block. Various estimates have been given as to how long an unusual feature was in place around the house. This feature was the presence of builders and the equipment associated with them. On the one hand it is said that builders were there with scaffolding and a skip for between 7 and 10 days, while on the other hand the defendants’ case is that builders had been in place for 10 or 11 days. However long these features were around the house and in the path of the horses which were expected to return mounted through this area, through the gate and into the stable yard, it is clear to the Court that the horses had not got used to the feature, and particularly the horse Gary.
15. On this Friday, when Jane Bradbury and Robin Quinn went out for a hack on the public road, this usual practice of passing the house by leading, mounting the horse at the mounting block and returning on horseback from a hack on the public road right through to the stable yard, was followed. The Court accepts that at this stage of its training, Gary was a relatively difficult animal and Jane Bradbury, in particular, has described the horse as being easily spooked. When the horse approached the skip and the scaffolding around the house, after the hack, two versions of what occurred have been given in evidence. Jane Bradbury testified that all that happened was that the horse shied momentarily, required only light aids to be brought under control and walked back through the gate, which was open, into the stable yard. The Court is satisfied that this recollection is less accurate than that which was given by Robin Quinn. It is not necessary to record the incident in detail beyond stating that his recollection is fully accepted. One of the most important reasons for accepting the recollection of Robin Quinn in preference to that of Jane Bradbury is that the accident which occurred on the following Monday is simply not explicable, having regard to the entirety of the evidence, had not the horse had implanted in memory what had occurred on the previous Friday. The high level of respect shown by Robin Quinn, and correctly so, towards his former employers convinces the Court that his recollection is not coloured by the accident which befell him. Rather, it seems likely that the shock of a serious accident occurring has undermined the genuine efforts of Jane Bradbury to recollect what occurred. Over the weekend following that incident, nothing of note happened.
16. On the Monday, the day the accident occurred, Robin Quinn was directed by Jane Bradbury to hack the horse Gary on his own along the route previously used and to ride it, mounted, on return from the public road. There is very little divergence between the parties as to what direction was given to him that morning. He was to be on his own as his employer had another appointment. He had asked on being given this direction whether he should use the whip and Jane Bradbury had agreed that he should. The only difference between them was as to whether there was a reference to “not doing a Lorcan on it”. This was a guarded reference to a rider in the location who was talked of as having used a whip unacceptably some time previously. What matters, from the point of view of liability, is that the Court accepts that Gary could be very difficult; was not yet fully complete in training; had had an experience which was very likely to have been implanted in his mind the previous Friday; was prone to panic; and was not, unlike the previous Friday, accompanied by another horse which might be used to calm him down or to lead him into the stable yard. Within the context of all that the Court accepts, the direction to ride past this obstacle where the horse had previously spooked did not fulfil the duty of care owed to Robin Quinn by his employers.
17. There is no question, on the evidence, of Robin Quinn acting in any headstrong, much less in an insane, fashion. He was a careful horseman but one who was less experienced than Jane Bradbury. There is no issue that he provoked an incident through misriding whereby the horse went out of control. There is some hint of this in one of the expert reports. Nor did Robin Quinn somehow fall from his horse. These would be an issue of fact which a party could justifiably correct in a draft expert report prior to a report being issued. The Court is not influenced by any such suggestion, in any event.
18. Robin Quinn returned from an uneventful unaccompanied hack on Gary on the public road and, as directed on returning, rode the horse up the path in the direction of the house. While on the public road, Gary was “as good as gold”. Robin Quinn was of the view that he would be disobeying orders had he not ridden the horse, as opposed to leading the horse, past the place by the house where the incident had occurred the previous Friday. Approaching the skip and scaffolding, the horse started going in little half jumps. Robin Quinn hit him on the quarters with the whip, one which made more noise than inflicted pain, and the horse reacted very badly. It took the bit between its teeth, rushed out of control through an archway, responding to no direction through the hands or legs, turned around and gave the appearance of trotting back as if his temper was easing towards the house. Robin Quinn had already been hit in the face by branches as the horse lunged out of control and was hoping for the best to get the horse back under his command. This expectation was misplaced. The horse was determined to flee into the safety of the stable yard and his stable. Utterly out of control, the horse turned and rushed towards the closed gate of the stable yard and took the jump from a concrete or cobbled surface onto a similar surface. The horse was not capable of this jump of 5 feet or more, to clear the obstacle, and it landed on the gate. It is highly probable that its hindquarters in the area of its knees got stuck on the spikes of the gate because four of these are bent forwards, with one in between left upright. Robin Quinn gripped the pommel of the saddle and tried an emergency dismount. He fell heavily onto the ground of the stable yard, probably fracturing his left wrist in this manoeuvre, while the horse attempted to struggle free, somehow lifted its hindquarters and fell heavily into the stable yard, crashing on top of Robin Quinn and severely smashing his right arm.
Liability
19. This accident happened because of what had occurred the previous Friday. The direction to ride the horse mounted past the area where it had been seriously spooked was not appropriate. Had such a direction been given, there should have been someone on the ground, or as Mr Watson has suggested, another mounted rider. In addition, the horse could have been schooled into passing the area through leading. It is the combination of the incident on Friday; the direction to pass the area mounted; the lack of appropriate precaution; and an apparent belief that merely a whip would have controlled the situation that establishes liability on the part of the defendants. Reality clearly establishes that this horse would not have gone so utterly out of control but for the incident described by Robin Quinn on the Friday having reinforced fear that was already present. The horse went totally out of control on the day of the accident. Any lingering idea that Robin Quinn acted out of character by deciding to take a fixed spiked closed metal gate of grand prix height on a stone or concrete surface, or simply fell, is wrong. It is clear that Robin Quinn had much more respect for his employers and for their animal and for his own safety. The horse went completely out of control.
20. The horse was later sold. By the stage that Mr Watson rode it six months after the accident, the horse presented as well schooled. That does not undermine the finding of the Court.
21. Having found that the responsibility for this accident rested with the employers of Robin Quinn, the court is concerned with the issue of contributory negligence. Under s. 13(1)(a) of the Act of 2005 there is a duty on an employee while at work to protect his safety, health and welfare. Other requirements are also made which are not relevant here. That subsection, of itself, maintains the responsibility of an employee at common law to take reasonable care. In principle, an employee is not required or entitled to completely surrender control over his or her welfare while at work to an employer. Although Robin Quinn was directed to ride the horse past the obstacle and, although that direction was less than the duty of care owed by the defendants to him demanded, he still had discretion as to how to proceed. Dismounting the horse and leading it past was one definite option. The majority of the responsibility for the instruction given, in that regard, must rest with his employers. If the horse was to be ridden through this area, in the context of what had occurred the previous Friday, then at least an accompanying horse mounted by a strong rider was clearly called for. When the difficulty began, the option of dismounting presented itself. That option arose as an emergency measure when the horse had slightly slowed. Possibly, Robin Quinn also ran the risk of some injury had he taken that measure then. All in all, the Court assesses contributory negligence on the part of Robin Quinn at 30%.
Damages
22. Robin Quinn spent weeks in hospital and had two serious operations to attempt to correct his broken left wrist and his smashed right arm. He can expect more operations into the future. He is left with the condition of finding it impossible to pull up the head of a horse which might stop on an ordinary hack to take some grass. His riding career is therefore completely at an end. Apart from the financial loss which this represents, he has been deprived in a serious way of an important aspect of his life Robin Quinn’s orthopaedic surgeon, Frank McManus, offered this opinion five years after the accident:
This young man sustained very significant injuries. The patient is currently 32 years of age and one would have concerns with regard to his long-term prognosis. He sustained a fracture of his left wrist, unfortunately the X rays relevant to his left wrist fractures have not been made available to me but on examination he has lost function. It will therefore be necessary for me to review this man again after a further interval … With reference to the fracture of the right elbow, this is a very significant injury with destruction of the radial head. The radial head/distal humeral joint is the joint responsible for the pronation/supination movement of the forearm i.e. the swivel mechanism of the forearm. This mechanism has been significantly compromised. This man cannot turn his palm up and in my opinion will not regain this function. I would also have concerns with regard to the longevity of the prosthesis inserted primarily acknowledging this man’s age. It is probable that this prosthesis will loosen up within a matter of 10 years and may require replacement and I cannot categorically outgrew the need in the longer term for elbow joint replacement depending on the disability that this man has over the longer period.
23. The left wrist is not now too bad. The right arm is significantly damaged and it causes intermittent pain, difficulty sleeping and impairment of function in an otherwise very healthy and sporting young man. He is living with a considerable burden. I do not regard it as reasonable to simply take the report of Mary Feeley, as a vocational rehabilitation consultant, and suggest that a year after the accident Robin Quinn would have been able to return to employment at a level of remuneration similar to that which he had with the defendants. He was significantly depressed, and understandably so, in coping with a major injury. It was only after months of swimming, attempting to surf and the assistance of his family and his new wife that he has returned to seeking gainful employment. An argument can be made that this case should have been brought on earlier, but that argument is not accepted.
24. In the future, Robin Quinn hopes to be self-employed and presents as being determined to make the best of whatever opportunities come along. There is a loss of earnings from the date of the accident to September 2006 of €8,000. There is a claim for ongoing loss of earnings from that date to the date of judgment herein of €31,620. It is reasonable to allow €20,000 of that loss as attributable to the accident in the context of the immensely serious injury and the change of life that resulted. Medical expenses are claimed in the sum of €2,586. The Personal Injuries Assessment Board book of quantum does not differentiate between general damages to date and into the future. There is significant loss of amenities of life into the future and ongoing pain coupled with the probability of further operations to stabilise, but not to improve, the situation in the plaintiff’s right arm. The fractured left wrist cannot be regarded as serious and permanent. The relevant measure of damages would ordinarily be at least €20,000. There is undoubtedly a serious and permanent condition in the right arm which has to attract damages of €80,000. Coupled with the loss of the amenities of life and of pain and disability into the future, taking into account the need for a fair overall award, general damages in this case are assessed at €150,000: if necessary €80,000 to date and €70,000 into the future. Together with special damages, the loss is €180,586.
Decree
25. Reduced by contributory negligence, the decree will be for €126,410.
APPROVED
Kelly v Bon Secours Health System Ltd
[2012] IEHC 21, Cross J. JUDGMENT of Mr. Justice Cross delivered on the 26th day of January, 2012
1. Introduction
1.1 The plaintiff in these proceedings was born on 3rd May, 1947 and is a separated mother, who commenced employment with the defendants by a contract commencing on 17th February, 2003. She was initially working at the defendant’s hospital in Tralee, Co. Kerry, as a temporary/part-time receptionist. At that time she was also working part-time with the local St. Vincent DePaul.
1.2 The plaintiff who represented herself commenced proceedings (which at the time were settled by counsel and with a benefit of a solicitor) by personal injuries summons claiming damages for injury, loss and damage caused by two distinct matters.
1.3 The easiest cause of action to contain is the plaintiff’s claim that on 24th August, 2004, whilst carrying out her duties in the records section of the hospital (to which she had been transferred) she sustained injuries when she twisted her back when carrying files.
1.4 The much more involved and intricate aspect of the plaintiff’s claim is a claim for injury and loss caused by the alleged harassment, bullying, abuse, intimidation and discrimination in the course of her employment with the defendants. The plaintiff brings this claim under the headings of negligence, breach of duty, breach of statutory duty and breach of contract and misrepresentation.
2. The Accident at Work
2.1 The plaintiff gave evidence by way of her extensive opening statement which she then swore to be correct and was subjected to extensive cross examination.
2.2 The plaintiff claims that the volume of her work was enormous, that she was asked to carry out impossible deadlines, she was never given any manual handling training and due to the repetitive lifting and turning, she injured her back. She cried out in pain as to the severity of this and it was witnessed by H.C., the line manager, who subsequently refused to sign an accident report form. Subsequently, in answer to questions from the bench, the plaintiff indicated that they were very short staffed on the day, H.C. was sitting down because she had injured her foot or had some sort of foot problem and there were lots of charts to be put away before any other work would commence. On that particular day, there were maybe over two hundred charts but she was not exactly sure and she was kept being told to hurry up and had to get them done before 9am.
2.3 The plaintiff had collected the charts from the ward, brought them down, logged them and had a very short time to put all the charts onto the trolley and get them back. She would grab a bundle of them and would turn around and put them on the trolley and while she was twisting, she injured the lower part of her back. She was given some painkillers by H.C. and she rang the physiotherapy department and made an appointment for her. She was never given manual handling training before the accident but was subsequently and had she been given that training, she might have been more aware of what to do.
2.4 The defendant did not call H.C. to give evidence who was the only witness but did call the highly respected engineer, Mr. Tony O’Keeffe who had a set of photographs. Mr. O’Keeffe gave evidence that the volume in weights being carried by the plaintiff were not excessive. This, of course, is not the plaintiff’s allegation. He agreed that the manual training regulations were mandatory and that it was a breach of statutory duty not to have such regulations.
2.5 It was argued by Ms. Marguerite Bolger, S.C., at the conclusion of the case that there was not sufficient evidence to show that the plaintiff had her accident or that it was caused or contributed to because of the failure of the defendants (which was admitted) to have proper training in manual handling.
2.6 I have observed the plaintiff, I believe that she is a witness who is inclined to tell the truth as best she can and that her recollection of the circumstances of the accident (which is not challenged) is correct. I also accept that had the plaintiff been trained in proper handling of weights and manoeuvring as is required under the statute, the accident as a matter of probability would not have occurred.
2.7 I therefore hold that it was negligent and a breach of statutory duty on the part of the defendants not to give the plaintiff this training and that this negligence was the principle cause of the accident and the injuries sustained therefrom.
2.8 The plaintiff is entitled to succeed in relation to that aspect of her case and I find there is no contributory negligence on the part of the plaintiff.
2.9 I will discuss the quantum of damages later in this judgment.
3. The Claim for Bullying and Harassment
3.1 I propose to analyse this claim firstly on the basis of the legal principles involved and then proceed to go through the various allegations in turn of “bullying and harassment” made by the plaintiff to assess whether there is liability in respect of them.
3.2 It is important to realise, of course, that there is no separate tort of “bullying and harassment”. The defendant as an employer of the plaintiff owes a duty of care not to expose their employees to injury and one of the sub-aspects of this maybe a question of bullying and harassment.
3.3 It is further important to realise that in this case, the plaintiff is not just complaining of “bullying”. She makes the case that there is breach of contract, bullying, harassment, discrimination and intimidation against her.
3.4 Fennelly J. stated in Quigley v. Complex Tooling and Moulding Limited [2009] 1 I.R. at para. [13] and following:-
“[13] Counsel for the defendant, accepted that an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of ‘workplace bullying’ at para. 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as an accurate statement of the employer’s obligation for the purposes of this case. That definition is:-
‘Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.’
[14] Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
3.5 In this case, of course, the essence of the plaintiff’s case is that the bullying and harassment came not merely from fellow employees but were in effect orchestrated or directed from the management of the defendant’s company or what is sometimes known as corporate bullying.
3.6 I have been referred to the helpful decision of Herbert J. in Sweeney v. Board of Management Ballinteer Community College (Unreported, High Court, 24th March, 2011), in which Herbert J. analysed a number of the instants which the plaintiff relied on in her claim for personal injuries in what she claimed was unlawful bullying and harassment of her by the school principal.
3.7 Some of the plaintiff’s complaints were upheld and others were not. At the outset, Herbert J. set out his view that there had an “escalating mutual distrust” between the plaintiff and the principal as disagreement followed disagreement. He found that:-
“the plaintiff came to believe that every action or omission on the part of Dr. C., whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.”
3.8 In that case, the analysis which I found most helpful, Herbert J. was critical of a number of the aspects of the plaintiff’s conduct but found certain behaviour amounted to bullying and stated:-
“In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.”
3.9 In this case, I came to the conclusion that the plaintiff did hold the same belief as was held by the plaintiff in the Sweeney case (above) i.e. that every reaction of the management of the defendants was directed against her and that even matters that were clearly set out for her benefit were in fact part of a grand design to do her down.
3.10 I was strengthened in that view by certain aspects of the medical evidence (which I will discuss further in this judgment).
3.11 To come to that general conclusion, however, is not to decide the case as the individual actions complained of by the plaintiff will have to be analysed, as was done by Herbert J., in the Sweeney case above, and a decision reached as to whether any of them individually and/or collectively in all the circumstances amounts to bullying and harassment bearing in mind the plaintiff’s other causes of action as pleaded.
3.12 In the United Kingdom, the Court of Appeal clarified the law in four joined stress and work cases and in Sutton v. Hatton [2002] 2 AR 1, the court placed considerable emphasis on the employees obligations to inform the employer of the nature of the difficulties and the fact that the difficulties are having an adverse effect on their health and Hale L.J. set out sixteen propositions for dealing with cases of bullying and harassment.
3.13 Laffoy J. in McGrath v. Trintech Technologies Limited [2005] I.R. 382, adopted these sixteen propositions stating that they are:-
“helpful in the application of legal principle in an area which is characterised by difficulty and complexity, subject, however, to the caveat of Lord Walker in Barber v. Somerset County Council case – that one must be mindful that every case will depend on its own facts.”
