Statutory Duties

Index

Cases

Quinn -v- Bradbury & Bradbury

[2012] IEHC 106

Charleton J.

“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.

……………..

……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 vocationalrehabilitation 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.”

Doyle -v- E.S.B.

[2008] IEHC 88

SC Dunne J.

“The High Court Decision

I have already set out the findings made by de Valera J. in the course of his judgment and his conclusion that Regulation 19 appeared to impose an absolute duty on employers in respect of the safety of equipment provided to employees. His conclusion in that regard was based on the decision of Kearns J. in Everitt v. Thorsman Ireland Ltd. [2000] 1 IR 256. Having referred to Regulation 19(a) and to Regulation 20 and what is described inadvertently as Regulation 20(7) but is in fact Clause 7 of the Fifth Schedule, he observed as follows:

“This matter was considered in the High Court in 1999 in the matter of Everitt vThorsman Ireland Ltd. [2000] 1 IR 256 where Mr. Justice Kearns having considering Regulations 19 and 20 of the Safety Health and Welfare at Work (General Application) Regulations 1993 (S.I. No. 44) went on to state:

‘Accordingly, while there is no blameworthiness in any meaningful sense of the word on the part of the employer, these Regulations do exist for sound policy reasons at least, namely, to ensure that an employee who suffers an injury at work through no fault of his own by using defective equipment should not be left without a remedy. As Mr. Justice O’Flaherty pointed out an employer in such a situation may usually, though not always, be in a position to seek indemnity from the third party who supplied the work equipment.’

In these circumstances while I accept that the first named defendant carried out a proper system of inspection, maintenance and repair and that no blameworthiness attaches to it, it has a statutory duty which has not been discharged and therefore the plaintiff is entitled to succeed in his claim against the first defendant.”

It is apparent from the judgment of Kearns J. that he was not referred to the Framework Directive or the Work Equipment Directive underlying the provisions of the 1993 Regulations. Further the conclusion of Kearns J. appears to be based on the view that the Regulations were there for sound policy reasons namely to ensure that an employee who through no fault of his own suffered an injury by using defective equipment would not be left without any remedy. It is in those circumstances that he concluded that the provisions of Regulation 19 imposed what he described as virtually an absolute duty on employers. There is an interesting comment on this judgment in Safety, Health and Welfare at Work Law in Ireland: A Guide by Raymond Byrne (Nifast) the first edition of which was published in 2001. He commented at paragraph 3(12) as follows:

“It is notable that Kearns J. stated that there had been ‘no blameworthiness in any meaningful sense’ by the employer in this case. But because he also noted that there was ‘virtually an absolute duty’ under the 1993 Regulations, he concluded that there had been a breach of statutory duty in this case. On this basis the plaintiff was entitled to claim against his employer. He did not actually consider whether the finding of ‘virtually an absolute liability” was consistent with the fact that the 1989 Work Equipment Directive, implemented in the 1993 Regulations, lays down ‘minimum standards’.”

It was also noted by the author that in that particular case the employer was ultimately found to be entitled to a one hundred per cent indemnity and contribution from the supplier of the defective equipment. Thus, while the Framework Directive and the Work Equipment Directive may be viewed as imposing minimum standards on employers, it would appear that the interpretation placed on the 1993 Regulations by Kearns J. in Everitt resulted in the imposition of a standard of absolute liability.

The view from Europe

The European Court of Justice considered the effect of the Framework Directive in a case entitled Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case C – 127/05) 2007 ICR 1393. In that case the Commission took the view that s. 2(1) of the Health and Safety at Work Act 1974 which imposed a duty on every employer “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”, represented an incorrect implementation of Article 5(1) of the Framework Directive in that it unduly limited both the general duty of safety to which employers were subject and the no fault liability which in the Commission’s submission Article 5(1) imposed on employers in the event of an accident, subject only to the force majeure provision in Article 5(4) which was to be narrowly interpreted. In those circumstances, the Commission applied to the Court of Justice, (ECJ), for a declaration that by so restricting the duty on employers the United Kingdom had failed to implement its obligations under Article 5(1) and (4) of the Framework Directive. The ECJ dismissed that application concluding that Article 5(1) of the Framework Directive embodied the general duty of safety to which employers were subject, without specifying any form of liability, and therefore did not require the imposition of no fault liability on employers; that the Commission had not indicated in precisely what way it alleged that the “so far is reasonably practicable” clause in s. 2(1) of the Health and Safety at Work Act 1974 offended against the duty on employers required by the Directive. Since the Commission had not established that the clause limited (in this regard of Article 5(1) and (4) of the Directive) either employers’ responsibility, by excluding a form of no fault liability or the duty of employers to ensure the safety and health of workers, it had not established that the United Kingdom had failed to fulfil its obligations under those Articles of the Directive. The following passages from the judgment of the ECJ commencing at para. 43 are of interest:

“43. The Commission submits that its suggested interpretation of Article 5 is borne out by the legislative history of Directive 89/391. It maintains that, since the request of the United Kingdom and Irish delegations for the disputed clause to be incorporated in the definition of the employer’s responsibilities was expressly rejected in the course of the discussions of the working party set up by the Council of the European Union, it can accordingly be accepted that there is no-fault liability on the part of the employer.

44. That argument cannot, however, be upheld. It is apparent from the legislative history of Directive 89/391, and in particular from the joint statement by the Council and the Commission recorded in the minutes of the Council meeting of 12 June 1989, that the insertion of such a clause was suggested in order to resolve the problems that formulating the employers’ duty to ensure safety in absolute terms would have raised in the common-law systems, bearing in mind the obligation on the courts concerned to interpret written law literally.

45. Against that background, the refusal to insert a clause comparable to the disputed clause in Article 5(1) of Directive 89/391 cannot suffice to justify an interpretation of that provision to the effect that the employer is subject to a form of no-fault liability in the event of accident.

….…

Decision

The 1993 Regulations in Regulation 19 set out the duties of an employer in relation to work equipment. The manner in which the Work Equipment Directive has been transposed involves the use of the same language apart from minor details which do not affect the overall effect of the Directive or indeed the Regulations. Thus Article 3(1) provides that the employer shall take the measures necessary to ensure that the work equipment made available to workers . . . is suitable for the work to be carried out . . . and may be used by workers without impairment to their safety or health while Regulation 19(1)(a):

“It shall be the duty of every employer, to ensure that –

(a) the necessary measures are taken so that the work equipment is suitable for the work to be carried out . . . and may be used by employees without risk to their safety and health.”

Again Article 3(2) is in similar terms to Regulation 19(c). It is clear from the Work Equipment Directive and indeed from the Framework Directive that it is intended to provide for the minimum safety and health requirements for the use of work equipment. That that is so was made clear in the decision in the case of EC Commission v. United Kingdom on the Framework Directive. It is also clear from that decision that it is open to Member States to impose more stringent requirements than those to be found in the Directives for the protection of workers if that is deemed appropriate by the Member State. Thus in the case of Stark v. Post Office, the U.K. Court of Appeal found that the language used in that jurisdiction imposed higher obligations on employers than the minimum obligations contained in the Directive. A breach of the Regulations is as pointed out previously a criminal offence. On indictment it is punishable by way of a fine which is unlimited.

Had it been the case that the Regulations transposing the Directives were intended to go further than the Directives by imposing a standard other than the minimum requirements set out in the Directives by imposing strict or absolute liability on an employer, then in those circumstances it is to be expected that the Regulations would have been expressed clearly in such a way as to make it absolutely obvious that that was the intention in transposing the Directives by means of the Regulations. By transposing the Directives in the same terms, it does not seem to me that the Minister in making the Regulations was seeking to impose a greater obligation than that set out in the Directive. That being so I have come to the conclusion that in this case there has not been a breach of any statutory duty imposed by the Regulations. Dublin Bus took the necessary measures to ensure that the work equipment could be used without risk to the safety and health of its employees and insofar as the work equipment failed on this occasion it is clear that Dublin Bus took the appropriate measures to minimise the risks involved. Unfortunately, Mr. Thompson received injuries in the course of his employment with Dublin Bus but it is difficult to see on the facts of this case what further steps were required to have been taken by Dublin Bus in order to comply with their obligations under the Regulations. The obligations under the Regulations do not, in my view, impose absolute liability on the employer.

In those circumstances, I would allow the appeal.”

Gillane -v- Focus Irl Ltd

[2015] IEHC 478

Murphy J.

1. The plaintiff is a 42 year old woman born on 13th October, 1973. She is married with two children aged 16 and 12. She works as a Housing Support Worker with the defendant with whom she has been employed since 2003. The plaintiff claims damages for personal injury, loss and damage which she maintains occurred as a result of the negligence, breach of duty, breach of statutory duty and breach of contract of the defendant in and about the arrangement of workstations in the Housing Support Workers’ office in the defendant’s premises at Grange Cohan in the City of Waterford.

2. From 2003 to 2005 the plaintiff worked as a Housing Support Worker based in an office designated for that purpose with other Housing Support Workers. Given the needs and challenges of their clients, the work is demanding and stressful. From 2005 to 2007 the plaintiff was seconded for a two year period as a Tenancy Support Worker and was based in a different office designated for that purpose in the defendant’s premises. Towards the end of 2007 her assignment to that office ended and she was reassigned to the Housing Support Unit. This gave rise to a certain awkwardness because the person who had replaced the plaintiff during her period of secondment to the Tenancy Support Unit was still completing her contract which did not expire until the end of January 2008. So apart from the general stresses of the work, the plaintiff was in the uncomfortable position of having to work in close proximity to a person who was about to lose her job because of the plaintiff’s return. To accommodate the plaintiff’s return an extra desk was required to be installed in the Housing Support Unit office for her use. This additional desk was placed at the end of the office facing a wall on which was placed a boiler which delivered heating to the room by means of two radiators which were placed under the two windows on the left hand side of the room as one enters. The plaintiff’s workstation was placed at right angles to an existing workstation which meant that her desk was directly adjacent to one of the radiators and one of the two windows in the room. The heating in the room was controlled by the occupants who could adjust the temperature by means of a dial on the boiler beside the plaintiff’s desk. By reason of the nature of their work the occupants of the office were in and out of the office regularly attending to the needs of the defendant’s clients. Three of the four workstations were on the opposite side of the room to the radiators. On returning to the office it was not unusual for one or more of the occupants to turn the heating up in order to warm themselves after a period of work out of doors. The plaintiff, who suffers from sinusitis and who was sitting directly beside one of the radiators, regularly found the level of heat to be oppressive and troubling for her sinuses. She coped with this by opening a window immediately adjacent to her workstation. This helped equalise the temperature in her immediate vicinity by admitting a draught of cold air into the room. A further difficulty identified by the plaintiff with her assigned workstation and specified by her in a workstation assessment prepared on 26th March, 2008 was that the “drawers under my desk get in my way sometimes as the VDU is above them. I have to sit crooked”.

3. The plaintiff commenced work at this workstation on 5th December, 2007. The plaintiff prepared a plan of the layout of the office for her solicitor, as a matter of probability, on or about 1st May, 2008, a copy of which is annexed to this judgment. The plan shows the location of the plaintiff’s desk and the desk of the three other workers who were based in the office in December 2007. The plaintiff’s workstation is shown at right angles to another workstation which at the time was occupied by a co-worker named Fionnuala Brazil. At the end of January 2008 the woman who had replaced the plaintiff for her two year secondment finished her contract and left the office. This meant that there were four workstations but only three people working in the office. The aforementioned Ms. Brazil immediately moved workstation to that recently vacated by the contract worker. The plaintiff remained on at her workstation for a further six weeks but moved to Fionnuala Brazil’s former workstation around the middle of March 2008. Towards the end of March 2008 a routine assessment form was handed out to all employees. The plaintiff completed her form on 26th March, 2008. The relevant sections of the work place assessment relate to temperature and space. In relation to the general office environment record the plaintiff under the heading temperature stated “gas heating controlled by staff, windows, fan in summer”. In relation to humidity she wrote “don’t know air appears very dry when heating is on”. Under the general office environment heading of average personal space per employee she wrote “ok. My drawers under my desk get in my way sometimes as the VDU is above them. I have to sit crooked.” In the section dealing with individual workstation assessment when asked whether there was sufficient space to enable easy access to the workstation the plaintiff ticked “no”. When asked was there reasonable variation in the position of furniture and equipment she similarly ticked “no”. The section of the workplace assessment dealing with temperature raised the following questions:

Is the temperature at the workstation comfortable?

The plaintiff ticked “yes”

Is the temperature maintained at a level that ensures operator comfort

The plaintiff ticked “no”

Have all sources of excess heat i.e. those likely to cause injury or discomfort to operators been eliminated or suitably controlled?

The plaintiff ticked “no”

Asked whether an adequate level of relative humidity was maintained the plaintiff ticked “no”.

4. In the section dealing with furniture there were two subheadings, one dealing with the work surface and the other dealing with the chair provided to the employee. Asked whether there was sufficient space below the work surface to enable the operator to achieve a comfortable position, the plaintiff ticked “no”. Additionally, she had criticisms to make of the chair provided, particularly in relation to lower back support and thigh support.

5. At the end of the work place assessment document there was space for comments. The plaintiff wrote as follows:

“When I started working in the housing support office I sat in the desk assigned to me. This desk was with my back to the door and some staff in the room. It is located underneath the gas boiler which is quite noisy. The radiator was right beside me and there is only vent for the gas boiler behind me. Since I was beside the radiator I was always very warm and the air was so dry that I began to get sinus infections that I haven’t gotten for two years since working in this office. To combat the dryness in the air I turned off the radiator on a number of occasions and tried to set the boiler on timer. But as other staff in the room were cold this was not always possible. To further my efforts to try and combat the dryness or low humidity I began to open the window next to me. After a week or two I found that my neck and shoulders became very stiff but my sinus problems appeared to have cleared up. After a week or two the pain and discomfort became so bad that it really started to effect me being able to sleep at night and to sit comfortably at all. I ended up going to a chiropractor to treat my neck and shoulders and I have spent €250 so far. I have had to go to a specialist massage therapist who has said that my treatment will continue for the foreseeable future. I have paid him €100 with no end in sight to the chiropractor or massage therapist fees. I really feel disheartened that these issues have been caused by being at work. Fortunately for me another workstation became available adjacent to mine and I did move but my neck and shoulders are still really painful.”