3.14 Furthermore as is clear in this case as the allegations relate to what I have described as corporate bullying in the main and as the history of the case indicates the plaintiff bringing numerous grievances to the attention of the management, the issues of the foreseeability and notification to the employers are of less significance here than in the Sutton v. Hatton case (above).
3.15 All in all, I find that the best summary of the questions to be addressed was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233 as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.”
4. The Plaintiff’s Work History
4.1 As stated the plaintiff whose is a married and separated mother commenced employment with the defendants in February 2003 initially as a part-time receptionist. She was at that time working also with the Society of St. Vincent DePaul.
4.2 During her work with the Society of St. Vincent DePaul, the plaintiff complained of bullying and harassment and work stress which was the subject of a separate set of High Court proceedings, heard by me immediately prior to the instant case. In those proceedings, the plaintiff was unsuccessful.
4.3 As some stage in the course of her employment, these defendants became aware of the fact that the plaintiff had suffered alleged stress and had a number of complaints against the Society of St. Vincent DePaul. This awareness culminated in these defendants affording some witnesses to her employers in a case taken by the plaintiff against the Society of St. Vincent DePaul before a Tribunal.
4.4 The plaintiff returned to Ireland from England with her husband whom she had married in 1965. She had three children.
4.5 In 1981 her marriage ended and her ex-husband lived in America and did not provide her with any material support.
4.6 Of relevance in these proceedings, her husband was sentenced to three years imprisonment at Portlaoise Prison for his part in the kidnapping of Mr. Don Tidey in 1983 and on his release in 1987 he immigrated to the United States.
4.7 The plaintiff formed another relationship which lasted for more than 20 years but her partner developed heart disease and died after a debilitating illness in 2008.
4.8 Having commenced work in the reception area, the plaintiff applied for and was given a post in the Record Department commencing in February 2004.
4.9 The plaintiff developed a number of grievances in the course of her work which will be analysed and she sustained the accident discussed above after which she was certified as being sick and subsequently due as she put it to her work stress situation, she again was certified as sick and has not returned to work since 2006.
5. The Plaintiff’s Grievances
(a) The Condition of the Records Department prior to the Plaintiff’s Appointment
5.1 I have considered all the evidence and all the submissions in this case and I have been afforded the assistance of a transcript of the seven day hearing being made available to me (and indeed to the plaintiff) by the good offices of the defendant. I will not attempt to summarise all the evidence but the parts which I believe to be relevant in relation to the plaintiff’s main allegations and grievances.
5.2 The plaintiff complains that whereas when she moved to the records department, the atmosphere was reasonable up to and including the time of her accident, that she was not made aware as a fellow employee, H.B. (who moved to the same department at the same time) was aware, that a significant human relations problem had existed in this department prior to the plaintiff joining it and that it was basically unsafe.
5.3 H.B. was indeed give a “letter of comfort” whereby she could use this letter to change back to any other department before she took up the post. This is because H.B. was aware of certain difficulties at the records department and the plaintiff was not so aware.
5.4 I am not persuaded, however, that the failure of the defendants to give a letter of comfort to the plaintiff was an example by them of bullying and harassment. H.B. was aware of problems in the department, which problems persisted and which problems required the defendant’s best practice manager, F.G., being placed in charge and remaining in charge as acting manager during the period of the plaintiff’s employment.
5.5 However, the fact that F.G. was in charge of the department did place the defendants on notice of what was going on there and gave them an obligation to be particularly stringent in relation to any further bullying.
(b) The hours of the plaintiff’s work
5.6 The plaintiff accepts that her original contract in Reception and indeed when she moved to records was as a temporary part time worker but that it was represented to her that she would in fact get many extra hours and be put in effect in a position as a full time employee.
5.7 This did not occur and was subject of considerable grievance procedures by the plaintiff but I accept the defendant’s contention that at all times, the plaintiff was employed under a contract which provided for a limited number of hours and that she was furnished from time to time with extra hours, and in particular in July 2004, she was granted full time hours by an agreement which specified that this was up to the end of the year. The plaintiff understood that in January 2005 when she went back to part time that she would take up hours of another employee who left.
5.8 In any event, the plaintiff agrees that she was working without difficulty up until sometime after her accident.
(c) The accident and its aftermath
5.9 The plaintiff suffered the accident as described above on 20th August, 2004. She went home and sent her son with an accident report form to be completed. H.C. who witnessed the accident apparently filled out an incident report form which did not specify any accidents such as that complained of by the plaintiff and then the plaintiff returned to work, she noticed the atmosphere had changed.
5.10 In particular, she says (and there is no evidence to contradict this) and I accept that on 29th September, H.C. scratched the plaintiff with her nails which incident the plaintiff reported to her trade union, SIPTU.
5.11 I accept that because of the difference of views between the plaintiff and H.C. in relation to the plaintiff’s accident and in particular H.C. not reporting the incident as an industrial accident (and apparently it was never reported to Health and Safety) and subsequently H.C. not signing the accident report form as it was proffered to her that H.C. who was the plaintiff’s superior was hostile to the plaintiff.
5.12 I also accept that the defendants who were aware of difficulties on the personnel side in the records department and who had their best practice manager, F.G., as acting manager therein were aware or ought to have been aware of this hostility and had notice of it and initially took no effective steps to deal with this and as a result of what occurred, the plaintiff suffered stress.
(d) The application for a permanent position
5.13 A permanent position was advertised internally in the hospital and I am persuaded by the evidence of Mr. Casey of SIPTU on behalf of the plaintiff that the proper procedure ought to have involved only internal candidates being selected from current employees of the hospital. In fact, the plaintiff applied for this position but was not appointed and instead external candidates were.
5.14 These appointments were irregular and contrary to agreed procedures between management and unions. I have not been given any justification for this breach of procedure other than the view of the plaintiff, which I accept, that it was because management were in some way of the view that the plaintiff was “trouble” and wished to do her down or not to see her attain a permanent position for which on the face of it she seemed entitled.
5.15 It is fair to say that the procedure that was adopted by the hospital was most unfortunate in that it led to increased tensions in the workplace, and in particular to the start of the plaintiff’s complaints of bullying and to most of what followed.
5.16 I have come to the conclusion that this amounted to corporate bullying and harassment and discrimination against the plaintiff and resulted in stress to her.
(e) The complaints against the plaintiff
5.17 In November 2004, complaints were made against the plaintiff by Ms. O’.P. and Ms. M.Q. in writing objecting to the conduct of the plaintiff towards these two persons who had applied for and obtained the position which the plaintiff had also applied for alleging, inter alia, that the plaintiff was ignoring them and being rude to them and carrying out conversations about them behind their back.
5.18 The plaintiff alleges that these complaints were in effect manufactured or false or were the product of management or in any event were untrue and part of the bullying against her.
5.19 In particular, the plaintiff objected to a reference in the complaints to the plaintiff allegedly talking about a burning of boats incident in Co. Kerry which was allegedly caused by the IRA.
5.20 It is not my function to analyse the strength or the truth otherwise of these complaints against the plaintiff.
5.21 I do, however, find that the complaints were not orchestrated by the management and came to the management in a manner which required the management of the hospital to investigate them.
5.22 The complaints originally were made in handwritten letters which have been opened to me. The complainants then attended management investigation on 14th December, 2004.
5.23 Subsequent to that meeting, a letter was sent to the plaintiff on “6th December, 2004” but which I accept this date is a typographical error and it should be 16th rather than 6th and although the plaintiff insists that the letter was written before the grievance meeting on 14th, I do not accept that as a fact.
5.24 This letter to the plaintiff from S.H. and F.G. states that:-
“I write pursuant to various complaints which have been received from individual staff members within the medical records department. These complaints clearly outline their concerns with regard to inappropriate behaviour, comments allegedly exhibited/made by yourself and also the issues which you have inappropriately raised with regard to internal recruitment process. Having reviewed all the details of the allegations thus far and having deemed the allegation to be severe in nature, we are now formally requesting you to attend an investigation meeting with a representative of your choice….
This meeting will take place with myself and (F.G.) in the hospital boardroom on Wednesday, 22nd December, 2004 at 11am…”
5.25 The plaintiff very understandably objected and objects to being summonsed to a meeting of complaints against her when the details of these complaints were not given to her.
5.26 Ultimately, the statements of the complainants made to the investigation meeting on 14th December, 2004, were furnished to the plaintiff’s representative. However, Mr. Casey sought copies of the original letters of complaint to management by the complainants. There was great confusion throughout the hearing as to what occurred to these letters and management maintained that they were given by the complainants to their trade union (also SIPTU) and were ultimately produced at a hearing.
5.27 If that is the case, the fact that the original complaints were in the hands of a colleague was not advised to Mr. Casey who was representing the plaintiff and I find that odd but in any event, I do not have to decide that issue of fact.
5.28 Ultimately, a meeting was held on 18th January, 2005, but this meeting was to discuss the plaintiff’s grievances in relation to her not being appointed to the full time position (though being the only internal candidate for it) and to her claim for loss of earnings as a result.
5.29 At this meeting, the plaintiff read out a prepared statement which was taken down by a note taker on behalf of management.
5.30 This statement was typed out and what purported to be the plaintiff’s statement was presented to the plaintiff for signature on 21st January, 2005.
5.31 As far as the plaintiff was concerned the statement she had asked to sign as her own did not reflect what she had said. In a point of fact she indicated that every paragraph in it was inaccurate. She took the advice of her trade union (and Mr. Casey supports her on this) who advised her not to sign the document. She refused to sign the document and in my opinion she was correct in taking that attitude. The statement had originally been presented to the plaintiff for signature on 20th January, 2005 but the plaintiff wanted an opportunity to compare it with her original document which was at home and indicated she would return the following day.
5.32 At the same time, a similar statement was proffered to another employee, H.B. H.B. also refused ultimately to sign her statement as being inaccurate.
5.33 On 21st January, 2005, the plaintiff wrote a letter to B.L. (the assistant hospital accountant/office manager) advising that she had been advised “not to engage in further dialogue” and stating “I believe it (statement) does not reflect accurately and wholly the information I imparted at the meeting held…18th January, 2005…Please contact Mr. Con Casey/SIPTU in order that this matter and correction to same can be facilitated”.
5.34 Following that not unreasonable action, the defendants proceeded to a most extraordinary and in my view unwarranted course of events.
5.35 At approximately 4pm on 21st, the plaintiff who was in the file section of the records department was approached by B.L. (the chair of the panel who had held the meeting) who asked the plaintiff why she was advised not to enter into any further dialogue to get the response from the plaintiff that they were to contact her union. The plaintiff was then told by S.H. that as it appeared that she was no longer willing to cooperate with the grievance panel or H.R. in order to have the grievances (which she herself had invoked) investigated that they were “left with no alternative” but to suspend her from active duty with immediate effect.
5.36 The plaintiff then stated and I accept that she was in effect manhandled from the premises by management and barred therefrom.
5.37 The defendants accept that the plaintiff was suspended (though with pay) and denied that she was “barred” but I accept the plaintiff’s evidence in this matter that as far as she was concerned her suspension and removal from the premises amounted to a barring therefrom and this was communicated to her. It is illustrative that the plaintiff’s fellow employee, H.B., who also declined to sign the grievance procedure statement was not suspended or disciplined or removed from the premises.
5.38 When asked by the court in respect of this discrepancy, the hospital manager, P.G. stated that the plaintiff was the person who was suspended and removed from the premises rather than H.B. because the plaintiff was the one who had raised the grievance!
5.39 I find that the suspension of the plaintiff because she quite properly refused to sign a statement which she found inaccurate and quite properly referred the management to her trade union for clarification and how the matter could be progressed was wrong, a breach of contract and a example of bully and harassment against the plaintiff.
5.40 It is clear and is stated by the manager of the defendant company that the plaintiff was singled out for discriminatory treatment because it was she who had raised the grievance and she who refused to sign.
5.41 The circumstances of the plaintiff’s removal from the premises may have constituted an assault though I am not persuaded on the balance of probabilities that a significant assault took place.
5.42 Though the plaintiff continued to work after this incident when her suspension was raised following trade union protest and the threat of industrial action, I do accept that as a result of this incident the plaintiff has suffered an injury and an actionable wrong which may be classified as breach of contract, discrimination and bullying and harassment.
5.43 Given my other findings of fact, I do not see the suspension of the plaintiff in the manner that it was done and for the reasons that have been stated on behalf of the defendant can be justified as not being bullying due to it being just one single isolated incident.
(f) Post Suspension Grievance Procedures
5.44 The plaintiff finds great fault with almost each of the procedures the defendant’s sought to put in place to resolve her subsequent grievances.
5.45 With regard to most of the matters raised, I do not accept the plaintiff’s contention. I do accept, however, that the defendants were at this stage looking at the plaintiff as being a “trouble maker” and acted in a number of ways unfairly towards her.
5.46 Subsequent to her suspension and then her reinstatement after trade union agitation, the defendants did put in place a number of efforts at investigation and also potentially mediation but these ultimately came to nothing.
5.47 The plaintiff’s trade union representative, Mr. Casey gave opinion that the plaintiff was targeted because of her membership of SIPTU, I do not accept that as being correct and indeed apart from Mr. Casey’s opinion to that effect (which at best of doubtful evidentially) there is no evidence to support the allegation. Indeed there is every reason to suppose that the defendants were well aware that their hospital in Tralee was a trade union employer and they dealt with and liaised with the SIPTU representatives on numerous occasions.
(g) The Rights Commissioner
5.48 The plaintiff’s grievances were referred to the Rights Commissioner pursuant to the Labour Relations Commission and he reported July 2005 in relation to the appointment of five candidates and in relation to the plaintiff’s grievances as to her hours of work.
5.49 The Rights Commissioner recommended that the plaintiff’s contract be extended to 20 hours per week with additional hours to be made available to her and further that the defendants set out in writing a recruitment policy which would be followed for future.
5.50 The plaintiff then appealed the recommendations to the Labour Court in relation to her number of hours. This appeal went against the plaintiff.
(h) The Investigation by Mr. Tom Wall of the Plaintiff’s Bullying Complaints
5.51 It was agreed that the plaintiff’s complaint of bullying be referred to Mr. Tom Wall and he investigated and did not uphold the plaintiff’s grievances except in relation to the allegation that the plaintiff was wrongly suspended and the manner of the suspension.
5.52 Mr. Wall, however, viewed that incident as being an isolated one and that accordingly he did not fulfil the definitions of bullying.
5.53 The report of Mr. Wall was then appealed by the plaintiff to the Rights Commissioner under the Industrial Relations Act. The plaintiff complained that Mr. Wall did not hear evidence from a number of witnesses that she had available to her but rather took evidence on behalf of the plaintiff from herself only.
5.54 The Rights Commissioner decided that Mr. Wall should reconvene his hearing to deal with the issue of the witnesses but there was apparently no change of mind from Mr. Wall.
5.55 After this impasse the issue of the plaintiff’s bullying complaints was by agreement of the parties then referred to another independent third party “Polaris Human Resources” (Polaris) and it was agreed between the parties that Polaris were to investigate without any sight of any previous decisions on this matter.
5.56 Before the Polaris investigation could proceed, J.K. (who had been appointed Human Relations Manager with the defendant in March 2006) wrote to Polaris by email with a copy to a representative of IBEC advising Polaris that “the hospital this morning received correspondence from Patrick Mann and Company solicitors informing us that they are now issuing a High Court personal injuries summons on behalf of Ms. Margaret Kelly.” The plaintiff took the view that that email breached the agreement that Polaris should enter into its investigations without any knowledge of previous developments.
5.57 J.K. in his evidence indicated that he was under the impression that everything should be held in abeyance until Polaris had conducted its investigation and he was prepared to accept this but that he found the proceedings were being initiated and he was concerned that the plaintiff’s issues were being carried on in two different directions at the same time. He stated it was unfair to the hospital that they would have to defend the issue in the High Court at the time when the third recommend that they carry out an investigation.
5.58 In response to questions from the court, J.K. was asked why he wrote to Polaris rather than to the plaintiff or to her union representative or caused a letter to be written to her solicitor if he was annoyed with the plaintiff initiating High Court proceedings. J.K. denied that he was telling Polaris that they were to cease their investigations. He denied that he intended to influence Polaris in their investigations.
5.59 The personal injuries summons dated 28th July, 2006, and I believe it was prudently issued at the time in order to prevent any question of the statute of limitations arising as her grievances commenced in August 2004 with her accident.
5.60 I hold that the sending of an email to Polaris at the time that Polaris would conduct an investigation while not technically a breach of any agreement was clearly intended to be prejudicial against the plaintiff and it was an example of the defendants through J.K. taking a bullying attitude to the plaintiff and it contributed to the stress the plaintiff was suffering.