6. This was the first complaint that the plaintiff made about her workstation. Upon receipt of the complaint the workstations were immediately reconfigured and the plaintiff’s desk was placed against the wall between the two windows on the left hand side of the office as one enters.

Adequacy of the Workstation

7. The Court is satisfied on the evidence that no risk assessment was carried out before the decision was taken to place the plaintiff’s workstation facing a wall directly adjacent to a radiator and window. It was, in the Court’s view, entirely foreseeable that the person sitting at that workstation would be exposed to far greater levels of heat than those further back in the room. Indeed in order to provide sufficient heat for those removed from the radiators it was likely that the person sitting directly adjacent to it would experience excessive levels of heat. It is also entirely foreseeable that a person subjected to excessive heat would reach across and open the nearest window which was the window directly beside the desk, to alleviate the problem. The Court notes that the current configuration of the office shown in photographs taken by the defendant’s engineer shows that the workstation is now parallel to the window and not at right angles to it. This provides the employee using that station with more space between the radiator and the desk.

8. While it did not feature majorly in the evidence, there is also evidence that the placement of the pedestal file cabinet under the desk was such that when using the VDU the plaintiff had on occasion to adopt a “crooked” position. The Court is satisfied that had a proper risk assessment been done, as required by s. 19 of the Safety, Health and Welfare at Work Act, 2005, the plaintiff’s workstation would not have been orientated in the manner in which it was. Secondly, the Court is satisfied that by adopting the orientation which was in fact adopted, the temperature for the plaintiff was not maintained as required by regulation 7 of the Safety, Health and Welfare at Work (General Application) Regulations 2007 which provides as follows:

(1) An employer shall ensure that—

(a) during working hours, the temperature in rooms containing workstations is appropriate for human beings, having regard to the working methods being used and the physical demands placed on the employees,

(b) for sedentary office work, a minimum temperature of 17.5°C, so far as is reasonably practicable, is achieved and maintained at every workstation after the first hour’s work,

(c) for other sedentary work, at every workstation where a substantial proportion of the work is done sitting and does not involve serious physical effort, a minimum temperature of 16°C is, so far as is reasonably practicable, achieved and maintained after the first hour’s work,

(d) means are available to enable persons at work to measure the temperature in any workplace inside a building,

(e) the temperature in rest areas, rooms for duty staff, sanitary facilities, canteens and first-aid rooms is appropriate to the particular purpose of such areas, and

(f) in relation to windows, skylights and glass partitions, excessive effects of sunlight are avoided in places of work, having regard to the nature of the work and the characteristics of the place of work.

(2) The temperature referred to in paragraphs (1)(b) and (c) shall be a dry bulb temperature taken at the working position of the employee at 1.1 m above the floor surface.

(3) Where, due to process requirements, a workplace temperature below 16°C is necessary, the employer shall assess the risks and take any necessary measures to ensure the safety, health and welfare of the employer’s employees.

The Court is satisfied that the ad hoc arrangement apparently arrived at by the defendant to accommodate the plaintiff in the Housing Support Worker unit was negligent and in breach of statutory duty and failed to have adequate regard for the safety and well being of the plaintiff.

Causation

9. For the reason stated above, the Court is satisfied that there was negligence and breach of duty, including breach of statutory duty, on the part of the defendant in configuring the plaintiff’s workstation. The next and much trickier issue is whether or not that negligence and breach of duty, including breach of statutory duty, caused the condition of which the plaintiff now complains. Based on the evidence of the plaintiff’s doctors the Court is satisfied that the plaintiff is suffering from a chronic inflammatory condition which, when active, causes pain in her left trapezius and sternocleidomastoid muscles. Prior to the events giving rise to these proceedings, she did not suffer from this condition. However she was a sinusitis sufferer which is also an inflammatory condition and can be an exacerbating factor in neck pain according to the evidence of Dr. Darragh Foley Nolan consultant rheumatologist. In her original complaint of 26th March, 2008 the plaintiff specifically stated that upon returning to the Housing Support Workers unit she began to get sinus infections that she hadn’t got for two years since working in the housing support workers unit.

10. The Court has had evidence from three doctors, two on behalf of the plaintiff and one on behalf of the defendant. Dr. John Downey, the plaintiff’s GP at the time of the onset of her condition, gave evidence that, on the basis of the plaintiff’s reporting, she had been subjected to sitting in a draught for a period of months and that he had concluded that she had developed chronic myositis of the trapezius muscles particularly on the left side. Dr. Darragh Foley Nolan consultant rheumatologist states in his report at paragraph 3.2 that;

“Catriona’s symptoms came on after she had been exposed to a draught after she had opened a window following her co-workers turning up the heat regularly.”

11. Dr. Darragh Foley Nolan saw the plaintiff on one occasion, on the 8th July, 2014, more than six years after the event. In examination in chief he stated that the history given by the plaintiff “was unusual enough in that we don’t see that many people in whom a draught is a major issue in terms of the etiopathogenesis of neck pain”. He was of the opinion that the plaintiff does have soft tissue spasm which is causing recurring difficulties and was in keeping with the history as outlined. When cross-examined on this issue, he stated “I mean in explaining that, clearly at six years removed from it’s hard to recreate exactly what actually happened.” His opinion was based on the time frame that he had been given, the examination that he had done and the history that he had been given and it was all of those that led him to the conclusion that the plaintiff’s workstation was an important factor in the development of the problem. Mr. Michael O’Riordan, an orthopaedic surgeon who examined the plaintiff for the defendant on two occasions, being 29th January, 2013 and 28th February, 2014, is adamant in both his report and his evidence that the plaintiff’s condition is not connected to an exposure to a draught. He went so far as to say in his second report “in all my years I have never heard such long lasting symptoms of such apparent severity be caused by a simple draught”.

12. Both Dr. Downey and Mr. Darragh Foley Nolan, consultant rheumatologist, based their conclusions on the plaintiff’s current condition on her reporting to them of what occurred. It must be said that on viewing the evidence as a whole, the plaintiff’s reporting in this case has not been consistent. The Court does not consider that this arises from any deliberate falsification but it does give the Court cause to pause when her doctor’s opinions are based significantly on the accuracy of her reporting. In her first account of events, which is the workplace assessment report of 26th March, 2008 she states that after a week or two in the housing support unit she found that her neck and shoulders became very stiff but her sinus problems appeared to have cleared up. That report goes on to say that after a week or two the pain and discomfort became so bad that it really stated to affect her ability to sleep at night and to sit comfortably at all. This suggests that the problems manifested themselves almost immediately upon her return to the Housing Support Unit and not following two months continual exposure to draught which formed the basis of her GP’s Dr. Downey’s report.

13. The day following the completion of the workplace assessment, the 27th March, 2008, she attended her GP’s clinic in Carrick-on-Suir, where she saw Dr. Andrew Downey. The main purpose of her visit according to the records was that she had a sore throat, runny nose, malaise, aches. On examination her ears were congested and her throat was slightly red. A viral infection was considered likely. Almost as an afterthought, the note records that the doctor also prescribed Diclac for neck pains which had been ongoing for a few months.

14. The plaintiff told Mr. Michael O’Riordan, the orthopaedic consultant retained by the defendants, that the pain started in early December 2007. Similarly she told Dr. Darragh Foley Nolan, as recorded by him at paragraph 2.4 of his report, that she would have taken some painkillers following the aches she developed in her neck within a week of her taking up work in the Waterford office. This reporting accords with the evidence of her co-worker Fionnuala Brazil who gave evidence that coming up to Christmas time in December 2007 the plaintiff complained to her of an awful crick in her neck. She knew it was December because they “would have to cover for the people who were on reception and the people who took in rents and stuff like that, so we would have been based over there covering for them if they were off or if they had to go to the bank and stuff like that, but that morning I remember her chatting about it.”

15. In cross examination she was asked if the complaint may have been made in January or February and she said:-

“I don’t think so. Now the only reason I don’t think so was we were based over there, one of the staff had been out ill, so we would have been covering with the gentlemen that I referred to, our other ex colleague.”

16. When pressed whether that complaint could have been made in January or February 2008 she said:-

“I don’t think it was January or February for the reason that, in my mind I’m thinking Christmas time, but I don’t have a date. I didn’t know at the time I needed to think about it…so it could be [January or February]…it could be but I doubt it.”

17. In her evidence to the Court the plaintiff stated that she began opening the window to reduce the heat in January 2008 on a daily basis. She stated:-

“I just began leaving the window open then so that I could get on with my work. I did feel the cold on my neck and my shoulder but I still felt extreme heat at the same time. So it probably went on for the whole month of January and it would have been like three or four hours a day maybe if I was sitting in the office there trying to get on and do my work and into February then and it was early to mid February that I started to feel real pain and soreness in my neck.”

This appears to the Court to contradict at least to some degree the account given to Dr. O’Riordan and Dr. Darragh Foley Nolan. In giving her evidence, the plaintiff’s initial recollection was that she went to the doctor first, Dr. Andrew Downey and then to the chiropractor. However, the documentation provided suggests that this is wrong and that the plaintiff initially on the recommendation of a work colleague went to the chiropractor. Her first visit to the chiropractor appears to have been on 26th February, 2008 and she didn’t attend her GP until 27th March, 2008. The plaintiff also gave evidence that when the girl who had been covering for her on a contractual basis during her two years secondment, left at the end of January 2008, she immediately took her desk which took her away from the window. This again on the evidence appears to be incorrect. The plaintiff didn’t move from the assigned work station to the work station at right angles to that until the middle of March 2008 some six weeks after the contract worker had left at the end of January. Similarly, the plaintiff gave evidence that she only realised that the workstation might be the cause of her problems when she spoke with Dr. John Downey who asked her questions about where she was sitting and her work arrangements etc. This also appears to be incorrect because the notes taken by Dr. John Downey indicate that the discussion in relation to the plaintiff’s work arrangements did not take place until 18th April, 2008 almost three weeks after she had filed the workplace assessment form in which she made a complaint of having experienced difficulties at her workstation virtually from the outset of her placement there. The plaintiff clarified this aspect of her evidence on day 2 of the hearing and stated that in fact it was her conversation with the Chiropractor that led her to make the connection between her symptoms and her workstation. The Chiropractor was unwilling to furnish a report or to give evidence in the matter. It was following her conversation with the Chiropractor that the plaintiff moved workstation to the free workstation vacated in January by Fionnuala Brazil. When pressed by the Court as to when she started having trouble with her neck and shoulder and trapezius muscle, the plaintiff replied “I suppose I was sitting at the desk in December and January and at the end of January and starting into February it became really sore” and it was at that point that she received advice to go to the chiropractor. When discussing her symptoms with the chiropractor she was asked about her work situation. It was then for the first time that she made a connection between her workstation and her inflammatory condition. Throughout the period from December 2007 through January, February and March, 2008, the plaintiff made no complaint to anyone about sitting in a draught, or having to adopt an awkward posture at her desk, this despite weekly meetings in which health and safety relating to clients and staff were the first item on the agenda. While the plaintiff experienced pain in her neck and shoulders during that period she made no connection between that pain and her workstation.

18. The condition of myositis from which the plaintiff is undoubtedly suffering can occur spontaneously and without trauma. The plaintiff had a pre existing inflammatory condition of sinusitis and on examination by Dr. Darragh Foley Nolan she was found to have Raynaud’s Syndrome which according to Dr. Darragh Foley Nolan can be a pre disposing factor to pain.

The Role of Stress

19. Both in his evidence and in his report Dr. Darragh Foley Nolan consultant rheumatologist placed particular emphasis on the role of stress both in the initiation and perpetuation of pain of the type which the plaintiff suffers on a recurring basis

20. Both Mr. O’Riordan on behalf of the defendants and Dr. Darragh Foley Nolan Rheumatologist on behalf of the plaintiff independently recommended a physiological assessment of the plaintiff. Dr. Darragh Foley Nolan concluded his report by stating:

“I would strongly recommend an independent assessment by a psychologist to assess the degree that the stress Catriona experiences is a contributing factor to her neck pain flares in terms of their duration and severity.”

21. Though Dr. Foley Nolan produced his report in July of 2014 no such independent psychological assessment was put before the Court.

Decision of the Court

22. In circumstances where the plaintiff’s reporting has been inconsistent in terms of the onset of her symptoms and where no complaint of any type was made as to the unsuitability of the workstation during the three month period she was assigned to it, and where the plaintiff only made a connection between her workstation and her inflammatory condition on consulting a chiropractor who was not willing to come before the Court and give evidence, and where an independent psychological assessment recommended by both the plaintiff and the defendant’s medics has not been conducted, the Court has difficulty concluding that as a matter of probability the workstation is the cause of the plaintiff’s ongoing inflammatory condition in her trapezius and sternocleidomastoid muscles. At most in the Court’s view, the defects in her workstation were merely a contributory factor in the onset of her condition and have no causative role in the perpetuation of them. Notwithstanding her confused reporting as to the sequence of events, which is not surprising given the circumstances and the lapse of time and which confusion, the Court is satisfied, is not due to any dishonesty on the part of the plaintiff, the fact is that for a period of three months the plaintiff was assigned to and sat at a work station which was defective and in the course of which she developed symptoms from which she had not previously suffered. In coming to the conclusion that the workplace station was a factor in the onset of her condition the Court attaches particular weight to the fact that prior to her assignment to that workstation the plaintiff had no history of inflammation of the type from which she now suffers. In these circumstances the Court considers it appropriate to compensate the plaintiff for the pain and suffering which she suffered immediately following the onset of her symptoms but not for her ongoing pain and suffering. In the immediate aftermath the plaintiff received active treatment from Dr. John Downey her GP up until July 2008, but thereafter resorted to alternative methods because she found acupuncture too painful. It appears to the Court that in the particular circumstances of this case it is appropriate to compensate the plaintiff for one year post onset of this condition, to reflect the role of the defendant’s negligence in its onset. The Court considers that the appropriate level of general damages for that period is €15,000 having regard to the significantly painful and debilitating nature of the plaintiff’s condition during that period. The Court notes that special damages are agreed at €4,000 but having regard to the Court’s finding that the defendant is liable only for the first year of the pain and suffering attributable to the plaintiff’s condition, the Court proposes to award the plaintiff €1,000.

Geraldine O’Grady v Abbott Ireland

2015 8433 P

High Court

11 February 2019

unreported
[2019] IEHC 79
Ms. Justice Eileen Creedon

February 11, 2019

JUDGMENT
Background
1. These proceedings were commenced by way of personal injury summons by the plaintiff in which she makes a claim for damages in respect of serious personal injuries, loss, inconvenience and expense incurred as a result of the negligence, breach of duty including breach of statutory duty under the Safety Health and Welfare at Work Act 2005, the General Application Regulations made thereunder, the Occupiers Liability Act 1995 and contract on behalf of the defendant its servants or agents.

2. At all material times the plaintiff was an employee of the defendant. She says it was an express and/or implied term of the contract of employment between the plaintiff and the defendant that the plaintiff would be provided with a safe place and system of work. In particular, she says that on or about the 24th day of July 2014, the plaintiff was carrying out her duties pursuant to her contract of employment with the defendant at the defendant’s factory premises known as Abbott Ireland Vascular Division, Cashel Road, Clonmel, in the County of Tipperary, when the plaintiff stepped into a lift, the door of the lift struck the plaintiff on the head and as a result the plaintiff suffered serious personal injuries, loss, damages, inconvenience and expense.

3. The plaintiff says that in the circumstances the defendant failed to provide the plaintiff with a safe place and/or system of work. She says that the lift which is the subject matter of these proceedings, did not emit a verbal warning that the doors were closing and/or otherwise warn a user that the doors were closing. Further, she says the doors themselves were an excessive width and a danger to users. She says the sensors of the lift were not properly placed and/or did not function correctly. The plaintiff sets out further and better particulars of the injuries occasioned by the alleged wrong of the defendant at para. 5 of the personal injury summons.

4. She confirms inter alia that she sustained a haematoma to the right temporal area of her head. An MRI scan did not identify any bony injury to her skull. Post – incident she had tenderness over the right temporal area but no swelling. The plaintiff indicates that she has suffered post – concussion syndrome together with post-traumatic stress disorder. She says that her sleep continues to be disturbed and she suffers from flashbacks. The plaintiff’s general practitioner has prescribed antidepressant medication. The plaintiff had to take time off work and has been advised to undergo cognitive behaviour therapy.

Evidence
5. The plaintiff gave evidence on her own behalf. She confirmed that she is the quality control lead coordinator with Abbott Ireland Ltd. She confirmed that that role involves the scheduling and coordinating of a group of quality control staff members to support with testing and audits of the product for Abbott Ireland in the DES segment of the business, that is to say the Drug Eluting Stent segment of their business in Clonmel. She said that she has a team of people that work with her and that she coordinates the quality control support in various areas on the site in Clonmel for both audits on the process and checking that the product is made to specification. She referred to the events the subject matter of this claim which occurred on Thursday the 24th July 2014. She said that at that time she had the same job, that she was a quality control lead coordinator. She confirmed that there had been a slight expansion in her duties due to significant numbers of redundancies the previous year. She confirmed that she was on the evening shift that day. The shift would run from the hours of 4:30 p.m. to 1:00 a.m. She said that she was due to go on two week’s holidays the following day. She confirmed that the incident occurred in what she described as “the secondary pack area”. She said that this is the area where the product has gone to the steriliser and is coming back for another packing which is referred to as the secondary pack, to get it ready to send out to the customer.

6. She said this is an area of the factory that she took over responsibility for as quality lead the year before but that it would not be an area that she would frequent. She said that she would mainly communicate with that area by email or telephone. She said that she normally worked in the DES suites, the production suite, where her desk would be located. With regard to the secondary pack area, she indicated that she would go down there about once a month but that she would not go there as part of her day to day duties.

7. She confirmed that on the evening of the 24th July 2014, she went down tto the secondary pack area to have a conversation with a Mr. Jim Roche. She indicated that Mr. Roche was to take over as acting lead coordinator for the two weeks that she was going to be on annual leave. She indicated that she went down there at about half past 8 in the evening. She described two lifts that she was used to using, one which she described as a people lift, which opened from the middle and had voiceover warnings, and the second another freight lift which went down to the criblet area which opened to one side and again had voice over warnings. Ms. O’Grady indicated that she went down to the secondary pack area on the evening in question to speak with Mr. Roche and she was taken through a set of photographs to identify that area when giving her evidence. She described how she had a conversation with Mr. Roche and as they were concluding their discussion they were walking along the corridor. She said that Mr. Jim Roche was continuing into the warehouse and that she continued to the lift to go back up to her work area.

8. She indicated that she pressed the button which was on the left hand side of the lift, and the door opened. She said that she then turned back to make a final comment in the conversation to Mr. Roche. She said that she then went to walk into the lift and at that stage she said that unknown to her the door had started to close. She said therefore that when she went to go into the lift, the door struck her on the side of the head. She said it struck her on the temple area of the right side of her head. She said that the door struck her with its leading edge as she was entering the lift. She identified the area in question by reference to photographs. When asked what type of contact it made with her head she indicated that it was a very strong contact when it banged off her head. She said the door struck her head and then the door went back into the open position.

9. She said that after the impact she continued on up onto the next floor and described what happened at that point to include the medical attention that she received. She described the lump on her head and the headaches that she experienced the following morning. On Monday she went to work at 2:30pm but was asked to just simply write a short report on the accident and to go home and commence her holidays. She described the fear she had about taking her flight on her holidays because she was concerned about blood clots. She saw the company doctor, who reassured her, and she proceeded to go on holiday.

10. She indicated that the holiday was not a success due to ongoing headaches and the bruising to her face. She went on to describe her condition upon her return to work which included headaches and loss of concentration. She stated that the headaches persisted for three months. She stated the bruising lasted for about three weeks and the lump for about six weeks. She further indicated that sleeping became a big problem for her and that consequently she had to take sleeping tablets.

11. She said that she also started suffering from flashbacks to the accident. She indicated that the flashbacks persisted to the present time that is the hearing of this current case and that she might wake up once a month or every few weeks. During the year of the accident, matters had improved by Christmas when the antidepressant medication began to take effect. The flashbacks became less frequent to once every few weeks and then maybe once a month. Most recently, coming up to the court case, she has been waking up every night. She confirmed that she never would have described herself as an anxious person before the accident of July 2014. She referred to a previous stressful time in 2012 when she had been a witness to court proceedings on behalf of Abbott Ireland and had taken a week off work.

12. She said that after the accident, she went on reduced hours and did not get back to normal hours until the middle of November of that year. She described how she thought on the evening of the accident that she was going to die and how that ultimately affected her confidence at work. She said that currently she is able to cope at work; she is doing full hours but that she does not consider herself as strong as she was before but that with the help of the medication she is coping. As for her non – work activities she indicated that she does not have the same level of energy or enthusiasm that she would have had before the accident. She also gave evidence about the efforts she has made to reduce the medication that she is on.

13. One such effort was availing of the company’s employee assistance programme which entitles every employee to six counselling sessions which are free and fully confidential. She said that she commenced those sessions at the end of October. However, she ceased those sessions when she said that she was informed that if she took litigation against the company the Company would be entitled to access the notes of her counselling sessions with the company counsellor. She indicated that she felt an immense sense of betrayal as a result of this. Towards the end of her direct evidence about her own culpability in terms of her actions that day, she indicated that she was used to always hearing the door closing very loudly saying “door now closing” and she indicated that she had expected that she would hear that.

14. In cross – examination the plaintiff confirmed that she pressed the button to wait for the door to open, that she had turned back to pass a comment to her colleague Mr. Roche, and in that sense she was looking away from the lift in the direction of her colleague. It was put to her that she was turned away from the lift as she entered the lift and that she was in fact facing the other direction. She said yes that she was turned to her colleague passing a comment and then she turned to enter the lift. She confirmed that she was having a conversation looking in the other direction as she went into the lift. She said that she was having a conversation and that she then turned to enter the lift just as it struck her. She was asked whether at any stage prior to being struck by the lift had she her eye on the door. She answered that when she pressed the button the door was closed. The door then opened and she turned back to pass her comment and then went on to enter.

15. It was further put to her that at no stage before she was hit on the head or walked into the lift door did she have her eye on the door and she agreed that no she was not watching the door. She said that she was waiting to hear that it was going to close. When it was put to her that she had walked into a door when she was not looking at it she indicated that she walked into the lift and did not hear the door closing. She said that she had an assumption that the sensor on the lift would stop the door closing and that she would hear the voice over and none of this happened as she walked into it. She said she had been working in Abbott for approximately sixteen or seventeen years and had been used to using and dealing with a lift that always would tell her the door was opening and the door was closing.

16. It was further put to her that there was a timeframe during which a lift door will remain open, and then it would start to close and it was put to her that if she were to occupy that timeframe by having a conversation while looking the other way, it would be prudent to check whether the lift was closing before she walked forward and hit her head off it. She said that because she had not heard any warnings, that she was not aware that it had started to close and that she assumed that it was still open and that is why she went to enter the lift.

17. Mr. Jim Roche was called to give evidence on behalf of the plaintiff. He was with the plaintiff at the time of the incident. He works as a quality control inspector with Abbott Ireland. He gave his recollection of the incident, saying that he recalled that the plaintiff came down to give a handover to him because he was going to be the stand – in quality control lead while she was on holidays. He indicated that he had a conversation with her in the corridor and that they both walked back towards the lifts. His recollection was that he was going to the bathroom which was around that way and that she would have been going back to the lift.

18. He said that she had pressed the button for the lift to come down and that as he was walking away she turned to make another comment to him which he does not recall. She turned back to go into the lift. He says there was then a collision between her and the lift. He could not give any precise details as to the nature of the impact. He said that as she was turning to go into the lift, the door was coming from behind her and there was a collision. He confirmed that there was no voiceover on that particular lift at the time. He described it as a big sturdy lift suitable for carrying goods.

19. In cross – examination he accepted that he uses this lift on a regular basis. He agreed that the lift in question is a lift which is in regular and frequent use by Abbott employees including himself. He confirmed that some employees just use the lift on their own whilst some use it to carry freight or material. He confirmed that in his seventeen years working in Abbott, he had never heard of any incident involving that lift and that he had had no incident with that lift himself.

20. He confirmed that all employees received training and instruction in respect of reporting any issues or concerns from a health and safety perspective within the company. He confirmed that there was a system within the company whereby if there is any issue with equipment malfunctioning there are systems whereby employees go and report that. In that context, he indicated that he had made a statement in respect of the incident, the subject matter of this litigation. He was referred to that statement and confirmed again in his evidence how the plaintiff was standing in front of the lift, that he was standing over to her left. He said that the plaintiff had pressed the lift button and they had continued their conversation. He said he saw the lift open, he thought the conversation was over, she was about to go into the lift when she said something else. He confirmed in his evidence that the plaintiff turned to speak to him before she turned to enter the lift. He said that as she turned to enter the lift the doors began to close at the same time and she banged into the doors. He agreed that as she was walking towards the lift door that she was looking to her left and she turned back to the lift as the doors were closing. He confirmed in his evidence as per his statement that the doors had opened before she looked away.

Engineering Evidence
21. Mr. Michael Fogarty, engineer, gave evidence on behalf of the plaintiff. He confirmed his qualifications and the fact that he had carried out an inspection at the premises of Abbott Ireland on the 10th July 2017. He confirmed that there were two sets of doors. There are the car doors and there are the landing doors. He confirmed that the car doors travel with the lift once the lift door closes, while the landing doors remain on the landing.

22. With regard to the sensor he confirmed that the sensor was marked “E” on the photographs produced to the court and is attached to the car door. He confirmed various measurements stating that it would have been the outer door which would have struck the plaintiff and that that door has a thickness of 40mm. He indicated that after that there is a further space of 20mm before the inner car door on which the sensor is positioned. He said that therefore the sensor is in effect located 60mm inside the outer door. He agreed in his evidence that on these lift doors that is normally where the sensor is located, that it is centrally located in the doors. He went on to say that in his opinion because it is located a distance inside Panel B being the outer door, that you would have to get your head or your body at least 60mm inside of the edge of the outer door which he called the “danger zone” to activate the sensor. On that basis he proposed that if the sensors were located on the outside of the doors outside Panel A then you would activate the sensor before you got into what he termed the “danger zone”.

23. In giving his opinion in evidence he agreed that the position of the sensor is the normal position that sensors are located on these doors. He expressed his view that on 90% or 95% of occasions the sensor will pick up the presence of a person and retract but not on all occasions. He stated that it is effective most of the time, 90% of the time, but that there are occasions when it is not effective and on that basis indicated that he did not think that it was a very good location for the sensor.

24. A number of maintenance/engineering reports had been discovered to the plaintiff which were referred to this witness. The reports indicated that there was an issue found with the landing door and that the equipment was adjusted and the unit returned to normal service. The first report referred to in relation to this says that an adjustment was made to the door closing spring on the ground floor landing. A further report was referred to for two weeks later on the 4th July 2014 which says “Carry out M1 routine service visit on the lift. Had to tighten up closing spring on ground floor landing door”. A similar report in respect of the 29th August 2014 states that “Had to give attention to closing spring on ground floor landing entrance.” Mr Fogarty said that he did not know anything about those incidents.