(i) Mediation
5.61 After J.K’s appointment, I accept his evidence that he came to consider the issue of mediation between the parties. I have had the benefit of observing J.K. giving his evidence and I think that he was a “no nonsense” type of individual. There was a conciliation meeting between the parties organised by the LRC shortly after taking up his position and while new to his job and still on probation as he indicated it was alleged by the plaintiff and her trade union representative, Mr. Casey and also by another employee, E.C., who was a shop steward on behalf of SIPTU that at this meeting J.K. made what were described as threatening gestures towards the plaintiff (and the others on the side of the trade union) by way of pointing his finger in a gun like manner and saying words to the effect that he was the new sheriff in town to clean it out. J.K. agrees that he may have said something about cowboys or Indians but denies strongly that he made any threatening gestures or used his fingers to mimic gun shots.
5.62 I accept J.K’s denial though the witnesses from the plaintiff’s side of the meeting did criticise him for being aggressive. I think that that was probably a conclusion brought about by the tensions between the parties and that J.K. was in fact trying to be light hearted when referring to himself as the “new sheriff in town” or words to that effect. I do not think that constitutes bullying or harassment.
5.63 I do not believe that J.K. when he was still on “probation” would have endangered his position with his employers by aggressively attempting to shoot the plaintiff.
5.64 The plaintiff was, as I see it, concerned that references to guns being pointed were particularly directed against her given her ex-husband’s conviction for terrorism related charges. J.K. may have been aware of this at the time (though he does not believe he was) but I do not accept that his comments or attitude was at this stage motivated by a wish to intimidate the plaintiff by even obliquely referring to her husband’s activities.
(j) A Meeting in the Brandon Hotel
5.65 As part of his mediation attempts, J.K. ultimately met with the plaintiff in the Brandon Hotel in December 2006.
5.66 The plaintiff had gone on sick leave in September 2006 (from which she has not yet returned).
5.67 J.K. states that he was attempting by this meeting to provide “reasonable support” in helping the plaintiff get back to work and trying to resolve the problems and ascertaining what the plaintiff’s concerns were at this stage.
5.68 J.K. identified the plaintiff’s concerns as being her good name in relation to the allegations made against her, a transfer from medical records where she felt that the atmosphere was hostile to her, an opportunity to come back to work at reasonable hours.
5.69 There is a dispute as to where they met on the hotel premises. I accept the plaintiff’s recollection on this matter which is indeed supported by the contemporaneous notes from J.K.
5.70 I do not, however, believe much turns upon that discrepancy.
5.71 Further disputes have arisen between the parties as to what was or was not said in relation to the plaintiff being afforded the service or support of a counsellor. At that stage, the plaintiff was engaging with a counsellor for her stress but it is clear that that counsellor was not known to J.K. who recommended an alternative one.
5.72 Further at the meeting, the plaintiff referred to one of her grievances in relation to her situation in medical records that she did not feel safe there as she believed that bullets had been delivered to the unit in an envelope. The plaintiff contends that J.K. indicated that he had seen these bullets and these were the size of a top of a biro. J.K. indicated, however, that he did not say that he had seen any bullets (because he had not seen any) but may well have said that what he had seen was (as he believes to be the case) the top of a biro in a envelope.
5.73 Whether bullets were or were not delivered to the unit is not necessarily an issue that I have to resolve but the plaintiff and Mr. Casey both believed that management agreed that such bullets were delivered. On balance, I do not believe that real bullets were actually delivered to the hospital in an envelope as a much greater fuss would have had to have been made of the affair including presumably the immediate involvement of the Garda Síochána.
5.74 I think what is important from the plaintiff’s point of view, and which I accept, that she was advised by fellow employees that bullets had been delivered to the department and that either it was being suggested that she was responsible for sending them (with reference to possible connections with the IRA) or that generally the workplace was unsafe.
5.75 I hold that persons in the Record Departments were making reference to bullets in a jocular way which did not amount to bullying and though the plaintiff was upset by this, I view the incident as workplace banter rather than bullying.
5.76 In any event, the meeting at the Brandon Hotel at Christmas 2006, ended with J.K. indicating that he would try to get resolution of the plaintiff’s request to transfer from the Record Department and deal with the other matters. Suffice to say that the plaintiff was very annoyed that J.K. did not respond to her by the first week in January and that further deterioration in the relationship between the parties occurred. I accept, however, that the plaintiff misunderstood what J.K. had said and that what he conveyed was that he would get back to the plaintiff on his return to work sometime in January rather than in the first week thereof.
5.77 I do not believe that the defendants have anything to answer in relation to that meeting.
(k) The Issue of the Plaintiff Allegedly Forcibly Detained in the Hospital
5.78 The plaintiff alleges that F.G., the best practice manager of the hospital, forcibly prevented the plaintiff from leaving the hospital on 23rd January, 2006.
5.79 I have no doubt that the plaintiff believes now that this is the case but I think that her recollection is incorrect.
5.80 F.G. states that on that day, he had a meeting with the plaintiff and O.P. and after the meeting they went to the medical records department and that F.G. asked that plaintiff to clarify a few points from the meeting and that the plaintiff did not want to stay but wanted to go for her lunch and she was asked again would she clarify some points and then “out of the blue” the plaintiff made an allegation that she was being held against her will and that she rang Mr. Casey, her trade union representative and made the same allegation and would not withdraw it even though F.G. denied it and asked her to do so.
5.81 I have been advised by the witnesses as to the layout of the area where the plaintiff alleges that this incident occurred and have no doubt but that the plaintiff is mistaken in her recollection and she was not psychically restrained from leaving on that occasion.
6. The General Position
6.1 I have come to the conclusion that the defendant’s conduct is to be strongly criticised on a number of matters i.e. the behaviour of H.C. towards the plaintiff immediately after the accident, the alteration of normal work practices to open the permanent position to “outside candidates” to the detriment of the plaintiff, the suspension and manhandling the plaintiff out of the hospital after the refusal to sign the statement the interference with the mediation procedures of Polaris, by the defendant.
6.2 I have also come to the conclusion that the plaintiff believes that virtually every step taken by the defendants was an attempt to bully, harass and intimidate her. I have not found that that is the case.
6.3 I believe that the plaintiff’s view is coloured by her personality and the fact that she was clearly a person subject to stress but the defendants were or are ought to have been aware of this fact from a very early stage as they knew her history with St. Vincent DePaul and they knew also of her husband’s career. I believe that accordingly, the defendants must, subject to any defences that they have, be prima facie liable for the above mentioned bullying and harassment of the plaintiff insofar as the plaintiff has suffered an actionable injury as a result.
7. The Defendant’s Defences
7.1 The defendants have in their full defence pleaded contributory negligence against the plaintiff and in particular have criticised her for failing to involve herself in the defendant’s grievance procedure and to engage with them.
7.2 I do not believe that the plaintiff failed to engage in the grievance procedures. The plaintiff clearly did engage with the grievance procedure. She did not accept the results of a number of the hearings/inquiries as she was entitled not to accept but her engagement was at a very high level indeed.
7.3 The fact that the defendants may or may not have good reason to be critical of the plaintiff for not accepting various results is not in my view a sustainable allegation of contributory negligence against the plaintiff. Contributory negligence is to be assessed in degrees of fault for the harm that is occurred under the Civil Liability Act and I do not believe that the defendant has made out a case in those terms.
7.4 The plaintiff is also criticised for failing to respond to the defendant’s offer to transfer and failing to mitigate her loss. I believe that at the time the transfer offer was made, after the Brandon Hotel meeting before Christmas 2006, that the relationship between the parties had entirely broken down and I do not believe the plaintiff should be criticised by way of contributory negligence for that or indeed for failing to mitigate her loss as she was already engaged in counselling at the time.
7.5 The defendant’s contend that the plaintiff cannot proceed with a number of the grievances due to findings made by the LRC and others. It was submitted by Ms. Bolger, on behalf of the defendants that the court not in effect interfere with the various decisions of the LRC and of Mr. Wall and should take judicial notice or indeed was estopped because of them.
7.6 I do not think that such a contention is valid.
7.7 The LRC is a body with a mandate to inquire into various industrial disputes and can make findings in accordance with its limited functions only.
7.8 This is a civil case claiming damages for bullying and harassment, which the LRC was not inquiring into at the time. There is no question of estoppel or res judicata arising.
7.9 Similarly the finding of Mr. Wall which decided that the suspension of the plaintiff though regrettable did not amount to bullying because it was one single instant and did not meet the definition thereof, is in no way binding upon this Court.
7.10 The finding of Mr. Wall does not meet any of the definitions of res judicata, it is not indeed a final determination because the parties agreed that his determination should be set aside in a subsequent investigation being undertaken by Polaris and second of all, it is not suggested when the parties referred the matter to him that Mr. Wall in any way should be able to make a finding which would prevent the parties having access to the High Court.
7.11 Furthermore, the issue of res judicata is not raised in the defendant’s comprehensive defence and the defendants cannot succeed in answering the plaintiff’s claim by raising that issue now.
8. Conclusion on Liability
8.1 In my view, the plaintiff is entitled to succeed in the claim for bullying and harassment and breach of contract for other reasons and on the basis that I have described above.
9. Quantum
(a) The Back Issue
9.1 I am briefed with the report from the plaintiff’s G.P., Dr. Brian Kelly and also the reports supplied by the defendants from Dr. Michael Pegum who gave evidence and Mr. Gardezi.
9.2 Dr. Kelly indicated that the plaintiff suffered an injury and in August 2004 and remained symptomatic for some four weeks despite treatment for analgesia for physiotherapy and was certified as unfit up to 15th September, 2004. She was again seen with a “further” back injury and was advised to refrain from further work for one week. This is clarified by the evidence of the plaintiff and indeed by Dr. Pegum which I accept as not being a separate incident but rather of a pre-existing accident related injury. The plaintiff had suffered an injury to her back in 1998 which the plaintiff says and I accept lasted for a few weeks only and subsequently thereto she had made a full recovery. On that occasion, Mr. Gardezi found spasm in her muscles.
9.3 Up to the accident in August 2004, the plaintiff was and I accept a very active person who went swimming everyday and dancing once a fortnight and did gardening and generally fully participated in any psychical work. She was given an injection of medication by Dr. Kelly and had to take off some further time later. She had some benefit from physiotherapy.
9.4 On examination by Dr. Pegum in May 2011 (six years and nine months post accident), the plaintiff complained of pain spreading from her left buttock to her outer side of her thigh and lower leg which comes from stooping or lifting which she tries to avoid and is brought on by driving or walking for ten minutes or indeed by crossing her left leg over her right when sitting.
9.5 Dr. Pegum was of the view that the plaintiff had a pre-accident degenerative disease consistent with her age which she accepts were made rendered symptomatic prematurely. Dr. Pegum is of the view that were it not for this accident these symptoms would likely to have arisen spontaneously within a number of years.
9.6 I came to the view that the plaintiff was able to carry out a very active life from 1998 when she first had back pain up to the accident and were it not for this accident, she is likely to have been able to work and carry on a normal lifestyle certainly up to retirement stage. Dr. Pegum is of the opinion that the plaintiff could have continued working as long as she did not undertake any heavy lifting or prolong stooping of the back was the only problem.
9.7 It is certainly true that the plaintiff, the absence of her work has been certified in relation to stress in recent times rather than her back. I think, however, that the nature of the plaintiff’s work in the records department was such that it involved standing around for long periods of time and lifting and manoeuvring and shifting files from one place to another and this regime was not very conducive to her back condition and indeed was the source of many of her requests to change work to another station.
9.8 I hold that the plaintiff is likely to go through the rest of her life with the knowledge of a back is less than perfect and which will come against her. It is quite possible were it not for this accident that she would have had some flair up of symptoms at some stage and in those circumstances doing the best that I can I would assess in respect of the plaintiff’s back complaint, damages to include some damages for limitation for work availability at a modest level in the sum of €30,000.
(b) The Bullying Issue
9.9 The plaintiff has an actionable case for damages for bullying, harassment and discrimination arising out of some but by no means all of her complaints. She has sustained an injury rather than acceptable stress to meet the test of Clarke J. in Maher v. Jabil (above).
9.10 I have been furnished with the medical report of Dr. Brian Kelly dated 11th November, 2005, the psychological report of Dr. Jean Lynch of the Anti-Bullying and Research Resource Centre of Trinity College Dublin, Dr. Aidan O’Gara and John Casey, Occupational Health officers on behalf of the defendant, Dr. John Gallagher, Consultant Occupational Physician who supplied a number of reports on behalf of the defendants and Dr. Paul O’Connell, Consultant Forensic Psychiatrist who reported on 11th April, 2007 and also gave evidence on behalf of the defendants.
9.11 I found all of the above very helpful and of great assistance. In particular, I found of assistance the evidence of Dr. O’Connell in relation to the personality of the plaintiff. I make this point notwithstanding the forensic cross examination of Dr. O’Connell by the plaintiff which would have done justice to the most proficient practitioner in the round hall! The plaintiff indeed got a number of admissions from Dr. O’Connell that a number of his conclusions were based upon false assumptions and in particular Dr. O’Connell’s conclusions that the plaintiff would have lived in the United Kingdom in the 1970s with her politically active husband which experience would have been stressful and which she survived, was based upon a false assumption.
9.12 Dr. O’Connell was also incorrect in the date of the plaintiff’s marriage and the number of her children.
9.13 However, Dr. O’Connell does state and I accept:-
“It is possible that Ms. Kelly has a paranoid personality which would confer an increased liability to misconstrue a hostile intent to the comment, behaviour or attitudes of others. It would be useful to have access to independent corroborating information such as her primary care records…”
9.14 I believe that any assessment of the plaintiff must conclude that the plaintiff has indeed come to the view wrongly, that all the actions of the defendants were motivated by some malice against her.
9.15 Notwithstanding that view, however, given the findings I have made previously, it is clear that the defendants, at management level were motivated by hostility to the plaintiff stemming initially from the time of her accident.
9.16 This motivation continued until the plaintiff was frogmarched off the premises which was by any scale of thing an extraordinary insult to her.
9.17 The attitude of the defendants may have been due to exasperation which was understandable but was not (in the manner that I have found above) justified.
9.18 It is correct that the plaintiff did work on after being suspended and removed from the defendant’s premises.
9.19 In his examination of the plaintiff, Dr. O’Connell was impressed by how depressed the plaintiff was and indicated that as far as he was concerned, the treatment she was undertaking was not suitable and she was not being given proper antidepressants.
9.20 In his evidence, Dr. O’Connell indicated that having observed the plaintiff conducting her case, he saw somebody who did not appear to be depressed and indicated that it was possible that the adrenaline of the court proceedings carried her on but in any event her examination in November and her upset arose after a number of very stressful instances in her life including the death after illness of her partner and the death of a number of close members of her family.
9.21 In all the circumstances, it is difficult to untangle the different cause of factors in the plaintiff’s present make up. The defendants must indeed take the plaintiff as they find her but they are not responsible for an underlying condition which they did not cause. They are, of course, responsible for the consequences of their actions which may well have had an effect upon the plaintiff which was greater than it would have been on somebody else.
9.22 In addition, of course, the depressive nature of the deaths in the plaintiff’s family and her partner must be extracted from the equation.
9.23 Mr. O’Connell in his conclusions states:-
“In my opinion, the symptoms which Ms. Kelly complains of are essentially depressive in character and grounded in multiple bereavement. There are a number of alternative causes for these symptoms that are independent of the alleged harassment and bullying at work. It is a matter for the court to determine the facts of the allegations. If the allegations are viewed as wholly or partly true there may have been a synergistic effect leading to a worsening of her condition. In addition there may have a complex interaction between Ms. Kelly, her depression, her behaviour and her perception of the behaviour of others that led to a mutually reinforcing negative cycle that corroded workplace relationships…”
9.24 I accept that analysis.
9.25 Bearing in mind Dr. O’Connell’s professional criticism of his colleagues in the psychological profession, I also accept the conclusion of Dr. Jean Lynch from Trinity when she states:-
“The physiological, psychological and behavioural problems that Ms. Kelly suffers are consistent with those well documented in the literature on stress. This has resulted in heightened levels of anger and anxiety, moderate self esteem, extremely severe levels of somatic symptoms, insomnia/anxiety and social dysfunction, mild depressive symptoms and severe levels of intrusive thoughts in behaviours.”
9.26 Accordingly, I have come to the view that the plaintiff’s acute depressive symptoms are not related to the bullying but the other symptoms are related. I believe that as the trust between the plaintiff and the defendants, has in my view irretrievably broken down, that the plaintiff will not be likely to return to work and that fair award of damages for the severe distress and insult she has suffered to the wrongs attributed to the defendant would be to include past and future general damages to a sum of €60,000.
10. Conclusion
10.1 From the foregoing it follows that the appropriate order to make is a decree in the sum of €90,000 to which the plaintiff would be entitled, on the face of it, to her expenses and outlay.
Madajczyk v Multi-Roofing Systems Ltd
[2014] IEHC 172, Irvine J.
JUDGMENT of Ms. Justice Irvine delivered on the 28th day of March, 2014
Background
1. The plaintiff in these proceedings is a married man who was born on 18th December, 1958 and currently lives in Poland. In these proceedings, he claims damages in respect of personal injuries allegedly sustained by him in the course of his employment with the defendant, with whom he commenced work in 2005.
2. While employed by the defendant company, the plaintiff worked principally as a roof and wall cladding operative. He routinely applied cladding to the roofs and walls of a wide range of buildings then under construction, throughout the country.
3. The plaintiff maintains that the system of work operated by the defendant was unsafe and that it was his participation in that operation that has caused the injuries to which I will later refer. His most significant complaints are that:-
(i) He was required to lift, transport, manoeuvre and install panels which were excessively heavy and that he had to do so without adequate assistance. Regardless of the weights of the materials to be installed, he said that no more than two workers were ever deployed to any cladding operation when at times three or four men were required.
(ii) He maintains that he was required to carry out such work in conditions that made the excessively heavy work even more hazardous. In this regard, he alleged that he had to carry cladding sheets over uneven terrain and that he was put under intense pressure in terms of the amount of work that the had to complete on any given day.
(iii) He maintains that he was given inadequate training and instruction as to how to safely carry out his duties.
4. The defendant denies all allegations of negligence and maintains that any injuries or physical problems that the plaintiff may have were not occasioned as a result of any negligence on its part. Alternatively, if any of his injuries are as a result of his former work practices, the defendant maintains that these were occasioned as a result of his own negligence in failing to take care for his own safety.
5. I do not intend to set out in any great detail the evidence of the parties and their witnesses. I will do no more than refer in skeletal form to some of the more significant aspects of the evidence.
6. The plaintiff told the court that he worked for the defendant company on many different construction sites between the years 2005 and 2010. In the course of that work he had to fit insulation panels of different sizes and weights to the walls and roofs of industrial buildings then under construction.
7. When working on roofs, he would have to fix metal insulation panels to the prepared skeleton of the building. These panels, he maintained, weighed anything between 60kg and 120kg. While the panels themselves were raised to the roof level mechanically, they were not always placed at the correct designated location. As a result, workers would have to move the panels significant distances putting them under immense physical stress.
8. The plaintiff maintained that many of the panels he had to fit to various roof structures were too heavy to be moved by a two man team and that three if not four men would have been needed to render the operation safe. He told the court that on one occasion when working on a project in Naas, one of the panels which he estimated as weighing between 120kg and 150kg was so heavy that he and his fellow worker dropped it. As a result he had to contact his employer who then sent out an additional worker to assist and retrieve the panel.
9. In relation to the walls of these buildings, the plaintiff and his fellow team worker would have to lift, carry and install panels weighing anything between 80kg and 150kg. Some of these panels had to be fixed to the wall above shoulder height. He told the court that many of the longer panels needed three if not four people to move them safely.
10. The plaintiff said that he was required to work eight hours a day and that there was constant pressure to complete the work allocated. His team of two workers was expected to achieve the same productivity as that which another firm would expect a four man team to accomplish in any given day. Sometimes, due to the environment in which they were working, a panel would have to be carried in such a manner that its weight could not be evenly distributed between the two workers. At other times, the panels had to be transported across uneven ground again putting pressure on those carrying the panels.
11. The plaintiff in the course of his evidence told the court that he had complained to his employers about the difficulty of the work to which he had been assigned and that he had made it known that he felt the work was too heavy for two people. However, he was not given any further assistance and it seemed to him that not only were his complaints ignored but anytime he made a complaint, he was subjected to even greater demands.
12. The thrust of the plaintiff’s evidence was supported by that of two fellow workers namely, Mr. Miriusz Burzynski and Mr. Dariusz Przyborek.
13. Mr. Burzynski worked with the defendant between the years 2005 and 2009. Like the plaintiff, he was also involved in the cladding of roofs and walls on a number of major developments. He did much the same work as the plaintiff. Mr Burzynski confirmed that when working on one such project in Blanchardstown, they were using panels which weighed between 70kg and 100kg. They were never given a third man to assist them in terms of any operation and the rate of work expected of them was, to use his own words “extremely fast”. At times, because of misplacement of packs of panels at roof level, workers would have to carry them 20, 30 or maybe 50m.
14. In relation to the weight of wall panels, he confirmed that these would be between 80kg and 120kg, depending on the material involved.
15. Mr. Burzynski accepted that he had never injured himself working in the manner which he described to the court and that he had not missed any work through illness. He agreed that wall panels, once placed within their intended frame, did not have to be supported but just held in position until such a time they were fixed to the wall. He agreed that the safety officer employed by the main contractor would patrol the construction site and accepted that at no time in the course of his employment had any safety officer intervened to query the safety of any cladding operation in which he was involved. He also confirmed, in the course of cross examination that he was suing the defendant company for unfair dismissal.
16. Mr. Przyborek told the court that he had worked with the defendant between May 2005 and October 2008. He agreed that he had been shown how to lift weights. He was the plaintiff’s co-worker on the day they dropped a panel on the construction project in Naas in 2005.
17. Mr. Przyborek stated that panels used on many roofs weighed between 70kg and 100kg and he confirmed that at times they would have to be moved maybe 30m to 50m prior to installation due to the fact that when they were brought up mechanically to the roof, they were deposited in the incorrect location. While there were sometimes six or eight roofers present on any given job, he told the court that only two of them were ever involved in the cladding operation. Mr. Przyborek said that the heavier panels could not be safely carried by two men. Under cross examination he accepted that he had been made redundant in 2008 but had nonetheless since sought to be reemployed by the defendant.
18. Mr. Semple, Consulting Engineer, told the court that if the plaintiff’s evidence was factually correct as to the weight of the insulation sheets that two men were required to move, he was satisfied that the defendants were in breach of their statutory obligations. Sheets which were particularly long, for example those which were 1Om would need three if not four people to carry them safely as they would sag in the middle. Further, it was only safe for workers to carry heavy weights if they were taking the weight close to their body. They should not have been exposed to work that would require them to carry heavy insulated sheets the distances contended for by the plaintiff and the work should have been planned to avoid this. Mr. Semple agreed that if the defendants had a practice of requiring men to carry insulation panels weighing between 130kg and 150kg, you would expect this type of dangerous practice to be noticed by the site’s safety officer.
19. As to his injuries, the plaintiff told the court that before he commenced work with the defendant, he had worked as a tool manufacturer for a number of years in Poland. He had never had any difficulty in relation to his neck or shoulders. Further, from the time he commenced work with the defendant in 2005 he had never missed any work nor sustained any acute injury prior to June 2010. Indeed he told the court that his symptoms commenced gradually in June 2010 when he developed pain in his right shoulder and neck. He took a week off work due to his pain and discomfort after which he returned to work until 24th July, 2010, when he took his annual leave. During his annual leave, the plaintiff drove back to Poland and in the course of this trip his neck and shoulders become extremely painful. As a result he got some medical treatment before returning to Ireland.
20. Following the plaintiffs return to Ireland, he worked with the defendants throughout the second half of August 201 0 and continued until the first week of October when he felt he could no longer manage the physicality of the job. His doctor referred him for an MRI scan. This suggested discopathy at the levels of C4/5 and C6/7 in the cervical spine. There was considerable disc space narrowing and mild degenerative end plate changes present at C6/7. There was also a moderate sized broad based disc ostephyte at C6/7 with moderate foramina} narrowing with likely impingement on the exiting nerve root. Some minor spondylotic changes at C4/5 were also reported. The medical advice he received following this scan was that he should not continue with physical work for fear that he would further aggravate the his neck and shoulder complaints.
21. The plaintiff remained in Ireland until Christmas 2010 at which stage he decide to go back to Poland where treatment was cheaper. There he had a further MRI scan in February 2011, this time in relation to his lumbar spine and this showed degenerative changes at the levels of L4/5 and L5/S1. In respect of his overall complaints he was recommended physiotherapy, mobilisation and medication and this was carried out between 17th February, 2011 and 17th March, 2011.
22. Mr. Hemant Thakore, Consultant Orthopaedic Surgeon told the court that various examinations have confirmed that the plaintiff has degenerative changes in his acromio-clavicular joint on the right side with narrowing of the articular surface. He has tendonitis of the rotator cuff tendon on the right side but with no obvious tear. He has similar but less extensive changes in the left shoulder joint. The plaintiff also has chronic degenerative changes in the cervical spine. Because of these changes and the symptoms which they are causing, he was satisfied that the plaintiff is not fit for the type of heavy work which he had been carrying out with the defendant prior to October 2010. He confirmed that the plaintiff had reported to him that his symptoms were of gradual onset and commenced in June 2010.
23. Unfortunately, to add to the plaintiffs medical complications, in April2012 the plaintiff was diagnosed as having contracted the Hepatitis C virus. He has regrettably progressed to the point that he has cirrhosis of the liver and is currently in receipt of Ribaviron and Interferon treatment. It is accepted that regardless of his neck and shoulder condition, because of his Hepatitis C status, he would be unable, in any event at this point time to continue with work in the construction industry.
24. Accordingly, the plaintiff claims damages for pain and suffering to date as well as pain and suffering into the future. He claims a loss of earnings from October 2010 up until the present time. He does not make any claim for future loss of earnings.
The Defendant’s Evidence
25. Mr. Noel McCarthy, Contracts Manager with the defendant, told the court that it was his obligation to oversee all site works. In respect of each job he decided what would be required in terms of equipment and personnel. Before any crew would be sent out to a site all safety issues would be addressed. He told the court that a roofing crew would usually include three to four men depending on the size of the panels to be used in any roof structure. Three men might be required to lift the heavier panels but two men were sufficient for completing the fixing of the panels. He rejected the plaintiff’s assertion that two men were ever expected to carry the type of weights which the plaintiff had referred to in the course of his evidence.
26. Mr. McCarthy denied that workers such as the plaintiff were put under particular pressure in terms of the amount of work they had to carry out. He told the court that if the construction company was unhappy with progress on site they would inform him that a larger crew was required and this would be provided. It would make no sense and it would be uneconomic for the company to provide a smaller crew than was required on any job.
27. Mr. McCarthy told the court that a roof drawing was done for every contract and that this would show precisely where each box of panels was to be positioned when brought to roof level. The roofing crew was responsible for mechanically hoisting and positioning the insulation panels at these locations. Assuming the crew operated in accordance with the drawing, there should have been no need to carry for insulation panels to be carried anything like the distances described by the plaintiff and his co worker.
28. Ms. Jean Farrell, the defendant’s safety officer would prepare a method statement for each job. That method statement was required by the main contractor and had to be agreed with its safety officer before the defendant could start work on site. This would set out precisely how each operation would be completed. Mr. McCarthy was absolutely satisfied that if the defendant’s employees had been engaged in manhandling panels that were too heavy or awkward to manoeuvre that he would have been contacted by the main contractor and he told the court that this had never happened. He agreed that cladders worked in two man teams and he maintained that two man teams were appropriate for much of the lighter work which was done by the plaintiff and his fellow workers. The plaintiff, he said was particularly skilled in dealing with zinc and PVC flashing and this type of work only required two men. For this reason he stated that the plaintiff was not regularly engaged in the heavier type of cladding work which required greater numbers. He agreed that the longer wall cladding insulation panels would have required three men to move them safely but he asserted that such help was always available.
29. Mr. McCarthy and Ms Farrell both advised the court that the size of every panel to be fitted by the defendant company was known in advance of the project. Indeed, wall panels were cut where possible to a size so as to avoid excessively lengthy or heavy panels needing to be moved around by its employees. If however if a panel was bigger than 4m, it was always the case that three men, including the two cladders, would assigned to such task. Contrary to what had been alleged by the plaintiff Mr. McCarthy stated that on quite a few occasions, the plaintiff would have been part of a three or four man crew.
30. Mr. Salwomir Niewinski, the defendant’s site manager, stated that the plaintiff had come recommended to the defendant as an experienced cladder and that he did really good work particularly with zinc and PVC flashing. He refuted the plaintiff’s assertions and that of his co workers as to the weights and materials they alleged they were required to lift, manoeuvre and transport on a regular basis. Before every job an assessment was made by the defendant as to the number of cladders required. This was made by reference to the weights of the panels to be moved and the time frame within which the operation had to be completed. He agreed that cladders normally worked in pairs but maintained that additional roofers were included in crews depending on the weights of the panels to be fitted. Two people were regularly sufficient to deal with flashing or PVC membranes but panels that were 6m to 8m in length would need more than two men. He said it would be impossible for two men to lift panels between 130kg and 150kg. If they did, he felt it would be their own fault as such a lift would be absolute madness. When asked about the panel that the plaintiff maintained had been dropped on the Naas project he said he had no knowledge of such an event but if it had occurred it was his view that the plaintiff was responsible for trying to undertake a task which he knew could not be accomplished safely. The fact that on his account a worker was immediately sent to the site to help retrieve this panel was proof that help was always at hand if needed. All the worker had to do was phone the defendant’s office and additional help would be sent.
31. Mr Niewinski, confirmed Mr. McCarthy’s evidence to the effect that a method statement was prepared addressing the details of every job that had to be carried out. At times, the number of men required for particular roofing or cladding operation would be included. He said it would make no sense from a commercial or safety perspective to send a smaller team than was required to any site. Mr. Niewinski readily accepted that the work of a cladder employed by the defendant was hard work. However, he denied that the plaintiff was ever told to carry excessively heavy wall or roof panels. On many sites, there were significant numbers of the defendant staff who would readily have helped out if the plaintiff found himself needing assistance. He reckoned that 80% of operations only needed a two man crew.
32. Ms. Jean Farrell, the defendant’s safety officer, told the court that following the commencement of his employment with the defendant company the plaintiff was sent on a training course to get his “safe pass”. He received manual handling training. This would have taught him how to assess the risks attached to moving any particular load and also how to carry out any proposed lift with safety. The plaintiff was also given mobile platform training and had a ticket permitting him operate a teleporter. He held a construction skills certificate and had a ticket to work on roofs and wall sheeting. Not only was the plaintiff well versed in cladding he was also a certified bank’s man.
33. In respect of the plaintiffs complaints that he was asked routinely to carry excessively heavy panels, Ms Farrell stated that this was not the case. In relation to most contracts she would make contact with the draftsman and decide what size panels were required and they would mostly be cut to size to ensure that excessively heavy panels did not need to be manhandled by employees.
34. Ms. Farrell told the court that she writes a method statement for each job and agrees it with the contract’s manager. She details every task that is to be performed, how it is to be executed and the sequence in which the work is to be carried out. Sometimes the number of workers required for the job is included but often this does not happen because the numbers of workers of various types required on the site from day to day would varies. Ms Farrell said that depending on the dimensions of the panels to be fitted a three man crew might be sent out to a site for some portion of the contract. An extra man might be needed for only one of a number of days when a few big panels might have to be installed. When excessively large panels needed to be fitted, these, she said, were all hoisted and lifted into position mechanically as had occurred on one of the Tesco sites.
35. Safety was not only an issue for the defendant company, according to Ms. Farrell. The safety officer of the main contractor would have to approve all of the paper work in respect of every job to be carried out by the defendant. Further, the safety officer would call her if any of the defendants employees were noticed to be working in contravention of safety standards and they would not permit anybody to engage in the type of practices described by the plaintiff.
36. Ms. Farrell readily agreed that the plaintiff usually worked as part of a crew of two men. She said that many of the cladding operations involve light work and no third person is required. However, for the laying of the roof, an extra man would join the cladding operatives to facilitate the movement of the requisite panels.
37. Ms. Farrell stated that the plaintiff never complained to her about either the amount of work he had to carry out on any given day or the weights of panels which he was expected to lift. She had discussions regularly on site with the company’s employees and she got feedback from them in respect of any concerns that they had. In turn, she would voice any concerns which had been expressed to her by the site’s safety officer. Not only did the plaintiff not complain to her about the weight of the panels but the plaintiff himself acted as interpreter for most of the other workers in the course of these what she described as “tool box” talks.
38. Dr. O’Neill, Orthopaedic Physician, who examined the plaintiff on behalf of the defendant, told the court that the plaintiff has long standing severe degenerative changes in his neck and shoulders. He said that the plaintiff has a broad based disc bulge in his cervical spine which is impinging upon the seventh cervical nerve root. These changes were not caused by any direct or indirect acute musculoskeletal injury or overuse. Dr O’Neill advised that the plaintiffs degenerative disc disease, as identified in the MRI scans of his neck, right shoulder and lower back, is irreversible and that the nerve root infringement which is causing him numbness in some of the fingers of the right hand is a secondary manifestation of his degenerative changes..
He also advised the court that a tear of the rotator cuff, unless there had been an acute event and there was none such in this case, normally occurs as a consequence of degenerative change. Dr O’Neill agreed on cross examination that heavy work at a high rate over a five year period would aggravate any such changes and would likely precipitate the patient’s symptoms.
Decision
39. The burden of the proof is on the plaintiff to establish as matter of probability that the system of work he was asked to operate by his employer was negligent and that it was this negligence that has caused him the injuries of which he complains.