25. Mr Fogarty was also asked about the presence of a voiceover on the lift. He expressed the view that if a person is expecting a voiceover and they are used to a voiceover, and are listening out for a voiceover and are not hearing it, then they are more likely to just assume the door is not going to close and get caught out by the fact that there is not a voiceover when in the normal course of their work, they are more accustomed to an elevator with a voiceover.

26. The witness was referred to his report and in particular to the final paragraph where he sets out his conclusions. In his conclusions he indicated that the plaintiff was not provided with a safe means of access and egress. He stated that the defendant was negligent and in breach of the statutory duties as set out in s. 8 and s 19 of the Safety, Health and Welfare at Work Act 2005 in terms of risk assessment. He proffered the opinion that if there was a risk assessment carried out which highlighted that some of the elevators had the voiceover warning and some of them did not, in his opinion a control measure would have been put in place to put in the voiceover on the elevators with a view to consistency.

27. In cross – examination he was asked about the CE mark on the lift in question. He was asked whether that informed users that the lift was in compliance with all current European standards. When pressed on the issue, the engineer said that he had not paid a lot of attention to the CE marking on the door. He indicated that he felt from looking at the positon of the sensor on the elevator, from listening to the plaintiff’s description of how this accident occurred, that he could understand how it could occur. He gave the opinion that the location of the sensor, which was in the middle of the door inside the outer edge of the door, had contributed to the accident. However, he also accepted that any elevators which he had looked at in the course of his professional work had the sensor in the centre of the door where this one is positioned. He further confirmed that the door was compliant with best practice worldwide.

28. He was then questioned about the mechanics of the occurrence of the accident. He said that normally if a person is standing straight they will get the impact on the right shoulder with the door coming from the right. So, he indicated that the plaintiff would at least have to have been leaning forward at the time of the accident to have received the impact on her right temple. The witness accepted that the sensor has to be on the inner door because the outer door cannot be operating independently of the inner door, or a person using the lift runs the risk of stepping into space. However, he proffered the opinion that you could have a motion sensor like they have in shopping centres in respect of automatic doors, but he indicated that he had never seen such an arrangement on lifts.

29. He was asked how the defendant could prevent somebody injuring themselves if they walk into a door when looking behind them. He proffered the opinion that if the voice over warning was on this lift similar to that on the lifts the plaintiff was more familiar with he believed it was unlikely that the accident would have happened. He accepted that there was no malfunction of the lift. He was not in a position to express any opinion in respect of the maintenance reports on the closing spring mechanism of the door or its relevance if any as he had not considered that aspect.

30. Mr. Hackett who is a Service Engineer with Otis gave evidence on behalf of the defendant. He is an engineer with Otis which he described as a worldwide lift and escalator company. He has been with that company for 20 years. He had been an installation engineer for approximately thirteen years. He has been a service engineer for seven to eight years. He confirmed that in accordance with the contract with Abbott Ireland that Otis attend four times a year for service, and any time in between that when they are called for a specific incident.

31. When asked about his experience of lifts generally and those having voiceovers and those not having voiceovers, he broke it down roughly 60 – 40, and estimated that 40% of lifts he has dealt with have voiceovers.

32. He was referred to the opinion given by Mr. Fogarty engineer that there might be two sensor arrangements on a door like this, one for the cabin door and one for the landing door and asked if he had come across such an arrangement in his experience. Mr Hackett indicated that in his experience he had never come across a double sensor arrangement of that type. He was asked from his experience and by reference to the lifts with which he has been involved, how the sensor arrangement on this door compared with other lifts that he had dealt with. He indicated that there are two types of arrangements in his experience, the arrangement that pertained in the lift in question and an arrangement that pertained in older types of lifts where there would have been a beam which is situated approximately 500mm up from the finished floor level of the lift. This he described as the older type arrangement.

33. He was further asked about the closing spring of the main door prior to and post this accident. He confirmed that the closing spring is used to close approximately the last 20mm or thereabouts of the door. He indicated that if there is an issue with the closing spring, then that effects the functioning of the lift in that the electric contact is not made and the lift does not operate at all. He confirmed that if there is any interruption of the safety circuit, no matter where it is on the lift, the lift will not operate at all, nothing will happen. He confirmed that he had inspected the lift after the incident complained of and found no issue with the lift at that time.

34. In cross – examination he was asked whether there was a connection between any possible difficulties with the closing spring mechanism of the door and the operation of the sensor. His evidence was that the sensors only came into play when the lift is in operation or a part of the lift is in operation, i.e. when the doors are moving. He said that from his experience, if there is a difficulty with the electrics as a result of the closing spring mechanism, then the lift will not be operational at all and the doors will not be opening and closing at all.

35. With regard to voiceovers, his evidence was that his understanding is that the idea of voice activation systems originally was to warn people inside the lift, particularly those who might be either blind or visually impaired. He indicated that the sensor is working at all times when the door is moving. He indicated that the minute the door starts to close the sensor is in operation. He was referred to the evidence given by Mr. Fogarty engineer in respect of what he had termed a “danger area” where the door is closing and the sensor will not operate because the person who is entering is not close enough to the sensor. He confirmed that from his experience, the positioning of the sensor was the industry norm.

36. Mr. Hackett was taken through various other routine service visits and call outs and it was put to him that the call outs had a bearing on the landing door gate closer and were relevant. It was his evidence however that these were heavily used lifts and that call outs occur regularly. On re – examination he confirmed that any difficulties with the closing spring mechanism are only relevant in respect of the last 10 to 15mm of the door closing.

Evidence given by Mr. McGrath on behalf of Abbott Ireland the defendant in the case
37. Mr. McGrath is a facilities and calibration supervisor with the company. He clarified that part of his role would be responsibility for setting out the correct maintenance programmes for the facilities equipment onsite and ensuring that those programmes are adhered to. He confirmed that there are five lifts in total on site in Abbott Ireland in Clonmel, County Tipperary. He confirmed that they have a programme with a company called Otis to maintain those lifts. He indicated that there are two arms to that programme. There is the fixed maintenance element which is a quarterly visit to undertake a number of checks on the lift and identify and confirm that the lift is working correctly and if not, to identify anything to the company and repair it. He indicated that the second arm of that programme is to provide a callout service in between those quarterly visits in the event of anything occurring with a lift.

38. He was asked when Otis inspected the lift following the incident and he indicated that Otis inspected the lift on the 5th August 2014. He indicated that on that date Otis were present on site for a call out for one of the other lifts and were brought to this particular lift to verify or otherwise what the company themselves had found, which is that all safety devices on the lift were working correctly. Mr. McGrath confirmed that on the day of the accident an engineer called John Walsh who was a delegate of their facilities department but working for another maintenance company was onsite and upon being made aware of the incident he examined the lift to verify or otherwise whether all of the safety devices on all doors of that lift were all working correctly. He provided a memo to the company which was contained in the discovery to the plaintiff. Mr. McGrath was asked that as a result of receiving the memo from Mr. Walsh, whether any immediate action was required to be taken, and he confirmed that no immediate action was required.

39. Mr. McGrath confirmed that the company has a system called “Lifecycle”. It allows all employees the opportunity to make suggestions or raise issues on safety enhancements regarding anything onsite. He confirmed that subsequent to the accident, as a result of a suggestion from staff, all lifts were standardised and a voiceover was installed on any of the lifts that did not have it, including the lift which is the subject matter of this incident.

The Arguments – Plaintiff
40. The plaintiff directed the court to the statutory duty of the employer under the Safety Health and Welfare at Work Act, 2005. The plaintiff says in terms of any breach of statutory duty, the plaintiff’s engineer gave evidence of breaches of s. 8 and 19 of the Safety Health and Welfare at Work Act, 2005.

41. The plaintiffs quote s. 8(1) of the Safety Health and Welfare at Work Act, 2005, which provides as follows: –

“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees”.

The plaintiff says that s. 8(2) of the 2005 Act sets out generally but not exhaustively matters which an employer’s duty extends to. In particular, the plaintiff says s. 8 (2)(c) provides that the employer’s duty extends to: –

“(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;”
The plaintiff goes on to say that s. 2(6) of the 2005 Act defines the phrase “reasonably practicable” as follows: –

“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.”

The plaintiff goes on to quote s. 19 (1) of the 2005 Act which provides as follows: –

“Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be known and referred to in this Act as a “risk assessment”) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions.”

The plaintiff refers to its own engineering evidence which indicates that the defendant employer ought to have carried out a risk assessment which ought to have highlighted that as some of the lifts had a voiceover warning and some of them did not, that an appropriate control measure ought to have been to put in place a voiceover on all of the lifts. They say that this was not done and that it has been done since.

The plaintiff then further opens the Safety Health and Welfare at Work Act, (General Application) Regulations 2007. The plaintiff says that the 2007 Regulations expanded and particularised further the employers’ obligations under s. 8 (1) to ensure so far as reasonably practicable the safety health and welfare at work of his or her employees.

The plaintiff opens in particular Regulation 11, which provides inter alia that: –

“An employer shall ensure that—

(h) mechanical doors and gates—

(i) function in such a way that there is no risk of accident to employees,”

42. The plaintiff said that Regulation 28, which replaces Regulation 19 of the Safety Health and Welfare at Work (General Application) Regulations 1993, sets out the specific duties of an employer with regard to the use of work equipment. Regulation 28 provides inter alia : –

“An employer shall ensure that—

(a) any work equipment provided for use by employees at a place of work complies, as appropriate, with the provisions of any relevant enactment implementing any relevant Directive of the European Communities relating to work equipment with respect to safety and health,

(c) the necessary measures are taken so that the work equipment is installed and located and is suitable for the work to be carried out, or is properly adapted for that purpose and may be used by employees without risk to their safety and health,

(d) where it is not possible fully to ensure that work equipment can be used by employees without risk to their safety or health, appropriate measures are taken to minimise any such risk,

(e) sufficient space to reduce such risks is provided between moving parts of work equipment and fixed or moving parts in its environment,

(k) employees have safe means of access to, and egress from, and are able to remain safely in, all the areas necessary for production, adjustment and maintenance operations,”.

43. The plaintiff further opens Regulation 32 which it says deals with control devices and provides inter alia : –

“An employer shall ensure that –

(b) control devices are located outside danger zones except where necessary,”

The plaintiffs go on to refer to s. 2 (6) of the Safety Health and Welfare at Work Act 2005, which defines what is meant by reasonably practicable. The plaintiff says that in order to satisfy the reasonably practicable test, the employer must have done the following: –

(a) identified the hazards;
(b) having identified those hazards assessed the risks to the safety and health likely to result in accident or injury to health;
(c) after identifying those hazards and assessing the risk, put in place the necessary protective and preventative measures.
44. The plaintiff says that the employer is only excused from not taking any further measures where it 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.”

The plaintiff says that the Supreme Court recently in the decision of Thompson v. Dublin Bus [2015] IESC 22, considered whether the duty under Regulation 19 of the Safety, Health and Welfare and Work (General Application) Regulations 1993 was an absolute one or not. In that case a bus driver had been driving his bus over a number of ramps. On one of those ramps, the pneumatic suspension of the bus malfunctioned causing a loss of “cushion effect” and thereby causing an injury to Mr. Thompson’s neck and lower back. In the High Court, the following matters were accepted: –

(a) There was no evidence to suggest that the plaintiff was driving too fast;
(b) There was sufficient evidence to establish that a proper regime of inspection and maintenance was carried out by the first named defendant;
(c) The construction of the ramps, which had been undertaken by the second named defendant, conformed to best practice;
(d) The plaintiff did suffer personal injuries as a result of the suspension failure which resulted in an ongoing physical deficit.
45. In the High Court, the trial judge found that although the defendant, Dublin Bus, had discharged its common law duty in ensuring that there was in place a good and proper maintenance system in relation to the bus, that nevertheless pursuant to Regulation 19 of the 1993 Regulations, that liability was strict and therefore the plaintiff ought to succeed. The court found that there was: –

“In practical terms an absolute duty on employers in respect of the safety of equipment [provided] for the use of their employees”.

The High Court relied on the previous judgment of Keane J. (as he then was) in Everett v. Thorsman Ireland Ltd. [2000] 1 IR 256.

On appeal certain provisions of Regulation 19 (now repealed by the 2007 Regulations and replaced with Regulation 28) considered by the Supreme Court were 19 (a) and (c): –

“It shall be the duty of an employer to ensure that –
(a) The necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health.
(c) where it is not possible fully to ensure that work equipment can be used by employees without risk to their safety or health appropriate measures are taken to minimise any such risk.”
46. The Supreme Court analysed the provisions of Regulation 19 and also the Framework Directive (89/391/EEC). There was a second directive on work equipment, namely Directive 89/655/EEC. The 1993 Regulations transposed the provisions of the aforesaid directives into Irish law.

47. Having considered the provisions of the Directive Dunne J. delivering the unanimous judgment of the Supreme Court, found that there was not an absolute or strict duty on the part of an employer to ensure the safety health and welfare of the worker. A specific breach of duty had to be proven.

48. Dunne J. found the following extract from the Advocate General Mengozzi’s opinion in the case of European Communities v. the United Kingdom of Great Britain and Northern Ireland [2007] ICR 1393 to be of assistance to the court in analysing the issue of whether the regulation imposed an absolute duty or not. Advocate General Mengozzi examined the nature and duty imposed by Article 5 (1) of the Framework Directive, which provides that: –

“The employer shall have a duty to ensure the safety health and welfare of workers in every aspect related to the work.”

As follows: –

“I have already stated that the provision sets out the duty incumbent on the employer to guarantee the safety and health of workers. It is now necessary to define specifically the substance and extent of that duty, which, as we have seen, is formulated in absolute terms.

In that context, I agree with the parties that this definition must be established in the light of all the provisions of the framework directive, and, in particular, Article 6 thereof, which defines the employer’s general obligations, although it seems to me possible to derive some material indicators from the wording of the text of Article 5(1) itself.