40. Having considered the evidence of the parties, most of which was in conflict in respect of the material allegations of negligence, I am not satisfied as a matter of probability that the defendant failed to provide the plaintiff with a safe system of work. I do not accept his evidence that he was required to carry or manoeuvre excessively heavy roof panels without adequate assistance. I also reject his complaint that he did not receive adequate training or that the amount of work expected of him on a day to day basis was such as to amount to negligence.
41. In resolving the conflict between the parties I greatly preferred the evidence tendered on the defendant’s behalf to that given by the plaintiff and his witnesses. Apart from my overall impression as to the credibility of the respective witness, in seeking to resolve the conflict in the evidence, there were a number of matters that weighed heavily against the plaintiffs allegations that he and his fellow cladding operatives were the victims of widespread bad practice on the part of the defendant in terms of the weights of panels that they were expected to lift, manoeuvre and transport in the course of their work.
42. The defendant company, over all of the relevant period, worked as a roofing subcontractor on many major construction projects managed by highly respected building firms such as Walls and Rohan Construction. It was not in dispute that on all major construction sites, such as those depicted in the plaintiffs photographs, there would be what was described as an on site safety officer. It is common case that the main contractor’s safety officer is responsible for the safety of all personnel on the site regardless of whether they are employed by the main contractor or a subcontractor or may be on the site for some other reason. They are charged with ensuring that all work on the site is carried out safely and in a manner that will not expose the workers or anyone else on site to a risk of injury. The job of the safety officer includes patrolling the site and identifying any unsafe practice. They have the power to serve warning notices on subcontractors or direct that work cease on site if they consider any work practice is dangerous. I should also say in this regard that I accept the defendant’s evidence that it was never cautioned by any safety officer for the manner in which their employees were required to work when installing cladding on any of the sites where the plaintiff worked during his employment
43. In the aforegoing circumstance I cannot accept the Defendant’s evidence that he was required on a regular basis to carry and manoeuvre panels of the description and weight for which he contends. Firstly, given that cladding work involves the handling of highly visible materials in an open environment, I am convinced that any such practices could not have escaped detection by the on site safety officer. Further, for a whole range of reasons I am satisfied that once detected any such practices would not have been tolerated by the safety officer. The main contractor has a range of statutory obligations that would make it liable in respect of injury caused by any dangerous practice permitted on site. Also, if such dangerous practices were to be deployed by the defendant, apart from the potential risks thereby generated for its employees and the likely legal consequence of such actions, it would also be putting its professional reputation and its prospects of obtaining further large roofing contracts at real risk.
44. In coming to my conclusion that the defendant did not expect its workers routinely, or indeed at all, to lift, manoeuvre or transport panels of the weights contended for by the plaintiff, I think it is relevant to take into account that neither the plaintiff or his two co-workers who gave evidence on his behalf ever suffered any acute injury in the course of their employment. Neither did they have any time off work as a result of any injury sustained during all of the time they were working for the defendant. If the defendant was operating a system that was as cavalier in terms of its employee’s health and safety, as advised by the plaintiff, I think his work record and that of his colleagues would likely reflect this state of affairs. Neither, do I believe that the plaintiff and his fellow workers, being skilled workmen, would have stayed with the defendant firm during what were relatively good years for the construction industry if they were forced to work in the type of conditions advised by the plaintiff. Further, Mr. Przyborek’s evidence that he has expressed an interest in being reemployed with the defendant is again of some slight weight when seeking to resolve the conflict in the evidence as to the conditions of employment operated by the defendant.
45. The medical evidence established that the plaintiff has widespread degenerative changes in his neck, back and shoulder. These changes made him vulnerable to injury if required to engage in heavy lifting or other significant manual handling. Indeed it was for this reason that he was advised to stop working lest he experience an acute event. The fact that, notwithstanding the plaintiffs physical vulnerability, he did not experience any acute event during his five years of employment is again of some slim marginal weight in coming to the conclusion that he was not exposed to the types of work practices to which he referred in evidence.
46. From the evidence of Ms. Jean Farrell, who I have to say I felt was an extremely impressive witness, I am satisfied that the plaintiff was adequately trained such that he ought to have been able to maintain his own safety when deciding whether or not it was possible in any given set of circumstances to safely lift any of the panels or equipment required in the course of his employment. I am also satisfied that he was trained to know when he needed additional assistance to safely lift particularly cumbersome panels and I accept her evidence that, contrary to the plaintiffs own evidence, he did not complain about the weights of panels he was customarily asked to fit and neither did he request additional help for such purposes.
47. While it may have been occasionally necessary for the plaintiff and his fellow workers to carry panels over uneven ground, neither he nor Mr Semple gave any evidence as to how this might be avoided. Further, the plaintiff did not refer to any occasion when he believes that he may have injured himself as a result of working under such conditions and hence this relatively peripheral complaint cannot sound in any finding of negligence against the defendant.
48. I am also satisfied from the evidence of Mr. Niewinski that the work most commonly carried out by the plaintiff was that which involved zinc and PVC flashing which would not have been physically very demanding. I also accept his evidence that the plaintiff would have been involved in other types of cladding which is extremely heavy work and that this type of work is not always suitable for everyone depending upon their physical strength and capabilities.
Conclusion
49. To conclude, the plaintiff has not satisfied me, on the balance of probabilities that whilst employed by the defendant he was required to lift, manoeuvre and transport insulation panels which were of excessive weight. I am also satisfied that he was adequately trained for the purposes of maintaining his own safety in the course of his employment as a cladding operative. While his job was demanding in terms of productivity, I do not believe that the plaintiff was put under the type of pressure or asked to carry out his duties in circumstances that would lead me to conclude that the defendant’s system of work should be considered unsafe.
50. Regrettably, the plaintiff has widespread degenerative changes in his neck, shoulder and back. At times, the work he was expected to do was heavy and for a man with such changes that type of work, as was confirmed by Mr. Thakore, may well have precipitated his symptoms or aggravated the degenerative changes in those areas. However, the fact that his work may have affected him in this adverse fashion does not entitle him to compensation from the defendant as he has not established that the work practices of the defendant were negligent or in breach of their statutory obligations.
51. No two people of the same age, particularly as they get older, will enjoy the same physical strength or capacity for heavy manual work. Their fitness, physical make up and other characteristics, such as whether they have degenerative changes in their spine, will determine the point at which they will become symptomatic if they continue to expose their body to the stress of heavy physical work. Some may have to give up this type of work much earlier in life than their counterparts. I believe that this is what happened to the plaintiff in this case. He had long established degenerative changes in his neck, shoulder and back. He had no physical symptoms until June 2010. Then without any acute event occurring he gradually became symptomatic when doing precisely the same work as other cladding operatives for whom the work did not cause them any particular physical problems. Accordingly I am satisfied that the plaintiff’s injuries are not as a result of any negligence or breach of duty on the part of the defendant and for this reason that his action must fail.
Caruana -v- Fruit of the Loom International Ltd
[2011] IEHC 130 (30 March 2011)
Judgment by: Herbert J.
JUDGMENT of Mr. Justice Herbert delivered the 30th day of March 2011
By a plenary summons issued on the 21st January, 2003, the plaintiff claimed damages against the defendant for personal injury, loss and damage alleged to have been suffered by him as a result of negligence, breach of contract, and, breach of duty including statutory duty on the part of the defendant, its servants or agents. By a statement of claim delivered on the 20th October, 2005, this was identified as stress at work occasioned by the failure of the defendant to maintain a relationship of trust and confidence with the plaintiff and, in causing or permitting him to be, verbally abused, subjected to unfair questioning, undermined at work, discriminated against in staff rostering, shift work and overtime, accused of incompetence in the course of his work and, deprived of his recognition as shop steward.
By a defence delivered on the 10th May, 2007, it was pleaded at para. 3 thereof that the plaintiff was estopped and precluded by the terms of a “Discharge Form” dated the 30th April, 2004, from initiating and prosecuting these proceedings. By order of this Court made on the 17th July, 2009, the court directed that the following issue be determined by way of a preliminary issue in the proceedings, that is:-
“Whether the plaintiff is entitled to take action against the defendant on the basis of the Form of Discharge which was signed by both parties on the 30th day of April, 2004.”
This Discharge Form in writing, (hereinafter referred to as the “agreement”), dated the 30th April, 2004, was executed by the plaintiff in the presence of Mr. Sean Reilly, the Donegal Area Branch Secretary of S.I.P.T.U., and of a shop steward of that Trade Union. It was executed on behalf of the defendant company, his former employers, by the Manufacturing Director and the Personnel Manager in the presence of Mr. Peter Murphy, Solicitor of the Irish Business Employers Confederation and, of the Regional Director of that Confederation. In the negotiations which concluded in the execution of this agreement the plaintiff was represented by Mr. Reilly and the defendant was represented by Mr. Murphy. The text of the written agreement was in its entirety the work of Mr. Murphy.
By the terms of the agreement the several sums of money agreed to be paid to the plaintiff by the defendant were agreed and stated to be:-
“In full and final settlement of all claims of every nature, type and kind whatsoever and howsoever arising in respect of and from both my former employment and the termination thereof by reason of redundancy . . . including my abovementioned two employment claims, both under statute and at common law, in all respects and for all purposes, with the exception of my two outstanding employer liability claims for personal injuries against [the defendant].”
The plaintiff claims that the present action, in which he claims damages, including aggravated and additionally or alternatively punitive damages for personal injury, loss and damage alleged to have been suffered by him by reason of alleged breach of contract, negligence, breach of duty of care, and breach of statutory duty on the part of the defendants, is one of these two excepted claims. The defendant, on the contrary, asserts that it is not and claims that during the course of the negotiations leading up to the agreement, in the drafting of the agreement, at the time of its execution and for six months thereafter they were entirely unaware of this claim. The evidence established that though a plenary summons making this claim was issued on the 21st January, 2003, it had not been served on the defendant at the date of the agreement, nor had the defendant been notified in any way of this claim. The defendant claims that the “two outstanding employer liability claims for personal injuries” referred to in the agreement are two work related personal injury claims made by solicitors for the plaintiff by a letter dated the 25th October, 2001 and by a letter dated the 10th December, 2002. The plaintiff claims that the “two outstanding employer liability claims for personal injuries” referred to in the agreement are the claim made on the 10th December, 2002 and the stress at work claim made in the present proceedings.
The negotiations which resulted in the agreement being drawn up and executed took place immediately prior to and with the consent of the Tribunal, during a scheduled hearing of a claim by the plaintiff for unfair dismissal and failure by the defendant to give minimum notice of termination, conducted before a panel of the Employment Appeals Tribunal sitting at the Courthouse, Letterkenny on the 30th April, 2004. These negotiations were conducted solely between Mr. Murphy, a Solicitor specialising in employment law and Mr. Reilly a very experienced trade union official. Both men were well acquainted and each had a high regard for the skill, knowledge and integrity of the other.
Both men told the court that they were agreed on the 30th April, 2004, that so far as humanly possible every “I” should be dotted and every “T” crossed in the agreement because of the very troubled and eventful history of the plaintiff’s employment with the defendant. Between August 1997 and December 2002, no less than ten incidents involving alleged personal injury to the plaintiff were recorded in the defendant’s Incident Log. In addition, the plaintiff had successfully challenged three disciplinary decisions against him by the defendant before a Rights Commissioner. It was therefore their mutual intention to effect a total settlement of all issues between the plaintiff and the defendant with the sole exception of outstanding employers’ liability claims for personal injuries by the plaintiff against the defendant. It is pertinent to record that because a number of the consultation rooms in the Courthouse at Letterkenny were occupied on the morning by other litigants, the plaintiff throughout the negotiations remained at the Courthouse, but the representatives of the defendant had to find accommodation at a nearby hotel.
I find on the evidence that Mr. Murphy told Mr. Reilly that the plaintiff had made three claims only against the defendant for damages for personal injury which he claimed he had suffered in the course of his employment with the defendant. I am satisfied that letters of claim had been received by the defendant from firms of solicitors representing the plaintiff dated, 15th February, 2000, (alleged injury to the plaintiff’s lower back), 25th October, 2001, (alleged further back injury) and, 10th December, 2002, (alleged chest injury involving a fork-lift truck). I find on the evidence that Mr. Murphy was at great pains to ensure that these were the only claims made by the plaintiff against the defendant as of the 30th April, 2004, and were the only claims of which they were or ought to have been aware.
Mr. Murphy produced in evidence a witness list and chronology of events which he had prepared for use at the hearing of the plaintiff’s unfair dismissal claim before the Employment Appeals Tribunal. This list clearly identifies the three claims made out of the ten recorded incidents and gives the date and brief details of each of these ten incidents. Mr. Murphy could not recall in evidence whether or not he had shown this list to Mr. Reilly. I am satisfied on the balance of probabilities that he did not. Mr. Reilly had no recollection of ever having seen this list and it is somewhat improbable that Mr. Murphy would have shown his proofs to Mr. Reilly to no benefit at a time when the case might still have proceeded before the Employment Appeals Tribunal panel.
I am satisfied and I so find that Mr. Reilly asked Mr. Murphy if the plaintiff had any claims for work related injuries because if so these would have to be excluded from the terms of any settlement. Mr. Reilly told the court that his remit was to deal only with employment related issues: personal injuries claims were matters for the plaintiff’s own solicitors or solicitors nominated under the Union Civil Legal Aid Scheme and he had no interest in them other than a concern to ensure that any outstanding claims for personal injuries would be excluded from any settlement. Mr. Reilly told the court and I accept his evidence that he did not know if the plaintiff in fact had any such claims, when he asked the question of Mr. Murphy. It was Mr. Murphy’s recollection that he had informed Mr. Reilly of both the dates and the details of the three claims made by the solicitors on behalf of the plaintiff against the defendant. However, I am satisfied that with respect to the provision of details of these three claims, his recollection is incorrect. I am fully satisfied that this error is entirely due to the passage of time and, to the probable assumption that he told Mr. Reilly everything that appears in the chronology regarding these three claims on behalf of the plaintiff. I found Mr. Murphy and Mr. Reilly both to be forthright, truthful and careful witnesses. Mr. Reilly told the Court that when he was appointed to Public Office on the 1st November, 2007, he had disposed of all files more than three years old. He had only become aware of the current problem on the 21st October, 2009.
I am however satisfied that Mr. Murphy is correct in his recollection that he did inform Mr. Reilly of the dates of each of these three claims and pointed out that the defendant regarded the oldest claim of these three claims as outside the time limit and therefore statute barred. Mr. Reilly in evidence was prepared to accept this and, accepted that Mr. Murphy had made it clear to him that the other two identified claims were the only other personal injury claims by the plaintiff against the defendant. I accept Mr. Reilly’s evidence that he was not at all interested in the details of these claims and accepted what Mr. Murphy said. I accept Mr. Murphy’s evidence that because of the sensitivity of the matter he had been particularly careful to secure the agreement of the representatives of the defendant to the exclusion of these two claims from any agreement.
I accept Mr. Reilly’s evidence that he went back to the plaintiff in the room where he was and said to him. “I have been told by Mr. Murphy that there are two outstanding claims: I presume you know what they are”. To this the plaintiff had replied, “Yes I do, there’s the bullying and harassment complaint and there’s the complaint about a fork-lift accident”. This was also the evidence of the plaintiff himself. I am satisfied and I so find that because Mr. Reilly and Mr. Murphy had not discussed the nature of the two claims, this description by the plaintiff conveyed no indication of any dissention on the part of the plaintiff to Mr. Reilly. I find that the plaintiff’s response in fact confirmed in the mind of Mr. Reilly that what Mr. Murphy had said to him was correct and that the two claims identified by Mr. Murphy by date were the only outstanding employer liability claims for personal injuries by the plaintiff against the defendant. Mr. Reilly told the court that he had no further discussion with the plaintiff about this matter. He returned to Mr. Murphy and I accept Mr. Murphy’s evidence that he said to him “That’s fine, that’s agreed, those two are excluded”.
I am satisfied that there was absolute consensus ad idem between Mr. Reilly and Mr. Murphy that the only two personal injury claims outstanding by the plaintiff against the defendant which would require to be excluded from the settlement and discharge were the two that had been identified by Mr. Murphy by date. I am satisfied that the agreement was drafted by Mr. Murphy to reflect, and did accurately reflect this consensus. I am satisfied that both Mr. Reilly and Mr. Murphy intended to agree and did agree that the claims to be excluded from the operation of the agreement were the two claims for personal injury made respectively on the 25th October, 2001 and the 10th December, 2002.
If Mr. Reilly was mistaken as to what two outstanding claims had been identified by the plaintiff this was not in any way caused or contributed to by any misrepresentation or concealment on the part of Mr. Murphy. If there was any mistake in communication in this matter, it occurred solely as between the plaintiff and Mr. Reilly. I am satisfied that Mr. Reilly did not know that one of the claims mentioned by the plaintiff as outstanding was not one of the two outstanding personal injury claims identified by Mr. Murphy and, was not even known to the defendant. Mr. Murphy did not know and could not reasonably have known that Mr. Reilly was mistaken in his belief that the plaintiff had acknowledged that the two outstanding employers liability personal injury claims identified by Mr. Murphy were the only such claims outstanding and, could not reasonably have suspected that Mr. Reilly’s intention to enter into the agreement was based on incorrect facts. Mr. Murphy certainly did not contribute in any way to this misunderstanding on the part of Mr. Reilly. Responsibility for that in my judgment was the fault of the plaintiff himself and of no one else.