First of all, it seems to me clear that that provision requires the person subject to the duty to take positive action, consisting in the adoption of measures designed to pursue the objective of protecting the safety and health of workers.

Secondly, since the duty in question consists in ‘ensuring’ that this interest is safeguarded, those measures must be appropriate and sufficient for that purpose. In other words, in view of the wording of Article 5(1) of the framework directive, the duty which that provision places on the employer requires, in my view, the adoption of all necessary measures to ensure the safety and health of workers in every aspect related to their work.

That finding is further confirmed by the first subparagraph of Article 6(1) of the framework directive, according to which ‘[w]ithin the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers…’.

Thirdly, the objective of protection which Article 5(1) of the framework directive is designed to secure makes it necessary to interpret the duty placed on the employer as being essentially a duty of prevention. That duty therefore takes the form both of anticipating and assessing risks to the safety and health of workers resulting from the undertaking’s activities and of determining and taking the requisite preventive measures.

Fourthly, since technical progress and developments in the production systems may result both in the creation of new risks to the safety and health of workers and in the diversification and improvement of protective measures, the employer’s duty to ensure safety must be interpreted as an evolving responsibility, requiring constant adjustment to circumstances which may affect the quantum and extent of the risks to which workers are exposed as well as the effectiveness of the measures required to prevent or reduce them.

To that effect , Article 6(2)(e) of the framework directive stipulates that, in adopting preventive measures, the employer must adapt ‘to technical progress’

Finally, it is clear from the general criteria for prevention laid down in Article 6(2)(b) —which, as we have seen, requires the employer to evaluate ‘the risks which cannot be avoided’—and Article 6(2)(f) —which requires the employer to replace ‘the dangerous by the non-dangerous or the less dangerous’—that the general duty to ensure safety laid down in Article 5(1) of the framework directive does not extend so far as to require the employer to provide a totally risk-free working environment.

The analysis set out above allow of the conclusion that, pursuant to the duty of safety laid down in Article 5(1) of the framework directive, an employer is required to prevent or reduce, so far as possible and taking into account technical progress, all of the risks to the safety and health of workers that are actually foreseeable.

Translated into terms of liability, the above considerations imply that both the occurrence of foreseeable and preventable risks to the safety and health of workers and the consequences of events which constitute the realisation of such risks will be attributable to the employer, since both are a result of a breach of the general duty to ensure safety as defined above.

Conversely, the occurrence of risks that were unforeseeable and/or inevitable and the consequences of events which constitute the realisation of such risks will not be attributable to the employer on that same basis.”

49. Dunne J. found that Regulation 19 of the 1993 Regulations was not expressed in absolute terms. The court opined that it was open to member states to impose more stringent requirements than those found in the directives. The Supreme Court found that Regulation 19 (3) of the 1993 Regulations did not do so.

50. The Supreme Court found that as there is not an absolute duty, that it was necessary for the plaintiff to identify a specific breach of duty under the Regulation. The High Court trial judge had found that there was no such breach as Bus Éireann had in place a proper maintenance system.

51. The Plaintiff in this case argued that it should be noted that the Supreme Court considered the 1993 Regulations and not the 2007 Regulations. The plaintiff says that the language of Regulation 11 of the 2007 Regulations is much more emphatic than Regulation 19 of the 1993 Regulations. The latter referred to an employer taking the “necessary measures” to ensure safety” and where safety could not be ensured, to take “appropriate measures” to minimise the risk.

52. The plaintiff says that in the case of Regulation 11 of the 2007 Regulations, the language is starker. The employer “shall ensure” that mechanical doors and gates function in such a way that “there is no risk of accident” to employees. The plaintiff says that it is not a question of taking necessary or appropriate measures. The plaintiff says that the duty is absolute and strict.

53. The plaintiff goes on to say that in the case of Regulation 32 of the 2007 Regulations, the language is not as strict as same provides that an employer shall ensure that all “control devices” are located outside danger zones except where necessary. Having said that, the plaintiff says that it is difficult to envisage why the sensor could not be located on the landing doors in addition to or in substitution of the sensor on the car doors. The plaintiff also says that it should be noted that the definition of “reasonably practicable” contained in section 2(6) of the 2005 Act which was not contained in the original 1989 Act was not considered by the Supreme Court.

54. It is submitted by the plaintiff that whether a strict liability test applies as in the case of a breach of Regulation 11 (h)(i) or the reasonably practicable test under section 8 (1) the defendant is liable on either front. The plaintiff submits that in the present case, the defendant employer breached its statutory duty under the 2005 Act and the General Regulations as follows: –

Absolute statutory duty
55. The plaintiff says that if it is accepted that there is an absolute duty as set out in Regulation 11 (h)(i) that the employer shall ensure that the function of mechanical doors presented “no risk” of injury, then the absence of an outer sensor and/or voiceover is an automatic breach of the statutory duty and the Court does not need to consider the reasonable practicable test.

Reasonably practicable test
56. The plaintiff submits that the defendant employer is in breach of the reasonably practicable test by the failure to locate a sensor at the outer doors and the failure to maintain a uniform application of voiceover warnings. The plaintiff says that the plaintiff’s engineer gave evidence that the accident could not have occurred had the sensor been located on the outer door in terms of the reasonably practicable test it is clear that the defendant employer failed to meet this test in the following respects: –

(a) The defendant employer failed to identify the risk of the outer door striking an employee within the 60mm danger zone. The defendant also failed to identify the risk of confusion on the part of employees when using lifts with and without warning voiceovers.
(b) Having failed to identify that risk it failed to take any protective measures.
(c) If it had identified that risk a number of protective measures could have been taken to protect the employee. In particular, had the sensor been placed on the outer door, the accident would not have occurred. Alternatively, had a voice warning been installed the accident would not have occurred. Thirdly, had the defendant adopted a consistent approach to voice warnings on their lifts, then the employee would not have assumed the presence of a voiceover on the lift she was using.
57. The plaintiff says that the placement of the sensor on the inner door but not the outer door has not been shown to be disproportionate to the risk of being struck. The plaintiff says that it must be borne in mind that the plaintiff’s engineer evidence which is not disputed, was that there was a 10% risk of persons being struck by the lift door. The plaintiff says that this is in the context of a factory that has between 1200 and 1500 employees.

58. The plaintiff says that there is nothing to suggest that it was disproportionate for the defendant employer to have an additional lift sensor on the outer doors. The plaintiff says that there is no suggestion that it is inconvenient to have a lift sensor on the outer door. The plaintiff says that there is no suggestion that it is disproportionate in terms of cost. The plaintiff says it must be remembered that this is not a high – rise building, and that this is a lift which is being used both to transport persons and goods.

59. The plaintiff further says that as reflected in the opinion of Advocate General Mengozzi, there is an evolving responsibility on an employer to constantly adjust the workplace in order to minimise risk of injury and to bring into the workplace “technical progress and developments”. The simple and uniform provision of a warning voiceover is one such measure that ought to have been considered. It has been considered since but unfortunately for the plaintiff, not at the time of the accident.

60. Finally, the plaintiff says that as regards the location of the controlled device, when one considers Regulation 32 of the Safety Health and Welfare at Work (General Application) Regulation, 2007, same provides that an employer shall ensure that “control devices are located outside danger zones except where necessary”. The plaintiff says that the sensor is not located outside the danger zone but within the very danger zone. The plaintiff submits that this again is a clear breach of the Regulations. She also submits that in the circumstances the defendant employer has failed to take all reasonable and practicable measures to ensure the safety health and welfare of their worker the plaintiff herein and accordingly is liable to compensate the plaintiff in relation to her injuries.

The Arguments – Defendant
61. In response the defendant says that: –

(i) The duty owed by an occupier to a visitor is to exercise reasonable care in all of the circumstances “having regard inter alia to the care which a visitor may reasonable expect to take for his or her own safety” to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.
62. A plaintiff to succeed in an action for alleged breach of section 3 must therefore establish that the feature on which he/she came to harm constituted a danger in respect of which the occupier failed to take reasonable care in all of the circumstances.

63. Further, the defendant says that it is trite law that an occupier is not an insurer of a visitor in respect of any harm that might befall him. The danger to be reckonable for the purpose of s. 3 must be unusual. The distinction, per Peart J. in the case of Lavin v. Dublin Airport Authority plc. [2016] IECA 261 at para. 46: –

“The distinction between an unusual danger and a usual danger is important even in the context of s. 3 of the 1995 Act . A fixed staircase can be the cause of injury to a person descending same, since it is not difficult to lose one’s step for any number of reasons, and fall. Such a danger is however a usual danger that any adult would anticipate and take care to avoid by, perhaps, holding the handrail provided, or ensuring that he/she is not carrying anything likely to cause loss of balance. It is the sort of danger that exists by reason of the nature of the staircase itself without any defect existing. On the other hand, the fixed staircase might have a defect that the invitee/visitor could not anticipate or be aware of. For example, the handrail might not be securely fastened to the wall, and may give way when used for balance, causing the person to fall. That would be an unusual danger, and therefore one in respect of which the occupier has a duty to guard or warn against, failing which he will be liable for any injury that ensues.”

The plaintiff says that that case involved a fall on an escalator. The court allowed the defendants appeal and dismissed the plaintiff’s case. It concluded that there was no unusual danger in the escalator. Peart J. described that the escalator: –

“… it was a properly designed and properly functioning escalator which conformed to the required British Standard. Both engineers were agreed upon that. No fault was found to exist in it. In that sense it is no different to the fixed stairs referred to above.”

In that case, the plaintiff had come to harm while attempting to adjust her carry-on bag while on the moving escalator and whilst not holding the handrail provided. The court acknowledged that in any situation it could be suggested that a different circumstance may have resulted in a different outcome. That was not however the test. The court was satisfied that the escalator did not comprise a danger within the meaning of section 3 and that there had been no want of reasonable care on the part of the defendant.

64. The defendant said that a similar conclusion in the context of an automated door claim was reached by the Court of Appeal in the case of O’Flynn v. Cherry Hill Inns Ltd T/The Oliver Plunkett Bar [2017] IECA 211. The plaintiff, having walked through a door in a public house, put her hand back to restrain the door she felt would be closing behind her. The tip of one of her rings entered the rebate of the door frame and was crushed and severed. The claim was promoted against the publican as occupier of the premises. Irvine J. reiterated that an occupier was not the insurer of the welfare of a visitor and that the duty was not one to take all steps as might be necessary to ensure that a visitor would not be injured. The appeal was allowed and the plaintiff’s claim rejected. Irvine J. had some particular observations to make on the obligation of a visitor and particularly as regards the use of a door: –

“From infancy we are warned of the risk of injury from closing doors. The education of toddlers concerning this particular type of danger probably starts when they first encounter the safety latch on the kitchen press.

Beyond the home, doors are part of everyday life and automatic doors are no exception. They are commonplace in buildings of every nature. Automatic doors are encountered in every type of public building including hospitals, schools, courts and offices. As adults we know we must avoid leaving our fingers between the leading edge of the door and the door frame as it closes. Likewise, we are only too aware of the consequences of placing our fingers near or within the recess of the hinged side of a door. To propose that an adult should be considered blameless, and I use the word blameless in the legal sense in which that word is understood, for an injury sustained when, having proceeded through an automatic door, they blindly placed their hand behind them in a manner such that their fingers were placed in the hinged recess of the door is in my view untenable.”

In the present case, the defendant submits that each of these decisions is particularly apposite to the circumstances of the within claim. The lift at which the incident occurred had not malfunctioned and was in accordance with all relevant standards. The defendant said it had been in constant use on a daily basis at the factory premises of the defendant from 2005. There had been no prior incident. This incident occurred in circumstances where the plaintiff ignored the basic premise of looking where she was going. She was familiar with the operation of the lift and aware that the door had opened prior to turning around to make the comment and then moving forward. The defendant says that as stated by Irvine J. in the O’Flynn case: –

“We are all guilty from time to time of doing things without paying sufficient attention to the consequences of those actions in terms of potential risk. When we do so and sustain injury as a result we are to blame and we must absorb the consequences of our conduct unless we can demonstrate that some other party was in some respect culpable”.

65. With regard to the Safety Health and Welfare at Work Act 2005, the defendant says that this Act creates duties and obligations not only for employers but also for employees. The general duties of an employer are described at section 8 which puts the obligation on an employer to “ensure so far as reasonably practicable the safety health and welfare at work of his or her employees.” The defendant also refers to the case of Thompson v. Dublin Bus [2015] IESC 22 in which the Supreme Court held that the duty so imposed on an employer was not absolute. They refer to the facts of the case and confirm that the defendant was found not liable in circumstances where it had a system of inspection and maintenance in place. They say that section 19 of the Act requires an employer to identify the hazards in the place of work under his or her control and carry out appropriate risk assessment. The defendant says the employer is not an insurer. They say that liability cannot and should not be visited upon it in the absence of evidence of some malfunction or defect in the equipment used. They say that the lift in the incident case had not malfunctioned, was in compliance with European standards, and bore a CE mark to confirm the position in that regard. They say it had been in operation at the premises since 2005 in regular and constant use and absent any prior incident or complaint. The defendant says that the fact of steps taken subsequent to the incident the subject of the within proceedings as a matter of law, is not evidence and cannot be offered as evidence of negligence on the part of the defendant.

66. They further say the obligation as regards the health and safety of persons at work is not limited to an employer under the 2005 Act. The defendant says that s. 13 of the Act imposes extensive statutory duties on employees to include the obligation at s. 13 (1) (a) to take reasonable care to protect his or her safety, health and welfare and the safety health and welfare of any other person at work. The defendant says the incident was caused by inadvertence on the part of the plaintiff for which she as a matter of common sense and in accordance with s. 13 of the Act of 2005, must bear full responsibility.

Decision
Facts

67. The court finds the facts as follows: – The plaintiff had worked in the factory since in or around 1999. She was not generally based in the secondary pack area but she said she did however attend that area from time to time and by her own evidence about once a month. She said that she attended on that occasion to speak to Jim Roche in respect of handing over her work obligations in advance of her going on leave.

68. The plaintiff having had a conversation with Jim Roche, walked with him along the corridor towards the warehouse lift.

69. She called the lift by pressing the button with her right hand. Mr. Jim Roche was over her shoulder to the left.

70. At that point the lift door opened in accordance with her own evidence and that of Jim Roche. The plaintiff observed the doors opening, after the doors opened, the plaintiff turned and looked over her left shoulder to make a concluding comment to Mr. Roche.

71. She turned back towards the lift and walked forward making contact with the closing door of the lift. The impact was to the plaintiff’s right temple.

72. The plaintiff conceded that she saw the door opening before turning back to Mr Roche and was not looking at or in the direction of the door when she moved to enter the lift.

73. This particular lift had been in position since around 2005 and bears the CE mark which confirms that it is in conformity with the relevant European standards.

74. There was no malfunction of the lift.

75. Abbott Ireland had a system in place for the inspection of lifts. All lifts were examined quarterly and at any other time when issues arose.

76. Evidence was given in respect of a number of call outs in respect of this particular door before and after the accident in question. These call outs had been in connection with the closing spring mechanism of the door which it was established relates to the final few millimetres of electrical contact required in order that the door closes securely. The Otis Engineer confirmed that if there was any issue with the spring mechanism on the door the electrical circuit would be broken and the lifts would not function at all to include opening and closing of doors. This was not contradicted by the plaintiff.

77. It was accepted by both sides that voiceovers on lifts occur in about 40% of lifts nationally and the requirement of a voiceover is not a legal or industry requirement.

The law

78. The plaintiff in her claim alleged inter alia breach of statutory duty under the Safety Health and Welfare at Work Act 2005 and the General Regulations made thereunder and the Occupiers Liability Act, 1995.

79. As an employee of the defendant company she was on the premises in the course of her work and the characterisation of the plaintiff under the Occupiers Liability Act 1995 would be under section 3 of the Act that of visitor. The duty owed by an occupier to a visitor is to exercise reasonable care in all of the circumstances and to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.

80. A plaintiff, to succeed in an action for an alleged breach of section 3 of the Occupiers Liability Act 1995 must establish that the feature on which he or she came to harm constituted a danger in respect of which the occupier failed to take reasonable care in all of the circumstances.

81. The Safety Health and Welfare at Work Act 2005 implemented the 1989 EU Framework Directive on Safety and Health at Work and consolidated the amendments to the Safety Health and Welfare at Work Act 1989. The 2005 Act encompasses all the regulations and improved codes of practice that had been made under the 1989 Act. The Safety Health and Welfare at Work (General Application) Regulations 2007 (the General Application Regulations) replaced, simplified and updated the 25 then existing sets of regulations and orders. They apply to all places of work and replace in particular the Safety Health and Welfare at Work Act (General Application) Regulations 1993 (the 1993 Regulations) save for Part X and the 12th Schedule to the 1993 Regulations in respect of the reporting of accidents and dangerous occurrences which remained in force at the time.

82. Nine general principles of prevention derived from the 1989 EC Framework Directive are set out in Schedule 3 of the 2005 Act as referenced in s. 8 of the 2005 Act. These principles of prevention are a hierarchical framework of control measures or risk elimination and reduction measures.

83. The general principles of prevention as provided for by Schedule 3 are: –

(i) The avoidance of risks;
(ii) The evaluation of unavoidable risks;
(iii) The combating of risks at source;
(iv) The adaption 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 elevating monotonous work and work at a predetermined work rate;
(v) The adaption of the place of work to technical progress;
(vi) The replacement of dangerous articles substances or systems of work by safer, less dangerous articles, substances or systems of work;
(vii) The giving of priority to collective protective measures over individual protective measures.
(viii) 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 relating to the working environment.
(ix) The giving of appropriate training and instruction to employees.
84. Under section 8 (1) of the 2005 Act, employers must do whatever is reasonably practicable to ensure the safety health and welfare of their employees. According to section 2 (6), this should be interpreted as follows: –

Section 8 (2) of the 2005 Act extends the employer’s duties without prejudice to section 8 (1) of the Act. It sets out generally but not exhaustively matters which an employers’ duty extends to which were referenced above by the plaintiff in their arguments.

85. The core duties imposed on employees are set out in section 13 (1) of the 2005 Act and include inter alia a duty to take reasonable care to protect their safety, health and welfare and the safety health and welfare of anybody who may be impacted by their acts or omissions at the workplace.

86. With regard to the Safety Health and Welfare at Work (General Applications) Regulations 2007, the plaintiff opened three specific regulations. They are Regulation 11,Regulation 28 and Regulation 32.

Absolute statutory duty

87. This issue of absolute duty was considered by the Supreme Court in the case of Thompson v. Dublin Bus [2015] IESC 22. In that case the Supreme Court considered the 1993 Regulations. The plaintiff in this case argues that the wording of the 2007 Regulations which postdate that decision renders the duty of an employer an absolute duty.

88. The Supreme Court in the case of Thompson v. Dublin Bus [2015] IESC 22 in considering the 1993 regulations, determined it was not an absolute or strict duty on the part of the employer to ensure the safety health and welfare of the worker. It was held that a specific breach of statutory duty had to be proven. The defendants are now arguing however that the 2007 Regulation creates such an absolute duty. They point to what they term “the starker” and “more emphatic” language of the 2007 Regulations in particular regulation 11. They say that regulation 19 of the 1993 Regulations referred to an employer taking “necessary measures” and “appropriate measures” while the 2007 regulations state that an employer “shall ensure” that mechanical doors and gates function in such a way that “there is no risk of accident to employees”.

89. It is clear from a reading of the 2005 Act and the 2007 regulations that the primary duties of the employer are contained in S 8 of the Act which sets out the reasonably practicable test. Further the difference in language between the previous regulation 19 and the current regulation 11 is not such that would justify a reinterpretation of the duty of care. Section 8 (1) states that an employer “shall ensure” and Regulation 19 states that “Every employer shall identify the hazards in the place of work under his or her control….” This language was considered by the Supreme Court in the Thompson case and was determined to not create an absolute duty. Having considered the 2005 Act and the 2007 regulations this Court is satisfied that the language in the 2007 regulations and in particular regulation 11 is not such that it alters that position and falls well short of establishing an absolute duty on employers and accordingly rejects the plaintiff’s argument that there is an absolute duty on the employer.

Reasonably practicable test

90. The reasonably practicable test is set of in S8 of the 2005 Act and has been set out in full above.

91. While particular regulations were opened to the court, Regulation 11,Regulation 28 and Regulation 32, there is a specific regulation also in respect of escalators and travellators.

92. The 2007 Regulations have a specific regulation with regard to elevators and travellators in Regulation 15.Regulation 15 sets out as follows: – “An employer shall ensure that escalators and travellators—

(a) function safely,
(b) are equipped with any necessary safety devices, and
(c) are fitted with easily identifiable and accessible emergency shutdown devices.”
93. The plaintiff says that the defendant employer is in breach of the reasonably practicable test by its failure to locate a sensor on the outer doors and the failure to maintain a uniform application of voiceover warnings.

94. With regard to the positioning of the sensor it was suggested by the plaintiff’s engineer that the sensor was within the “danger zone”. The defendants put forward that the 60mm between the outer door and the activation of the sensor was a “danger zone”. Directive 89/655 defines “Danger Zone” as any zone within or around work equipment in which an exposed worker is subject to a risk to his health or safety. It is not clear to the court whether the lift comes within the definition of work equipment given the separate regulation dealing with escalators and travellators and whether as such the position of the sensor is within a danger zone as defined. In any event the court is not required to determine that question as the expert engineering evidence from the plaintiff’s engineer accepted that the positioning of the sensor was the industry norm and while an alternative similar to automatic doors was suggested there was no evidence that this was a viable alternative that would meet required safety standards. Evidence was given by the Otis Service Engineer that based on his experience, sensors are automatically activated once the lift is in operation and the doors are opening and that the location of the sensors on the inner door was standard industry norm. Taking the plaintiffs case at its highest point, the court is not satisfied that the evidence supports the proposition that the location of the sensor created a 60 mm danger zone and finds that the employer was not in breach of the reasonably practicable test by its failure to locate a sensor on the outer doors.

95. With regard to the inconsistency in respect of voiceover messages, the court is conscious that voiceover messages are only contained in 40% of lifts nationally and that this is not an industry requirement. In that regard, the court notes the comments of Irvine J. in the case of O’Flynn v. Cherry Hill Inns Ltd. T/A The Oliver Plunkett Bar [2017] IECA 211. In particular, the comments of the learned appeal judge she says: –

“Beyond the home, doors are part of everyday life and automatic doors are no exception. They are commonplace in buildings of every nature. Automatic doors are encountered in every type of public building including hospitals, schools, courts and offices.”

This Court is of the view that the same could be said of lift doors, that lift doors with or without voiceovers are encountered by people constantly and regularly and that it is not reasonable to consider any adult blameless should they enter through a lift door without paying proper attention to it and subsequently sustaining injury.

96. Further under the Health Safety and Welfare at Work Act 2005, section 13 imposes extensive statutory duties on employees to include the obligation at section 13(1)(a) to take reasonable care to protect his or her safety health and welfare and the safety health and welfare of any other person at work.

97. Having considered the duties of the employer under section 8 of the 2005 Act, the reasonably practicable test under section 2, the relevant regulations, the facts of the case to include the circumstances of the accident and the safety regime and measures taken by the employer the court is satisfied that the employer has fully discharged its duties and is not in breach of the reasonably practicable test by its failure to maintain a uniform application of voiceover warnings.

98. Similarly, having considered the Occupiers Liability Act 1995 and more generally the employers common law duties the court is satisfied that the employer has discharged its obligations to exercise reasonable care in all of the circumstances to ensure that the plaintiff did not suffer injury or damage by reason of any danger existing thereon.

99. Having considered the law and facts in this case the court is satisfied that the incident was caused by inadvertence on the part of the plaintiff for which she must bear responsibility, and in those circumstances dismisses the plaintiff’s claim.

David Dunleavy v Glen Abbey Ltd

1988 No. 6525P

High Court

9 May 1991

[1992] I.L.R.M. 1
(Barron J)

BARRON J

delivered his judgment on 9 May 1991 saying: The plaintiff is a married man with two children and was at the time of the accident which gave rise to these proceedings employed as a storekeeper and clerk by the defendant at its premises in Patrick Street, Dublin. On 15 December 1986 the plaintiff, whose duty it was to receive deliveries to the factory, had to take in and store nine cartons of metal fasteners used by the defendant in the manufacture of baby garments. These cartons were heavy and relatively small. The dimensions have been given as 57 centimetres x 24 centimetres x 23 centimetres. Each contained 100,000 metal studs. There is some dispute as to their weight but it seems that each carton would have weighed somewhere between 35 kilos and 42 kilos. The cartons arrived on a van and were stored in the van on a pallet. The plaintiff went for the fork-lift truck in the premises to lift the pallet off the van to place it on the floor of the store-room. The fork-lift truck was inoperative because its battery was dead. As a result it was necessary for the plaintiff to lift the cartons by hand from the van. In doing so he asked the van driver’s helper to assist him. They took the cartons each at one end and placed them on the floor. They carried out this job safely with four of the cartons but on the fifth carton the helper let go of the carton about eight inches from the ground as a result of which the plaintiff was jerked by the weight of the load and suffered an injury to his back.

The duties of the plaintiff involved both carrying loads and clerical work. He puts the obligation to carry loads as being approximately 50% of his work. The particular cartons which arrived on this occasion were cartons which come regularly to the factory premises approximately once every month. He was used to unloading them.

The plaintiff’s case is that the defendant had a statutory obligation to give the plaintiff adequate training in the various techniques of lifting loads and depositing them on the ground. He further makes the case that the fork-lift truck should have been made available for him and he says that if he had either received training or the fork-lift had been available that he would not have sustained the injury which he did. It was part of the plaintiff’s case that having *3 two men to carry the load was very awkward because the load was so small that they could not both bend their knees to lower the load onto the ground without hitting each other.

The Factories Act 1955 (Manual Labour) (Maximum Weights and Transport) Regulations 1972 provide for operations of the kind being carried out in this case. By regulation 3(1), the regulations apply to persons employed in any process which is wholly or principally comprised of the manual transport of loads or which normally includes, even though intermittently, the manual transport of loads and which — (a) is carried on in a factory. ‘Manual transport’ is defined by the regulations as meaning in relation to a load any transport in which the weight of the load transported is wholly carried by the person by whom it is transported, and includes the lifting and putting down of the load.

The word ‘process’ as used in these regulations is not defined. The word has been the subject of judicial interpretation in similar regulations in England. Its meaning in regulations relating to processes involving asbestos was considered by the House of Lords in Nurse v Morganite Crucible Ltd [1989] AC 692. In that case, a Divisional Court had given leave to appeal to the House of Lords and had certified the following point of law as being of general public importance:

Whether for the purposes of the Factories Act 1961 and regulations thereunder ‘process’ carried on in a factory means a manufacturing process or other continuous and regular activity carried on as a normal part of the operation of the factory.

The question was not answered exactly as it was posed. In the speech of Lord Griffiths with which the other members of the court agreed, he said at 704:

Where the word ‘process’ is used in the regulations it means any operation or series of operations being an activity of more than a minimal duration.

In my view, the 1972 Regulations should be similarly construed. What the plaintiff was doing when he met with his injury was a process within the meaning of the regulations.

Regulation 6 of these regulations is as follows:

(1) Every person shall, prior to be being assigned to — (a) a process to which these regulations relate … receive adequate training or instruction in working techniques relating to the process for the purpose of safeguarding health and preventing accidents.