When Mr. Reilly said the plaintiff, “I have been told by Mr. Murphy that there are two outstanding claims”, the plaintiff must have known that Mr. Murphy could only have been referring to claims of which the defendant was then aware. I am satisfied on the evidence that the plaintiff was fully aware that three and only three personal injury claims were known to the defendant. I find on the evidence that the plaintiff knew that proceedings had been issued on his behalf against the defendant claiming damages for personal injuries for what he described as bullying and harassment in the course of his employment, but that these proceedings had not been served on the defendant nor had any letter of claim been sent to the defendant by his solicitors. In November 2004 an application had to be made to the Court to renew the plenary summons issued on the 21st January, 2003. I am prepared to accept the evidence of the plaintiff that he regarded the oldest of the three notified claims, – the claim of 15th February, 2000, which Mr. Murphy and Mr. Reilly had agreed was time barred, – as a “dud” because of seemingly insuperable problems regarding medical evidence. Though a general operative with the defendant the plaintiff was a S.I.P.T.U. shop steward and the history of his employment and dealings with the defendant demonstrates that he was possessed of an alert and resourceful mind.
In these circumstances, “Yes I do” was a singularly inappropriate and irresponsible answer to the question, “I have been told by Mr. Murphy that there are two outstanding claims: I presume you know what they are”, even though followed by a description of what they were. At the moment this question was asked by Mr. Reilly, I find that the plaintiff knew that he had in fact four claims outstanding against the defendant, – three by letters sent by solicitors and one by an issued court summons. However, the plaintiff must have known that Mr. Murphy could not have been referring to the “bullying and harassment” claim, because he knew the defendant was entirely unaware of that claim. The first time the defendant became aware of this claim was when it received a letter dated the 11th October, 2004, from solicitors representing the plaintiff. He also knew that apart from what he described as the “dud” claim he had two remaining valid personal injury claims outstanding of which he knew the defendant was fully aware. In my judgment against such a background, his reply to Mr. Reilly was factually inaccurate and at the very best disingenuous and reckless. In cross examination Mr. Reilly accepted that he would have expected the plaintiff to have told him if the plaintiff knew that he had four claims outstanding and that if this had been the state of his knowledge, that the plaintiff had withheld information from him. Had he known that there were four claims he would have insisted that the agreement referred to “Four” outstanding claims or to “All” outstanding claims. I find that the plaintiff’s reply led Mr. Reilly to believe that the plaintiff was accepting Mr. Murphy’s “offer” that the two personal injury claims identified by Mr. Murphy as outstanding would be excluded from the operation of the agreement. I am satisfied that Mr. Reilly therefore fully intended to accept and did in fact accept that these two outstanding personal injury claims only should be excluded from the operation of the agreement. Mr. Murphy was not aware and there was nothing whatever which ought reasonably have made him aware that Mr. Reilly may not have shared the same intention to conclude this agreement but for the error of fact induced solely by the plaintiff’s reply. No basis for any claim of unilateral mistake on the part of the plaintiff could therefore be established on the facts. If however, Mr. Reilly had accepted Mr. Murphy’s “offer” knowing that the claims intended by Mr. Murphy to be excluded were different from the claims intended by the plaintiff to be excluded, in my judgment the defendant could either rescind the agreement or enforce it against the plaintiff in the terms in which Mr. Murphy had intended.
The agreement itself does not identify the claims, the subject matter of the provision excluding, “my two outstanding employer liability claims for personal injuries”, from the operation of the discharge. In Chambers v. Kelly [1873] 7 L.R., C.L. 231, the question at issue was what was meant by the description “oak plantations” in an agreement in writing between the plaintiff owner and the defendant timber merchant. It was held by the Court of Exchequer, on appeal from the Judge of Assize that conversations between the parties in reference to the sale prior to the agreement was properly received under the parol evidence rule in order to identify the subject matter of the contract. Fitzgerald, B. (Deasy, B and Dowse B. concurring) held that, [he was] “of opinion that, for this purpose, evidence of what passed leading, in the words of the learned Judge who tried the case, “up to” the agreement, could not be excluded”. Fitzgerald, B. ruled that the learned trial judge was correct in directing the jury that what the parties said they did or did not intend by what was written was irrelevant.
By reference to the evidence, to which I have already alluded in this judgment, of the facts leading up to the agreement in the instant case I am satisfied that the subject matter of the provision of the agreement excepting from the finality of the agreement, “My two outstanding employer liability claims for personal injuries against the defendant]”, was the claim made for an alleged back injury by the solicitor’s letter to the defendant dated the 25th October 2001, and the claim made for an alleged chest injury by the solicitor’s letter dated the 10th December, 2002. The agreement is specific: it does not employ the words “any” or “all” or “whatever” or “such” or other general expressions. It is utterly improbable that the agreement was intended to mean two outstanding employer liability claims for personal injuries whatever they might be.
I find that the plaintiff is bound by this agreement which his agent Mr. Reilly fully intended to enter into on his behalf and which he himself freely executed. A further term of the agreement provides as follows:-
“I confirm that this document has been read over and explained to me prior to my signing it, that I have taken independent advice with regard to both the meaning and effect of my signing this document from my trade Union Official Sean Reilly, . . . and that accordingly I both understand and accept the document and its contents in full.”
Mr. Reilly told the court and I accept his evidence which was not challenged by the plaintiff that he carefully went over each of the terms of the agreement with the plaintiff before the latter signed the agreement.
I therefore find that the plaintiff is estopped by the terms of the agreement from prosecuting this action.
Donnelly v Dunnes Stores
JUDGMENT of Mr. Justice Twomey delivered on the 8th day of May, 2019
Is employer liable for employee injured putting hand into a cardboard box?
1. This is a case where the plaintiff/respondent (“Ms. Donnelly”), of Shannonbanks, Corbally, County Limerick, was injured putting her hand into a cardboard box to take t-shirts out of that box and putting them on a shelf in the premises of the defendant/appellant (“Dunnes Stores”), as part of her employment with that company. She lent too close to the box and her eye came into ‘ inadvertent contact’ (to quote her engineer) with the corner of the flap of the cardboard box. She received bruising to her cornea which necessitated her attending hospital as an outpatient, but thankfully, her eye was, for all intents and purposes, fully recovered within a week.
2. The cardboard box was a standard cardboard box familiar to most people in this country. Putting one’s hands into a cardboard box to retrieve an item is a very uncomplicated task and is a task that is performed daily without incident in homes, schools and workplaces throughout this country. Indeed, in her evidence to this Court, Ms. Donnelly accepted that she herself had unpacked thousands of boxes during her 13-year career with Dunnes Stores in Harvey’s Quay, Limerick, without incident. However, she blames her employer, Dunnes Stores, for the bruising which occurred to her eye on this occasion.
3. If this accident had happened at home, it is likely that it would be regarded as an unfortunate accident arising from Ms. Donnelly’s lack of attention to her task because she was rushing or otherwise pre-occupied. Indeed, in such a scenario, Ms. Donnelly might have blamed herself for the accident.
4. However, because the accident occurred in the workplace, Ms. Donnelly seeks to place legal responsibility for this accident on her employer. She seeks to do so by claiming that it was the pressure of work, due to understaffing and her being overworked at Dunnes Stores, which caused her inadvertence and therefore was the ‘legal cause’ of the accident. On this basis, she seeks damages from Dunnes Stores and she was awarded general damages of €19,000 for pain and suffering in the Circuit Court, with approximately €12,000 in out-of-pocket expenses/special damages, a total of approximately €31,000.
Expert engineer report on taking t-shirts out of cardboard box
5. While it may seem somewhat surreal to a layperson, in order to substantiate her claim for damages, Ms. Donnelly adduced ‘expert’ evidence from a civil engineer on the taking of t-shirts out of a cardboard box and the duties of an employer to an employee in this regard, on the basis presumably that civil engineers are experts in this area.
Common sense principles applicable to manner in which injury incurred
6. However, it is clear from the Court of Appeal decision in Byrne v. Ardenheath [2017] IECA 293, which binds this Court, that when the High Court, Circuit Court or District Court is dealing with alleged negligence in a field of activity which is not complex or specialist, and in this Court’s view taking t-shirts out of a cardboard box is the epitome of an activity which is not complex, the Court is obliged to bring ordinary common sense to bear on what amounts to the exercise of reasonable care by a plaintiff/defendant. In doing so, it seems clear that this Court can give precedence to common sense over alleged ‘expert’ evidence adduced on behalf of the plaintiff on alleged breaches of duty.
7. While the Ardenheath case was not an employer’s liability case, as in Ms. Donnelly’s claim, it is nonetheless this Court’s view that this common-sense principle is equally applicable to cases regarding employees who are injured at work as a result of the alleged negligence/breach of duty of their employers, as it is to an occupier’s liability case such as in Ardenheath in which a claim, by a person who slipped when walking on a wet grassy bank in unsuitable footwear, was dismissed by the Court of Appeal.
Caution when dealing with ‘expert’ reports paid for by one of the parties
8. In addition to applying common sense to expert opinions on matters which are non-technical and non-specialised, it is also the case that this Court must apply some caution to expert opinions where the expert is retained by a plaintiff/defendant with a financial interest in obtaining a report in their favour, since the expert’s view will, inter alia, be informed by the facts which are provided by the party retaining them. This is because, although experts are supposed to be completely independent and owe a duty to the Court, more often than not, expert opinions will correspond favourably with the interests of the paying client. As noted by Irvine J., at para. 31 of Byrne v. Ardenheath [2017] IECA 293:
“It was my experience as a trial judge that the effectiveness of the assistance offered by expert witnesses in almost all disciplines, whether that evidence was in respect of the standard of care proposed or a party’s compliance therewith, was frequently compromised by the fact that, all too often, their opinions all too often appeared to correspond too favourably with the interests of the parties who retained them. I continue to remain of that view as an appellate court judge where the transcript may lead one to the conclusion that a given expert had become so engrossed in their client’s position that they were clearly incapable of providing truly independent guidance for trial judge.”
It follows from Irvine J.’s statement that caution needs to be exercised by this Court in relying on opinions from experts who have been retained by one of the parties to litigation.
Application of common sense and caution to the facts of this case
9. Thus, caution and common sense are therefore key considerations in this type of case. This Court will now make reference to the expert report adduced by Ms. Donnelly in support of her claim for damages. In this Report, Mr. Alan Conlan, Engineer stated that:
“In my opinion, Dunnes Stores managers should have taken note of the complaints made by the plaintiff in assigning tasks to her. In my opinion, by allowing a situation to continue where Corinne Donnelly had an excessive workload put her at risk.”
However, it is clear from this Report that Mr. Conlan jumped from Ms. Donnelly’s view that there was a ‘shortage of staff and that is why she was under work pressure’ to his conclusion that ‘it is likely [Dunnes Stores] did not meet their statutory obligations’ and thus are liable in damages to Ms. Donnelly. This is because the only evidence of understaffing and pressure at work are Ms. Donnelly’s assertions to that effect. She claims in her evidence that she mentioned being under stress at work to certain managers of Dunnes Stores but this is denied by those Dunnes Stores managers in their evidence.
10. As implicitly acknowledged by Mr. Conlan in his Expert Report, in order to substantiate a claim of understaffing and over-working, evidence would have to be provided by, for example, comparing monetary turnover and number of staff employed, particularly as Ms. Donnelly claimed that it was only during the last two years of her 13 years in Dunnes Stores that she was overworked due to understaffing. In this regard, he states:
“It may be possible to compare the monetary turnover of the shop to the number of staff employed and establish how this varied over the period.”
However, much more is needed to establish negligence/breach of duty than an assertion by the plaintiff that she was overworked. Despite making this statement that other evidence would be needed to support such a claim, none was provided. Nonetheless, based only on the assertions of Ms. Donnelly, the expert engineer felt able to reach his conclusion, that ‘it is likely’ that Dunnes Stores was negligent/breached its duty.
Even if plaintiff felt under time-pressure, still no liability for Dunnes Stores
11. Of more significance is that even if Ms. Donnelly felt under time pressure at work to complete tasks this is not necessarily enough to shift legal blame for the accident from Ms. Donnelly to her employer. This is because many employees will feel under some time pressure at work, since this is the very nature, not just of employment, but also of studies, domestic chores and life generally. However, employers do not become legally responsible for the failure of their employees to take due care in the workplace merely because the employees are under some time pressure at work.
Recent extra-judicial comments on personal injury claims
12. It is important to note that in this Court making its determination as to whether a plaintiff such as Ms. Donnelly is entitled to damages for her personal injuries, and indeed the amount of any such damages, this Court cannot rely on comments made extra-judicially by judges in recent times.
For example, in the recent Report of the Personal Injuries Commission which was chaired by Mr. Nicholas Kearns, former President of the High Court, it is stated that certain personal injury awards in Ireland are 4.4 times higher than those in England and Wales and that there was a need for a ‘ rebalancing and recalibration of Irish awards’ (at page 7).
13. Similarly, in a recent media interview (Irish Independent, 29th September, 2018), Clarke C.J. stated in relation to this Report, that this ‘report has to be taken seriously’ and that ‘if damages are significantly higher in Ireland than they are for like cases in many other countries, that has consequences for competitiveness and jobs’ . The Chief Justice also stated that ‘ I don’t think we necessarily have to have a race to the bottom and have the same level of damages as the country with the least, but I think we need to be in the ball park.’
14. It is important to note that these comments of former President Kearns and Clarke C.J. were extra-judicial and thus, while undoubtedly of huge significance because they come from the current Chief Justice and from a former President of the High Court, they cannot be directly relied upon by this Court in reaching its decision in this case. This Court is restricted to relying on statements of principle made by judges while sitting as such. In this regard, reference can be made to the comments of Hardiman J. in O’Keeffe v. Hickey & Ors . [2009] 2 IR 302.
Judicial comments on ‘chilling effect’ of claims & effect on cost on insurance
15. As noted by Hardiman J. in O’Keeffe v. Hickey & Ors . [2009] 2 IR 302 at 317:
“A finding of liability for perhaps very serious or gross injuries is not a light thing and has an effect quite separate from its consequences in damages. The fact or risk of such a finding may have a “chilling effect”, even on State, private or charitable initiatives and will certainly have an effect on the cost of insurance.”
In that same judgment, Hardiman J. also referred to the social cost of the desire to compensate every injured person.
Social cost of human tendency to wish that an injured person be compensated
16. In O’Keeffe v. Hickey , at pp. 319 to 320, Hardiman J. noted that while there is a human tendency to wish that in all cases of injury to an innocent person that the person should be compensated, if this was to be done, it would come at a considerable social cost, including an effect on the cost of insurance:
“In all cases where there is a serious injury to an innocent person, there is a human tendency to wish that that person should be compensated. But the social and economic consequences of providing a law so flexible that it can be used to provide compensation in the absence of liability in the ordinary sense is addressed by Henchy J. in [ Moynihan v. Moynihan [1975] I.R. 192] at pp. 202 to 203:- [……]
No doubt there are many who would be happy to see, even at the cost of some “stretching” of the law, a situation in which the public purse or a vast insurance company, would have to pay compensation to an innocent party. They would not, perhaps, be so willing to accept this situation if the paying party is an ordinary householder who may not always be insured, or adequately covered, or if the effect of making the public purse an insurer of all, or almost all, forms of misfortune, is hugely to increase the cost of insurance to the point where it has an effect on the macroeconomic position of the State, with obvious consequences to the individual taxpayer.”
Hardiman J.’s comments are, in this Court’s view, as relevant today as they were when he made them in 2008.
Relevance of Hardiman J’s comments to this case
17. Thus, while one can of course feel sympathy for Ms. Donnelly for the genuine and unfortunate injury suffered by her, in pursuit of financial gain for her employer, the job of this Court is to decide matters based on the law, rather than, to quote Hardiman J, a desire to compensate for every personal injury suffered. In this regard, it seems to this Court that if employers were to be liable for injuries to employees who say they felt under time pressure at work, it would have, to quote Hardiman J., a ‘chilling effect’ for small businesses throughout this country as well of course for large businesses such as Dunnes Stores.
18. In this case, in the Circuit Court, Ms. Donnelly was awarded €31,385 and combined with the payment of two sets of legal costs and outlay on medical and engineering expenses, the total cost to her employer would have been likely to be between €40,000 and €50,000. It seems to this Court that if an employee, such as Ms. Donnelly, was to be entitled to fix her employer, whether a multi-national company or an employer of just one or two people, with liability for her lack of due care in emptying a cardboard box, at a cost of up to €50,000 by claiming she felt under pressure at work, this could have a ‘ch illing effect ‘ on small and large businesses throughout the country by virtue, inter alia, of its effect on insurance costs, as noted by Hardiman J. In the Supreme Court case of Kearney v. McQuillan [2012] IESC 43, MacMenamin J. made similar comments at para. 27 where he stated:
“The resources of society are finite. Each award of damages for personal injuries in the courts may be reflected in increased insurance costs, taxation, or perhaps a reduction in some social services.”
Conclusion on liability
19. In conclusion regarding liability therefore, this is a case where this Court has not been convinced, on the evidence, that Ms. Donnelly was under such pressure and stress at work that, on the balance of probabilities, this was the legal cause of her accident. A bald assertion by a plaintiff that she felt under pressure at work followed by an assumption by her expert engineer of negligence/breach of duty is not sufficient to support a claim for damages.
20. Indeed, even if Ms. Donnelly subjectively felt under time pressure on the day in question, the taking of t-shirts out of a cardboard box is the most mundane of tasks. It did not involve heavy weights, complex machinery or sharp instruments and common-sense dictates that her inadvertence in doing this task, even if she was doing it quickly, was her own fault. It was not her employer’s fault that she did this task inadvertently and bruised her eye in the process.
Payment out of part of the award before Court stays order pending an appeal
21. Finally, it is to be noted that the Circuit Court made an award of damages of €31,385 which appears to have been made up of general damages of €19,000 and special damages of €12,385. By Order dated the 16th March 2018, the Circuit Court ordered Dunnes Stores to pay out €20,000, out of the total award of €31,385, to Ms. Donnelly in the event that Dunnes Stores wished to appeal the Circuit Court award.
22. That Order appears to have issued prior to the recent clarification issued by the Court of Appeal regarding the inappropriateness of a trial judge obliging a defendant to make a payment of damages to a plaintiff, where the defendant intends to appeal his liability to pay any damages, save in special circumstances. The recent Court of Appeal decisions in Keegan v. Dunnes Stores [2019] IECA 88 and Greene v. Dunnes Stores [2019] IECA 115 make clear that trial judges, when making awards of damages that are subject to appeal on liability, should not order pay-outs of part of the awards save in special circumstances. At para. 33 of the Keegan case, McGovern J. stated:
“The trial judge directed the payment of €15,000 by way of damages and €5,000 in respect of costs as a condition of granting a stay for the purpose of this appeal. In my view, where liability is in issue, the judge at the end of a trial should not make an order for payment out except in special circumstances.”
23. It seems clear that, as the High Court, Circuit Court and District Court are bound by this rule, that in this case the Circuit Court should not have made an order for the part-payment of the award by Dunnes Stores, where the matter was under appeal on liability. Accordingly, this Court, as well as dismissing the plaintiff’s claim, concludes that the Circuit Court should not have ordered the payment by Dunnes Stores of €20,000, out of the €31,385 award, to Ms. Donnelly, albeit that it must be acknowledged that the Circuit Court judgment in this case was made prior to the handing down of the judgments in the said Court of Appeal cases.
Brennen v. Lissadell Towels Ltd.
[2000] IESC 72 (15th November, 2000)
THE SUPREME COURT
10/99
Denham J.
Hardiman J.
Fennelly J.
JUDGMENT of Hardiman J. delivered the 15th day of November 2000 [Nem. Diss.]
1. After the hearing of this appeal on the 2nd November, 2000, the court indicated that it would dismiss the appeal and affirm the order of the learned trial Judge (McGuinness J9. The court stated that its reasons would be given at a later date and this I now do.
2. The Plaintiff suffered personal injuries as a result of falling over a timber planter or flower container which had been placed on the footpath leading from
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the premises of her employers, the defendant company, to their car park. This occurred on the evening of the 11th December, 1995. As a result of this accident the Plaintiff suffered personal injuries which are rather complex in themselves and still more so in their interaction with each other. I am of the opinion that the learned trial Judge’s award in the total sum of £191,881.28 is fully justified in the unusual circumstances of the case.
The Plaintiff and her injuries.
3. The Plaintiff is a married lady, born on the 12th May, 1955. She was accordingly 40 years old at the time of the accident. She married at the age of 33 and had three children who at the time of the accident were aged 6, 5 and 3½ years. Her husband is a mechanic. She had excelled at art in Secondary School and had been accepted for a place in the National College of Art and Design Foundation Course, but she did not take it up. At the time of the accident she had been employed in the defendant company for some 22 years, first as an assistant designer and subsequently as a designer. The work related to the computer assisted design of towels.
4. It was common case that she was good at this work and, apart from her wages, derived considerable satisfaction from it. It appears to have been a position which was uniquely suitable to her talents.
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5. The most obvious injury she suffered in her fall was an undisplaced fracture of the right radial neck i.e. a fracture of the right elbow. This would normally take six weeks to heal. She was also immediately conscious of pain in her back and of banging the right side of her head off the ground. While recovering from the arm fracture she developed persistent pain over the neck, aggravated by any movement. In the very early days of her recovery she also developed paraesthesiae of her hands and headaches. She continued to complain of these symptoms and of associated clumsiness and loss of grip.
6. The elbow injury healed satisfactorily but with a slight limitation of movement. Her other injuries have continued to trouble her.
7. The Plaintiff was unable to work in the immediate aftermath of the accident. As the months went by her condition appeared to worsen, she had difficulty in holding a pen and said that she would not be able to sit at a stool in front of a computer, and move her neck. She was unable to continue her hobby of painting (she had previously exhibited locally) and tried and failed to produce posters on a few occasions.
8. In this context, as her condition failed to improve and as she was beginning to come to terms with the restrictions on her lifestyle, she began to
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feel useless and depressed and was eventually recommended by her general practitioner to see a psychiatrist. Despite quite regular visits to the psychiatrist the evidence is that she has become depressed to a quite disabling degree, some details which will be given below.
9. The cause of the Plaintiffs neck pain, loss of grip and clumsiness have been thoroughly investigated by a number of doctors including Mr. T.W. Scannell, Consultant Orthopaedic Surgeon, Mr. Daniel Rawluk, Consultant Neurosurgeon and Dr. Brian O’Moore, Consultant Neuro-Physiologist. MIRI investigation has established that she had disc degeneration at the C5/6 and C6/7 levels with annular bulges and small central disc prolapses. This was at all times a degenerative condition and will be further discussed below. However, there was no evidence of compression of the spinal chord or of the nerve roots. It was also considered whether her neck and hand symptoms were referable to a carpal tunnel syndrome, but there was no evidence of this condition on Dr. O’Moore’s electrical tests. This condition corresponds clinically to the symptoms described but has not been positively diagnosed due to the lack of objective evidence.
10. These conditions have given rise to pain and insomnia which also fed into the depressive condition. She also has a condition of the jaws involving
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clicking on full extension which, according to Mr. Frank Brady, Consultant Maxilo-Facial Surgeon, are of a soft tissue nature and are contributed to in large part by ongoing stress and depression.
11. There was no serious challenge to the description of the symptoms or their having been caused by or (in the case of the neck and associated injuries) accelerated by the accident. Nor was there any contradiction of the evidence that the Plaintiff is now a chronic pain sufferer.
Employment Position .
12. The Plaintiff was in receipt of a gross weekly wage of £191.00 at the time of the accident. At the time of the trial she was in receipt of £90.30 per week disability benefit which the learned trial Judge disregarded in making the appropriate calculations and from this decision no appeal has been taken. She was purportedly made redundant by the Defendant in March, 1996, though this was denied in evidence by Mr. Nolan, an officer of the defendant company, in cross-examination. In further cross-examination it was established that a lady who was formerly the Plaintiffs assistant was taken on by the company (despite financial difficulties which it experienced) on a part time basis, and was being paid £40.00 a day in this capacity. Significantly, it was agreed by him that the Plaintiff should have been contacted about this opportunity and if
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she had been, “seniority would have allowed her to obtain the part time position”.
The Award .
13. The learned trial Judge’s award of damages was composed as follows:-
14. Agreed special damages £2,306.65.
15. Special damages £1,907.00.
16. Loss of earnings to date £14,163.00.
17. Loss of earnings for the future £43,554.00.
18. General damages
(a) pain and suffering to date £70,000.00.
(b) pain and suffering in the future £60,000.00.
TOTAL £191,881.28
The Appellant’s complaints .
19. The Appellant has complained of each of the sums awarded for general damages and of the sum awarded for future loss of earnings. £70,000, the Appellant said, was excessive for three years pain and suffering, and it was logically inconsistent to award a greater sum for the past than for the future. It was said that the prospect of recovery had been understated by the learned trial Judge, particularly in relation to the depression. In relation to future loss of
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earnings, it was submitted that the Plaintiffs job was effectively gone from March 1996 and that, while it was open to the Judge to accept that some form of other employment would have been available to the Plaintiff, she erred in concluding without evidence that this would have yielded £120.00 a week. She also failed adequately to discount the sums totalled for the possibilities that the Plaintiff might not have returned to work at all, might have recovered, or might have become disabled in any event, independent of the accident.
Independent degenerative change .
20. The last submission related to the facts proved by the medical witnesses in relation to the Plaintiffs pre-existing degenerative condition, described above. This raised the issue of the extent to which, and the time at which, the Plaintiffs neck and associated symptoms would have arisen in any case. Mr. Scannell agreed with an opinion expressed by Mr. Rawluk that “in this regard, the symptoms provoked by her accident could represent a premature onset by approximately five to ten years”. That, in fact, is the most favourable statement of the position from the Defendant’s point of view: Mr. Scannell himself had originally said that “she would pro bably just have been aware that she has more stiffness in her neck probably in five to ten years from the date of her injury……”
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Approach to this appeal .
21. The role of this Court on the hearing of appeals such as the present has been authoritatively considered in the case of Hay v. O’Grady [1992] 1 IR 210. The matters are usefully dealt with in five numbered paragraphs in the judgment of McCarthy J. commencing at page 217. These include:-
(1) “An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
(2) If the findings offact made by the trial judge are supported by credible evidence, this court is bound by those findings, however voluminous andj apparently weighty the testimony against them.
(3) an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection offact and a dfferent inference has been drawn by the trial judge”.
22. In this context it may be noted that the Defendant called no medical evidence and did not seriously challenge the main lines of the Plaintiff’s evidence.
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The trial Judge’s findings .
23. The learned trial Judge made a number of findings of fact of which the following appear to be central:-
“….the Plaintiff appears to be significantly disabled in a rather complex way with the interaction between her pain in her neck and shoulders and the depression which she is suffering. I think the key problem is that she had a career and a job that was very important to her and was very interesting and that she has lost all of that…..”
and:
“It is noticeable that there is a general lack of ordinary optimism on all of the medical sides, whether physical or psychological.”
24. In relation to loss of earnings the learned trial Judge held:-
“This lady as I have said is suffering from a serious and continuing disability. On the other hand, the main feature of her disability, as far as pain is concerned, is the problem about her cervical spine. I would have to take into account what Mr. Rawluk said as a result of the MRI scan. I am willing to take a figure of ten years but I think that by the end of ten years she probably would have been disabled in any case. And I am not prepared to give a figure going into the future up to her retirement date at 65 or 60”.
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25. I believe that these findings of fact are perfectly reasonable and indeed moderate. There was of necessity an element of speculation as to when degenerative changes would have become seriously symptomatic. The learned trial Judge rejected the Plaintiff’s contention that she was entitled to damages for loss of earnings for a full working life and instead opted for the longer of the periods envisaged by Mr. Rawluk and Mr. Scannell before, as a mafter of probability, serious symptoms would have arisen. She was quite entitled to do this on the evidence.
26. In relation to loss of earnings the learned trial Judge was quite entitled to accept the evidence of Miss Keenan, Rehabilitation Consultant that, had the Plaintiff been made redundant while uninjured, she would have got alternative employment, probably in the desktop printing trade. She held:-
“…..I have no evidence with regard to the wages that she might have got in that job. But I will accept a compromise figure of £120.00 net per week as likely possible earnings that she could make. Now it may well be that she could have made more than that but I have no evidence before me of that. She is a talented woman and hopefully she may be able to earn in the future….”
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27. On all the evidence, in eluding that of Miss Keenan of the Plaintiff’s excellent work record and talents, it was a moderate assumption.
28. In relation to the significant general damages awarded, it seems to me that there was strong medical evidence. Mr. Scannell stated that she had
“persistent pain in her neck and shoulders, a tingling sensation in both hands” and that “…… her depression is the most serious problem that I see. And I think this has coloured the whole prognosis for her considerably.” He said that his “general feeling was that she had lost confidence in herself and I felt that these symptoms may last indefinitely”.
29. Dr. Murphy, Psychiatrist, said:-
“I am of the opinion Mrs. Brennan did suffer and continues to suffer from a depressive illness and post traumatic stress disorder and severe and persistent pain, all of which has arisen from and are directly attributable to the accident of the 11th December, 1995. She did suffer and continues to suffer very grave pain and very grave psychological damage and psychological distress as a result of the accident. The accident was the most psychologically traumatic experience for her. Her capacity to work and enjoy life has been enormously reduced and she is considerably incapacitated as a result of the accident. It seems highly
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unlikely that she would be able to return to work as a textile designer. Mrs. Brennan’s experience of the physical and intimate side of her marriage has been considerably impaired”.
30. Dr. Peter Fahy’s evidence was to much the same effect. His prognosis was if anything more pessimistic. He said:-
“…. I am afraid things are going to become far more dfficult for her as she grows older. She is a very brave and staunch person and takes a positive view of life even in her grossly debilitated situation, and she needs constant monitoring and support on an indefinite basis and will certainly need home help”.
31. In these circumstances it appears to me that the learned trial Judge’s award for general damages were by no means excessive. The Plaintiff has a condition of constant pain, a significant loss of function and insomnia, all of which contribute to depression and have made it impossible for her to work. This in turn feeds back into the depression. She has in effect suffered the loss of her previous lifestyle, of her independence and her physical integrity. These are serious matters and must have been acutely felt in the earlier stages. With the aid of counselling and medication she has come to terms with them to some degree. She is suffering considerable pain some thirteen years earlier than, on
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the evidence, it might have been expected to become symptomatic, and it might have become symptomatic only much later or never. The loss of her work plainly means much more to her than the loss of the associated income and this is a real substantial and continuing loss.
32. Considering the sum awarded for general damages as a whole, it seems impossible to criticize it in light of all the evidence. The consequences of this relatively simple accident on the particular Plaintiff were indeed severe. Whether one regards the peak of severity as having already occurred, during the Plaintiff’s period of adjustment to her dramatically altered lifestyle, or as occurring in the future due to the continuation of certain of her symptoms is to some extent a question of impression. Since the overall figure seems proportionate to the complaints, I would not disturb the findings of the learned trial Judge, who saw the Plaintiff and her advisers, on the basis that consideration of the case on paper might suggest a greater incidence of pain and suffering into the future.
33. It should be emphasized that, in this case, the substantial sum awarded to the Plaintiff was justified by the exceptional and, on the whole, uncontested evidence of comprehensive destruction of the Plaintiff’s quality of life, which was quite out of proportion to the original comparatively minor injury to her
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right radial bone. As a consequence of the combination of depression and post traumatic stress disorder and associated pain, she has suffered the loss of her satisfying and personally rewarding employment and disruption of her family and marital life. Even if the onset of her physical symptoms is to be regarded as an acceleration of the effects of an underlying condition, her depression was considered by her medical advisers to be likely to be permanent.
34. For these reasons I would dismiss the appeal and affirm the order of the learned trial Judge.
Thomas Fortune v P.E. Jacob and Co. Ltd
1977 No. 12
Supreme Court
22 June 1977
[1976-7] I.L.R.M. 277
(O’Higgins CJ, Kenny and Parke JJ)
O’HIGGINS CJ
(Kenny and Parke JJ concurring) delivered his judgment on 22 June 1977 saying: This is an appeal by the plaintiff from the order and judgment of the High Court dismissing his claim for damages. In these proceedings the plaintiff claims damages in respect of personal injuries suffered by him on 19 July 1973 when he fell from a lorry while assisting in the loading of same at the defendants’ premises in Mary Street in the City of Cork. He claims that his fall was caused by the negligence of the defendants by whom he was employed. At the conclusion of the evidence at the trial of his action before McMahon J and a jury the learned judge acceded to an application by counsel for the defendants to withdraw the case from the jury on the basis that there was no evidence of negligence. Against that decision the plaintiff now appeals to this Court.