(2) The training or instruction mentioned in paragraph (1) of this regulation shall include methods of lifting, carrying, putting down, unloading and stacking different types of loads, and shall be given by a suitably qualified person.

*4
(3) Whenever a person receives training or instruction required by this regulation, such training or instruction shall, whenever practicable, be followed by adequate supervision to ensure that the correct methods are used by the person while engaged in the process to which the training or instruction relates.

(4) In case a person is required by this regulation to receive training or instruction it shall be the duty of the person by whom such person is employed to provide or arrange for the provision of such training or instruction.

‘Process to which these regulations relate’ is defined by the regulations as meaning any process which is a process described in regulation 3(1) of these regulations. Regulation 7 is as follows:

In order to avoid the necessity for the manual transport of loads suitable mechanical devices shall be used, so far as is reasonably practicable, in (a) every factory or premises mentioned in regulation 3(1) of these regulations.

The plaintiff was employed in a process which normally included a manual transport of loads. That employment was carried on in a factory. The regulations accordingly applied to him. It is common case that the plaintiff received no such training and it is equally common case that the defendant was aware that the fork-lift truck was inoperative from time to time and that the plaintiff had complained about this. In these circumstances it seems to me that the defendant was in breach of its statutory duties both as to training and as to provision of suitable mechanical devices.

It is now necessary to consider whether this breach of statutory duty was a causative factor of the accident. The defendant submits that it was a matter for the plaintiff to decide how to carry the particular load in question. It is submitted that even if he had been properly trained in accordance with the regulations that he would still have carried out his work in the way in which he did. It is common case that the plaintiff was using the proper posture for lifting and putting down loads. It follows from this that the failure to provide him with any adequate training in this aspect of the matter was not a causative factor of the accident. That however is not an end of the matter. Where an employee is doing an act like carrying a parcel as in the present case which he may well do for himself in and about his own affairs, there is I think a tendency to assume that the proper way in which the task should be done is either obvious or one involving the application of common sense. As such it may be thought to be a matter solely for the employee. Such an approach denies the need for a statutory regulation. But there is such a regulation. It is necessary then to consider what it requires and whether it has been followed. In my view, the regulation recognises the dangers inherent in carrying heavy weights. It imposes a considerable duty on *5 the employer. Not only must he train his employee, but he must take steps to see that in practice his employee follows the practices which he has been taught. None of this was done in the present case. If it had been done, the plaintiff would have learned more than the correct posture. He would have learned that in some circumstances it is safer to take the whole weight himself rather than to share it with another. He would have learned that in appropriate circumstances of which this was one it is advisable to break up the load. Had he been given such advice, it is clear that he would not have set about his particular task in the way he did. It is reasonable to suppose that because of this he would not have met with the accident.

In addition the fork-lift truck was not available. If it had been available the plaintiff would have used it. If he had used it, he would not have met with the accident. I do not accept that regulation 7 applies only to repetitive actions. In my view the failure to have the fork-lift truck adequately maintained when the employer was aware that it was breaking down from time to time was in itself a breach of the regulations. In the circumstances I am satisfied that the plaintiff is entitled to succeed against the defendant on the basis of breach of statutory duty.

Having regard to this view of the case, it does not seem to me that any question of contributory negligence can arise. The plaintiff was carrying out the job with the proper posture and in the belief that he was doing all that he could to minimise the problem which arose by reason of the failure of the fork-lift truck to start. In these circumstances the question of liability at common law does not have to be determined.

The plaintiff is a married man now aged 30 with two young children. He commenced his employment with the defendant at the age of 18. The accident itself did not appear to be very serious. He did report the fact that he had hurt his back but did nothing else except take the occasional painkiller. He did not go to his own doctor until 2 March 1978. Apparently thereafter his condition did not improve and he was referred to two different specialists in August. At that stage he was directed to physiotherapy and also given a lumbar belt support. He continued to work at his pre-accident job. He was made redundant in June 1988. He obtained employment as a representative with Abbey Life in September 1988. This was a job which brought him around Dublin. Later he changed his job and is now a representative with FBD Insurances. This job brings him around the country. He has to travel some 400 to 450 miles a week.

His back has continued to hurt him. He has discomfort and weakness and the pain tends to radiate into the left buttock. He also has tenderness in his lumbar region.

He was referred originally to an orthopaedic surgeon Mr Fitzpatrick in the Adelaide Hospital and then subsequently to Doctor Murray in the Rehabilitation Centre. He was treated by Doctor Murray until May 1988 and then referred to *6 Mr Martin Walsh also an orthopaedic surgeon. Mr Walsh’s opinion is that he suffered a soft tissue injury involving the ligaments in the lumbar region. Unfortunately he has a congenital condition known as spina bifida occulta . As a result the purchase for the ligaments at the spine is poor and symptoms are more prolonged and more serious than with a normal back. His view was that the plaintiff’s symptoms should have improved and that there is potential for further improvement. However he is of the view that the plaintiff should not undertake repetitive bending or heavy lifting.

The plaintiff was examined on behalf of the defendant by Dr Robinson. His findings are broadly in line with those of Mr Walsh. However he takes the view that the congenital condition is of no importance to his injury although he does accept that the plaintiff’s back would be slightly more vulnerable to injury. I prefer the view of Mr Walsh as to the effect of the congenital condition.

Mr Walsh in his evidence did not suggest that the plaintiff would have suffered pain from his congenital condition in any event. He considers that the accident is responsible for the plaintiff’s present pain. While clearly the level of pain originally caused to the plaintiff was fairly low it has been aggravated in the opinion of Mr Walsh by the failure of the plaintiff to seek treatment earlier. Nevertheless Mr Walsh did take the view that the plaintiff’s condition should have improved and takes the view that it will improve further. It has however persisted. The level of pain and discomfort can I think be measured by the acceptance by the plaintiff of employment requiring a lot of driving and therefore the maintenance of a fixed posture for considerable periods of time. Nevertheless, the pain has persisted and it is not contested that it is caused by the incident on 15 December 1986. In these circumstances it seems to me that an appropriate award for general damages is the sum of £15,000 to which should be added the small sum of £10 agreed special damages.

Edward Dunne v Honeywell Control Systems Ltd and Virginia Milk Products Ltd
1987 No. 11779P

High Court

20 July 1990

[1991] I.L.R.M. 595
(Barron J)

20 July 1990

Subject: Health and safety at work

Keywords: Accidents at work

Employer and Employee—Health and Safety—Accident at work—Employee engaged in repair work on customer’s premises—Whether statutory duty imposed on factories restricted to their employees—Whether liability in negligence—Apportionment of liability—Factories Act 1955 (No. 10), s. 37(1)—Safety in Industry Act 1980 (No. 9), s. 12(1)

Facts
S. 37(1) of the Factories Act 1955, as enacted by s. 12(1) of the Safety in Industry Act 1980, provides as follows:

Every place at which any person has at any time to work shall be made and kept in a safe condition and in addition to the foregoing there shall so far as is reasonably practical be provided and maintained safe means of access to and egress from every such place.

The first-named defendant (‘Honeywell’) carried on business as a supplier of control systems and had a service contract with the second-named defendant (‘Virginia’) whereby they maintained equipment which they had sold to Virginia. The plaintiff, an electrical technician employed by Honeywell, sustained serious injuries when he fell from a ladder on Virginia’s premises, where, in the course of his employment with Honeywell, he was engaged on a repair job. Expert evidence indicated that the ladder in question did not comply with accepted standards of safety. Other evidence showed that the plaintiff had carried a case of tools when ascending and descending the ladder, and the learned trial judge found as a fact the both the defendants contributed to his accident. The tool case carried by the plaintiff was one which had been provided for him by Honeywell. The plaintiff sought damages for negligence against Honeywell, and for negligence and breach of statutory duty against Virginia. The defendants alleged contributory negligence.

Held, by Barron J in finding both defendants liable, but in apportioning liability as to 80% against Virginia and 20% against Honeywell, and in awarding damages:

(1) S. 37(1) of the 1955 Act should not be construed as limiting its protection to servants of the factory owner. A person required to work on the factory premises for the purposes of the factory will be entitled to the protection of the section.
(2) The employer for the benefit of whose business an employee is working owes a duty of care to that employee commensurate with the extent of the control he is entitled to exercise over him. *596
(3) The plaintiff was not guilty of contributory negligence in relation to his claim for breach of statutory duty since his negligence did not amount to more than mere inadvertence. Kennedy v East Cork Foods [1973] IR 244 applied.
Cases referred to in judgment
Daly v Greybridge Co-operative Creamery Ltd [1964] IR 497; 99 ILTR 157
Garrard v Southey [1952] 2 QB 174; [1952] 1 All ER 597; [1952] 1 TLR 630
Kennedy v East Cork Foods [1973] IR 244
Lynch v Palgrave Murphy [1964] IR 150
Mulcare v South Eastern Health Board [1988] ILRM 689
O’Sullivan v Dwyer [1971] IR 275
Roche v P. Kelly and Co. Ltd [1969] IR 100
Representation
Declan Budd SC, Liam Reidy SC and David Hardiman for the plaintiff
Edward Comyn SC and Anthony Kidney for the first-named defendant
Garrett Cooney SC and Hugh Hartnett for the second-named defendant
BARRON J

delivered his judgment on 20 July 1990 saying: The first named defendant (‘Honeywell’) carries on business as suppliers of control systems. The second named defendant (‘Virginia’) are customers of Honey well by whom they have been supplied with control equipment. Honeywell have a service contract with Virginia whereby they maintain this equipment. Terms of that contract have not been given in evidence. The plaintiff is an electrical technician employed by Honeywell. On 26 March 1987 in the course of his employment with Honeywell he went to the premises of Virginia for the purposes of maintaining the control equipment supplied by Honeywell to Virginia.

On the day in question the particular job which the plaintiff was carrying out was to free a control valve which operated the flow of steam to a processor. The particular machine on which he was required to work was housed on the roof of the control room. Access to the roof was by a vertical ladder fixed to the wall of the building. The plaintiff brought his equipment and his tools onto the roof where he carried out his work. When it was completed he brought down his equipment. He returned for his tools. These were contained in a case. As he was descending the ladder with his case he lost his balance and fell off. He landed on a pipe and sustained severe injuries to his left heel.

The plaintiff now seeks damages against Honeywell for negligence and against Virginia for negligence and breach of statutory duty. Both defendants allege contributory negligence as against the plaintiff and also seek either contribution or an indemnity of their respective liabilities against the other of them. Two main issues of fact have arisen. First, whether or not the vertical ladder was safe and secondly whether or not the plaintiff ought to have ascended and descended the ladder carrying his case of tools.

The plaintiff himself was unaware before his accident of any possible danger in the manner in which he went up and down the ladder. However he did find *597 that use of the left-hand rail was impractical as he had to lean back to hold it, that he was unable to get his feet properly on the rungs of the ladder and that he was not able to put his arms around the ladder. In addition he found the ladder itself and the access to the roof very narrow. In describing the accident he said that he was holding the right-hand rail with his right hand. He had the case on the control room roof, he was holding it by the handle and he slid it across the roof towards himself. As it came off the roof and the weight came on this swung him around suddenly and he lost his grip on the right-hand rail and thereby fell to the ground.

Photographs of the ladder have been given in evidence as well as a drawing showing its several features. The ladder is 300 millimetres wide and approximately three and a half metres high. There is a hand rail on the right-hand upright of the ladder at a distance of four inches out from the upright. When it reaches the platform to which the ladder is the means of access it continues for a short distance. It then bends to the right and again straightens so that it ends up parallel to the position in which it first started. There is no hand rail on the left-hand upright of the ladder. There is a girder to the left of the ladder and the hand rail runs the length of that girder. That hand rail is eight inches laterally from the left-hand upright of the ladder and eight inches out from the face of that upright. The rungs of the ladder are 300 millimetres apart and vary in distance from the wall against which the ladder is placed from 230 millimetres at the bottom to 170 millimetres at the roof. The distance between the two hand rails where they continue above the level of the platform at their widest point is 610 millimetres but the available space is reduced to 500 millimetres by the girder. The available space is further reduced at the roof and below to 390 millimetres.

Evidence has been given by three engineers one for each of the parties. Mr Abbott on behalf of the plaintiff gave evidence of the various measurements to which I have already referred. He had a number of criticisms to make of the ladder. In the first place it was an addition to the factory premises and had to be built within the constraints of the existing structure. There was insufficient space for the person using the ladder at the point where the two rails were raised above the level of the roof. The space available at the roof, 500 millimetres, was less than the recommended width as set out in the relevent British standard for ladders issued in 1985. The right-hand hand rail where it passed within one and a half inches of a condensate pipe was both less than the standard distance of 3” and could be dangerous, because the pipe was from time to time hot. The steps were both too narrow and too deep and again were in breach of the standard to which he had referred. There were no protective hoops around the ladder which would in the events which happened almost certainly have prevented the plaintiff from falling. In his view there were a multiplicity of defects of a medium to serious nature. Mr Tennison who was called on behalf of Honeywell had *598 similar criticisms to make of the ladder. His view was that had there been hoops there would have been no accident. He relied upon the Engineering Equipment Users Handbook for 1982 from which the British standard for 1985 was taken. Mr O’Neill was called on behalf of Virginia. He took the view that the steps were not too narrow nor too deep. He did not accept that the British standard was generally used in this country while both Mr Abbott and Mr Tennison were of that view. There were a number of standards which were used in this country and the steps came within the limits of American standards. He did however say that he would have designed the ladder differently and with different features which would have been more comfortable to use. I prefer the evidence of Mr Abbot and Mr Tennison. In my view, the design of the ladder including the several features to which I have referred created a potential danger to those using the ladder.