The defendants are millers and carry on their business at these premises in Mary Street. For the purpose of their business they employ workmen both in the mills and also as lorry drivers on the delivery of the produce of the mill. The lorries are owned and equipped by the defendants. The plaintiff had been working for the defendants since 1951 and was up to seven months before his accident a lorry driver. Apparently for some particular reason he had changed from driving to working in the mill the previous Christmas. The defendants when sending out produce for delivery were in the habit of loading lorries by means of a chute or slide at the mill. A lorry to be loaded would be driven from the street into the mill and parked under the chute. From the chute bags of meal would be sent down the sloping side of the chute and received by a worker on the platform of the lorry and the lorry would thus be loaded. It was apparently the practice to load lorries from the front or cabin end back to the rear. It was also the practice to load by placing one bag after another and to move towards the rear of the lorry gradually. Apparently also when the lorry was about half loaded it was the practice to drive the lorry further forward so that the rear portion of the lorry came under the chute and then the loading would be completed. A worker on the platform of the lorry would stand looking up and facing the chute and would be sideways towards the rear of the lorry. On the evidence it appears *279 to me that those engaged in this form of loading who were generally the lorry drivers, found it desirable to have a strip of timber nailed along the rear of the lorry. This strip of timber was intended to act as a foot guide to the loader. The reason for this appeared to be that the loader generally would be looking up towards the chute while placing or about to place a bag on his shoulder and as he came to the end of the platform his foot might go over the edge because he would not be looking down. Once the strip of timber was there it gave a warning and constituted a guide to the worker’s position on the platform. For this reason the placing of this strip was regarded by the men who habitually loaded these lorries as a safety precaution and there was evidence that those who worked for the defendants at this form of chute loading regarded the absence of such a guide strip as dangerous. There was also evidence that the plaintiff, some 12 or 15 months before the accident, while still working as a lorry driver for the defendants having been given a lorry without such a strip had asked the defendants’ maintenance men to provide one and this had been done. There was also evidence that at the time of the accident which caused the plaintiff’s injuries the defendants had in use six lorries, four of which had such a strip and two of which had not.
As the plaintiff’s employers, the defendants were under a duty so to carry on their operations as not to expose him and other employees to unnecessary risks. Obviously an employer cannot be liable when injury or damage is suffered from one of the inbuilt risks of the employment, in the absence of negligence. When, however, a risk or danger becomes manifest and a simple means of avoiding or of overcoming it is to hand and is known to the employer, then it would be negligence on the employer’s part if he permitted the risk or danger to continue. Here, the risk of a loader on the platform missing the end of the platform while looking up towards the chute and bracing himself to receive the weight of a bag or sack was known for many years to all those engaged in this form of loading. To minimise this risk these wooden strips were asked for by the workers and provided by the defendants. In such circumstances, for the employers to allow a lorry without a strip to be used by a loader accustomed to having one might well be regarded as constituting negligence. In this case the plaintiff complains that on the day of the accident he was asked to assist in completing the loading of a lorry already partially loaded by its driver. To do so he moved the lorry into a position in which the rear of the lorry was under the chute and he then proceeded to embark on the loading. On the evidence, at that stage there were three or four bags in the chute held in position by a piece of timber at the end of the chute. The plaintiff says that he did not look at the end of the lorry to see whether there was a strip there or not. He was accustomed to having a strip. He says that he proceeded to take the first bag and proceeded to place his feet in position and suddenly he went over the edge and fell. In fact there was no strip on the lorry in question.
The learned trial judge acceded to an application made on behalf of the defendants that there was no evidence of negligence to go to a jury. I must disagree. I feel that on the evidence a jury could find that the employers ought to have provided a strip and could accordingly be regarded as having been at fault. In my view, there was evidence to go before a jury and the case ought not to have been withdrawn. I would accordingly allow this appeal and send the action back for a re-trial.
Joseph Rafferty v C.A. Parsons of Ireland Ltd
1985 No. 43
Supreme Court
11 March 1986
[1987] I.L.R.M. 98
(Finlay CJ, Henchy and McCarthy JJ)
FINLAY CJ
delivered his judgment on 11 March 1986 saying: This is an appeal brought by the plaintiff against an order made in the High Court by D’Arcy J. on 5 February 1985, withdrawing his (the plaintiff’s) claim for negligence against the defendants from a jury, on the grounds that a prima facie case of negligence had not been established at the conclusion of the evidence. The plaintiff had been employed by the defendants who are manufacturers and distributors of office equipment for a period of twenty years prior to 1983 when he accepted voluntary redundancy and retired from their employment.
He worked in the first period of his employment as a van driver, and in the later periods of his appointment as a storeman, sometimes doing relief duty for van drivers.
He gave evidence that in February of 1979 he got a sore back when lifting certain equipment at his work and that this recurred or came again in April or May of 1979. He then gave evidence that having seen medical advisers he got a note suggesting that he should be given light work, brought it to the foreman of his employers and was informed that they had no light work for him and that if he was not able to do the full work there would be no work for him. He says that he required to work in order to maintain his family and that he accordingly went back to work. He remained back at work from that time in mid-summer 1979 until he retired with voluntary redundancy in 1983, suffering from time to time from soreness and pain in the back and having to leave off work at various periods during that time due to the condition of his back.
The sole ground alleged on behalf of the plaintiff at the trial in an attempt to resist the application of the defendants for a direction, and on hearing of this appeal on which a jury could find negligence against the defendants in favour of the plaintiff, was that the defendants having been informed that the plaintiff was fit only for light work in the Summer of 1979, were negligent either in not providing suitable light work for him or in permitting him to return to full work.
Such a case, clearly, was not made on the pleadings filed on behalf of the plaintiff where the particulars of negligence and breach of duty filed appeared to encompass rather a failure to take reasonable steps to provide the plaintiff with assistance and mechanical methods of lifting and carrying so *100 as to avoid an accident. However, unsatisfactory though the note or transcript of the proceedings below may be, it does not indicate that any serious objection was made on behalf of the defendants to the admission of evidence with regard to the incident when the plaintiff sought light work and, accordingly, I would prefer to rest my decision in this case on the evidence as adduced, irrespective of the questions as to the right of the defendants to object to it as not having been encompassed by the pleadings.
I am satisfied that the learned trial judge was correct in holding that there was no prima facie evidence of negligence against the defendants. The transcript indicates that the request for light work supported by some form of medical note or certificate was made in 1979. There was no evidence that this was ever repeated or that any express notice was given by or on behalf of the plaintiff to his employers that a continuance of his accepting the employment he was doing put at risk his back in relation to further injury. He suffered from recurring back conditions which on the surgical evidence may well be due to a congenitally weak or badly shaped spine, between 1979 and 1982 when he seems effectively to have ceased working. He was not out of work, however, for any lengthy period during that time, though he was out of work from time to time probably due to his back.
I am satisfied that it would be a wholly artificial and unreal standard of care to impose on employers who, on the evidence, had adequate staff to assist each other in loading and unloading the vans and in the transporting of the goods, to hold them guilty of negligence on the basis that they reacted to a single application for light work by one of their staff, even if supported with a medical certificate suggesting that he was fit for light work, by simply informing him that they had not got any and then took no further action when he voluntarily resumed his ordinary work and kept at it for significant periods for some years afterwards. In these circumstances I am satisfied that the order made in the High Court was correctly made and that this appeal must be dismissed.
HENCHY J:
The plaintiff was employed at all relevant times as a labourer by the defendants. His work involved carrying steel filing-cabinets and other steel items of office equipment for delivery to offices. In February 1979 he strained his back in the course of that work. It was not a serious injury and he got over it in a few days without having to stop working. He strained his back again a few months later and this time he was out of work for about twelve weeks. His doctor sent him to a specialist. The specialist advised him to take it easy, to do only light work. When he asked his employers for light work he was told that there was none available, so he resumed his normal work. He says that while doing that work he hurt his back on a number of occasions and eventually had to give up work in July 1983 and take redundancy payment.
The plaintiff instituted proceedings in the High Court claiming damages against the defendants for negligence and for breach of duty under the Factories Act, 1955. When the case came on for hearing before D’Arcy J *101 and a jury, after evidence had been given for both the plaintiff and the defendants the judge ruled that it would not be open to the jury to find for the plaintiff. Accordingly he withdrew the case from the jury and entered judgment for the defendants. This is an appeal by the plaintiff against that order.
It was conceded in the course of the appeal that the claim under the Factories Act does not lie, because none of the places where the alleged accidents are said to have happened could be held to have been a factory for the purposes of the Factories Act. The plaintiff’s case, therefore, lies in negligence at common law. The single allegation of negligence relied on, both at the end of the trial and in this Court, is this: that when in 1979 the plaintiff was advised by his doctor to do only light work and applied for light work, the defendants, not having light work for him, should not have allowed him to attempt to do his normal work, and that they are liable for the injury to his back while attempting to do that work. It is an unusual allegation of negligence and it arises in an unusual way.
The negligence particularised in the statement of claim was:
failure on the part of the defendant to provide the plaintiff with safe, adequate and suitable appliances with which to work and failure to provide and maintain a safe and proper system of working.
A notice for further particulars served by the defendants elicited the following further particulars of negligence:
(a) Failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged upon the said work;
(b) Exposing the plaintiff to a risk of damage or injury of which they know or ought to have known;
(c) Failing to provide the plaintiff with any or any suitable equipment with which to work to enable him to carry out his said work in safety;
(d) Causing or permitting the plaintiff to lift, carry, stack and pile heavy office furniture when they knew or ought to have known that in so doing injury would be caused to the plaintiff’s back;
(e) In the premises failing to provide or maintain a safe and proper system of working;
(f) Failing to provide the plaintiff with suitable and adequate equipment in order to enable him to carry out his said work in safety.
There followed in the same reply to the notice for particulars this further particular of negligence:
The plaintiff could and should have been supplied with a fork lift truck or alternatively with a helper with a fork lift truck who could move the furniture and other items as required and stack the same to the height required by the defendants.
In the light of the statement of claim and those particulars, it must be assumed that the defendants came to court prepared to defend a claim based on an allegation of an unsafe system of work and a failure to provide proper plant and equipment. It was only at the end of the hearing, in reply *102 to the application to have the case withdrawn from the jury, that the negligence now relied on was put forward, namely, allowing the plaintiff to attempt to do his normal work when he was known to be fit only for light work.
It may be that it would be evidence of negligence on the part of an employer that he allowed his employee to attempt to do his normal work when he was known to be fit only for light work, but it is not necessary to decide the point in this case — for reasons I shall presently give. But if such were held to be the law, that particular negligence would have to be pleaded so that the defendants could meet that case in evidence and properly raise a plea of contributory negligence and/or a plea of volenti non fit injuria . If the position were that both the employer and the employee knew that the employee was fit only for light work, there would be a mistrial if the case went to the jury without the employer having a proper opportunity of making the case that the employee was wanting in reasonable care for his own safety in attempting to do full work in those circumstances, or alternatively, of pleading and proving, in accordance with s. 34(1)(b) of the Civil Liability Act, 1961, that in attempting to do full work in those circumstances he voluntarily assumed the risk of injury and impliedly agreed to waive his legal rights in respect of such injury. Having regard to the course of the trial, I am satisfied that the defendants had not a proper opportunity of meeting the plaintiff’s claim in this way. For that reason alone, I would hold that the case was properly withdrawn from the jury.
However, I consider that the particular negligence now relied on is not open on the evidence. There was no stenographer’s note of the evidence which was prepared by counsel. But the judge compared that note with his own note and has adopted it as his note for the purpose of the appeal.
The only witnesses who gave evidence in the High Court were, on the plaintiff’s side, the plaintiff and Dr. Casey, and for the defence, Dr. MacAuley and an employee of the defendants who kept records of accidents. Only the plaintiff and Dr. Casey gave evidence bearing on the issue of negligence now relied on.
The plaintiff said that when his back was injured in 1979 and he had to stop work, he went to his own doctor, Dr. Hughes. He was then out of work for six weeks and got a certificate each week from Dr. Hughes (presumably certifying that he was totally unfit for work) which he gave to his employers. When he was not getting better, Dr. Hughes referred him to Dr. Casey, a specialist in back complaints. Dr. Casey eventually advised him to start light work. The agreed note of the evidence quotes the plaintiff as saying:
He (Dr. Casey) told me to take it easy; only light work in the line of lifting. I went back and asked the defendants for light work. The foreman told me if I couldn’t do full work there was no work for me. Family necessity compelled me to go back to work. I went back to the same job. I had a note from Dr. Casey requesting that I be given light work. Dr. Hughes gave me a note also, but I had to support my family and I was obliged to go back to work.
Dr. Casey dealt in his evidence with the matter as follows:
He (the plaintiff) got a report from Dr. Hughes, and Dr. Hughes suggested light work and gave a note to the employers suggesting light work.
As far as the evidence went, therefore, the defendants were not told that either Dr. Hughes or Dr. Casey had certified that the plaintiff was fit only for light work. There was only a note — from Dr. Hughes or Dr. Casey, or from both — requesting light work. Therefore if the case had been allowed to go to the jury, it would not have been competent for the jury to hold — as would have been necessary for the success of this plea of negligence — that the defendants had required or permitted the plaintiff to do full work when they knew that he was fit only for light work. Both the plaintiff’s notice of appeal and the argument put forward on his behalf in this Court were expressly based on the proposition that some of the plaintiff’s injuries were sustained at a time when he was required by the defendants to do full work notwithstanding medical certificates supplied to them showing that light work was all he was fit for. The evidence does not show that any such certificates were given by his medical advisers or supplied to the defendants. There was nothing more than a request by his doctor that he be given light work. Light work was not available and the plaintiff chose in those circumstances to do full work. It would not have been competent, therefore, for the jury to hold that the defendants were negligent in the way now alleged.
I consider that D’Arcy J. correctly withdrew the case from the jury. Accordingly I would dismiss this appeal.
McCARTHY J:
The resolution of this appeal is not helped by the absence of a transcript; this is particularly so where the detail of conversations may be important. It is, however, clear that counsel for the defendants did not complain at the trial of being at any disadvantage because of any inadequacy in the particulars furnished. In making the application to withdraw the case from the jury, Mr Comyn, SC said ‘The case being made is that knowing he had a bad back the defendants obliged him to continue working’, and, later, ‘I accept the plaintiff’s contention that the defendant must take a plaintiff as he finds him, but there is no evidence of any particular incident’. Counsel for the plaintiff summarised his case as being ‘the employer was put on notice of the plaintiff’s condition. The employer was furnished with certificates that the plaintiff could only do light work. In that situation, they employed him to do heavy work … The situation is, having regard to the certificates, that if the employers had no light work for Mr Rafferty, they should not have employed him at all’. The learned trial Judge, in making his ruling said:
In my view, there is no evidence of negligence. Suggestions were made regarding the cabinets and desks, but the fact remains that there is no evidence that they are in anyway dangerous. There were two men on the job. What else could the employers be expected to provide? The evidence is that there were three drivers and three helpers at any one time. No one else hurt himself. The operation of the defendants was perfectly normal. The *104 defendants took reasonable care and they did what a reasonable employer ought to do. They had a safe system of work, normal for at least twenty years.
It does seem clear that the ruling of the learned trial Judge did not expressly deal with the submission made on behalf of the plaintiff. The plaintiff had sustained injury caused by lifting filing cabinets on a van and had received from Dr. Hughes ‘a certificate each week which I presented to the company’. As a result he was relieved from work, but economic circumstances forced him to go back having been seen by Dr. Casey who told him to take it easy and do ‘only light work in the line of lifting. I went back and asked the defendants for light work. The foreman told me if I couldn’t do full work there was no work for me. Family necessity compelled me to go back to work. I went back to the same job. I had a note from Dr. Casey requesting that I be given light work. Dr. Hughes gave me a note also, but I had to support my family and I was obliged to go back to work.’ Presumably the defendants were and are in possession of these certificates or letters. I do not accept the proposition that it would not be open to a jury to conclude that certificates or letters of this kind would not be adequate notice to the defendants that the plaintiff should not do other than light work. Ordinarily, in my view, a certificate of fitness for light work, implies an unfitness for other than light work; if it were not so, such a certificate would scarcely be necessary at all. It may be that the certificates or letters were phrased in such a form as to give another impression; if so the defendants would no doubt have produced them at the trial. They chose not to do so, persuaded the learned trial Judge to withdraw the case from the jury on the basis that the plaintiff had failed to show that the type of work he was required to do was excessive and now seek to answer the plaintiff’s appeal on the basis that there was no evidence that they knew that the plaintiff was unfit for work other than light work.
At no time have the defendants complained of inadequacy of pleading or of having been misled as to the nature of the plaintiff’s case; in my opinion that case should have been allowed to be determined by the jury on the issue as I have sought to identify it with, if the defendants so wish, an ancillary issue as to the voluntary assumption of risk.
I would allow the appeal.
Callaghan O’Donnell v Trevor Begley and Bord Telecom Eireann
1983 No. 7822P
High Court
19 March 1986
[1987] I.L.R.M. 105
(Ex tempore) (Keane J)
KEANE J
delivered his judgment on 19 March 1986 saying: The evidence of the engineer, Mr Brennan, was to the effect that the plaintiff’s employer should have provided proper equipment. The plaintiff was the foreman employed by him and it is open to the jury to infer that the employer had not provided proper equipment and sufficient fellow workmen. I will, accordingly, refuse the application made on behalf of the first named defendant. In relation to the second named defendant the only allegation of negligence is that the clerk of works allowed the plaintiff to remove the manhole cover when it was dangerous for him to do so. Mr Ryan had no responsibility to see that the work was carried out with safety. That was the employer’s duty. It was not necessary for the clerk of works to be present when the work was being done as he simply conveys the direction and does not say how it is to be carried out. Sometimes an architect or an engineer is a clerk of works. Accordingly I will dismiss the action against the second named defendant at this stage of the proceedings.