The case with which the plaintiff was descending the ladder was 150 millimetres deep, 475 millimetres long and 350 millimetres wide. Since there was only a distance of 90 millimetres between the left-hand vertical rail of the ladder and the girder to the left it was not possible to bring the case, even in the manner in which the plaintiff was holding it, over the edge of the roof without at the same time bringing it over the upright of the ladder. It was clearly a particularly awkward manoeuvre and one which would have involved the plaintiff in moving his body away from the ladder so as to accommodate the case. This was dangerous because the evidence of Mr Abbott is that it is important to maintain one’s centre of gravity as near to the ladder as possible and this clearly was not possible if he had to lean away in order to bring the case off the roof. This problem was accentuated by the fact that the case weighed over 25 lbs and was an awkward shape. In my view the plaintiff ought not to have attempted to ascend and descend the ladder while carrying his case.

The plaintiff sustained his injuries by reason of a combination of these two factors. It is necessary now to consider whether these factors were a breach of any duty owed to the plaintiff by either or both of the defendants.

In Daly v Greybridge Co-operative Creamery Ltd [1964] IR 497 a young boy who was not employed at the creamery was injured by reason of the failure of the defendants to fence adequately certain machinery in breach of its duty under the provisions of the Factories Act 1955. The plaintiff was not employed at the factory. It was held that the defendants owed no statutory duty to the plaintiff. The reason for this decision is set out in the judgment of Walsh J at p. 502 as follows:

In the present case the plaintiff was quite clearly not ‘employed or working on the premises’ within the meaning of ss. 21, 22 or 23 of the Act of 1955 and, indeed, I doubt if he could be held to have been employed or working in any sense of those terms on the occasion of the accident. He was lawfully on the *599 premises but I cannot subscribe to the view adopted by the learned trial judge that that fact is in itself sufficient to give him the benefit of the statute as I think it is abundantly clear that the object of the Act is to protect only those persons who, broadly speaking, are employed in the factory premises at the work in which the factory is engaged or at work incidental to it.

This distinction is further emphasised in the judgment of Walsh J in Roche v P. Kelly & Co. Ltd [1969] IR 100. At p. 110 he says:

This Court in Daly v Greybridge Co-operative Creamery Ltd … held that the provisions of the Factories Act were not of an entirely general application to any person who happened to be in the premises in the course of his duties; the true distinction was between those who were there working for the purpose of the factory, or at work incidental to it, and those who were not.

In Roche v Kelly the plaintiff was an independent contractor employed by the defendant in the performance of a contract by the defendant to build a hay barn. In the course of his work he fell from scaffolding erected by the defendant and suffered serious injuries. The scaffolding was not erected in accordance with the provisions of the Building (Safety, Health and Welfare) Regulations 1959. It was held that he had a cause of action for breach of statutory duty as against the defendant. The obligation on the part of the defendant was to comply with the regulations in the circumstances contained in regulation 29 (1) which provided as follows:

Every employer undertaking building operations to which these regulations apply shall comply with such of the requirements of the regulations as affect any workman employed by him or as relate to any work, act or operation performed or about to be performed by the employer.

It was held that an independent contractor was not a workman within the first part of the regulation and so this part could not be invoked by him. It was however held that the second part of the regulation applied to an independent contractor, following the decision in Daly v Greybridge Co-operative Creamery Ltd, provided that the employer was performing any work, act or operation within the meaning of the regulation. On the facts, since the defendant remained in effective charge and control of the work, it was held that he was. Accordingly the defendant was subject to the obligations imposed by regulation 29 and the plaintiff succeeded. This latter decision was applied in O’Sullivan v Dwyer [1971] IR 275 in respect of the same regulations where the plaintiff was also an independent contractor.

These cases show that the persons to whom the statutory duty is owed depend upon the construction of the terms of the provision which imposes the duty. *600 Such persons must however come within the category of those who are working on the premises for the purposes of the factory or at work incidental to it. The duty relied upon in the present case is that imposed by s. 37(1) of the Factories Act 1955, as enacted by s. 12(1) of the Safety in Industry Act 1980. The plaintiff comes within the category of persons to whom the section can apply. The question is whether it should be so construed as to give him the benefit of the provisions in the circumstances of this case. The provision is as follows:

(1) Every place at which any person has at any time to work shall be made and kept in a safe condition and in addition to the foregoing there shall so far as is reasonably practical be provided and maintained safe means of access to and egress from every such place.

Part III of the Factories Act 1955 deals with safety. Some of its provisions are silent as to whom it is intended to protect. Other provisions refer to ‘every person employed or working on the premises.’S. 37 refers to ‘every place at which any person has at any time to work.’ Having regard to the words used in the relevant provisions of Part III of the Act, there is no reason why the section should be given a construction limiting its protection to servants of the factory owner. The plaintiff was required to work on the factory premises for the purposes of the factory and was accordingly entitled to the benefit of the section.

An employer has a duty to take reasonable care for the safety of his employee. 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 (see Mulcare v South Eastern Health Board [1988] ILRM 689).

This duty remains upon the master wherever and for whoever the servant may be working unless in the actual case that other person should in law be regarded as the master. In Lynch v Palgrave Murphy [1964] IR 150 a forklift and driver were hired out to a firm of stevedores. The plaintiff was injured through the negligence of the driver. It was held that if the driver had passed into the special employment of the stevedore, then the latter would be vicariously liable for his negligence; whereas, if he had not, this liability would have remained with his general employer. The court held that it was a question of fact whether or not the particular acts complained of were carried out as an employee of the stevedore or as an employee of the owner of the forklift.

The present case differs in the sense that the question is not, which employer should be vicariously liable for the acts of the plaintiff, but which employer owed him the duty of care owed by a master to his servant. But the test is the same, was the control exercisable by the person for whom he was working, such *601 as to make that person in reality the master. When it is, then it is that person who is liable: See Garrard v Southey [1952] 2 QB 174.

Here the plaintiff was performing a maintenance contract on behalf of Honeywell. Employees of Honeywell were regularly at the factory for that purpose. How the plaintiff carried out the maintenance of the processer and dealt with the control valve which required to be freed was a matter for him. It was because of his particular skill that he was required to do the work rather than an electrician employed by Virginia. To this extent Virginia had no control over him as he went about his actual work. Nevertheless he was doing that work for the benefit of Virginia. If his work impinged on other work being carried out, Virginia was entitled to order the work to suit itself. Virginia had a control over the plaintiff to that extent. This control did not make Virginia the plaintiff’s master. Nevertheless, it seems to me that the employer for the benefit of whose business the employee is working owes a duty of care to that employee commensurate with the extent of the control he is entitled to exercise over him. If the employee does or does not do something which it would be within that employer’s control to prevent or require, as the case may be, he is in breach of duty. Here the plaintiff would normally have had the assistance of one of Virginia’s electricians. In my view, if Virginia had a duty, as they had, to tell their own electrician not to carry cases or other materials as he ascended or descended the ladder, it had an equal duty to the plaintiff to give him a similar instruction.

Both defendants were in breach of their respective duties towards the plaintiff. The plaintiff was carrying his tools in a case which had been provided for him by Honeywell. In previous employments, he had used a satchel which he could carry over his shoulder and so leave his hands free when ascending or descending a ladder. However, Honeywell thought that a case gave his work a better image.

Honeywell should have known that the plaintiff would have been required to ascend and descend this ladder. Its employees went regularly to these premises and had presumably installed the equipment. It is reasonable for it to have inspected the premises in advance to ascertain the nature of the access to the workplace which would be provided for its employees. He should have been warned not to carry his whole case of tools onto the control room roof. Virginia was entitled to expect that Honeywell would have performed its duty of care towards the plaintiff to this extent. Once Virginia saw that this was how the work was being done, it should have prevented it and provided an alternative method for getting the tools to where they were required. Other testing devices were also carried up and down the ladder and this also Virginia failed to stop. Neither Honeywell nor Virginia did what was required of them in these respects. Honeywell left everything to the plaintiff and Virginia did not concern itself with him. Virginia was not entitled to ignore the presence of the plaintiff once *602 it knew or ought to have known he was on the premises. No evidence has been given by Virginia in this regard. However even if Virginia did not know that the plaintiff was on their premises, they ought to have known and cannot escape liability on this basis.

The plaintiff cannot be totally exonerated. He ought to have realised the danger. In my view, the defects in the ladder for which Virginia is liable as occupier of the factory and the use of the case rather than a satchel were equally the cause of the accident and the fault attributable to each cause was likewise equal. I would assess the degrees of fault at common law as being 70% on Virginia, 20% on Honeywell and 10% on the plaintiff.

Contributory negligence in an action for breach of statutory duty has a different meaning from contributory negligence in an action for negligence at common law. In the former case the employee is not guilty of contributory negligence merely because he was careless or inattentive, or forgetful, or inadvertent. This meaning is taken from a passage in the judgment of O’Dalaigh CJ in Kennedy v East Cork Foods [1973] IR 244 at p. 249. There he is citing with approval part of the charge of the trial judge to the jury in a case where a jury had found contributory negligence against the plaintiff in relation to his claim for common law negligence but had exonerated him of contributory negligence in his claim for breach of statutory duty. The passage to which he referred continued:

It must be shown that he did something rather more than that. He must enter into the realm of downright carelessness, because the Factories Act was passed for the express purpose of saving factory workers from their own carelessness, and their own inattention.

The plaintiff was not taking sufficient care for his own safety, not through any positive act on his part, but because the danger did not occur to him. For this reason having regard to the principle of law to which I have referred, the plaintiff was not guilty of contributory negligence in relation to his claim for breach of statutory duty. He is accordingly entitled to recover in full against Virginia for breach of statutory duty.

The plaintiff is a married man aged 35 with three children, the eldest of whom is now aged six. Both the plaintiff and his wife gave their evidence fairly and without exaggeration. I accept that evidence totally as the truth both in regard to the circumstances of the accident, the injuries which the plaintiff sustained, the effect which those injuries have had on him since his accident and his fears for the future. I accept also the medical evidence in full.

The plaintiff sustained serious injuries as a result of his fall. His main injury was a severe fracture of his left heel. He remained in hospital until 3 April 1987. Because of the severe swelling which occurred it was not possible to put a plaster *603 of paris on the fracture until several days had elapsed. He went home in plaster and on crutches. He was in very considerable pain both when in hospital and upon his return home. His local general practitioner Dr Michael O’Doherty found difficulty in controlling his pain and referred him to Mr O’Connell an orthopaedic surgeon in Wexford. He saw the plaintiff on 17 April 1987, when he was given a history of the accident. He found that the joint surfaces were damaged and were painful, the pain being caused by bleeding into a closed space. His injuries related to the sub-talus and the mid-tarsal joints, which control inversion and eversion of the heel.

Blood supply to the foot became a problem and there was interference with the sympathetic nerve supply to that area, causing throbbing pain and hypersensitivity of the foot. He was referred to Professer Bouchier-Hayes. He found that the plaintiff was suffering from post-injury causalgia, a condition in which a patient develops severe burning pain and hypersensitivity in an injured limb. He advised an operation to block the sympathetic nervous system to the area in order to reduce the severe pain and the degree of hypersensitivity. This operation took place on 14 August 1988. The plaintiff remained in hospital until 26 August 1988 and was out of work for a total of six weeks at this period. The operation was a success in the sense that the hypersensitivity ceased and the serious throbbing pain in the foot also ceased.

Following this operation the plaintiff’s toes started to claw, this caused him pain in the knuckles of his toes and his shoes were being put out of shape. This condition was treated operatively in October 1989. He was in hospital for six days and out of work again for approximately six weeks. Following these operations the overall condition of the plaintiff has improved over the last year.

The present condition of the plaintiff is that he is left with a limp though not a bad one. He has not got good movement in his foot, he has a damaged joint with irregular surfaces and the joint is very stiff. He suffers pain on walking on uneven surfaces, he cannot run and has difficulty in walking for any distance. He finds it easier however to walk than to stand and depending upon the amount of use to which he subjects his foot it tends to swell at any time from mid afternoon onwards.

The plaintiff’s hobbies involved playing squash and fly-fishing. He finds he is unable to do either of these sports now. He has taken up golf and finds that this is something he can do since he can walk around the course at his own speed. He has been advised to wear special shoes but has not yet obtained any. He packs his shoe with soft padding and wears heavy socks to protect his feet. He is anxious about his future because although he has a secure and permanent job he is worried that if he loses it he may be unable to obtain alternative employment, since employers require an application form to be filled out which requires the applicant to go for a medical and also asks if he has ever been involved in an industrial accident.

*604

His foot is now permanently deformed and this is obvious when it is looked at from behind. It is probable that he will get sufficiently severe secondary arthritic degenerative changes in the damaged joints to require a fusion of those joints between ten to 15 years from now. If he does have to have that operation it will mean a stay in hospital between two to three weeks and it will be four to six months before he has recovered. During the earlier part of that period the foot will be in plaster.

I am satisfied that the plaintiff sustained very severe injuries and as can be seen from his history there were a number of complications. His position now is permanent and will not improve. He has undergone very considerable pain and suffering and this pain and suffering is going to continue well into the future.

The plaintiff’s wife also gave evidence, which affirmed many of the matters to which I have already referred. He had always been active, now he could no longer play squash or fish. It was the little things which he could not do and which everyone took for granted which were the most upsetting.

I assess damages for pain and suffering in the past at the sum of £50,000 and for the future at the sum of £75,000. Special damages are agreed at £3,669.87. The gross damages are accordingly £128,669.87.

The plaintiff is entitled to judgment as against Virginia for the whole of this sum, and as against Honeywell for 20% of it. As between the two defendants, Honeywell is repsonsible for 20% and Virginia for 80% and each is entitled to contribution from the other of them in the event of the plaintiff executing as against either in excess of those percentages. The pleadings suggested that the agreement between the parties would have altered this liability inter se. However, no evidence was adduced on this issue.

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Quinn -v- Bradbury & Bradbury

Doyle -v- E.S.B.

Gillane -v- Focus Irl Ltd

Geraldine O’Grady v Abbott Ireland

David Dunleavy v Glen Abbey Ltd

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Quinn -v- Bradbury & Bradbury

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David Dunleavy v Glen Abbey Ltd

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